Industrial Relations Commission of New South Wales CITATION : Clerical and Administrative Employees (State) Award [2003] NSWIRComm 345 APPLICANT Federated Clerks' Union of Australia, New South Wales Branch RESPONDENTS PARTIES : Employers First Printing and Allied Trades Employers Association of New South Wales Restaurant and Catering Industry Association of New South Wales Australian Business Industrial Motor Traders' Association of New South Wales FILE NUMBER: IRC 4692 of 1999 and IRC 3613 of 2001 CORAM: Glynn J Award - competing applications to vary Clerical and Administrative Employees (State) Award to include telephone canvassers - disagreement as to appropriate rates and conditions - insufficient evidence - minimal terms awarded. CATCHWORDS : Award - Time Payment Collectors Award - rescinded by consent. Industrial Relations Act 1996 s 10 s 17 s 18 s 19 s 21 s 22(1) ss 73 to 82 s 146 LEGISLATION CITED : Lotteries and Art Union Act 1911 Annual Holidays Act 1944 Re Clerical and Administrative Employees (Classification Structure) (State) Award (unreported, Glynn J, 92/2335 and ors, 25/10/96) In re Clerks (State) Award 1978 AR 724 Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award [2002] NSWIRComm 144 Re Health and Community Employees Psychologists (State) Award [2001] NSWIRComm 302 In re Miscellaneous Workers - Security (State) Superannuation Award (unreported, CICSFB, Fisher P, Cahill VP and Bauer J, 89/1588, 18/12/90) Re Nurses &c Other Than in Hospitals &c (State) Award (unreported, Maidment J, 91/1330 and ors, 24/9/92) Re Parking Attendants and Motor Car Washers &c (State) Award (unreported, Tabbaa C, IRC92/4139, 12/11/93) CASES CITED : Re Principles for Review of Awards - State Decision 1998 (1998) 85 IR 38 Re Private Pathology Laboratories (State) Award (unreported, Glynn J, 84/572 and ors, 17/6/93) Re Restaurants &c Employees (State) Award (unreported, Marks J, IRC95/216 and 1875, IRC96/1026, 23/8/96) Re Social and Community Services (State) Award (unreported, Glynn J, 88/1278 and ors, 6/8/90) State Part-time Work Case (1998) 78 IR 172 Re Storeworkers-Davids Distribution Pty Limited NSW Distribution Centres Award 1998 (1998) 85 IR 179 Re Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335 Telephone Canvassers Inquiry Report (unreported, Glynn J, IC No 84/1714, 24/12/86) HEARING DATES: 02/25/2002; 02/26/2002; 03/04/2002; 03/05/2002; 03/12/2002; 04/02/2002; 04/03/2002; 04/08/2002; 04/09/2002; 04/10/2002; 06/25/2002; 06/26/2002; 07/01/2002; 09/23/2002; 10/08/2002; 10/09/2002 DATE OF JUDGMENT: 10/24/2003 APPLICANT: Ms F Hancock Federated Clerks' Union of Australia, New South Wales Branch RESPONDENTS: LEGAL REPRESENTATIVES: Ms T Marshall Employers First, Printing and Allied Trades Employers Association of New South Wales and Restaurant and Catering Industry Association of New South Wales Ms S Wellard Australian Business Industrial Ms C Chalk Motor Traders' Association of New South Wales JUDGMENT: - 77 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES CORAM: GLYNN J 24 OCTOBER 2003 MATTER NO IRC 4692 OF 1999 CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by Federated Clerks' Union of Australia, New South Wales Branch for variation re wages & anor. MATTER NO IRC 3613 OF 2001 CLERICAL AND ADMINISTRATIVE EMPLOYEES (STATE) AWARD Application by Employers First for a new award. DECISION [2003] NSWIRComm 345 1 The Commission has before it two applications in relation to the Clerical and Administrative Employees (State) Award. 2 The application by the Federated Clerks' Union of Australia, New South Wales Branch (the FCU/union) seeks to vary cl 42(ii) Area, Incidence and Duration, of the Clerical and Administrative Employees (State) Award (the Clerical Award) in terms of its Amended Schedule filed 3 April 2002, to include the words "telephone canvassers (other than canvassers for the sale of goods)". That being done, the conditions and rates of pay of the Clerical Award would automatically apply to employees falling within that category. 3 On the other hand, the Employers First application is in terms of an application for a new award. However, by consent, Employers First in these current proceedings, pressed for two variations only. The first variation sought is the same as that of the FCU, namely to vary cl 42, Area Incidence and Duration in the same way. 4 The second variation sought by Employers First is the insertion into the Award of a new sub-cl 5.2 with provisions specific to telephone canvassers and different in some respects from those applying generally under the Award, especially as to wages and hours. 5 On 5 March 2002, both applications were amended by consent to insert the word "telephone" before the term "canvasser (other than canvasser for the sale of goods)" originally sought by both to be inserted in the area, incidence and duration clause. It was said that that change to "telephone" was agreed in the light of the evidence brought by the FCU. However, the employers do not consent to the insertion of the category of "telephone canvassers (other than canvassers for the sale of goods)", if the second variation sought by them is not granted. 6 Employers First's application was further amended on 8 April 2002, to include a new classification of Team Leader to meet some of the evidence that had been brought forward. The relativity proposed was 92.4%. The second amendment on that day was to include in the Area, Incidence and Duration clause "telephone canvassers (other than for the sale of goods)" in its own particular part of that clause to ensure that the exemptions which exist for other particular clerical awards apply also to canvassers. 7 On 24 June 2002, Employers First filed two further amended applications (the second being necessary because Schedule A in the first application did not contain all of the changes that should have been included). The making of that amendment was by consent. 8 The Further Amended Application filed by Employers First on 24 June 2002 actually became a "Further Further Amended Application" as described in oral submissions on 25 June 2002. The changes in both amended applications were consented to by the FCU and Australian Business Industrial (ABI). 9 On 25 June 2002 Ms Marshall explained: The further amended application did not contain Schedule B which was the grounds and reasons. They are found in the original application filed 31 May. There is an issue in relation to that. The original application as filed sought to do two things: One, to incorporate appropriate conditions and rates of pay for canvassers. There was a second part to the application which dealt with the application as a whole and in general terms goes to Saturday and Sunday work and extension of ordinary time Mondays to Sundays. The only issue was that in the original grounds and reasons, at point five, one of the grounds was it was appropriate that the award provide flexibility and efficiencies including ordinary work on Saturdays and Sundays and a greater spread of ordinary hours. That particular ground and reason was intended to go to the second part of the application so it does not necessarily apply to this canvassers part of the application. So it would be a matter of removing point five from the grounds and reasons, which is what was done. 10 The parties agreed that those parts of Employers First's application which fell outside the telephone canvasser issue would be dealt with after that issue had been decided. 11 In this judgment when I refer to "telephone canvassers", I am, unless otherwise indicated, referring to "telephone canvassers (other than canvassers for the sale of goods)". 12 Appearances were as follows: Ms F Hancock on behalf of the Federated Clerks Union of Australia, New South Wales Branch (the FCU, the union). Following the filing of its application 1999, the FCU became part of a new entity that being the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union. Ms T Marshall for Employers First, the Printing and Allied Trades Employers Association of New South Wales and, later, the Restaurant and Catering Industry Association of New South Wales. Ms S Wellard for Australian Business Industrial (ABI). Ms C Chalk for the Motor Traders' Association of New South Wales (MTA). 13 The Motor Traders Association initially participated in proceedings because of its concern that there could be confusion as to the coverage of the classification of "record keepers" covered by a Federal award and the coverage of canvassers sought by the FCU in its application. On 8 April 2002, the Commission was advised by Ms Chalk that discussions between the MTA and the FCU as to a notation/exemption the MTA was seeking to have inserted into the award had broken down. She sought for time to be put aside for the MTA to make submissions and for getting witness statements to support those submissions. On 8 April four further days were set to accommodate that request. 14 On 10 April 2002, Ms Hancock stated that it was the position of the FCU, in these proceedings, that it did not seek to cover anybody already covered by a Federal award. That position had been advised to the MTA in 1999. The negotiations between the FCU and the MTA had broken down because the FCU was not prepared to vary the award to include that statement explicitly. The FCU said that, because of the operation of law, the FCU cannot cover people covered by a Federal award. 15 The MTA withdrew from the proceedings on 11 April 2002, on the basis of the response placed on transcript by Ms Hancock confirming the Union's intention as outlined in correspondence dated 16 November 1999. The MTA sought to vacate the days set down for it to advance evidence and submissions. 16 In October 1999, the Restaurant and Catering Industry Association of New South Wales (the Association) consented to the FCU's original application (IRC 4692 of 1999). That organisation later received a further application from the FCU, that being an application for a new award to be known as the Telephone Canvassers in Call Centres (State) Award (IRC 846 of 2002). (That application has been stood over generally.) At the same time the FCU advised the Association that the new application was related not only to its first application (IRC 4692 of 1999) but also to an application by Employers First (IRC 3613 of 2001) for a new Clerical Award. Upon further consideration the Association decided that, contrary to their first position, which was that the FCU's application was unlikely to affect its industry, all three applications did, in fact, affect their industry. On 26 February 2002, its consent to application IRC 4692 of 1999 was withdrawn and the Commission advised by the Association that it now supported Employers First's application (IRC 3613 of 2001). 17 Mr Duc, on behalf of the Association, stated that since 1999 several of its members, in a very competitive catering industry, now employ, in small numbers, people on a casual part time capacity, to undertake telephone canvassing as a marketing tool in order to get more business. 18 Employers First called the following witnesses: Peter Francis Brink, General Manager, Corporate Fundraising, House With No Steps (HWNS). Peter Russell Westbrook, Director of the Australian Foundation for Disabilities (AFFORD). Katherine Purcell, Human Resources Manager, Royal Blind Society (RBS). Allan John Harrington, Manager, Call Centre Fundraising since October 1994 of the Royal Institute for Deaf and Blind Children (RIDBC). 19 Employers First originally intended to adduce evidence of canvassers beyond those in call centres and beyond those using telephones, basing its approach on the wider definition attributed to "canvasser" in the Report of Telephone Canvassers Inquiry (TCI Report) (Glynn J; IC No 84/1714; 24/12/86). That reflected Employer First's view as to what the original application by the union sought to cover, in that it was intended to vary the area, incidence and duration clause for "canvasser (other than canvasser for the sale of goods)", not limited to a telephone canvasser. 20 In the light of the amendment of the applications to restrict them to "telephone" canvassers, Ms Marshall announced that she would not be calling two witnesses, on whose behalf statements had been filed, in relation to two organisations whose employers did not use the telephone to approach people. 21 The first of those organisations was a large provider of death care services. One of those services was the purchase of a funeral in advance of death (referred to as "pre-need"). Leads came from a range of sources such as advertising campaigns, direct mailing, personal referrals, home visitation presentations or direct contact from clients. 22 The second organisation was a very large gym organisation which employed consultants. Those consultants personally canvassed in locations such as shopping centres to sell gym memberships to people visiting those shopping centres. 23 The following witnesses were called by the FCU: Selma Salway, telemarketer employed by Park Trent Investments Pty Ltd (Park Trent) since May 2000. Aureole Gaffney, assistant services consultant, employed by the NRMA. John Wetherill Bridge, telemarketer as at 3 April 2002, employed by Loughlin Pty Ltd selling raffle tickets for the Royal Lifesaving Society; previously employed in a similar role by the Spastic Centre (4 years) and earlier by Postel Ltd (1992-1997). Patricia Dal Bianco, employed since April 2001 at The Rothbury Estate selling wine over the counter, but previously employed as a telemarketer by Australian Wine Selectors (July 2000 - May 2001) and also by Flick Pest Control (October 2000 - June 2001). Veronica Graham, employed for 12 years at Bartter Enterprises, and for the last 18 months in its Telesales Department. Gerrad Hennessy, employed at Pinpoint Marketing (Pinpoint) since May 1998 as a Customer Service Representative (CSR). Jason Hastie, employed by the Everest Marketing Corporation t/a Park Trent Investments since 1999, commencing as a Trainee Telemarketer, and since March 2001, employed as Team Leader. Inspections - Requested by Employers First 24 AFFORD Packaging, Cutler House, Cherrywood Village, 844 The Northern Road, Llandillo (P Westbrook Director of Operations, Ms M Turner, Manager, Fund Raising). AFFORD's main fund raising activity is the conduct of the Cherrywood Raffle. Telemarketers are employed to sell raffle tickets. 25 House With No Steps (HWNS) 4 Charles Street, Parramatta. P Brink, General Manager, Ms J Murphy, Fund Raising Manager, Ms D Lilly, Office Manager. The only product the HWNS has to sell is an art union ticket. 26 Royal Blind Society, 4 Mitchell Street, Enfield. Ms K Purcell; Ms A Clement. Inspections - Requested by the FCU 27 Bartter Enterprises Pty Ltd, Cnr South and Richmond Streets, Marsden Park 28 NRMA, 110 George Street (Octagon Building), Parramatta. 29 Park Trent Investments Pty Ltd, 39-41 Montague Street, Fairy Meadow. Existing Industrial Coverage 30 There are current industrial instruments covering some institutions concerning which evidence was given: 31 The Royal Institute for Deaf and Blind Children Employees' (State) Award (321 IG 716) includes amongst its many classifications covering in total 353 employees those of "clerk (fundraising)" and of "clerical supervisor (Fundraising)" but makes no specific mention of the Rainbow Lottery operators who are employed in the Call Centre Fundraising Section. Mr Harrington did not know if the operators came within that first classification. 32 The telemarketers employed by the HWNS are covered by the House with No Steps Corporate Fundraising Workplace Agreement (Boulton J, 6/3/01) (in force until March 2004). This Agreement is based on the (Federal) Market Research Industry Award. 33 Royal Blind Society of New South Wales Enterprise Agreement 2001. Ms Purcell said this Agreement does not cover Tele Sales Representatives at the RBS because they did not want to be covered by it. The telesales agents at the RBS are award free. They are employed through a telesales agreement document that details their conditions: rate of pay, hours and times of work and commission basis, basis of employment (casual). 34 AFFORD is party to the Federal Australian, Liquor, Hospitality and Miscellaneous Workers' Union Supported Employment (Business Enterprises) Award 1993. The Applications 35 As already noted, the variation to the Clerical Award sought by the union was to include in cl 42(ii), Area Incidence and Duration, the classification "telephone canvassers (other than canvassers for the sale of goods"), that variation having the effect that the conditions and rates of pay of the Clerical Award would automatically apply to such canvassers. 36 On the other hand, Employers First sought a new sub-cl 5.2 to provide specific conditions and rates for telephone canvassers, the conditions to include some provisions of the Clerical Award and to exclude others. Wage Fixing Principles 37 The preamble to the Wage Fixing Principles provides: In exercising its power and obligations under the Industrial Relations Act the Commission would continue to apply structural efficiency considerations including minimum rates adjustment provisions 38 Set out below are relevant wage fixation principles: 7 Standard Hours In approving any application to reduce the standard hours to 38 per week, the Commission will satisfy itself that the cost impact is minimised. Claims for reduction in standard weekly hours below 38 will not be allowed. … 10 Special Case Except for the flow on of test case provisions, any claim for increases in wages and salaries, or changes in conditions in awards, other than those allowed elsewhere in the principles, will be processed as a special case before a Full Bench of the Commission, unless otherwise allocated by the President. This principle does not apply to applications for awards consented to by the parties, which will be dealt with in the terms of the Act, or to enterprise arrangements, which will be dealt with in accordance with the Enterprise Arrangements principle. … 13 First Award and Extension to an Existing Award Any first award or an extension to an existing award must be consistent with the Commission's obligations under Part 1 Chapter 2 of the Act. In determining the content of a first award the Commission will have particular regard to: (a) relevant wage rates in other awards, provided the rates have been adjusted for previous State Wage Case decisions and are consistent with the decision of the State Wage Case 1989; (b) the need for any alterations to wage relativities between awards to be based on skill, responsibility and the conditions under which the work is performed; (c) for conditions of employment, other than wage rates, prima facie the existing conditions of employment; (d) that the award would comply with the requirements of section 19 of the Act. … 15 Economic incapacity Any employer or group of employers bound by an award may apply to, temporarily or otherwise, reduce, postpone and/or phase in the application of any increase in labour costs determined under the principles on the ground of very serious or extreme economic adversity. The merit of such application shall be determined in the light of the particular circumstances of each case and any material relating thereto shall be vigorously tested. Significant unemployment or other serious consequences for the employees and employers concerned are significant factors to be taken into account in assessing the merit of any application. Such an application shall be processed according to the Special Case principle. Any decision to temporarily reduce or postpone an increase will be subject to a further review, the date of which will be determined by the Commission at the time it decides any application under this principle. Special Case Principle 39 Following a reference of the applications to the President of the Commission, his Honour on 20 September 2002 made the following Determination: Determination Pursuant to s 193 of the Industrial Relations Act 1996 and Principle 10 of the State Wage Case 2002 Principles. Clerical and Administrative (State) Award - FCU application - Matter No IRC4692 of 1999 and Clerical and Administrative (State) Award - Employers First application - Matter No IRC3613 of 2001 Having considered the Reference to the President of the Commission by the Honourable Justice Glynn in these matters dated 20 September 2002, I determine that the "telephone canvassers" aspects of the proceedings, including any Special Case aspect of them, are to be dealt with by the Honourable Justice Glynn. 40 During the course of her submissions, Ms Marshall accepted that variation of the Award in terms of either application would result in a wage increase. On that basis, there appeared to be consent to a wage increase, but not to a particular amount. The fact that there was not general agreement to a wage increase only became known to the other parties and to the Commission in October 2002 when ABI made its final submissions. 41 ABI's position in relation to Employers First's application is bifurcated. That application is ABI's preferred application and it supports Ms Marshall's submissions entirely. However, ABI submits there is not sufficient evidence before the Commission to justify granting its preferred application. 42 The Special Case principle is relevant in circumstances of non-consent to an increase, but I do take into account what, on the face of the submissions, would seem to be limited consent to an increase in wages and conditions. 43 A further aspect of any wage increase, however, is that such increase, in accordance with the FCU's application, arises because of the extension of the Clerical Award to telephone canvassers. That Award is a minimum rates award, wage increases awarded under it having come from increases in wages and allowances available under the relevant State Wage Case as each is decided. Those increases have in recent years been granted by consent. 44 The outcome of this judgment could result in a direct increase in wage rates for some employees. Other increases could come from changes such as the granting of a casual allowance of 20% and of an hourly divisor of 38. To that extent there may be, in the light of ABI's approbate/reprobate approach, a situation which calls for determination in accordance with the Special Case principle. In the light of the Determination made by Wright J, President I do not propose to spend further time on the issue but to proceed on the basis that the Special Case principle is relevant. 45 I also find for the reasons set out in the course of this judgment, that the increases in rates and conditions for telephone canvassers, now brought under the Clerical Award are justified in accordance with the Special Case principle. First Award Principle - Submissions - EF 46 Employers First's application has always been advanced on the application that it is a first award and first award principles apply. Principle 13 is relevant. The union, in saying that this should be characterised as an extension to an award rather than first award, has characterised it incorrectly. 47 Employers First contended that because its application seeks to provide a new clause within the Clerical Award that provides certain conditions of employment for telephone canvassers, this is a first award. No award has been made to cover those employees. It is not an extension of the existing award because it is enclosed in an existing award. 48 Some employers have entered into their own arrangement in relation to these employees. An example is The House With No Steps which has a certified agreement which applies to its employees. Those conditions ought not be necessarily imposed on the industry in a common rule award, particularly a first award. 49 Structural efficiency considerations are also relevant to the approach to first awards (see Re Social and Community Welfare Services (State) Award, 81/477 and ors; 6/8/1990; Glynn J). It is particularly relevant for those structural efficiency considerations to be considered when making a first award for these particular employees. The application, if successful, will set conditions of employment and rates of pay for a class of employees previously unregulated in the main other than by each individual enterprise arrangement. The Employers First application is more appropriate as it seeks to try to maintain the existing conditions of employment which have been based on the evidence that has come before the Commission. First Award Principle - Submissions - FCU 50 The union's application would represent a new award for telephone canvassers, but by way of extension of an existing award rather than a new award per se. It is an application made under s 17 of the Act to vary the Award. 51 In terms of an application to extend an award, Principle 13 requires that the extension be consistent with the Commission's obligation under Pt 1 Ch 2 of the Act. There is no further requirement under Principle 13 with respect to extension to awards and it has been the case since 2001. 52 In Re Social and Community Services Employees (State) Award [(2002) 113 IR 119] the Commission considered the role of awards in terms of providing an adequate safety net and although that application was not strictly for a first award, the Commission applied first award principles because of what they said was a "faltering of momentum" with the previous award. While the Commission noted the necessity for the restrained and cautious approach when making a first award, it was found that as the award did not provide the usual standards, it did not operate as an adequate safety net. 53 The general standards that should be considered in this case are those in the Clerical Award as well as those in the Newspapers and Permanent Building Society Awards that already cover the work of telephone canvassers in the clerical industry. The Union submits that those current conditions would provide an adequate safety net for the employees in question. 54 Relying on the State Wage Case 2002 decision at [60] to [62], the Union submits that as the Clerical Award is an award that provides a minimum rate of pay condition for many workers, including the low paid, the Commission should not go below the terms of that award when deciding what award to make for telephone canvassers. 55 If the Commission is required to take into account public interest by way of both ss 146 and 17 of the Act, the Union submits that the content of its application is not contrary to public interest. The variation it seeks is to eliminate the current confusion as to whether telephone canvassing is award free. That cannot be contrary to public interest, nor can an application that seeks to provide equitable rates of pay and conditions of employment to a group of employees who are so closely connected with clerical employees that their career paths more than likely lead them in the direction of clerical work. 56 There is no definition of the public interest in the Act. The Union is relying in this case on the test that the application is not contrary to public interest rather than trying to prove that it is in the public interest. 57 In terms of the new award, Principle 13 sets out what the Commission must consider. With respect to (a) of Principle 13, the Union says that other New South Wales awards that had relativities that are at least equivalent to the Clerical Award are the Mirror and Telegraph Publications Award (high relativity), the Sydney Morning Herald Classified Call Centre (State) Award (higher relativity), the Permanent Building Society Award (same relativity with grades to grade 5 and with a higher relativity grade 1); and the Clerical Employees in Metropolitan Newspapers (State) Award (same relativity). 58 The work that is performed at Bartter is already covered by the Clerical Award, which is the parent award to the Bartter agreement, and the relativities that are contained in the Clerical Award will be applied to canvassers at that organisation. 59 In relation to the existing conditions of employment of all of the witnesses, some had unregulated conditions of employment and some are covered by in-house agreements or awards. Those conditions of employment were not consistent. They were wide and varied, ranging from quite modest rates of pay and conditions at AFFORD and branching up to quite well paid and good conditions of employment at the NRMA. It is difficult for the Commission to take paragraph (c) of Principle 13 into account because the current conditions of employment are so varied. 60 On the last requirement in Principle 13 (d), all the Union can really say about that is that the Clerical Award had a s19 review and the other New South Wales awards that the Union relied upon had also had a s19 review. First Award Principle - Consideration 61 There was agreement between the parties that Principle 13, first award and extension to existing award, applied to the applications. The parties, however, did not agree as to whether the applications were properly to be seen as first award applications (the contention of EF) or an extension to an existing award (union). They did agree that structural efficiency and minium rates adjustment provisions did apply. 62 The Clerical Award is a well established existing award of this Commission. Both applications seek to vary that well established award by bringing within it to a greater or lesser degree, telephone canvassers, a category of employee currently award free. 63 In the usual course of events the extension of an award to cover a new category or group of employees has the effect that the rates and conditions contained in that award automatically apply to employees in that category or group. 64 Although the issue was not addressed it seems to me undeniable that the onus is on the party seeking that that natural course of events should not follow, to show why that should be so. In these proceedings there is an onus upon the employers. 65 However, the onus in this case is not as straight forward as it might be in the ordinary course of events. Telephone canvassers are not clerical or administrative employees to whom the provisions of the Clerical Award apply, because otherwise there would not be the need for these applications. An onus is also on the union to show that the provisions of the Award are appropriate to be awarded for telephone canvassers. 66 Employers First contended that the clause it seeks to insert is not an extension of the existing award because it is enclosed in an existing award. In my view, it is patently clear that what is sought is an extension to an existing award. The very clause it seeks to insert refers to provisions in the Clerical Award, either to include or exclude them. 67 I accept that it is appropriate to take into account in determining these applications general principles relating to first awards. As was said in Re Social and Community Services Employees (State) Award (2002) 113 IR 119 at 196 the generally accepted and conventional approach to the making of a first award is a restrained and cautious one. Submissions - General - Employers First 68 In the absence of these people falling within the Clerical Award there is no other award which could have applied to these particular employees with the exception maybe of the Time Payment Collectors Award although the coverage of that award appears to be quite limited. Clause 26 - area, incidence and duration of that Award states: This award shall apply to all persons employed as canvassers or collectors for time payment, hire purchase, cash order or money lending businesses and persons employed in connection with such businesses throughout the State, excluding the County of Yancowinna. 69 Given this is the only other common rule award which does seem to contemplate the types of employees who gave evidence in this case, it is submitted that clearly they were award free. There has not been any evidence as to what time payment collectors actually do. It is a matter really of assumption going by those words. 70 Since the TCI Report in 1986 there had been an application in 1999 by the union to include canvassers (other than canvassers for the sale of goods) within the industries and callings when a new Clerical and Administrative Employees (State) Conciliation Committee was established and that states that canvassers (other than canvassers for the sale of goods) do fall within the industries and callings. There is still the question of whether or not an award does apply and the employers say it does not. 71 The application by Employers First for a new Clerical and Administrative Employees (State) Award was made in part in response to the application by the union to vary that same award in matter no IRC 4692 of 1999. 72 The union's application seeks to vary cl 42 which is the area, incidence and duration clause, to include the words "telephone canvassers (other than canvassers for the sale of goods)". The application by the union, if it were to be successful, would impose existing irrelevant conditions and rates of pay of the Clerical Award on to employees who are currently award free and unregulated. 73 Those conditions in the Clerical Award are inappropriate. The application by Employers First seeks to address that fundamental flaw in the union's application. 74 The conditions which Employers First seek in its application are appropriate. They are based on the evidence that was brought to the Commission and they are more suited to the requirements of employers who employ canvassers as well as providing fair and reasonable conditions of employment for those employees. 75 The Commission's power to deal with the application is contained in s 10 of the Act. The current Clerical Award expired on 25 October 1997 so there is no issue as to it being within its nominal term. 76 In addition in making the award, s 146(2) of the Act requires the Commission to have regard to the objects of the Act and, in particular, Employers First relies on s 3(b) which is to promote efficiency and productivity in the economy of the State, and s 3(h) to encourage and facilitate co-operative workplace reform and equitable, innovative and productive workplace relations. 77 The Commission is also required to apply structural efficiency considerations. The conditions sought are consistent with the structural efficiency considerations within the Wage Fixing Principles of the State Wage Case 2002. Submissions - In reply - Employers First:FCU 78 The union incorrectly says this is a case to determine the extent to which the Clerical and Administrative Employees Award should apply. Employers First's application is an application to determine appropriate award conditions for telephone canvassers who are currently award-free. In reality the union's application has no regard for the evidence that has been put in the proceedings about the work of telephone canvassers and the environment in which they work. Both applications are in one way or another first award applications. Employers and employees should not have the Clerical Award imposed on them, given it has been subject to many arbitrated proceedings before this Commission. 79 The further issue the employers take exception to is the submission of the union that the work of tele canvassers is so similar to the work of a clerical employee already covered by the Clerical Award that it would be unfair to provide for different conditions of employment. 80 Canvassers are primarily engaged to sell although they may use some clerical functions. There is a significant difference in the work of telephone canvassers and the work of clerks employed under the Clerical Award. 81 Given the nature of the evidence in these proceedings, to simply impose the Clerical Award on these employees and their employers would not result in any fair and reasonable conditions of employment as required by the Act. While the union submitted that the conditions and rates of pay in the award should be treated as fair and reasonable, and they might be fair and reasonable for clerical people, they are not for telephone canvassers. There are different awards that apply to different clerical occupations. Just because one award provides fair and reasonable conditions of employment for a set of employees who work under it, that does not make that award fair and reasonable for the people that gave evidence in these proceedings. Submissions - ABI 82 Australian Business Industrial (ABI) is not opposed to telephone canvassers being covered by an award of the Commission. In respect of the two applications that are before the Commission, the application by Employers First is the preferred application of Australian Business Industrial. To the extent of any submissions Ms Marshall might make in support of that application Australian Business Industrial supported those submissions entirely. 83 Australian Business Industrial also is of the view that potentially a separate award may be an appropriate course of action. That view was taken primarily because of the amount of limited evidence that was brought in these proceedings by both of the applicants. Neither application has clear indicative tasks within it that state the type of work done by telephone canvassers. Neither application has a clear definition of a telephone canvasser so to that extent it has been quite difficult to canvass ABI members, both prior to the commencement of these proceedings, and indeed during these proceedings, to try to ascertain exactly who will and will not be within the scope of coverage of the award. ABI submits that it is more than likely that a greater scope of evidence could be brought in an application that was to apply to call centres per se, rather than to telephone canvassers within the Clerical Award itself. 84 Although Australian Business Industrial's primary position with respect to these applications is that the application of Employers First should be preferred, some consideration should be given by the Commission to not accepting either application on the basis of the limited evidence that has been brought in these matters. 85 The evidence called by Employers First primarily went to one particular sector, that being the charitable sector. As Ms Hancock has already pointed out in her submissions, it is possible for particular employers to seek exemptions from an award and it is certainly something that ABI's members who are in that charitable sector might consider. Of course that is subject to later proceedings. If this award is made, there may be some employers who are in that charitable sector who would not qualify for an exemption. All the evidence led by Employers First with respect to those charitable sector employers is relevant to this matter and indeed could and might be relevant to an application for a Telephone Canvasser In Call Centres Award if that were something that the Commission were to consider at a later day. 86 With respect to the evidence led by the union there were a number of those employees who were canvassing for the sale of goods, particularly Ms Dal Bianco and Mr Bridge who sold goods such as steak knives. Other employees, Ms Graham, Ms Gaffney and Mr Hennessy are already covered within the scope of the Clerical Employees (State) Award in its current terms. 87 Those employees do not have the same set of skills that a person selling art union tickets or someone like Mr Hastie would have in trying to canvass and trying to sell and persuade, calling potential future customers. That is a different set of skills from those the other employees rely upon and the subjective purpose of their job is different. 88 On that point and the substantive purpose of their job there are some employees like Ms Dal Bianco when she was employed at Flick who might have worked in a small office environment where it is quite difficult to tell at what point her clerical duties ended and her canvassing duties began. That is typical of a small office environment. In those sorts of situations the substantive purpose test should be applied and whether it is the union's application, the application by Employers First or perhaps some future telephone canvassers' award that applies the substantive purpose test will always be needed to be applied in those types of small office environments. 89 If the application by the union is the application that the Commission prefers, ABI would say that the parties should be directed to make some further amendments to the tasks in the classification structure, eg to the communication tasks. There are telephone competencies that do exist. There is a range of other competencies that might be appropriate for these employees and they need to be given consideration in any proceedings for an award for telephone canvassers in call centres specifically. 90 Some of the awards to which Ms Hancock referred are enterprise-specific and consent awards and each one of those awards has some particular reference to canvassing or some type of skills that canvassers need. That might be bundled together collectively with the clerical duties but there are some canvassing skills recognised as separate tasks that people might perform. 91 ABI also supports the position of Employers First that the Commission should tread carefully when making an award that extends the scope of an existing award to employees who have not been award covered before. That is even more so when there is most probably a significant number of employers who are not specifically represented in these proceedings, who may be affected by the award. 92 It is clear that the hours telephone canvassers work are different from those of clerical employees. 93 ABI supports the argument that there should be a separate and distinct award for telephone canvassers, particularly in call centres, rather than a significant variation to existing terms and conditions of clerical employees simply because canvassers are now part of that award. 94 However, a variation to the hours clause would be necessary if canvassers were to be taken as part and parcel of the employees to be covered generally by the Clerical Award in total. Submissions - In Reply - Employers First:ABI 95 Employers First takes issue with the ABI submissions that there has not been sufficient evidence in these proceedings to warrant or support the making of its application. ABI by its own admission, has members who are potentially covered by this application. They sought to bring no evidence at all. They have indicated they have difficulties with the application filed by Employers First in relation to the classification structure. At no stage has Employers First been formally made aware there is that difficulty and no discussions have taken place to try to accommodate any of the concerns made by Australian Business. 96 It has always been in the power of Australian Business to make their own application if they thought Employers First's application was deficient in the way which they have indicated they think it is in relation to that classification structure. 97 Reliance is placed on speculation in a number of areas and particularly where ABI submits that the catering industry is an area that can well be affected by this application. There has not been anything brought by ABI in relation to that issue. Employers First has all along in these proceedings represented the major industrial organisation for that industry, that being the Restaurant and Catering Industry Association and that Association has not taken any issue with the Employers First's application at all. 98 The Commission in these proceedings can only make a decision based on the evidence that is before it and not speculate about something that might happen or might occur or may be an issue particularly from an organisation who sought not to bring any evidence in these proceedings as to any issue. 99 The submission of ABI does not provide any assistance in relation to this matter, except for the support it has been given to Employers First's application. Submissions - In Reply - FCU:ABI 100 Australian Business Industrial submits that the Commission should give careful consideration to imposing a variation of the magnitude sought by either of the applicants on the basis of the very limited evidence that was led in these matters. The union filed its application in 1999 to vary the terms of the award. There were meetings between the union and the employers during 1999 and 2000. Those meetings only concluded because the union agreed to have the case dealt with separately to this proceedings, so there has been more than ample time for two things to happen: ABI to raise with the union any confusion that it sees with the union's application, and secondly, for ABI to file its own application and bring evidence in these proceedings. Because none of those things have happened, ABI just is not in a position to ask the Commission to form the view that there was not enough evidence in these proceedings because they did not bring any of their own. 101 The catering industry is mentioned by ABI as but one example of many industries that will be affected by the variation. When this matter was still in the conciliation phase, there were three letters from three different employer associations consenting to the application. There was a letter in 1999 on the Restaurant and Catering Trades Association letterhead signed by Mr George Harris. That organisation consented to the union's application, as it then was, to classify canvassers as grade 3 in the Clerical and Administrative Employees (State) Award. For that organisation not to consent now to canvassers being classified as grade 3 means there must have been a phenomenal change in the industry for the application. If that happened, which it must have for this submission to be made, then ABI should have brought evidence to explain the magnitude of that change. 102 ABI states that probably many telephone canvassers are engaged under the terms and conditions of enterprise agreements made in accordance with the Workplace Relations Act 1996. That is a blanket statement. There is no evidence that that is the case and speculation that that is the case should not be something that the Commission places a great deal of weight on when making the decision in these proceedings. 103 It was said by ABI that only two witnesses could be said to clearly fall within the scope of coverage of the application, the two being Selma Selmay and Jason Hastie. 104 That claim has never been raised with the union. It was never put to any of the witnesses that the work that they do was already covered by the Clerical Award or was not relevant to the proceedings. It was never put to the witnesses in cross-examination, and further if ABI is of the view that the rest of the union's witnesses were not relevant, then they should have made that clear and there would have been no need for them to cross-examine them. 105 Ms Dal Bianco's evidence shows firstly one does not have to be employed in a call centre to be doing telemarketing, which is one of the submissions that ABI makes. Secondly, it supports the submission that the union has always made, which is that there is this crossing over between the work of the clerical and administrative employees and telemarketers, that it is not unheard of for one employee to be doing both and the evidence of Ms Dal Bianco at Flick supports that submission. 106 It is also the union's position that the application does not just go to call centres because there may be call centres now that are already covered by the Clerical Award. 107 The problem is with the evolution of work, and no doubt it will continue to evolve over time because things do not stand still, the union sees there is a crossing over of either doing some inbound telephone work with some outbound telephone work or doing traditional clerical and administrative work and some outbound telephone work. That is the problem that it is trying to address. 108 ABI submits that a separate and specific award could more readily take account of bonus payments and appropriate ordinary hours of work recognising that the ability for telephone canvassers to work ordinary hours in the evening is critical to this sector. In the Clerical Award as it appears now, there is the ability to work hours outside the ordinary hours, those being shift work provisions. It is not unusual for industries and sectors to require clerical and administrative employees to work in the evenings, and that is why there is a shift work clause in the award. The submission by ABI that a separate and specific award should be made to take account of working in the evenings is just not right because there is the ability to work in the evenings now. ********************** 109 The union's general submissions against the insertion of cl 5.2 also go to its specific opposition to the proposed cl 5.2(vi). That proposed sub-clause seeks to exclude telephone canvassers from the operation of the hours and other provisions of the Clerical Award. What is now set out is an amalgam of those submissions. Submissions - FCU - General 110 This is not a case to determine award coverage of telephone canvassers, but rather, to determine to what extent the Clerical and Administrative Employees (State) Award will apply to them and that is where the parties differ in their application to the Commission. 111 The union's application is that the Clerical Award as it currently stands should apply to telephone canvassers and it seeks to amend the Area Incidence and Duration clause of the award to include the term "telephone canvassers" so that what is before the Commission is a s 17 application which seeks to vary that award to that extent. 112 That award is appropriate because the work of telephone canvassers is so closely connected to clerical work and in some cases intertwined with clerical work that it would be difficult to separate out, as the employers' application essentially seeks to do in its proposed cl 5.2, the work of telephone canvassers from the work of clerical and administrative employees and telephonists, who currently have benefit of the whole award. 113 If there is a community of interest between canvassers and any other group then it is the clerical and administrative employees (see the Conciliation Committee Case at para 174). The data entry work that clerical staff do work is connected to the work of canvassers and it is not fair and just that, even though they may work in connection with telephone canvassing operations, that processing of sales and sending out of tickets, they might be entitled to greater award coverage than the telemarketers themselves. 114 In reply to Employers First, the union said it has never been its position in these proceedings that telephone canvassers are engaged in a clerical capacity, but it says they are an extension to that term in the same way as telephonists are. Telephonists are currently covered by the Clerical Award. It has always been the union's position that because the work is so closely connected and because the industry that telephone canvassers have the closest connection with is the clerical industry, so that the award to cover those employees is appropriate. Just because employees are not employed in a clerical capacity does not mean that the terms of the Clerical Award are not appropriate to cover them. 115 The employers' application as amended seeks to insert a cl 5.2 that will apply to telephone canvassers (other than for the sale of goods), and in the main, that sub-clause seeks to exempt most of the conditions of the Clerical Award from telephone canvassers. The union is opposed to that because the philosophy of the exemption clause in the current award is that it is there for people who are on the road to a degree of executive or supervisory responsibility (see In re Clerks (State) Award 1978 AR 724). That is not a road for telephone canvassers. They are an entry level position. An application that seeks that same sort of exemption to entry level employees, those being telephone canvassers, makes a mockery of that clause. Telephone canvassers in an entry level position should be able to access all of the benefits of the award as it currently stands. 116 The evidence has shown that telephone canvassers move to other departments like reception, accounts, travel insurance, customer service and customer liaison. Those moves are seen as steps up in the company, but those positions cannot even reasonably be thought of as being on the road to a degree of executive or supervisory responsibility. In addition the telephone canvassers would not be paid 15% above the award rate of pay for a grade five adult employee, the point that triggers the application of the exemption clause to employees. In the employers' application they would be paid at best the same as a grade 2 clerk for team leaders, and at worst they would be paid less than a grade one clerk. 117 The union asks what is it that defines canvassers from a clerical and administrative employee or a telephonist, and says that is not clear. To try to segregate this group of employees and give them inferior conditions of employment and rates of pay is fraught with danger and confusion in the workplace. One difficulty in roping canvassers off in the award as the employers seek to do is that promotion within an organisation for a telephone canvasser may mean the employee so promoted ends up with not only potentially a higher rate of pay, but more award protection in terms of conditions of employment like hours of work and shift penalties. This is general unfairness. This is not in line with the objects of the Act one of which is to provide a framework for the conduct of industrial relations that is fair and just (s 3(a) ). 118 The union says for this object to be met, then the employees at entry level positions should get the same level of award protection as those in other industries such as the newspaper industry or the permanent building society industry. 119 Object (e) of the Act is: "To facilitate the appropriate regulation of employment through awards, enterprise agreements and other industrial instruments". To make an award providing for less award protection for entry level employees than it does for employees who have progressed through the company or organisation cannot be seen as appropriate. 120 If the Employers First application were granted, telephone canvassers would have award coverage but the strong protection of the award which goes to hours, overtime and penalty rates and allowances would not be available to them. ***************************** 121 I shall first deal with the union's application that all rates and conditions in the Clerical award should apply to telephone canvassers. That consideration, to the extent that it takes into account the work of those canvassers, will of necessity overlap my later consideration of Employer First's application. 122 In considering the union's application first, I commence with consideration as to the term "telephone canvasser", as neither of the applications before the Commission sets out a definition. Telephone Canvassers - Submissions - Employers First 123 The Commission set out four different types of canvassers that came out of the evidence of the Telephone Canvassers Inquiry 1986. In the Report, the Commission concluded that: Telephone canvassers employed in New South Wales to the extent they have been identified and discussed in this report do not fall within the industries and callings of the Clerks State Conciliation Committee and, in particular, do not fall within clause 3 - area, incidence and duration in the Clerks State Award as published in the Industrial Gazette of June 1992. 124 Employers First brought evidence in relation to persons selling art union and raffle tickets, to persons engaged to investigate by telephone inquiry (Park Trent Investments) and persons seeking donations, subscriptions etc submitting that such people fell within the term "canvasser" and would be captured by its application. Canvassers - Definition - FCU - Submissions 125 What the union will be dealing with here, is who are the employees in issue? It knows they are telephone canvassers but the union sees a difficulty with that blanket term in that there is a potential to miss people as telephone canvassers. The term "telephone canvassers (other than canvassers for the sale of goods)" is not something that is black and white. It is a very grey area that is not easy to pull out of general clerical and admin work. 126 There are grey areas where the work at one location may be very similar to the work at another location, but one group of employees will be seen as canvassing while another one will not. This is particularly so if a person works in a call centre and there is a tendency to assume anyone who works in a call centre is award free. 127 The union says considering there has been evidence that supervisors in call centres would be covered by the Clerical Award, this makes this proposition of generalising call centres even more of a concern, as the question is, when does the employee get award coverage under that Award and when are they deemed to be a canvasser? 128 The term "telephone canvasser" is not defined in the employers' application which makes the likelihood of people being wrongly classified as telephone canvassers even more real. How is an employer going to be able to decide who is a canvasser and who is not? The probable outcome is that they will find it too difficult and say to themselves that anyone in a call centre environment or employed to work on the phone for most of the time, is a telephone canvasser. 129 That difficulty was demonstrated in Simmons v JCB Instruments Pty Limited (unreported; CIM; 98/149; 29/4/98) where the employer had had advice from the Department of Industrial Relations that the work being done by Ms Sheree Simmons, which included telephone sales, was award free. He had further been given advice from the SDA that the work could be covered by the Warehouse Employees Award or the Storemen and Packers Award but that they were not really sure either. After hearing both sides, the Chief Industrial Magistrate found the work was properly covered by the Clerical and Administrative Employees (State) Award at grade 3, and made orders for back pay accordingly. 130 The second part of the union's submission on the grey area involved in telephone canvassing and clerical work goes to the fact that canvassers may not just do canvassing as part of their ordinary duties, Ms Dal Bianco at Flick and Mr Hennessy at Pinpoint Marketing being examples of that. 131 The question as to who is a telephone canvasser is a very difficult one and probably too difficult to answer with any certainty. That is why the union submits that the most efficient way of dealing with the issue is to remove the confusion and to have all employees who are employed in a telephone canvassing or telemarketing role, employed pursuant to the terms of the Clerical Award and graded in accordance with the skills that they utilise on the job. "Canvasser" - Definition - Consideration 132 The employees, the subject of this judgment, were described in varying ways during the course of the evidence: Tele Sales Representatives (RBS); Rainbow Lottery Operators (RIDBC); telemarketers (AFFORD, the HWNS, Park Trent); customer service representative (Pinpoint) and sellers (also the HWNS). 133 The ABI complained that neither of the applications being considered provided a definition of "canvasser". That is true, but the ABI had access to the same source of descriptions of "canvassers (other than canvassers for the sale of goods)" relied upon by Employers First and the FCU, that source being the Report of the Telephone Canvassers Inquiry (the TCI Report) presented by Glynn J to the Minister for Industrial Relations on 24 December 1986. 134 Set out below are extracts from that Report at pp 18 ff: If the term "canvassing" was limited in meaning to "selling" then AMRO members would have a strong case that their work was not included in the term. However, the various definitions of "canvass" embrace not only meanings relating to soliciting sales but also "to ascertaining the sentiments of". The prime function of market research interviewers is to interview people "to ascertain (their) sentiments" as to whatever is the subject matter of the particular campaign. That their ultimate objective is not sales related does not in my view, of itself take them outside the definition of "canvasser". The following descriptions are to be found in "Who's Who Directory Marketing 1985": "Broadly speaking, Telephone marketing falls under the following classifications. 1. OUTBOUND telemarketing . Is the unsolicited outbound telephone call, which yields an order, lead, donation or simply information depending on program objectives. 2. INBOUND telemarketing . Provides the secondary medium through which the buyer places an order after having been alerted by the primary medium of press, radio or T.V. 3. RESEARCH . Industrial, domestic, audience." In the light of the various definitions and descriptions set out above, and having considered the submissions made in respect of them, I am of the view that a " canvasser " is one who: discusses thoroughly solicits votes solicits votes from electors ascertains the sentiments of asks custom of solicits subscriptions, from a district, group of people etc. solicits opinions etc. from a district, group of people etc. engages in a political campaign examines carefully solicits orders investigates by inquiry debates solicits opinions engages in discussion or debate A "telephone canvasser" is one who undertakes the above activities by means of a telephone. … Telemarketing has many facets extending beyond the simple selling of a product: * servicing outlets , e.g. many companies with small retail outlets are serviced frequently by telephone rather than by sending out a sales representative * public relations for instance servicing of clients by calling them on a regular basis to ask them if they are satisfied with the service and if there are any problems etc. * Company takeover situations : may involve contacting thousands of shareholders to explain, on behalf of a client (who may seek, for instance, for a larger response than achieved to date), a takeover offer. * Lead Inquiry Generation : an area described as falling somewhere between pure research work and sales. One aspect of it is to attempt to accumulate information that can, for instance, be put into a computer data base so that clients for whom the information is being gathered can categorise persons or businesses as A, B or C grade prospects or the clients may take a certain percentage from the highest prospects surveyed, that percentage to be followed up by the on-the-road sales force. A further aspect Lead Inquiry Generation , which would seem to cut across another function of telemarketing, that of making sales appointments , is the commencement of a sale by means of the telephone caller sifting out from people listed in the telephone book, those persons who might be likely prospects in respect of the clients' objective, e.g. to sell kitchens, and then, in the course of the telephone call, turning such people into definite prospects to the extent that they accept a definite appointment (time and place) for the client's field representative to call. * verification of lists : if a client wished to reach, for instance, the chief financial officers of companies in order to make a particular offer, the telemarketing company would obtain a list of those companies, either from the client or elsewhere, and a telephone call would be made to each company to try to obtain the name, address, telephone number and company title of the particular person. By far the greater part of the work undertaken by the specialised telemarketing organisations is outbound rather than inbound (one company estimated that more than 90 per cent of its work involved outbound telemarketing). … Particular skills noted as being required included: * the ability to understand the questions actually being asked by respondents to the calls, those questions not always being framed in the same terms as a training script; * ascertaining the reasons why an offer was not being accepted. Establishing such reasons could assist the campaign producers to determine if there was a flaw in the offer itself, or the way it was being presented. It must be kept in mind in considering the work being performed by the persons making these calls, that the persons to be persuaded to buy an art union ticket, or to take out a periodical subscription or to buy home improvements or to answer an opinion poll did not initiate the telephone call - the telemarketer or, in the latter case, the market research interviewer did. Interest has to be created in the respondent to the call, before the caller can advance the aim of the call even one step further. In a telephone room run by a company such as GDM Telephone Marketing, four or five jobs could be running concurrently. Different operators could be selling goods or art union tickets, seeking donations, explaining a particular share offer or be engaged in a lead generation exercise. 135 The width of the description set out above illustrates just how deficient was the evidence in this case that seeks changes to a common rule award to apply to employees, employers and workplaces. The major part of the relevant evidence presented in these proceedings related to outbound telemarketing. Work of Telephone Canvassers - Consideration 136 Ms Hancock spent some time comparing the work of canvassers about whose work evidence had been given, with the work of clerical and administrative employees covered by the Clerical Award. There can be no dispute that the work of canvassers includes components of clerical work. Nor can it be disputed that even if the canvassers do not work directly with data entry clerical employees, such employees are employed to do follow up work from that of the canvasser. That much was stated in the TCI Report and in the Conciliation Committee Case. However, the first point to be considered in relation to canvassers is what is the purpose of their employment? What are they employed to do? 137 Mr Brink described the duties of the HWNS's telemarketers as "totally telemarketing so their duties are to sell art union tickets over the phone". 138 Selling art union tickets for the HWNS was described by Mr Brink: It is a totally computer-driven operation. There is no paperwork involved at all. The compiling is all done by computers. Each operator sits in front of a screen. The computer dials the number, when somebody answers the name of the person who has answered the phone and their details are flashed up on the screen and the telemarketer then commences their presentation to sell the ticket. If they are not successful, which is the case most times it is all a point check operation, they just click on a mouse and it comes on and then they wait for the next call to come through. If they make a sale then they have to confirm the name and the address that they have got, at least on the screen put in a title which they do from the breakdown in whether it is Mr, Mrs or whatever, put in a home unit number sometimes and enter with a click which option from the box, we have various options you can put, they are six, 12 or 24 tickets so they click whatever option they want, if they tick a credit card they have to enter the credit card number which is verified by the computer at the time of entering it, if there is any problem they can check it further with the customer then and there, that is pretty much the operation. The telemarketers push buttons to bring information up on the screen. 139 The predictive dialling system is used by the HWNS for residential calls. 140 Mr Brink's description of the predictive dialling system was typical of that given by Ms Purcell and other employers. Ms Purcell said that a flow on effect from the use of the predictive dialler was the building up of the seller's data base with new customers who become existing customers and the potential for more commission. 141 The HWNS's telemarketers who number 5 or 6 at Belrose are in a special situation. Some have been employed there for 30 years and are not computer literate. They work from cards and use manual dialling, writing down their outcomes. They work only from Monday to Friday, some working only one or two shifts per week, and mainly call their existing customers. The number of those employees, who operate totally outside the normal method of operation of the rest of the HWNS system, is gradually diminishing. 142 The 100% role of the casual telesales agents employed by the RBS is outbound telemarketing and selling of the art union tickets to both existing and new customers. The agents are not there to promote RBS services and only brief reference is made to them on the script. The agents give inquirers as to services the client services telephone number to ring. Ms Purcell said the approach is really based on the current reputation of the RBS. For that reason there is to be no use of persuasion or strong sell. Ms Purcell summarised the position by saying that "the outcome is to sell a ticket in the most polite, non-threatening, non-aggressive way". 143 Additional duties and responsibilities set out in the Position Document for Telesales Representatives at the RBS included: 1 Create rapport with each customer through professional telephone manner enabling control of each call. 2 Use questioning/fact finding techniques to determine or qualify customer needs. 3 Help Art Union customers understand the benefits of the services provided by the Royal Blind Society. 4 Ensure the relevant information is accurately provided to customers. 5 Process customer records according to standard procedures during customer contact. 6 Provide customer referral and complaints to Marketing and other areas of RBS. 144 Towards the closing date of the art union, the telesales representatives also undertake reminder calls to people who have told them they will buy a ticket but have not sent in the money. 145 At AFFORD the main function of the telemarketers is to sell tickets in the Cherrywood Raffle in order to raise funds for the organisation. There are four raffles run per year. It was said by Mr Westbrook that the whole concept of the work is selling. In recent years the focus of sellers at AFFORD had been changed from asking for funds to help a charitable organisation, to it being recognised as direct selling and some principles of direct selling applied. On inspections, Mr Westbrook said that the organisation's software has been specially designed and has evolved to the point that the sellers spend 90% of their time selling rather than doing peripheral work. More emphasis was placed on management of the sellers and management of the selling process. 146 The work of the telemarketers at AFFORD was described by Mr Westbrook: 17 The target group for the telemarketers to call is a combination of previous customers and a list of new customers that is drawn up from the Yellow Pages and the White Pages, generally on a geographical basis. The list of customers is kept on a database that is contained on each personal computer. This database is a management program developed by AFFORD. 18 The whole telemarketing process is driven by the database. Each telemarketer has access to the database on their screen. The computer program creates an auto dial on each individual terminal so that the telemarketers only have to click on the number that they wish to dial. They then attempt a sale. If a sale is made, this is recorded through the computer program. If a sale is not made, there may be a note made to do a follow-up call. Each telemarketer does their own follow-ups from previous calls. 19 The list of new customers is generated by management. The Raffles Co-ordinator then allocates a list to each of the telemarketers. The computer program manages the administration of the process, including ticket allocation, banking and the recording of the financial aspects of the transaction and the financial reports. 20 Due to the new software, there is less and less administration required by the telemarketers. The computer does the billing after the telemarketer has punched in the credit card number. There is an administrative function after the printing of the tickets, however this is not a part of the telemarketer's responsibility. 147 Mr John Bridge described his work as a telemarketer with three organisations, Postel Ltd (1992-1997), the Spastic Centre (4 years) and 2001/Loughlin Pty Ltd since 2001. 148 At Postel Ltd he rang people (business and residential) "on behalf of" not "from", the Spastic Centre asking them to buy such items as diaries, clocks or knives to help the Spastic Centre, or for a donation if they were not interested in purchasing any of those goods. Postel Ltd also ran campaigns for other charities e.g. the Red Cross. 149 The job description and responsibilities given to Mr Bridge at Postel Ltd basically set out the fundamentals for all the jobs he described, other than for the probation provisions about which he was not certain. All of the places he had worked for were fairly small budget performers, where a bonus was not always given. Other than the duties in relation to probation, the key duties as they were for telemarketing sales representatives at Postel are set out below: To conform at all times to the rules and regulations of telephone room as detailed in the induction checklist. To at all times represent BRB Group and the client in a professional and responsible manner. To utilise the script and client background information provided. To attend allocated shifts as agreed with Branch Manager/Supervisor To notify Branch Manager/Supervisor if unable to attend allocated shift and present a Doctors Certificate if absent for more than one (1) consecutive shift. To accept guidance, direction and training from Trainer, Team Leaders, Supervisors and Branch Manager. To understand and appreciate that the on-going good name of the client rests with each operator. 150 His next job was with the Spastic Centre's own call centre for selling raffle tickets, a centre that closed in April 2001. He sold raffle tickets at $5 per ticket to businesses or asked for donations. Acting on his own knowledge he also called personal numbers in the country (publicans, banks) whom he knew would support the Centre. 151 As Mr Bridge agreed in cross examination by Ms Wellard, he essentially did the same work at Postel, the Spastic Centre and at 2001/Loughlin Pty Ltd and it was just that the tools/technology changed. Mr Bridge's current job is with Loughlin Pty Ltd/2001. His particular task is selling raffle tickets for the Royal Lifesaving Society by cold calling businesses. That employer also runs other campaigns. 152 Ms Dal Bianco said her role as a telemarketer with Australian Wine Selectors was to try to sell membership of two different wine clubs, on a six weeks rotating basis, to the person at the other end of the telephone. Membership was free but could only be obtained by the quarterly purchase of a dozen bottles of wine. She had a target of one membership per hour, and the calls she made to achieve that outcome were not supposed to take more than 3 minutes but up to 15 minutes was accepted to get a sale. 153 She said that at Flick Pest Control (Flick), there was no cold calling in the strict sense, and the duties of the telemarketer varied depending upon which of three shifts was worked. Flick relied upon advertising for first time contact in relation to its services. It was only for the second and subsequent services that customers were followed up. 154 There was usually only one telemarketer on the day shifts together with the Telemarketing Manager and one full time clerk. During the day shift, Ms Dal Bianco dealt mainly with incoming telephone calls from potential or existing customers, made bookings for pest control services and followed up on complaints and on arrangements made by the previous telemarketer as to appointments. When the clerk was very busy, Ms Dal Bianco would help out by chasing up debts and also doing administrative work including filing, assisting with rosters covering general duties around the office or calling customers prior to service if the Operations Manager who usually did that work was "snowed under". Similarly, if Ms Dal Bianco was very busy, the clerk would sometimes help her out. 155 The evening shift was staffed by six telemarketers and a Telemarketing Manager who acted as the Team Leader. On that shift, outbound calls were made, the telemarketers ringing existing customers on the 12 month anniversary of work done and they were required to try to persuade those customers to have another service. If the answer was yes, the telemarketer arranged a booking time with the customer and with the pest controller. The geographical area covered extended in a radius some distance north, south and west of Newcastle. The telemarketers in making their calls worked from a computer generated list organised in terms of geographical zones, so that the pest controllers would have work concentrated within a specific area. 156 Ms Dal Bianco was employed as a telemarketer, but the clerical duties were just part and parcel of the job, "because it was just a small office. Everyone just assisted with everything and it was part of your every day duties". Her work at Flick was atypical of telemarketers about whom evidence was given. It seemed that, because it was a small office with only 2 or 3 employees, that, on day shift only, she undertook more clerical duties than would be usual. No financial adjustment was made. That position contrasted with what occurred at the RBS for instance, when telemarketers doing general or more clerical type duties for any reason were paid a special rate. 157 Ms Dal Bianco summed up the position by saying "we were employed as telemarketers but we basically did everything". 158 Mr Bridge would not say that the computer is the more advantageous to use but it is more beneficial. It does not actually help to make a sale, because it still goes back to the skill of the telemarketer whether he/she makes a sale. Sometimes at the end of a call, one does not know if a sale has been made. What makes a good telemarketer is how one presents oneself and how one presents to the person called. 159 The job of the telemarketers at Park Trent is to invite people to attend a free conference about property investment, or have an "in-home" consultation so that that person can meet a salesman and, it is hoped, commit to some property investment. 160 The conferences to which the Park Trent telemarketers invite people are usually held each night Tuesday to Friday all around Australia. In April 2002, Park Trent was concentrating on Victoria, New South Wales and Queensland. Earlier contracts had also taken in New Zealand and Western Australia. 161 The telemarketers cold call people in the area in which the conference is to be held one week earlier, providing details of the conference and what it is about (property investment positively or negatively geared). 162 Before an invitation to attend a conference is issued by the telemarketer, the telemarketer has to "qualify" the person being phoned. That aspect of the work is that of carrying out a survey, not selling. To qualify for an invitation to a free property investment conference, the person has to be paying at least $100 tax a week to be able to negative gear, to be working full time and not to be within five years of retirement. A pensioner or a student, for instance, would not, to use the terminology on the data sheet filled in by the telemarketers, be "qualified" to receive an invitation and the call would be terminated. 163 That sensitive personal and financial information has to be obtained by the telemarketer at the outset of a cold call that may last for up to 15 minutes. Ms Salway said that there are usually three to four prospective clients per shift who will agree to attend the free conference she is offering. That is the result of about 40 phone calls per hour on a three and one-half hour shift. (Ms Salway said that during a shift she could call any number of persons from 50 to 300 (when every person just puts the phone down), those calls lasting from two seconds to 15 minutes.) 164 The "selling" aspect of the Park Trent telemarketer's work is to get the "qualified" person to accept the invitation to a conference. If the person accepts the invitation, the telemarketer books them a seat. Follow up action is the responsibility of the data entry team. 165 Telemarketers use the art of persuasion. At Park Trent they are told "Don't push a customer too far, if their interest is there, then you offer it to them; if the interest isn't there, don't push them". 166 The telephone is a tool. The functions of canvassers are those described in the extract from the TCI Report set out earlier, and as described in the evidence set out above in this section. 167 In order to give their telesales employees more time to focus on the sales aspects of their work, the employers have sought to streamline as many clerical aspects of it as they can, one notable example being the predictive dialling system described earlier. 168 Ms Purcell said that in using the predictive dialler telesales agents can programme in rest periods for themselves, and also the time between calls. The RBS does not time people to see how long they have been at the computer nor the number of calls they make an hour. There is some occasional monitoring, for instance, to see how a new person is going. The predictive dialler is very much totally automated so that there is actually a lot less keyboarding done in the telesales area than in the data entry area. Because of the amount of information on the predictive dialler, the keyboard for the most part would only be used to make a correction by ticking a "yes" or "no" or inputting the nine digits of a credit card number. 169 At the RIDBC, the Rainbow Lottery Operators are primarily responsible for contacting people by telephone to sell Rainbow Lottery tickets. For one week in May each year, the most experienced operators may be required to contact existing donors, inviting them to renew their pledge to the Thomas Pattison Society, which is a gift giving program in support of the Institute's programs. 170 The Rainbow Operators are sellers, so they sell lottery tickets to the Institute's supporters. The remainder of the process is handled by the data entry staff. 171 Mr Harrington said on the RIDBS's statistics, successful calls last somewhere between 1 minute 10 seconds to 2 minutes 30 seconds for the longest. Scripts 172 Scripts are provided to the telemarketers, and some essentials always have to be mentioned depending upon what is sought to be sold or surveyed, such as the name of the organisation, price of the art union/raffle ticket, free membership on purchase of wines, their source and price (Ms Dal Bianco) etc. At Park Trent, if a person accepts an invitation to attend a conference, the telemarketer has to read to him/her a particular extract from the Privacy Act. 173 As the telemarketer/canvasser becomes more experienced some latitude in the use of the script is permitted, sometimes in consultation with a team leader or a supervisor. Equipment, Records etc 174 Equipment used ranges from desk, telephone and the White Pages, to telephones, earphones, head sets, personal computer (screen and mouse), keyboard, predictive dialler. 175 The canvassers are provided with telephone numbers to ring, but how those numbers are provided differs greatly, ranging from the Telstra White Pages or Yellow Pages in hard copy, to data bases supplied by external or internal sources to predictive diallers. The telephone numbers may be geared to a particular geographical area e.g. at Park Tent they would come from the area where an upcoming conference was to be held. Some lists are described as "warm" lists i.e. lists of existing customers, the others as "cold" i.e. the Telstra White Pages, or numbers called up on the predictive dialler. 176 AFFORD has a data base of people who previously bought tickets. Ticket sellers who have been with the organisation for a while have a list of their own customers allocated for the next and subsequent raffles. The RBS telesales agents also retain their own customer bases. 177 Canvassers still need to record, in one form or another, all the information that has always been required to be kept: changes to names and addresses, preferred times for call backs, credit card details, method of payment, number of tickets/memberships sold, dollar amounts of purchases, number of calls, results of each call, purchase/donation refused, no answer. 178 In some instances that information is still recorded manually on cards or sheets of paper and handed to supervisors at the end of each shift. In other cases, the computer presents options on the screen e.g. answering machine, sale, refusal, call back, and the canvasser records the information by a point/click operation. That information is automatically collated by the computer and is followed up by the appropriate staff, but not by the canvasser. The canvasser also directly corrects details such as names and addresses on the data base as the occasion arises to do so in the course of those calls. 179 There was evidence that at the Spastic Centre, a raffle sales operation that closed in April 2001, the canvassers or ticket sellers did put the tickets in the envelopes with other relevant information. That, according to Mr Bridge, did allow the personal contact of writing "Thank you" on the enclosure. Evidence - Consideration 180 In relation to these proceedings and the earlier decision Re Clerks (State) Conciliation Committee (the Conciliation Committee Case) [2000] NSWIRComm 247, I note that under the heading "General Comments" in the TCI Report (at p 8-9), it was stated that the following matters, amongst others, were not considered, as not coming within the Terms of Reference: the exemption or otherwise of charities from any award coverage should it be found to exist, the appropriate spread of hours for the telemarketing and marketing research industry and alleged inadequacies of the Clerks (State) Award in respect of this area. I then expressed the view that "most of those matters could be appropriately considered in such other proceedings as might be instituted as an outcome of the Report". That was said in 1986. These would appear to be those "such other proceedings". 181 As was submitted by Ms Hancock, s 17 of the Act, under which the union made its application requires that the Commission consider that it is not contrary to the public interest to vary the award as sought, and s 10, under which Employers First's application is made provides that the Commission can make an award setting fair and reasonable conditions of employment. To carry out its mandate under either section, the Commission needs evidence to ascertain whether the "fair and reasonable conditions" to be applied to telephone canvassers are those already provided for in the Clerical Award or those proposed by Employers First in its application. 182 The ABI was correct in its submissions that the Commission does not have sufficient evidence before it to come to a final satisfactory resolution of the two applications before the Commission. However, it is my view that it is preferable that telephone canvassers be brought under even minimal award coverage, rather than be left outside it altogether until a further application, supported by more extensive evidence, is made. 183 The fact that there is insufficient evidence is in part due to the inaction of ABI itself. It had the same opportunity as the other parties to make its own application or to bring evidence in relation to the applications by the FCU and Employers First. Even at a late stage of the proceedings that opportunity was open to it as it had been open to, and given to, the Motor Traders Association (the MTA). 184 The MTA had expressed its concerns as to the possible effects on its members if the FCU's application were granted. It had not accepted the undertaking given earlier on transcript by Ms Hancock which had satisfied the Australian Liquor, Hospitality and Miscellaneous Workers Union, New South Wales Branch. Additional hearing days were set to allow the MTA to adduce its evidence, a course of action it later abandoned when it decided to accept the FCU's undertaking. 185 ABI in the main only cross examined the union's witnesses. Its submissions as to the possible effects on its possible members, and it was not even certain it had members affected, did not assist the Commission. 186 If it had advised Employers First, whose position it was apparently supporting in full up until the Friday before the Monday ABI was to make its final submissions, Employers First could have reconsidered its satisfaction with the evidence it had advanced. Advice, as a matter of industrial courtesy to the FCU, of its misgivings could also have given that organisation the opportunity to apply to bring further evidence, inconvenient as that might have been at that late stage of the proceedings. 187 ABI submitted that telephone competencies as well as a range of other competencies that might be appropriate for these employees exist. ABI made no attempt to bring such competencies, or the evidence to support them, before the Commission. In the face of opposition from the employers' side as to evidence she sought to bring, Ms Hancock advised the Commission on 2 April 2002, that the FCU would not be relying upon the Telecommunications Competency Standards set out in exhibits nos 14 to 17 inclusive, and as to which she had asked some questions of a few witnesses. 188 ABI advanced the claim that the evidence of Ms Dal Bianco in selling wine club memberships was an example of telephone canvassing for the sale of goods. In Re Clerks (State) Conciliation Committee (the Conciliation Committee Case) [2000] NSWIRComm 247 (unreported, Glynn J, IRC99/4695, 13/12/00), the Commission considered evidence in relation to the work of employees advanced by the FCU as falling within that of canvasser (other than canvassers for the sale of goods). At pars [147] to [149] of that decision the work of Mr Lucchinelli, who sold "VIP Privileges" in conjunction with membership of the "Grace Club" and also books of vouchers, was considered. It was found he was not selling goods. That finding is equally applicable to the work described in these proceedings as being undertaken by Ms Dal Bianco in selling wine club memberships. Her work, contrary to the submission by the ABI, is work that can properly be categorised as being telephone canvassing, other than for the sale of goods. 189 In these proceedings, the FCU relied upon the evidence of Ms Veronica Graham employed by Bartter Enterprises to support the FCU's submission that her work was that of a "telephone canvasser (other than for the sale of goods)". Ms Graham rings a set number of customers, mainly stores, mostly daily, to ask such customers what orders of chicken products they would like to place that day. Twice a week, when taking orders, she also advises customers of specials for the next week and also advises of any new products. She maintains all the necessary record cards. The company allocates three minutes for each call. 190 The union claimed that Ms Graham was either a canvasser or the work is so similar to that of a canvasser that it would be unfair to distinguish the two. The union asked how is the work at Bartter that different from the work at a charity, which is ringing existing customers to solicit the purchase of a ticket in a raffle, lottery or art union? All of the witness evidence from charities went to making outbound calls to do the work and yet, as similar as that work is to that of Veronica Graham, none of the employers believed that the work of canvassers for charity art unions/raffles was covered by the Clerical Award, as they conceded Ms Graham's work was. 191 There was no need for the employers to "concede" that Ms Graham's work was covered by the Clerical Award. I had already determined that Ms Graham's work was more that of an order clerk and the up-selling she was encouraged to engage in did not take her outside the scope of the Clerical Award (see Clerks (State) Conciliation Committee [2000] NSWIRComm 247 at [151]). 192 That finding is confirmed. Ms Graham was not engaged to "solicit orders". She was engaged to check orders with customers each day and, on certain occasions, to advise them of available "specials" and ask if they wanted them. If so, she noted the orders. Her work does not fall within that of a "telephone canvasser (other than canvasser for the sale of goods)". On the contrary, such peripheral elements of her work that might be described as canvassing, concern "canvassing for the sale of goods" i.e. chicken products. In any event, even if advising of "specials" could be described as either "selling" or "persuading", which I doubt, the inclusion of "selling" of a company's products as coming within the general work of clerks has been accepted for many years as discussed in the TCI Report at p 84. 193 The union's insistence that Ms Graham is really a telephone canvasser does not assist its case. 194 On that same point, the work of Ms Aureole Gaffney at the NRMA is not that of a telephone canvasser, but work that is conventionally covered by the Clerical Award. Ms Gaffney has been employed by the NRMA for more than thirteen years. She is currently working in NRMA Assistance Services at Parramatta. Her role at the Assistance Centre involves taking calls from members who require assistance and are more than 100 kilometres from their home. She arranges for some form of assistance to be provided to the member. In a call with a member she needs to confirm membership and personal details, name and address on the Road Service program. She then needs to get their location details to see if they have had a problem outside the 100 kilometres distance. When she has details of their whereabouts she activates the Map Info Network screen, the program designed to give the distance between the two locations of the member's home address and the location of the breakdown/accident. 195 Both Ms Gaffney's current role and the earlier one she undertook in the NRMA Road Service Centre at Villawood which involved taking calls from members who required road side assistance, are clerical roles. In neither instance was she a telephone canvasser. 196 (In relation to the evidence of Ms Gaffney, Ms Marshall had formally raised it on the record that she was not a telephone canvasser but the issue was not pressed at that time and left to final submissions.) 197 The union's attention was misdirected in comparisons between canvassers and other employees, who are undoubtedly clerical in nature, to individual elements of the job being undertaken, in particular that of using a telephone, rather than to examining that job as a whole, and especially, the purpose for which the employer engages an employee to do that job. Employees answering telephone queries or initiating calls would often fall within the Clerical Award. Too much emphasis is being placed on the method by which they assist customers i.e. the telephone. Carrying out the same work at a front counter or in an office environment could be clerical. 198 That concentration on elements of a job only could do a disservice to others of the union's members, who are undoubtedly clerical employees, but who undertake telephone or selling duties as part of their job. It has also led the union to present what is ultimately an inadequate evidentiary case to support its application. 199 I have not taken into account any of the evidence relating to Ms Graham and Ms Gaffney as that evidence is not evidence of the work, wages or conditions of telephone canvassers (other than canvassers for the sale of goods). 200 Ascertaining which employee may or may not be considered a telephone canvasser does not fall into quite the grey area the union submitted it was. What certainly may be a grey area is whether a telephone canvasser is, or is not, a canvasser "for the sale of goods". The work of Mr Hennessy at Computer Best Buys and of Mr Bridge selling knives/seeking donations on behalf of the Spastic Centre are illustrations of difficulties in that respect. Another grey area is not so much whether an employee is a telephone canvasser, as to what proportion of that work is telephone canvassing as against clerical work, as demonstrated by Ms Dal Bianco's day shift at Flick. 201 Ms Hancock asked if cold calling is the defining factor which separates out telephone canvassers from people who are already properly covered by the award? She said probably not because all of the charities that gave evidence were engaged in calling of new and existing customers. The union says that the work of calling existing customers is properly covered by the Clerical Award. It is not canvassing in so far as the term is defined in the TCI Report, and the term is further not defined in the employer's application. It seems then that if calling existing customers is not cold calling and is in fact covered by award, then the employees at the Royal Blind Society would be covered by the award for at least half of the time. 202 Whether the work of calling existing customers is properly covered by the Clerical Award depends upon what the purpose of calling existing customers is. It also depends upon a definition of just what are "existing customers". In the case of Ms Graham, relied upon by the union, the purpose of her work was checking the orders for chicken products that the customers wished to place on a regular basis in the course of business. Examination of her work as a whole shows that she is already properly covered by the Clerical Award/Bartter Agreement. 203 In the case of telephone canvassers calling people who had previously bought tickets, those people could not be regarded as "existing customers" in the same way. The fact that they had previously bought a ticket, may pre-dispose them to buy another, and so might make the ticket seller's task easier, because he/she can skip some steps in the selling process - informing the person called as to the aims of the charity and assuring the person called of the bona fides of the caller. The canvasser still has to persuade that person to buy a ticket. Mr Westbrook said that on average, of the persons who first buy a ticket, 75% will buy a ticket in the next raffle, and 50% in the third. If a person buys a ticket in that third raffle, they nearly always can be regarded as a regular customer. 204 The operators need the same skills to approach a previous buyer as to approach a new buyer. As was said by Mr Harrington: "I guess like in tennis some balls are harder to get". (Transcript p 80 5/3/02) Mr Brink believed there was no difference in the persuasion or the skills used with either group. Ms Dal Bianco said that the work might be repetitive, but each individual on the other end of the phone is different. 205 The fact that a telephone canvasser is calling a potential art union or raffle customer for the first time or for the tenth time, makes that canvasser no less a telephone canvasser. The function is still the same - selling an art union or raffle ticket. 206 The union said in relation to the call centre environment, which was said presumably to be a room with phones where the employees' primary role is to work on those phones, it was seen on inspections of work sites that all of the sites looked the same but some of the work was already covered by the Clerical Award or clerical enterprise agreements that being the work at Bartter and at the NRMA. The union then asked if it was not the call centre environment that made the difference between coverage and non-coverage by the Clerical Award, what did? The answer to that question is quite straightforward. The work of Ms Graham at Bartter and of Ms Gaffney at the NRMA was properly covered by clerical enterprise agreements because it was clerical work, not that of telephone canvassing. 207 Employers who gave evidence do not seem to find it difficult to differentiate the work done as canvassers by their employees and work that is done by those same employees which would more properly be categorised as clerical work. Depending upon the work they were asked to do, other than direct canvassing, the employees were paid a straight clerical rate as at the RBS, or they were paid a different composite rate if making follow up or reminder calls prior to the conclusion of an art union or raffle as at the RIDBC or the HWNS. At the RIDBC a small group of operators would, once a year, be asked to call previous supporters of the Thomas Pattison Society to see if they would renew their pledge for the year. 208 I also have reservations as to whether some other witnesses called by the union were actually "telephone canvassers (other than canvassers for the sale of goods)", but were rather either, telephone canvassers for the sale of goods, or even clerical employees. 209 In that respect, Gerrad Hennessy's description of his work place at Pinpoint Marketing makes clear the limitations of both applications now before the Commission. 210 As a Customer Services Representative (CSR) at Pinpoint, Mr Hennessy was in September 1998 first trained in Computer Best Buys (CBB). The CSRs took inbound calls and also made outbound calls. The latter calls involved cold calling customers who had purchased computers or computer goods in the previous six to twelve months, asking them how that original purchase was going and trying to sell to them as much as they could of other software or anything else that would go with the computer. Mr Hennessy was required to ascertain the customer's needs and "try to pitch a sale according to their needs". He followed a basic script. The rest was up to the CSR. If the customer did buy an item, the CSR would take down payment method and details eg of credit card and arrange with Administration department for the product to be delivered to the customer. In relation to an inbound call with a query as to a product or range of products, the CSRs would try to convert that call into a sale. 211 If asking customers how their original purchase was going was an actual survey of customer satisfaction, and recorded as such, then Mr Hennessy to that extent was a "telephone canvasser (other than a canvasser for the sale of goods). However, if the query was a straightforward marketing ploy, then in reality he was a telephone canvasser for the sale of goods. 212 Mr G Hennessy's second job at Pinpoint was in Preferred Seating. Duties involved taking calls from persons interested in going on the waiting list to "reserve" tickets for an upcoming show. Later he would call back customers and ask if they were still interested. If they were not, he would try to convince them to buy tickets for another show i.e. try to cross sell tickets for different dates at different venues. 213 Mr G Hennessy's duties as CSR in the Rewards business at Pinpoint Marketing (his third job there) was to take inbound calls from customers who were members of a credit card reward programme. They would request their "points balance" or want a reward with their points balance. Most of this work was inbound call work. 214 There were different scripts for each business unit. It was not uncommon for a CSR to work in all three business units and do inbound and outbound work on the one shift. Likewise it was not uncommon for a CSR rostered to work on inbound role like Rewards, to be sitting next to someone doing solely outbound work or doing a combination of inbound/outbound work for two or more business units on the one shift. 215 Pinpoint had been involved in selling Olympic Tickets. People were cold called. For that campaign existing inbound CSRs were used and temporary employees engaged for that project alone. In my view, the employees involved in that campaign were, of all those he described, those who could with certainty correctly be described as "canvassers (other than canvassers for the sale of goods)". 216 Mr Hennessy describes his work place as a call centre. The company goal is to have every CSR or clerk trained on the seven programs of each business unit, so that they can deal with inbound and outbound calls for the three business units (Computer Best Buys, Rewards, Preferred Seating) during the one shift. A team of about 30 are cross-trained in two business units or more. 217 However, from Mr Hennessy's description it would seem that CBB was the chief area of canvassing undertaken by him and that was for the sale of goods. His cross-selling of tickets in Preferred Seating was, it seems to me more comparable with Mrs Graham's "selling" efforts in relation to chicken specials, than to canvassing as such, in that such efforts are only part of a wider job, probably basically clerical in nature. 218 In Mr Bridge's earlier employment at MBF as membership liaison officer, his job was to contact members who were in arrears or whose records showed incomplete cover and suggest they update their benefits and pay arrears. He said that was his only telemarketing experience before his job with Postel. Without knowing more about that position, it would seem that prima facie, in isolation, it might fall within the description of "canvasser" as set out in the TCI Report. However, it may have been just one aspect of a clerical position in an overall office situation. Relativities/Grading Structure - Adoption of Clerical Award - Submissions - FCU 219 The union's position was that the employers' application seeks to create new rates of pay specific to telephone canvassers. The relativities of the rates for the two levels of telephone canvassers are below that of a grade one clerk. The relativity for a team leader is the same as that for a grade two clerk being 92.4%. 220 The union disputes the employers' claim that the structure in the Clerical Award is not appropriate for telephone canvassers. 221 The classification structure describes a grade one position as one where the employees may work under direct supervision. The union submits there is already provision in the Clerical Award for employees to work under direct supervision and there is nothing to support the submission that this classification structure is inappropriate for telephone canvassers. The structure as it is applies to a broader class of employees than just clerical and administrative employees. It applies equally to telephonists who are not employed in a clerical capacity but are an extension of that group of employees. 222 Telephone canvassers should be covered by the award in the same way as telephonists are. The classification structure in the Clerical award is the one that currently applies to the environment in which telephone canvassers would be employed, that is, to all clerical and administrative employees in the organisation, including telephonists and supervisors of telephone canvassers, so it is the most appropriate grading structure to apply to telephone canvassers. 223 Further, the union submits that each telephone canvasser should be graded in accordance with his/her skills in the same way as clerical and administrative employees and telephonists are. To pay telephone canvassers in accordance with the job title only is not in line with the objects of the Act, particularly (a) and (e), nor is it in line with s 10 of the Industrial Relations Act 1996. 224 The union witnesses in the current case were able to use the grading structure in the Clerical Award themselves. Some found they were grade two and some found they were grade three. 225 It is unfair to assume all telephone canvassers with more than three months experience in the industry are exercising the same level of skill and that is why the classification structure in the employers' application should be rejected. 226 The union submits that the relativities in the Clerical Award are correct as they are a current award provision that was inserted into the award as a result of arbitration proceedings. The relativities that were set correctly reflect the skill levels and the responsibilities of employees employed in any clerical capacity or as telephonists. 227 Just in summary, with respect to hours and rates of pay and relativities, the employer is asking the Commission to have regard to cases that they have gone to such as those for the restaurant workers, dental technicians and the like. The Union submits that the Commission should have regard to the workers who have the closest connection with telephone canvassers those being clerical and administrative employees and telephonists. In addition, it is those workers that the telephone canvassers work side by side with in the working environment. Relativities - Consideration - General 228 In relation to the Minimum Rates Adjustment (MRA) principle, the Industrial Commission of New South Wales in Court Session (Fisher P, Cahill V-P and Bauer J) in In re Miscellaneous Workers - Security (State) Superannuation Award (the MRA Case) (unreported, 89/1588, 18/12/90), succinctly set out (at p 13) the rationale for the MRA exercise: The object of the Minimum Rates Adjustment exercise in regard to individual awards is to prescribe appropriate rates for classifications on the basis of skill, responsibility and conditions under which work is performed by comparison with the tradesperson in the Metal Industry Award. In our view, regard can also be had to comparisons with other classifications in that award, whose relativities, of course, have also been fixed in relation to the tradesperson's rate (C10). Reference may also be made to rates for like classifications in other awards. The tribunal's task, of course, is not an easy one and the extent of investigation and evidence required will vary according to the circumstances of the individual case. Care must be taken not too readily to accept assessments of comparisons with Metal Industry Award classifications, because, if similar classifications are assessed at significantly different levels in individual awards, it will tend to destroy the whole basis of award classification relativities which the system is designed to establish and maintain. 229 The Clerical Award has already been through the MRA process. That occurred when the Clerks (State) Award was restructured in the course of becoming the Clerical and Administrative Employees (State) Award in 1996 (see Re Clerical and Administrative Employees (Classification Structure) (State) Award (and four other applications) (the 1996 Case); unreported; Glynn J; 92/2335 and others; 25/10/96). Relativities - Adoption of Clerical Award - Consideration 230 There were three competing applications for a new Clerical Award in 1996, those applications having been put forward by the FCU, the Employers Federation (as it then was) and the Catholic Hierarchy of New South Wales (Catholic Hierarchy). The award proposed by the Catholic Hierarchy was that granted by the Commission. 231 The relativities proposed by the Catholic Hierarchy and adopted were: Grade Relativity % 1 87.4 (C12) 2 92.4 (C11) 3 100 (C10) 4 110 (C8) 5 125 (C6) 232 Further explanation of those proposed relativities was provided (1996 Case at p 68): The classifications in the MIA are largely defined in terms of formal training. There is lack of formal training for clerical staff, beyond entry level. For that reason, it is difficult to make direct comparisons with classifications beyond the trades person's equivalence. 233 Extracts from the Commission's consideration in the 1996 Case, including the Catholic Hierarchy's explanation of its proposed classification structure are set out below: … Included in the application at each level are indicative tasks which allow clerical employees and their employers to align the descriptors with tasks commonly associated with the clerical industry. These tasks come from the National Clerical-Administrative Competency Standards (Private Sector) [exhibit 237]. … Each grade stands alone but may be read in comparison with grades above and below to ensure level of "best fit". The test of "best fit" is consistent with the principal function test. The range of indicative duties which have been included at each grade of the structure are not intended to be relied upon to define the grade. Nor are they intended to be exhaustive. The indicative tasks provide a method by which the person inexperienced in classifying employees might view their "best fit" in the structure. The question of whether an employee is required to be fully skilled at all the indicative tasks does not apply. The test is whether the descriptors are fulfilled. The descriptors should be completely satisfied at each level for the employee to be graded at that level. The definitions of the grades and how they are to be used is consistent with the Re National Building and Construction Industry Award 1990 [1992] (49 IR 80 at 82): … workers should not be placed in a classification unless they have the training and experience necessary to perform the full range of the functions comprehended by the new classification and are actually required to perform these functions … 234 There are at least three elements in the determination of the appropriate grading for an employee in the Clerical Award: first, the descriptors, secondly, the indicative tasks and, thirdly, the functions undertaken by the employee to which the descriptors are to be applied and as to which the indicative tasks will assist in placement of the employee as to grade. 235 It was stated in the Catholic Hierarchy's explanation of the structure adopted by the Commission in 1996 that the indicative tasks that allow the descriptors to be aligned are "tasks commonly associated with the clerical industry". The explanation went on to say that each grade stood alone but might be read in comparison with grades above as below to ensure the level of "best fit". The test of "best fit" was consistent with the principal function test. 236 The tasks Ms Hancock took the employers and employees to when asking them whether grade 1 or grade 2 of the Clerical Award would apply to the telephone canvassers were clerical tasks. Very few of those tasks were required of those canvassers. However, the point is that nowhere in that grading structure have the selling, surveying, persuading functions pertaining to canvassers been considered as prime functions of any employees. 237 The function of selling is not a clerical function and so the principal function test does not assist to grade telephone canvassers under the Clerical Award. Various clerical tasks can be identified, as can levels of responsibility and of supervision. However, there is no reference point in the classification structure as to grading a person exercising the function of a telephone canvasser. 238 The relativities for grades 1 to 3 of the Clerical Award are the only ones relevant to these proceedings. 239 The union relied upon a number of New South Wales awards as dealing with the work of telephone canvassing and as such, relevant in the Commission's consideration of the rates of pay, conditions and relativities that would apply to telephone canvassers in accordance with Principle 13: Clerical and Administrative Employees in Permanent Building Societies (State) Award (the PBS Award) (320 IG 789 and variation at 323 IG 665); Mirror and Telegraph Publications Clerical Award 2000 (Mirror Publications Award) (319 IG 173); Sydney Morning Herald Classified Advertising Call Centre Enterprise Award (the SMH Award) (319 IG 792), and Clerical Employees in Metropolitan Newspapers (State) Award (Metropolitan Newspapers Award) (311 IG 823). (In this decision I refer generally to those awards as the permanent building societies and newspapers awards.) 240 The union accepted that they are consent awards. It said that there are no arbitrated awards which deal with this issue. Two were enterprise awards and two were industry awards, those being the Metropolitan Newspaper (State) Award and the Permanent Building Society (State) Award. They apply to particular industries and any employer that operates within that industry. They are not employer specific. 241 The union advised that the PSB Award in cl 4, classification structure and wages, has six grades, in contrast to five in the Clerical Award. The grading structure in that award is specific to it but the rates are the same as in the Clerical Award. Mainly for grades 2 to 5 the relativities in this Award are slightly higher than in the Clerical Award. Six different endorsed competency standards are related to each grade. In claiming that this was an appropriate award, in accordance with Principle 13, to take into account as to wage rates and relativities, the union referred particularly to the Retail Financial Services Competency Standards (RFSCS) and to the National Retail Competency Standards (NRCS) referred to in that Award. The union relied upon specific items from grades under the RFSCS and the NRCS, as standards which do apply to clerical and administrative employees employed in New South Wales building societies. It did not refer to the National Clerical Administrative Competency Standards (NCACS) which set out another group of endorsed standards. 242 In the PBS Award the union referred to items included as from 15 December 2000 (323 IG 665) under the RFSCS. 243 As against grade 3, two new items were included: ICTTCC 203A Navigate and interrogate specific enterprise systems to satisfy customer requirements. ICTTC 211A Process sales of complex product/service and where customer is unsure of available solutions. 244 The union relied particularly on item ICTTC 211A. 245 As against grade 4, the following items were added as from 15 December 2000: BSZ 404A Train small groups. ICTTC 221A Resolve the more complex customer complaints. ICTTC 232A Manage information and information systems in a call centre team environment. ICTTC 212A Process sales which commit both customer and enterprise to considerable financial commitment. ICTTC 223A Process high risk credit applications. 246 In that instance the union relied particularly on items ICTTC 232A and ICTTC 212A. 247 The union referred to one item under the NRCS, that being under grade 2: S1 - sell products and services. 248 No evidence was brought as to the work actually done by employees in satisfaction of those standards. However, when one looks at the face of the document as set out above, the union is not helped in its submissions as to the appropriate gradings under the Clerical Award for telephone canvassers. Examination of the other items with which ICTTC 211A (grade 3) and ICTTC 232A and ICTTC 212A (grade 4) are associated would indicate, prima facie, that none would be relevant to the telephone canvassers and team leaders concerning whom evidence was given in these proceedings. 249 There is no information about item S1 (grade 2) of the NRCS to allow me to make any assessment as to its relevance to telephone canvassers. 250 Grade 2 (at 100%) of the Mirror Publications Award includes employees who are responsible and accountable for their own work that is performed within established routines, methods and procedures. Supervision is routine. Indicative tasks include: (ii): "Acceptance of classified and/or displayed advertisements by telephone at the counter exercising knowledge and advertising packages and routine sales techniques." 251 Grade 3 (at 110%) includes employees who perform clerical tasks using a more extensive range of skills and knowledge at a higher level than required in Grade 2. They are responsible and accountable for their own work and exercise discretion and initiative in the organisation of work within prescribed limits. Supervision is general. Indicative tasks include: (i) of the indicative tasks is: "Acceptance and/or canvassing of classified display, advertising by telephone and inputting into the computer system improved copy style format orders and series using sales training to achieve maximum volume in selling and responding to customer inquiries and needs. " 252 Examination of those tasks indicates wider functions than the functions of the telephone canvasser: selling, surveying, persuading. 253 Relevant supervision in that Award is defined as follows: Routine the employee receives broad instructions on work to be performed except when new or unusual features require more specific instructions. Work in progress is checked intermittently. General the employee receives specific instructions only when new procedures or tasks are involved. Work is checked on completion. 254 The SMH Award deals, as is indicated by its title, with employees at its classified call centre. It has five levels, grade 5 (112.5%) the highest down to level 1 (100%), plus a trainee level at 95%. Set out in Schedule A are the Classified Call Centre Sales Stream Skill Definitions. Under the heading "Canvassing" the following is set out: A person qualified to perform canvassing function is competent to perform the following tasks: Incoming, plus Canvass advertising from other publications and media in order to develop new business for classifieds. 255 Under the heading "Incoming" it states: A person qualified to perform incoming function is competent to perform the following tasks: accept advertising copy through various delivery mediums; advise customers of layout of ads; assist with copy betterment, different type sizes, lines of space and special discount features; attempt to upsell on all incoming copy; encourage repeat business; promote goodwill by providing follow up calls to clients on expiring advertisements; promote Fairfax products. 256 The relativities for employees in the classified call centre sales stream are: Level 5 (112.5%) Skills: Incoming plus any 4 of Customer Service, Validity, Retail, Canvassing, Switch Level 4 (110%) Skills: Incoming plus Canvassing or Incoming plus any 2 of Customer Service, Validity, Retail Switch 257 As can be seen from the above, the skills required of employees undertaking canvassing functions in that call centre go well beyond those required of telephone canvassers concerning whom evidence has been given. 258 The SMH Award does not assist in determining an appropriate relativity for the telephone canvassers now being considered. 259 Insofar as the Metropolitan Newspapers Award is concerned, the only difference between the indicative tasks for a grade 3 position in the Clerical Award and that award is an additional task found under Technology, that task being to "operate visual display terminals in any capacity, including canvassing for and/or accepting classified advertisements by telephone". The indicative tasks of the grade 3 position relied upon by the union also included within the "communication" strand, "respond to telephone, oral and written requests for information". That was not one of the functions of telephone canvassers described in this case. 260 The relativities and rates in that award are identical to those in the current Clerical Award. 261 That Award is of limited assistance to the union. 262 The union also relied upon the relativities and rates in the Business Services Award (No 1 of 2001) an award of the Tasmanian Industrial Commission. 263 The scope of this award is set out in cl 3: (a) This award is established in respect of the industry of business services. (b) For the purposes of this award business services shall mean: i administrative, clerical, marketing and promotion services; and or ii telemarketing and or iii telesales and or iv fund raising services; and or v paging services; and or vi visitor, customer and consumer services; and or vii call centre services; and or viii internet services. … 264 Supervision is direct. 265 The award has seven grades, in addition to an adult entry level, the relativity of 100% attaching to grade 3B. It provides in respect of the Business Services Employee, grade 1 (the bottom grade) that: This classification shall be the minimum classification for employees engaged as telemarketers, telesales or telephone service employees or call centre employees. 266 The general requirements for a Business Services Employee, grade 2, for whom supervision is routine, include the ability to acquire and apply a working knowledge of office or sectional operating procedures and requirements as well as "initiate telephone calls, conduct telephone sales and fund raising activities using defined procedures and confirm and record transactions and activities". 267 That final requirement, with the exception that "conduct telephone sales" becomes "conduct sales", is also found in respect to the Business Services Employee Grade 3. In addition to the requirement to meet the "General Requirements" and exercise one or more of the "Skill Requirements" for Grade 3, a further avenue to Grade 3 was that: Employees holding a relevant Certificate III or accredited equivalent who are required to use skills and perform tasks within the range of Grade 3, shall be classified at this grade. 268 (The Award does not provide further assistance as to the Certificate referred to.) 269 No evidence was brought by the union from employees covered by any of those awards in relation to the work that they performed. 270 In my view the newspaper and permanent building societies awards, apart from being consent and/or industry awards, provide either only limited or no assistance to the determination of the applications before the Commission. Rather, they point up the limitations of the evidence that has been brought forward. 271 In those awards generally, the nature of the canvassers work goes beyond a single focus on selling, surveying or persuading (which may be regarded as selling an idea or a proposition) as demonstrated in the evidence in this case. That evidence also showed that when telephone canvassers moved beyond that single focus, as at the RBS, to straightforward clerical duties, they were paid at a different rate. 272 In support of its submissions, the union also relied upon the self-grading by union witnesses as to their location placement within the Clerical Award classification structure. That grading varied between grade 2 and grade 5. The grade 5, however, related to the current position of Mr Hennessy which was not a canvasser's position. The self-grading also took into account only two of the elements of grading - the descriptors and the indicative tasks, but they were not applied to the functions of telephone canvassing. Indeed, the notion of one witness as to the "discretion" he exercised in accordance with one of the descriptors for grade 2 was whether to note payment as being by card or cash or saying whether the answer to the call was by fax, answering machine etc. 273 When Ms Purcell joined the RBS around 1997, she checked the skills and responsibilities of telesales agents against the Clerical Award and also against the Hay grading system used for their permanent employees, and in each case the grading came out at the lowest level ie Grade 1 under the Clerical Award. 274 It would seem that Mr Westbrook, in saying that telemarketers at AFFORD would fall into Grade 2 of the Clerical Award, was looking to equivalence of remuneration ($15 per hour for casuals). He did not relate his decision to any specific duties as such, because he believed that in the telemarketers, AFFORD has sellers involved in direct selling not in clerical functions. 275 When Mr Harrington of the RIDBC was taken to grades 1 and 2 he said that very little of that applied and any that did was in grade 1. 276 The relativities already set for employees covered by the Clerical Award are to be treated as "presumptively fair and reasonable" (see Re Crown Employees (Teachers in Schools and TAFE and Related Employees) Salaries and Conditions Award, [2002] NSWIRComm 144). However, the relativities to be found in the Clerical Award followed a long case with extensive evidence, none of which went to telephone canvassers. Although telephone canvassers, as one outcome of this decision, will be covered by the Clerical Award, they are not clerical or administrative employees. The sales skill was not one that was specifically considered in the course of the making of the Clerical Award in 1996, as to where it might be positioned in relation to C10 of the MIA. Furthermore, it is not only their relativity which has to be determined but also which conditions of the Clerical Award are appropriate to be applied to them. 277 Comparison with employees in the Clerical Award or other awards is not assisted by the fact that the telephone "canvassers" function as described in these proceedings is of itself a very limited one. It does not extend to all the duties undertaken by employees covered by the newspaper and permanent building societies awards relied upon by the union. If reliance is placed on equipment used, some canvassers could come under grade 1 of the Clerical Award because they do not use computers. The HWNS canvassers at Belrose do not use computers and so would fall within grade 1, while for the remainder of HWNS canvassers their work is a totally computer driven operation. They would therefore fall within grade 2 simply on that basis. The Park Trent canvassers do not use computers but on the evidence in this case, those same canvassers are the only ones undertaking training via a TAFE course and formal in-house training. Others performing the same functions and using the same skills, but using computers, could start at grade 2. 278 It seems to me that comparison with the work of such employees as sales persons and market researchers might be more fruitful, or indeed of telephone canvassers in call centres already covered by other industrial instruments. (The latter, of course, would in, in all likelihood, not be restricted to canvassing, "other than canvassing for the sale of goods".) Relativities - Adoption of Clerical Award - Conclusion 279 I find that the evidence does not justify the adoption of the Clerical Award's relativities as to grades 1, 2 or 3. *********************** 280 I now turn to consider Employers First's application to insert a new cl 5.2 into the Clerical Award to provide rates and conditions for telephone canvassers. The terms of that proposed clause are as follows: 5.2 TELEPHONE CANVASSERS (i) The minimum rates of wages per week for adult telephone canvassers, inclusive of commission, shall be as set out in (iv) of Table 1 - Wages of Part B - Monetary Rates. (ii) The minimum rates of wages per week for junior telephone canvassers, inclusive of commission, shall be as set out in (v) of Table 1 - Wages of Part B - Monetary Rates. Junior rates shall be calculated to the nearest five cents and any part of five cents not exceeding half of five cents is to be disregarded. (iii) Commission payments may be made to a telephone canvasser and may be offset against any payments prescribed by this award for a telephone canvasser. (iv) Part-time Telephone Canvasser A part-time telephone canvasser is a telephone canvasser who works a lesser number of hours than constitutes full-time work under this clause. Part-time employment may be limited to a specified period or periods of part-time employment, but need not be so limited. A part-time telephone canvasser shall be paid at an hourly rate, inclusive of commission, equal to the appropriate weekly rate of pay for a telephone canvasser divided by 40. (v) Casual Telephone Canvasser An adult casual telephone canvasser shall be paid at an hourly rate, inclusive of commission, as set out in (vi) of Table 1 - Wages of Part B - Monetary Rates. A junior casual telephone canvasser shall be paid at an hourly rate, inclusive of commission, as set out in (vii) of Table 1 - Wages of Part B - Monetary Rates. These rates of pay have been loaded to compensate employees for entitlements and benefits otherwise available to full-time employees, including sick leave, annual leave, personal/carers leave etc. Where a State Wage Case decision prescribes a dollar amount, the casual rates in (vi) of Table 1 - Wages of Part B - Monetary Rates will be adjusted by dividing the dollar amount by 40 and adding a loading of 20%. Provided that each adjustment shall be calculated to the nearest five cents and any part of five cents not exceeding half of five cents is to be disregarded. (vi) Except as to the provisions of Clause 2 - Anti-Discrimination, Clause 4 - Terms of Engagement, Clause 5.2 - Telephone Canvassers, of subclauses (i), (ii), (iv) and (v) of Clause 9 - Sundays and Holidays, subclauses (ii) and (iii) of Clause 10 - Meal Break, Clause 11 - Payment of Wages, Clause 14 - Higher Duties, Clause 16 - Travelling Expenses, Clause 17 - Uniforms, Clause 18 - First Aid Allowance, Clause 19 - Annual Leave, Clause 20 - Annual Leave Loadings, Clause 21 - Long Service Leave, Clause 22 - Sick Leave, subclauses (i), (ii) and (iii) of Clause 23 - Personal/Carers' Leave, Clause 24 - Bereavement Leave, Clause 25 - Parental Leave, Clause 26 - Jury Service, Clause 27 - Superannuation, Clause 29 - Occupational Health and Safety, Clause 30 - Award Display, Clause 31 - Notice Board, Clause 32 - Right of Entry, Clause 33 - Enterprise Arrangements, Clause 34 - Labour Flexibility, Clause 35 - Training, Clause 39 - Redundancy, Clause 41 - Dispute Avoidance Procedure and Clause 42 - Area, Incidence and Duration, Part A of this award shall not apply to telephone canvassers. 281 [Note: The effect of that proposed sub-clause (vi) is that all the clauses of the Clerical Award nominated in it would apply to telephone canvassers.) Relativities/Grading Structure - Proposal - EF - Submissions 282 The following grading structure and relativities were advanced by Employers First: Telephone Canvasser with less than 3 months full-time experience in the industry 78% Telephone Canvasser 82% Team leader for telephone canvassers 92.4% The team leader classification had not been included in the original application but was included later as the evidence unfolded. 283 It was said by Ms Marshall that in determining the appropriate relativity for the proposed classification structure as a whole it is necessary to look at each level. 284 What Employers First is proposing is appropriate based on the evidence before the Commission and it reflects what is customarily done in the industry. The Commission would be loath to change an industry that has up until now been award free and not regulated. 285 The First Awards principle is relevant to the rates of pay. Having regard to that principle, Employers First said it sought to fix appropriate relativities for three classifications. Those relativities reflect the skills and responsibilities required to perform the job of a telephone canvasser having regard to the State Wage Case August 1989 Re Minimum Rates Adjustment ( (1989) 35 IR 183) and the principle that evolved from that particular decision. 286 The following State awards, the Restaurant Employees (State) Award, the Health Fitness and Indoor Sports Centres (State) Award, and the Parking Attendants (State) Award, provide a classification within them which goes to customer service by providing information to customers over the phone which Employers First sees as relevant duties to the work of a canvasser. Trainee telephone canvassers - Submissions - EF 287 Ms Marshall explained the first level of Employer First's application "telephone canvassers with less than three months full time experience" was intended to apply to a canvasser who has less than three months full time equivalent experience in the canvassing industry, not just with a particular employer. 288 Wage group C14 in the Metals Award relates to an employee who is undertaking up to 38 hours induction training, which may include information on the enterprise, conditions of employment, introduction to supervisors, etc. Employees with not less than three months experience are fixed at the relativity of 78%. 289 That is the proper relativity in relation to this classification because training is required at that level before progression to a higher grade. In some organisations there was no clear cut progression. Canvassers may have been paid a different rate of pay. They may have been called something different such a rookie and a buddy, but there was a pattern in the evidence that there was an initial period of time where new employees were trained and were given an opportunity to increase their skills up to the level of canvasser, whether they were called a telesales operator, telemarketer or seller. 290 There is a lot of evidence in relation to rates of pay and the union did actually put to all witnesses the classification in the Clerical Award which Award has proper fixed relativities. 291 In Re Restaurants &c., Employees (State) Award (unreported, IRC95/216 and others, 23/8/96), which Employers First understood to be the only arbitrated decision in New South Wales in relation to this particular relativity, Marks J fixed a relativity of 78% for level 1 of that Award, describing it as an employee who is undertaking up to three months on the job training so as to enable the employee to be employed at a grade 2 level. That relativity was subsequently adopted in the Caterers Employees (State) Award (326 IG 78 at 79) for Grade 1 which is in the same terms as level 1 in the Restaurant Award, and for grade 1 in the Canteen Workers (State) Award (314 IG 155 at 156) for employees with a similar period of training. 292 In the Health Fitness and Indoor Sports Centres (State) Award (324 IG 497 at 498), level 1 was fixed at 78% by consent of the parties and approved by the Commission. It relates to those employees who were undertaking the training fixed at three months before progressing to level 2. 293 Employers First's application is consistent in that sense in that it fixed a rate of pay for a period of three months before a new employee can progress to telephone canvasser which is level 2 in its classification structure. 294 The Industrial Relations General Regulation 1996 which came into force on 1 October 1997, provides for a three month probationary period for employees. It is not inconsistent with the Regulation to fix a three month period to provide people with structured training and provide them with the skills and also determine whether or not they are suitable for the job. Trainee Telephone Canvassers - Submissions - FCU 295 The employers seek an introductory rate of pay for telephone canvassers with less than three months equivalent fulltime experience in the industry. The employers' submission on this point was tied to probationary periods of three months. The Industrial Relations (General) Regulation 1996 as amended was cited in support of their proposition. 296 Regulation 5B deals with exemptions from unfair dismissal provisions for various categories of employees, one of which is employees serving a period of probation or qualifying period. The Regulation only goes to exempting such employees from bringing unfair dismissal claims before the Commission. There is no nexus to a reduced rate of pay in that Regulation and so it should not be relied on by this Commission in determining whether to grant that part of the employers' application. 297 Further, there is no introductory or training rate in the Clerical Award as it currently is. Employees who are employed on probationary periods are graded in accordance with their skills for the work they are employed to perform. If it turns out they cannot perform the role they are given more training or what ever is decided in the workplace. It may be they do not pass the probationary period. In any event, they are not employed on the reduced rate of pay whilst on that probationary period. The union says the same should apply to telephone canvassers; in addition a blanket three month training rate of pay is not in line with all of the evidence. Training - Evidence 298 The training given to the canvassers/telemarketers was directed to the functions they were to undertake. Those functions are not clerical, but selling or persuading (eg Ms Dal Bianco). 299 Training by Australian Wine Selectors was supposed to be over 2 days, but Ms Dal Bianco and her group of 10 to 12 people, only had one morning, starting on the telephones the same afternoon. The training involved information about the different sorts of wines being offered, how to "talk around" a person who was saying "no" and how to "close a deal", how to "reel" the customer in and how to boost the benefits of the Wine Society. 300 At Flick Ms Dal Bianco was given two hours of training in relation to the different types of pest control available. She was also provided with a manual, updated from time to time, showing what services would eradicate which pests, and the cost of each service. For the first two weeks she worked 4 to 8 hours per week (1 to 2 shifts) which was like a training period. She found the work easier because of her work at Australian Wine Selectors. Other Flick telemarketers' training ranged from one to four weeks. As her knowledge at Flick increased so did the hours she worked there. 301 Operators at the RIDBC are provided with initial and ongoing training in the management of calls and use sales scripts. It is often necessary for the operator to explain the work of the Institute in some detail in order to effect a sale. Mr Harrington said: 10 All Operators are initially employed on a casual contract basis usually for the period of one lottery (approximately four months), as a probationary period. The usual probationary period is approximately twelve weeks. On satisfactory completion of this probationary period, they are transferred to permanent part time. … 23 … The payment of additional entitlements to permanent part -time Operators, after the probation period, recognises the additional experience, training and productivity they have gained during the course of their first lottery. 302 On the afternoon or evening shifts it takes a while for an operator to gain the experience necessary to gain the bonuses and get over $14 per hour. There are some people who will never get over $14 because they do not have the drive to do that and are happy to coast through the hour. 303 At the Royal Blind Society, employment is subject to a trial period of three weeks. Ms Purcell said that that period is to allow time to determine whether the person is punctual and can undertake the basic tasks of the position. However, the employee's performance is monitored generally over the whole period of approximately 10 weeks of the art union. 304 For RBS, there is provided in the employment agreement: (iv) That my initial sales target on commencing casual employment is 4 Art Union ticket orders per hour and further, that this sales target may be subsequently increased by the Tele Sales Specialist or Team Leader depending on specific campaigns. … (vi) That this Agreement is subject to a trial period of 3 weeks commencing from … during which time my sales target as determined in paragraph (iv) above is to be achieved and that further, if I do not achieve this sales target the Tele Sales Specialist or Team Leader may at his/her discretion terminate my employment or extend the trial period. 305 The RBS has a training video that people are taken through in their first two weeks of employment which is about good OH&S posture, sitting at a computer screen or at a desk and exercises. They have little photocopy sheets that people can put up on their screen which talks about having good posture the way one should have. 306 The RBS has actually a three day formal induction programme that the permanent staff go through. It was said by Ms Purcell that that is probably overkill for the tele sales area because it is not required but there are parts of that programme that it are recommended to the supervisors to ensure that the telesales people are familiar with. So an example is that any new person is taken on an orientation of the building. They are advised as to where the escape, evacuation stairs are et cetera, the security of the building. Things like toilets, cafeteria, bus, transport those types of issues are discussed. Ms Purcell recommends to supervisors that if they do not put a staff member on a 3 day induction programme, that they take the staff member through a check list of the above matters and use the video as well. 307 At the RBS, the telesales representative is trained and coached by a Team Leader/Manager to increase knowledge and skill and to enhance performance. 308 At Park Trent undertaking the Certificate 3 course in Telecommunications at TAFE is mandatory in order for telemarketers to be offered and to maintain permanent part time status. That is a twelve month course that combines one day per week attendance, paid for by Park Trent, at TAFE with on-the-job training at Park Trent. The course also involved computer training, although no computers were used by telemarketers as at April 2002. 309 Ms Salway employed by Park Trent said she was permanent part time and was actually indentured into an apprenticeship, doing the TAFE course. At Park Trent there have been three groups following that course and Ms Salway thought that 30 to 35 of the 50 existing employees had completed the traineeship. 310 At Park Trent to become a "buddy" or trainer is a promotion from the position of telemarketer. The trainer is responsible for training and assisting other telemarketers but continues to do regular telemarketing work during the course of the shift. The trainer takes 1 to 5 people into an office and gives them regular information updates, back-up and makes sure they are doing and saying what they are supposed to. 311 Mr Hastie had also undertaken the Certificate course. He said that when he started at Park Trent there was a two hour induction given by two in-house trainers using training videos, literature and books. At that induction, he was introduced to the company management, team leaders, toured the centre, introduced to the head of the department, shown where to sit, head phones and how they worked, paper work and introduced to a "buddy" on that night. He was shown scripts and how to use them. Present "rookies" (trainees) are given the same induction. At 5 pm that same day he started on his first shift listening to experienced telemarketers and being listened to. He was on his own on the next shift, having advised that he was comfortable with that arrangement. 312 Probably three or four months after he started he was offered training in other skills: Attitude (2 hours) Voice quality (2 hours) Product knowledge selling techniques (2 hours) In-home consultation when completing paperwork (in-house course - 2 weeks - 5/8.30 pm Monday - Friday. Paid time) (In relation to that last course, his oral evidence was that there was one hour training involving a video by a consultant. I do not know if the one hour training was in addition to or different from the in-house course described.) 313 Some two months after induction, he was given OH&S training as to special needs for back problems etc. It is up to the employees themselves if they wish to undertake the additional training programmes which run every couple of months. 314 Not every "rookie" or trainee telemarketer at Park Trent is promoted to being a "buddy". Ms Salway said that in her experience at Park Trent the shortest period of time that a person has had to be a trainee or a rookie was "easy six months". 315 Ms Cross, a member of management at Park Trent, said during inspections that Park Trent had two fully qualified in-house trainers, one being the head teacher at Illawarra TAFE. She claimed that the training the telemarketers received was second to none. Park Trent was working to obtain Registered Training Organisation status. That means the training would be delivered to the standard of TAFE or equivalent. The telemarketers training is ongoing; OH&S is ongoing; workplace improvement is ongoing. 316 The only direct information from employers that came from outside the charity area was that given by Ms Cross in the course of inspections. From my reading of industrial reports as to the operation of call centres, I think it likely that Park Trent, with its socially and industrially progressive management, is not representative of every employer in that area. Ms Cross described the mix of people (not all telemarketers) working at Park Trent as: CROSS: We have a mix of people. We have non-English-speaking background people; we have youth at risk, people with mental illnesses, blind people, deaf people, mentally disabled and people with epilepsy. At one stage we would have a fit a week but that was supported to the nth degree. HER HONOUR: You were saying some of those with mental disablement wash the cups? CROSS: Yes, we have an OH & S committee. They make sure the bathrooms are clean and the floors maintained. We have support from the mentally handicapped in that regard. 317 The only direct evidence that any relevant TAFE training for telemarketers existed came from Park Trent employees, and it was training that management positively encouraged, by formal employment arrangements. 318 Mr G Hennessy was not given any training in selling techniques before taking up his position as a Customer Service Representative (CSR) in Computer Best Buys with Pinpoint. Training when he started was a 10 minute tutorial on how to work his way around the computer systems and then he was "chucked" on the phones. When he was transferred to the Quality Department in August 2000, his duties involved monitoring the service given to customers by the CSRs, updating CSR procedures and giving call coaching to the CSRs. Until a CSR was accredited by Mr Hennessy, that CSR could not work on the phones. 319 At Pinpoint, a lot of the CSRs were cross trained in the three main departments - a team of about 30 cross-trained in 2 business units or more. 320 At Postel Ltd, the job description for the Trainee Telemarketing Sales Representative (TSR), Level 1 included the requirement to attend an induction training programme and to have completed the check-list induction sheet prior to commencing phone work. John Bridge said the training at Postel was very limited. He was given the script, let have a trial to which management listened and then told to carry on. Management would listen in from time to time. The telemarketer could tell if he/she was being successful by the sales figures achieved. 321 The Trainee Telemarketing Sales Representative (TSR) at Postel Ltd was required: To achieve, by the completion of the four (4) week probationary assessment the budget rates set per shift for the program to which they have been assigned. Over the ensuing twelve week probationary period to consistently achieve budget or over-budget performance. 322 It seems that Mr Bridge when he went to the Spastic Centre from Pentel, and from the Spastic Centre to 2001/Loughlin Pty Ltd was not required to work out any probation period. 323 Mr Brink of the HWNS said that organisation had a fairly stable workforce and have not had much in the way of new sellers in the last couple of years. He described the training that would be done for a new person: … the training that happens really is if we started a new person they sit down with one of the existing sellers for half an hour or so, listen to the sorts of things that are said, get a bit of instruction about the computer operation and are given one of these scripts and then basically go off and have a go themselves. Quite often we don't start them then in the computer dialling but in a more manual system so that they can take their time to get going but other than that there is no real training. We try, I have tried a whole range of different things. We have employed sales managers. We have brought in motivational speakers but every time we do it we get enormous resistance from the sellers that basically they know everything and nobody that we have ever brought in can teach them anything about the job that they are doing which to some extent is right but I think like everybody they can learn a little bit. There is great resistance to it. 324 The House with No Steps did have a formal probation period of three months as per its industrial agreement. 325 Mr Westbook said that AFFORD did not really have a specific time frame for its induction period but for the fundraising area "is done fairly intensively over the first week or so. And then the performance of the person is probably reviewed fairly quickly from that point so that we can see how they are progressing or not progressing". Trainee Telemarketers - Relativities - Consideration 326 Despite the fact that Ms Marshall, by consent, on 9 April 2002 further amended Employer First's application orally in relation to the "Telephone Canvasser with less than 3 months full-time experience in the industry" by adding the word "equivalent" after the word "full time" and before the word "experience", the Further Amended Application filed on 24 June 2002 did not reflect that change in cl (iv) of Table 1 of Part B, Monetary Rates. 327 I have considered the application on the basis that sub-cl (iv) of Table 1 - Wages of Part B, Monetary Rates has been amended to read "Telephone Canvasser with less than 3 months full-time equivalent experience in the industry". 328 (Because some of the evidence and submissions went to probation periods as well as to training, I recalled the parties to ensure that a distinction was intended between probation and training for the telephone canvasser with less than 3 months full time equivalent. I was advised by Ms Marshall that the issue was training, not probation. A period of probation would be a different issue and applicable to any new employee, no matter how experienced. The purpose of a probation period is different from that that for a training period.) 329 On 9 April 2002, when Ms Marshall thus further amended Employer First's application in relation to trainee canvassers she said that, given the evidence that unfolded in the proceedings it was appropriate in this application to provide for a level of payment which recognises that a telephone canvasser, for the first three months of their employment, is undertaking on the job training and is gaining the skills required to be a telephone canvasser. 330 In relation to this proposed classification, the Health, Fitness and Indoor Sports Centres (State) Award (324 IG 497 at 499) defines a Level 2 employee as one who has completed at least 3 months or in the case of a casual or part time employee, 456 hours training at Level 1. (That Award provides that hours of work are not to average more than 38 per week.) On that point, I assume that the Employers First application is not seeking 456 hours of training, as such, but 456 hours of work experience in the industry. (The Employers First's application would actually be seeking more than 456 hours, based as it is on a 40 hour week. I have found the appropriate divisor to be 38.) 331 For the purposes of this judgment, I shall refer to telephone canvassers at that level as "trainee telephone canvassers". 332 In her submissions as to appropriate relativities, Ms Marshall paid particular attention to the training criteria found in the Metal Industry Award Restructuring Manual in respect of the classifications against which she was comparing Employers First's proposed canvasser classifications. 333 However, in doing so, in relation to the trainee canvasser level, the evidence given by Jason Hastie and Selma Salway at Park Trent does not seem to have been taken into account. Their evidence was that to be offered a permanent part time position by that organisation, employees had to undertake a one year TAFE certificate course. The extent of the course content or of the number of actual TAFE instruction modules is not known. Just how widespread is such a requirement by employers is not known, nor is it known as to the effect the acquisition by employees of that certificate has on their skills, approach to work etc. 334 The Tasmanian Business Services Award 2001 provides that the holder of a relevant Certificate III course or accredited equivalent shall be classified at Grade 3 as against the minimum classification for telemarketers at Grade 1. 335 In Re Restaurants &c Employees (State) Award (the Restaurants Award Case) (unreported, Marks J; IRC95/216 and 1875, IRC96/1026; 23/8/96), Marks J fixed a relativity of 78% (as against the union's claimed 82%) for level 1, the starting level in that award, that classification and relativity being upheld on appeal. In brief an employee at level 1 is described as one who is either undertaking up to three months on the job training so as to enable them to be employed as a level 2 employee or is providing general assistance to employees of a higher grade, that assistance including such duties as cleaning, tidying and setting up of the kitchen, setting up/wiping down tables, removing food plates, general cleaning, gardening and labouring tasks. As described by Marks J at p 84 "as an alternative to a structured training programme, there is a description of work which clearly provides a picture of work which is basically unskilled and equates to general labouring and cleaning duties". 336 I do not think that I would equate the duties of a telephone canvasser who is learning on the job, often from the first day and after minimal training as being "basically unskilled" and equating "to general labouring and cleaning duties" in the terms used by Marks J. In my view, the art of selling, surveying, persuading etc is not unskilled work. 337 However, reference back to training as an aid to setting relativities for telephone canvassers does not really progress the issue to any great degree. Canvassers can start on the job with anything from two hours to a week's training. Other than the additional formal TAFE training undertaken by some of Park Trent's canvassers, all training, including that for Park Trent, is on the job and/or in-house. 338 Newcomers working as telephone canvassers on a commission basis automatically receive increased pay when their sales increase, whether that takes 3 days or 3 months. Some people are quicker at picking up and honing the skills necessary to be successful telephone canvassers. As was said by Ms Salway "some people have got the gift" to talk to people and canvass on the phone, whereas some others are gone within a week or "take months and months and months to pick up", and by Mr Bridge that of the hundreds who started at Postel while he was there, 90% did not last more than 2 or 3 weeks. 339 Not all canvassers, eg Ms Dal Bianco at Flick, work to a commission system and are paid base rates only. 340 A first time adult employee, without experience, and covered by the Clerical Award, would, in the ordinary course of events come within Grade 1 of the Award, and be paid the award rate for that Grade as he/she learned on the job. Other than being in a special situation, such as that of trainee, that person would not be paid a lesser base rate than a more experienced employee also placed on Grade 1. 341 The work of trainee canvassers entails the selling, persuading, surveying functions of telephone canvassing. For reasons set out later I have decided to insert only the one classification of "telephone canvasser". 342 The proposed classification of "telephone canvassers with less than three months equivalent full time experience" is rejected. Telephone Canvasser - Submissions - EF 343 The second proposed classification is that of telephone canvasser. 344 The appropriate relativity for a canvasser is 82%. That is in line with group C 13 of the Metal Industry Award. It is relevant in that if the trainee canvasser is fixed at 78% in a period of three months the natural progression would be after that 3 months training to a 82% level. 345 What seemed to come out of the evidence were three major things in relation to the duties that telephone canvassers performed. They talk to people over the telephone. In almost all cases employees worked with a list of phone numbers that they were required to call to make the sales bid, eg an art union ticket or to ask someone to attend a real estate conference. They may use different types of equipment. Some use computer, some use manual telephones with phone books, some use predictive dialers, but in the main employees were provided with a list of people that they systematically call to make the sale for whatever they were selling. 346 There are generally two lists which are provided to different telesales agents or canvassers. One is a cold calling list and one is a "warm" list which is a list where people have purchased before. The two different types of lists may require two different sets of skills to successfully make the sale. 347 To give an indication as to the skill that is required in relation to the work of a canvasser, it is interesting to note the evidence that came from the proceedings in relation to the use of a sales script and how rigidly that sales script is followed by a particular canvasser at any time. 348 It was disclosed throughout the evidence that most organisations had a supervisor or manager to assist telephone canvassers with any problem they might have, who, in the main appeared to be team leader or team manager. 349 The evidence discloses the employees fall neatly within C 13 as described in the Manual. In relation to the direct supervision component of C 13 the only definition was that found in the previous Clerks (State) Award (the pre 1996 award) (225 IG 1551 at 1556) where it provides: Grade 5 - Direct Supervision - shall mean that a person - (a) receives detailed instructions on the work to be performed; and (b) performs tasks which are part of an overall work routine; and (c) is subject to regular personal progress checks on the work being performed. 350 The evidence in relation to the work of canvassers supports the position that these people are subject to direct supervision in line with that definition. 351 A relativity of 82% for the work of a telephone canvasser is consistent with that awarded for level/grade 2 in the Restaurant Employees Award Case by Marks J and by Tabbaa C in Re Parking Attendants etc (State) Award. Telephone Canvasser - Relativity - Consideration 352 Wage group C13, for which a relativity of 82% was fixed is described, in part, in the Award Restructuring Manual as: An engineering/production employee level II is an employee who has completed up to three months structured training so as to enable the employee to perform work within the scope of this level. An employee at this level performs work above and beyond the skills of an employee at C14 and to the level of his/her training: 1 Works under direct supervision either individually or in a team environment. … 353 Ms Purcell said that a telesales agent who has had five years experience and has a very strong client base will turn more sales around in an hour than someone who is new and has no client base and is starting from scratch. For each art union a telesales agent works, his/her client base grows and, on the commission structure the RBS has currently, the telesales agent has an opportunity to develop and increase his/her commission. 354 In the HWNS Corporate Fundraising Workplace Agreement 2000 there is provision for skill levels for sellers (telemarketers) over 3 years. Mr Brink said that currently a very high proportion of their telemarketers would have been there for three years. 355 Because she could find no definition of "direct supervision" in the MIA Restructuring Manual, Ms Marshall turned to the previous Clerks (State) Award to assist her in her submissions as to the appropriate relativities for telephone canvassers. That approach has difficulties in making the comparison as to relativities. Two very different awards and different approaches are involved. The current Clerical Award does not define "direct supervision". The MIA Restructuring Manual states at p 6: The new classification structure means that the only question should be whether an employee has the appropriate training to perform the work safely and competently. [My emphasis] 356 Presumably the users of the Manual are expected to adopt a pragmatic approach to decide what is "direct supervision" where that term is used in the Manual. 357 In the Restaurants Employees Award Marks J fixed Grade 2 at 82%. The initial decision by Marks J was an arbitrated decision. In settlement of the appeal it was agreed it would be 82%. The relevant duties for comparison are: Undertaking general waiting duties of both food and/or beverages, including cleaning of restaurant equipment, preparing tables and sideboards, clearing tables, taking customer orders at a table; Taking orders by telephone or whilst stationed at a fixed order point, [sic] serving food and/or beverages to tables; 358 In Re Parking Attendants and Motor Car Washers &c (State) Award (unreported, IRC92/4139, 12/11/93), Tabbaa C, having considered in contested proceedings evidence that compared the duties of the employees under that Award with selected duties from other awards covering shop employees (operation of cash registers), security officers (minor non-technical servicing of equipment) and clerks (machine operation/basic keyboard skills) determined a relativity of 82% to the C10 rate as the appropriate relativity for parking attendants. In the Health Fitness and Indoor Sports Centres (State) Award (324 IG 497 at 499), level 2 is fixed at 82%. A level 2 is an employee who has completed at least 3 months training at Level 1. 359 The awards relied upon by Employers First went to separate tasks eg use of cash registers, basic keyboard skills etc. However, what is to be examined is the function to which the use of those tools is directed, that being, in this case, to sales or persuasion or surveys. 360 In my view, the skills of the telephone canvasser in selling, surveying, etc as described earlier at pars [135] to [178], would probably have to be graded above those of waiting on tables or taking orders by telephone or at a fixed order point as are carried out by employees covered by the Restaurant Employees Award. Similarly, those skills of the canvasser are exercised independently of the tools utilised whether they be telephone or computer (the individual task approach of the Parking Attendants Award Case). 361 Unfortunately, I am not able to determine, on the evidence before me, what would be an appropriate relativity for the section of the industry of "telephone canvassers (other than canvassers for the sale of goods)" as a whole. Team Leader - Submissions - EF 362 The third and last classification is the team leader of telephone canvassers. This was an addition to the original application after the evidence unfolded and it became clear team leaders were actually employed. 363 Canvassers are subject to supervision by team leaders and even in some organisations at higher levels than team leaders. Based on that evidence it seems to be that it was more akin to direct supervision rather than general supervision as referred to in the Clerical Award generally. The level of the supervision currently by the team leaders akin to C 11 is appropriate because that refers to co-ordinating work in a team environment and the evidence was that canvassers work with a team leader in some organisations, e.g. Mr Hastie. 364 The appropriate relativity is 92.4%. This is consistent with wage group C 11 of the Metal Award. In relation to the definition of that wage group that fits almost perfectly to the work of a team leader that was before the Commission. Team Leader - Consideration 365 The Metal Industry Award Restructuring Manual describes Wage Group: C11 (92.4% relativity): An engineering/production employee - Level IV is an employee who has completed an Engineering Production Certificate II or equivalent training so as to enable the employee to perform work within the scope of this level. An employee at this level performs work above and beyond the skills of a C12 and to the level of his/her training: 1 Works from complex instructions and procedures; 2 Assists in provision of on the job training to a limited degree; 3 Coordinates work in a team environment or works individually under general supervision; 4 Is responsible for assuring the quality of their own work. 366 There was direct evidence from only one team leader, Jason Hastie. As a team leader he also does telemarketing and is not responsible for the supervision of the whole call centre which was the level above him. He said that his duties as a team leader were that basically he was there to keep the people in order. He could not actually give direct orders. He could only advise them to continue with their work. If there is trouble it is passed on to his team manager, for instance, if the person is not completing their work on time, or is disruptive to others. That description was echoed by Mr Westbrook as to the work of team leaders at AFFORD. 367 Indirect evidence was given by Ms Dal Bianco as to her observation of team leaders' duties at Flick and at Australian Wine Selectors. Employers described some supervisors' roles, at the team leader level or higher. 368 At Flick, the Telemarketing Manager acted as the team leader and was the person the telemarketer could call on for assistance for answers. The team leader's role was working out rosters, taking calls, sometimes dealing with an aggressive caller and making follow up calls. He/she was not required to make calls, but was just there to ensure the work was done. He/she monitored the telemarketers' work on screen in the same way as did the team leader at AWS and could hear everything the telemarketer was saying. The first 8 hours of on-the-job training was provided by the team leader. 369 The Team Leader at Flick was responsible for making sure the telemarketers had the right list of people and such things. However, Ms Dal Bianco said that if the telemarketer was there long enough, he/she learned how to do the various steps on their computers and actually could access and go through the Team Leader's monitor to get the listings. She went on to say that it was a very small location "so pretty much everybody learned everything and when the Manager was busy we could take over and get a new listing on our computers. It was just a matter of pressing the buttons on the computers". 370 At AWS team leaders were required to work a minimum of 20 hours on outbound calls just like the telemarketers. Team leaders observed the telemarketers on the monitors in their booths. They also walked in between the aisles to make sure that everyone was work oriented. They would monitor telemarketers calls, either by listening over the telephone or standing near them. Ms Dal Bianco understood that all team leaders at one stage had started out as an outbound telemarketer and worked their way up the ranks. 371 Mr Hennessy said that team leaders at Pinpoint do not actually supervise CSRs directly. They are there to help CSRs if things get beyond them in relation to complaints. 372 Team leaders at AFFORD were described by Mr Westbrook as usually being people who have had some stability in employment with AFFORD, who display a level of maturity that supports new people coming into the organisation and also people who have achieved fairly well in their own selling situation. They still have their own responsibility for selling. They have no direct or in line responsibility for other sellers, nor do they counsel them if sales are down. Team leaders could be paid an extra $10 on top of their existing weekly amount. 373 To be called upon to set a relativity for a classification in a common rule award virtually on the basis of one team leader's direct evidence is not at all a satisfactory situation. 374 No relativity will be awarded. Supervisors 375 The union contended that there was some confusion in the evidence as to whether supervisors of telephone canvassers were award covered. That issue, apart from the team leader, is not addressed in Employers First's application. 376 Whether or not supervisors are covered by the Clerical Award is an issue that can be addressed in any event, on an individual basis through the filing of dispute notifications. I do not need to consider it further in these proceedings. Relativities/Grading Structure - Proposed by Employers First - Conclusions 377 I do not accept that the relativities proposed by Employers First reflect "what is customarily done in the industry" as was contended by Ms Marshall. Direct evidence from only one team leader cannot be regarded as reflective of "what is customarily done in the industry", nor is evidence that comes in the main from the charity area, with none coming directly from employers in commercial enterprises which employ telephone canvassers. There was no agreement either that the witnesses called were representative of telephone canvassers or that the charities area was representative of all employers. 378 My thinking on this issue has see-sawed from deciding to return the applications to the parties to start all over again, to adopting the relativities advanced by Employers First and back again. I have ultimately decided to approach the determination on the basis of making what is in effect an interim decision, that is one that will not embarrass a final decision after full evidence. My main reason for taking that course is, as I mentioned elsewhere, that I think it preferable that the telephone canvassers have some award coverage rather than none at all. It has taken almost twenty years since the TCI Report for action to be taken by these parties in respect of them. 379 As described later at pars [410] to [440] hourly rates, including those in agreements, which may include loadings and inbuilt commission, range from $9 (AFFORD) to $16.50 (top rate at HWNS). 380 (I do not take account of the approximate $18 per hour for casuals at Pinpoint, as I believe the work as described by Mr Hennessy is very problematic as falling within the restricted telephone canvasser classification now being considered.) 381 The Commission decides that the classification of telephone canvasser shall be inserted into the Clerical Award at a weekly rate of $448.10 (yet to be increased to take account of the State Wage Case 2003). 382 I do not grant the junior rates proposed. A sale is a sale, whether the seller is 16 years old or 60. Exemptions - Consideration 383 When the proposed sub-clause 5.2, and sub-cl (vi) in particular, is checked against the Award it is found that the employers seek that the following clauses would not apply to telephone canvassers: 1 Arrangement 3 Definitions: "Casual" and "Part-Time Employee" 5 Classification Structure and Wages 6 Hours 7 Shift Work 8 Casual and Part-Time Employees 9 Sundays and Holidays, sub-cll (iii), (vi) and vii): disputes concerning additional days; penalty rates on Sunday; absences from work prior to a public holiday 10 Meal Break, sub-cl (i): meal breaks during ordinary hours 6 am to 6 pm 12 Overtime and Meal Allowance 13 Time off in lieu of payment for overtime 15 Finishing at Night: provision of transport/reimbursement of expenses if overtime finished outside time usual transport available 23 Personal/Carers Leave, sub-cll (iv) (v) and (vi): time off in lieu of payment for overtime; make-up time; rostered days off 28 Workers' Compensation: reference in the Clerical Award is made back to the relevant statutes 36 Transitional arrangements 40 Exemptions Clause 5.2(vi) - Exemption (Exclusion) Clause - Submissions - EF 384 Employers First's application specifically exempts canvassers from certain provisions of the Clerical Award, as having no application to them: 385 Cl 3 definitions; cl 5.1 classifications etc; cl 6 hours; cl 7 shift work; cl 8, casual and part-time employees; cl 9 Sundays and holidays. (With that last clause, it is only excluded to the extent that that clause deals with Sunday work and public holidays and the rest of that clause would still apply); cl 10 meal breaks (and in relation to that what is intended to be excluded is cl 10 (i) the setting of a meal break between 11 am and 2.30pm and the remainder of the clause providing for a break after five or six hours etc will continue to apply to canvassers); cl 12 overtime and the meal allowance; cl 13 time off in lieu; cl 15 finishing at night; cl 36, transitional arrangements and cl 40 exemptions. 386 In relation to cl 3, the conditions applying to casual employees are covered in 5.2. As to cl (3), Employers First does not seek to exclude the definition of "union". That part of the application may need to be amended to ensure the definition of "union" is not excluded. 387 Clause 6 has been excluded because it has set hours of work for normal clerical employees, then at cl 7, shift work is incidental to that. Clause 9, weekend work other than public holidays, is excluded. There should not be restriction on the work of these canvassers. There is no restriction placed on these employees and employers in the industry as currently operating. 388 Clauses 12 and 13, and 36, transitional arrangements, are incidental clauses and Employers First does not seek to apply these to telephone canvassers. 389 Clause 40, exemptions clause also does not apply to telephone canvassers because that provides payment of 15% above the highest rate which will not apply. Canvassers - Exemption Clause - Submissions - FCU 390 As already stated, the union's submissions in opposition to the proposed cl 5.2(vi) are set out as part of its general submissions at paragraphs [109] to [119] inclusive. Exemption Clause - Clause 5(2)(vi) - Consideration 391 Section 10 provides that the Commission may make an award in accordance with the Act setting fair and reasonable conditions of employment for employees. Those "fair and reasonable conditions" must be appropriate for the employees to whom they are awarded. They must be "fair and reasonable" for both employee and employers. As the various clerical awards show, conditions and rates that are "fair and reasonable" for clerical and administrative employees may differ from group to group. 392 The union submitted that the Clerical Award should apply to telephone canvassers as it did to telephonists. That comparison can only be carried so far. Telephonists are, in general, more integrated into traditional clerical operations, and, in more recent times, perform more straightforward clerical functions. 393 On the other hand, the very functions for which a telephone canvasser are employed are not, except to a very peripheral extent, clerical functions. They are selling to, and/or persuading or surveying, people and they work mainly in a non-office environment. The work they do often has to be complemented or completed by clerical employees. 394 The approach of Employers First in its current application has been to seek that certain clauses of the Clerical Award should apply to telephone canvassers, but that others should not. There has been evidence brought forward to support those propositions. 395 I accept that as a valid approach, one anticipated in 1986 in the TCI Report. 396 Some of the exemptions from the Clerical Award sought by Employers First can be decided to an extent, on principle, as expounded in test cases or statute, eg casual and part-time employees. However, others, such as finishing at night (cl 15) and the specifics of personal carers leave sought to be non-operative, (cl 23, sub-cll (iv), (v) and (vi) ) would require evidence to determine what is the present situation in the industry as to time off in lieu, rostered days off etc, and what the canvassers have achieved, if anything, for themselves in respect of those provisions. They are not determined in this judgment. 397 The Act itself, in relation to exemption from awards, provides as follows: 18(1) [Application for exemption] The Commission may, on application, grant an exemption from the whole or any part of an award if it is satisfied that it is not contrary to the public interest and that: (a) it is in the best interests of the employees and employers concerned, or (b) the operation of the award (or part of the award) would result in significant unemployment or other serious consequences for the employees and employers concerned. 18(2) [Duration of exemption] An exemption may be granted for a period not exceeding 3 years at any one time. 18(3) [Review exemption] The Commission may, on application or on its own initiative, review any exemption, and may confirm, vary or revoke the exemption. 398 Exemption clauses may come in a number of forms. The current Clerical Award provides in cl 40, Exemptions, that certain clauses of the Award do not apply to employees who are, in the words of Dey J in In re Clerks (State) Award (1978 AR 724 at 745) "on the road to a degree of executive or supervisory responsibility". 399 Under sub-cl (iii) of cl 40 specified Catholic employers are exempted from the provisions of cl 24, Bereavement Leave, of the Clerical Award but are covered by a different award. 400 The previous Clerks (State) Award provided that employers could apply to be exempted from the provisions of that Award eg Disabilities Limited was exempted from the provisions of the Award to the extent necessary to enable it to employ clerks (Clerks (State) Award, 264 IG 1980 at 2008, cl 24(iv) Exemptions). 401 Another form of exemption would relate to provisions which had no relevance to the employees or employers concerned, no matter at what level of the organisation's hierarchy an employee fitted. One example includes cl 36, Transitional Arrangements - Hours of Work which Employers First seeks will not operate in relation to these telephone canvassers. 402 If the union's application were to be successful, AFFORD said it would look at any opportunity, including the exemption provision, to maximise its results in order to survive. AFFORD is currently covered by a Federal Workplace Agreement. Clause 5.2(vi) - Exemption (Exclusion) Clause - Decision 403 I do not accept the contention of Employers First that there should be no restrictions placed on employees because no restrictions, for instance, as to hours, currently apply in the industry. If that contention were accepted, it would mean that existing conditions would never be changed and employees never assisted towards achieving proper standards as to their conditions of employment. However, in the absence of comprehensive evidence, I grant Employers First's application in its proposed sub-cl 5.2(vi) that the clauses in the Clerical Award there set out shall not apply other than to the extent decided in this judgment, to telephone canvassers at this time. Proposed Sub-cl 5.2 - Further issues 404 Further issues that arise in the proposed sub-cl 5.2 will be considered under the following headings: Wage rates/Commission Part-time employment Casual employment Allowance for casuals Wage rates - hourly divisor Exemptions (i) Maximum and Minimum Hours. Wage Rates Proposed by Employers First Casual Telephone Canvasser 405 Clause 5.2(v) proposes that: (v) Casual Telephone Canvasser An adult casual telephone canvasser shall be paid at an hourly rate, inclusive of commission, as set out in (vi) of Table 1 - Wages of Part B - Monetary Rates. A junior casual telephone canvasser shall be paid at an hourly rate, inclusive of commission, as set out in (vii) of Table 1 - Wages of Part B - Monetary Rates. These rates of pay have been loaded to compensate employees for entitlements and benefits otherwise available to full-time employees, including sick leave, annual leave, personal/carers leave etc. Where a State Wage Case decision prescribes a dollar amount, the casual rates in (vi) of Table 1 - Wages of Part B - Monetary Rates will be adjusted by dividing the dollar amount by 40 and adding a loading of 20%. Provided that each adjustment shall be calculated to the nearest five cents and any part of five cents not exceeding half of five cents is to be disregarded. 406 The wage rates for telephone canvassers proposed by Employers First in accordance with cl 5.2(i) and (ii) as at 25 February 2002 include the State Wage Case 2002 adjustment of $18: (iv) Telephone Canvassers - Adults Rate Per Week Casual Hourly [Proposed $ Rate Relativity] Team Leader of Telephone Canvassers 491.50 14.75 92.4% Telephone Canvasser 448.10 13.45 82% Telephone Canvasser with less than 3 months full-time experience in the industry 431.40 12.95 78% (v) Telephone Canvassers - Juniors Age Rate Per Week Casual Hourly Rate $ $ Under 17 years of age 182.15 5.45 At 17 years of age 228.05 6.85 At 18 years of age 279.55 8.40 At 19 years of age 316.95 9.20 At 20 years of age 373.00 11.20 407 The casual hourly rates have been worked out on the basis of a 40 hour week and they include the 20% casual loading proposed by Employers First to compensate employees for entitlements and benefits otherwise available to full-time employees, including sick leave, annual leave, personal/carers leave etc. 408 The casual hourly rates, based on the 38 hour week that I have decided is appropriate, would be team leader $15.52, telephone canvasser $14.15 and trainee $13.62. However, I have awarded only one classification, that of "telephone canvasser". Wage Rates - Position of Union 409 The union's opposition to the wage rates proposed by Employers First was that set out earlier in relation to relativities, but is repeated here for convenience: The union's position was that the employers' application seeks to create new rates of pay specific to telephone canvassers. The relativities of the rates for the two levels of telephone canvassers are below that of a grade one clerk. The relativity for a team leader is the same as that for a grade two clerk being 92.4%. ********************* 410 Because of the nature of base rate/commission mix for pay it is more practical to consider both issues together. Rates of Pay/Commission - Evidence 411 The RBS employment agreement for casual telesales representatives provided that the casual rate of remuneration was $10 per hour, which amount was inclusive of all leave provisions other than long service leave, plus commission in accordance with a scale based on a casual telesales representative working 20 hours per week. 412 It was said by Ms Purcell of the RBS, that the issue for commission is really of self motivation. The RBS needs to minimise the cost due to cash flow. The income for the art unions, unless for a credit card sale which comes in within 24 hours, normally does not come in until the last 2 or 3 weeks. The fact that people can increase their income, based on a successful sale, has been proven over and over again as a motivating factor. 413 She described their commission structure: 28 Our commission structure is based on the number of hours worked by each telesales agent and there are different structures for existing customers and new customers. 29 The structure for existing customers has two tiers which are both based on number of sales. If the target for Tier 1 is met, the telesales agent earns an additional $2.00 per sale in commission. If the target for Tier 2 is met, the telesales agent earns an addition $4.00 per sale. For new customers the telesales agent earns $3.00 for each sale made. If a telesales agent makes a credit card sale over the phone, either with a new customer or an existing customer, they earn an additional $3.00 for each credit card sale. 30 Payment of commission is made at the end of each draw of the art union and is calculated on the number of sales made during the draw. During the draw, the telesales agents are paid the base hourly rate. 414 Commission at the RBS is paid at the end of the art union because it has to be calculated on "receipted tickets" i.e. tickets for which payment has been received. 415 Although each telesales agent is paid a base hourly rate of $10.00, Ms Purcell said that with commission the average hourly rate is $17.37. The introduction of the predictive dialler increased the commission substantially. The RBS deliberately did not adjust the commission on the base rate when it introduced the predictive dialler. That introduction quite dramatically increased the sellers' capacity for income because potentially they could get more sales in an hour. Prior to the introduction of the predictive dialler, the average maximum, on the higher side, was $22 to $25 per hour. Those figures, on the higher side, are now $40 to $47 per hour. For the Christmas 1998 art union, prior to the predictive dialler being introduced, the average hourly rate was $14.26. For the Christmas 1999 art union, after the predictive dialler was introduced, the average hourly rate was $17.41. The maximum hourly rate has also increased from $25.14 for Christmas 1998 to $37.78 for Christmas 1999. The maximum hourly rate in 2002 has been averaging around $36/$37 to $40 per hour, and the average rate around $17.50, $18. 416 Ms Purcell described the maximum hourly rate as being the rate where the person had made the most commission and the total of that commission has been averaged out on the number of hours that person worked during that art union. 417 Ms Purcell said that the predominant role of telesales staff is for the selling of tickets for the art unions, but very occasionally they were employed to assist in supporting other telephone operations more general in nature. On those occasions they are contracted and paid at a separate rate of pay based on the Clerical Award. 418 The HWNS rates of pay for their telemarketers are contained in the HWNS Agreement. Existing telemarketers are paid on the basis of the income per hour that they have generated for the previous two art unions. The structure of the rates of pay in the Agreement is basically a productivity based structure. 419 What they have done is to put into hourly rates of pay inbuilt commission payments. They do not pay commission on top of those rates but they have two/three strands of an hourly rate of pay. In terms of just looking at residential sales if telemarketers generate less than $100 worth of sales per hour they will get an hourly rate of $13.50. Between 100 to 120 it goes up and greater than 150 it goes up to $16.50. A number of sellers do a big proportion of new sales, which are obviously much more difficult to obtain. The figures are weighted so that a new sale actually attracts four times the benefit of a sale to an existing customer. 420 Mr Brink also said: In addition we run incentive programs at different times during the art union. For example, last year twelve of our telemarketers "won" a week off with pay for reaching their targets. 421 Mr Brink said that if only the flat rate of the Clerical Award was paid, the outcome would be a very big turnover in staff, and a very unstable workforce. He said that basically this is an industry where the workforce tends to be fairly unstable. That was the case four or five years ago when the HWNS was running advertisements continuously for telemarketers. In the last year there has been little turnover. Disruption comes with new staff, and up to three or four people can be hired before finding one actually suited for the job. It is expensive to keep changing staff. There is a big benefit in keeping a stable workforce. 422 At AFFORD all telemarketers receive the same base hourly rate of pay, regardless of when they are working. The base hourly rate of pay is $9.00. That rate is based on projected paid sales of 1.33 tickets per hour across the lottery, averaging old and new sales, and the evidence shows that rate has been arrived by means of an extremely complicated method. AFFORD interprets the hourly rate as a commission paid in advance because it does equate to an anticipated number of sales against a dollar value of remuneration of those sales. In addition the telemarketers can also receive a bonus in accordance with its bonus scheme. A bonus is paid for credit card sales, $1.50 for a new sale and $1.50 in the period of call back. Average earnings at AFFORD for a 12 week raffle would be $2,160 based on $9 per hour. (Credit card sale bonuses are a feature of other bonus systems too: RBS, RIDBC.) 423 At AFFORD, team leaders are paid an additional amount of $10 per week. 424 At AFFORD bonus payments are calculated at the end of the raffle. Mr Westbrook said that if calculated mathematically some sellers would continue to earn an hourly rate of $9, but others could earn $13 to $15 per hour. 425 At Park Trent, rates of pay since March 2002 were $13 per hour for a permanent telemarketer/casual trainee telemarketer, $13 per hour for a trainer/"buddy" and $13.50 per hour for team leaders. Park Trent does not pay adult or junior rates. Everyone who does a particular job gets the rate of pay for that job regardless of their age. The rates for casual and part-time employees are the same, but there are benefits for the part-time employee: ability to undertake a TAFE certificate paid for by the company; and leave entitlements. 426 At Park Trent, if a person contacted by a telemarketer attends a conference and agrees to buy investment real estate, that telemarketer receives a $10 bonus. If a person attends the conference but does not invest, the telemarketer receives a $5 bonus. Those bonuses are paid monthly. The team leader at Park Trent is paid a bonus of $10 for each "in home" consultation achieved. There are various certificates and trophies (but not now monetary rewards) awarded monthly and annually. There is also an incentive to achieve being the "team of the month": members of the team are allocated one half hour paid leave to leave work early on request. 427 Mr Hennessy at Pinpoint was paid $18 per hour as a casual and $17.88 per hour as a part-time employee. The latter amount, after pay rises each financial year, was $19.23 per hour. 428 At Flick, Ms Dal Bianco was paid $13 per hour, and no bonus or incentives were paid. 429 At AWS, Ms Dal Bianco received $12 per hour as a "retainer" and, depending upon hours worked, earned $400 to $600 per week including bonuses of about $15 to $20 per week. It could take 30 to 38 hours to get to $400 per week and to get to $500 to $600 per week about 38 hours per week. 430 Rates of pay at the RIDBC as at January 2002, inclusive of bonus payments, ranged from $14 to $25 per hour. It was expected that the average rate of pay, taking bonuses into account, for all operators in 2002 would be $16 per hour. The bonus system at the RIDBC will need to be reviewed when the predictive dialler is introduced because the KPI for sales to existing buyers is 5.5 per hour. Taking away the wasted time by predictive dialling means their productivity will double. 431 Mr Harrington of the RIDBC explained that organisation's bonus structure: A. Lotteries are a sale-based function, and there is an expectation that the operators will make a certain number of sales within their shift or within an hour and, in fact, for previous buyers our bonus structure is worked on $104 an hour, so the bonus structure works for operators on the basis that for every dollar of sales over $104 per hour they will receive a bonus of 15 cents, and we calculate that at the end of the lottery. For new buyers it is harder to obtain sales so their performance indicator, the dollar set is $29 an hour. We pay them 35 cents per hour above the $29 threshold. … A. with previous buyers the strike rate is always going to be higher. These are people that supported us in the past and the likelihood, once we reached those people and sought their support again, the likelihood of them responding with a "yes" is far higher than the new acquisition programme. So the KPI, key performance indicator, for a previous buyer, with a minimum KPI for strike in an hour is 5.5 pledges; whereas the KPI for a new buyer is 2.5. So they are based on experience, and in fact most of our people would achieve more than 2.5 and 5.5 … 432 In his statement he had also said: Operator remuneration is directly apportioned to the lottery in progress at the time. Bonuses derive from increased productivity however the base rate is not performance sensitive - the higher the base rate, the lesser the incentive for operators to improve their productivity. The consequence is increased expenditure and a lower return for the Institute's programs and services. 433 Although expressed in different ways, that last sentiment, as already noted, was one supported by other employers. 434 The initial rate for operators at the RIDBC employed on a casual basis is $14 per hour inclusive of all loadings. Over a lottery that amount would be greater in that each operators shares pro rata in a team bonus when an overall target, that has to this date not yet been missed, is reached. When appointed as permanent employees, operators are paid base rate of $14 per hour plus entitlements: sick leave, annual leave, long service leave and superannuation at statutory level. The payment by RIDBC of additional entitlements to permanent part-time operators recognises the additional experience, training and productivity they have gained during the course of their first lottery. 435 The base rate of $14 was based on what other positions in the Parramatta area were being paid, not only within the call centre industry, but in positions that worked similar times. It was said that the amount of $14 seemed to be a competitive rate, keeping in mind the bonus system in place. 436 At the RIDBC the rate for periods of leave is calculated so as to take into account the average bonuses and incentive payments paid for the preceding three lottery cycles. 437 At RIDBC operators are paid "another" rate (their base rate plus their bonus from other years) when they are doing their follow up calls. Out of each sixteen weeks of the lottery an operator would probably do three weeks of follow up calls. 438 Told by Ms Hancock that the Clerical Award base rate as at 5 March 2002 was $15.48 and for Grade 2 $16.19, Mr Harrington said that because the RIDBC starts people as casuals on $14 all inclusive rate, to put operators on Grade 1 ($15.48) would be putting them on permanent part-time rates immediately rather than on a casual basis. Obviously that would impact on profitability. 439 At Loughlin P/L (2001) Mr Bridge was paid a base hourly rate of $12, which increased to $15.50 if tickets worth more than $70 were sold in an hour, over 2 shifts. It took more than 180 calls in a 4 hour shift to achieve sales of $70 per hour, tickets being sold at a minimum of 10 for $20. 440 At Postel not all telemarketers were on the same rate because not all were permanent part time. 441 The differences in success rates for sales between previous buyers and new buyers is, in the main, handled by adjusting the targets to require less sales per hour for new buyers. Rates of Pay/Commission Payments - Submissions - EF 442 There are issues in relation to the regulation of charities by the Department of Gaming and Racing as to the 60.40 rule i.e. they cannot spend more than 60% and they must receive 40% profit. Charities have gone to a lot of trouble to ensure they are able to maintain an incentive for tele-marketers to sell and still generate enough revenue to meet that 60-40 rule. 443 Employers have spent a lot of time developing structures to provide employees with the opportunity to make a lot higher hourly rate through their commission structures and they do that because they want people to have an incentive to sell those tickets, rather than people arriving for work, receiving an hourly rate which is a constant hourly rate and not being so motivated to sell. 444 Rather than making another amended application so late in the proceedings, Employers First would propose an alternative clause which is to act as a permissive clause to allow employers to remunerate their employees by way of commission payments so long as they would receive no less than what they would under the proposed clause. 445 That is reflective of the evidence that is currently before the court that people are remunerated by way of commission payments and that is an existing condition which should be maintained in a first award. What the proposed award is trying to do is to ensure that there is still an ability for employers to come up with the commission structure that does not have such a high base hourly rate it would reduce the level of incentives of a tele marketer to sell. In relation to commission it is consistent with the First Award principle not to disrupt existing conditions. Rates of Pay/Commission Payments - Submissions - FCU:EF 446 The union's main concern is that a commission can be, for want of a better term, offset against the minimum rate, therefore taking away any incentive that a commission payment might offer until a minimum rate is reached. If that is not the intention of the clause, then that concern would be allayed. 447 As the union understands it, what this clause seeks to do is allow telephone canvassers to be employed either with base rate plus commission or wholly on a commission basis. It is that latter category that causes the most concern, because it seems that what the clause really seeks to do is to offset commission payments against the minimum rate that would appear in the award. While people would not earn less than the minimum rate that appears in the award, they might never earn that amount in commission payments. Rates of Pay/Commission - Consideration 448 The position of the RBS was that if the base rate were increased, the commission, which provides an incentive to its telesales agents would have to be reduced. 449 That evidence was echoed by that of Mr Harrington who also stressed that the base rate was not performance sensitive. He said that any increase in the base rates made it increasingly difficult to comply with 40:60 provision of the Regulation. 450 Ms Purcell said that changes to the salary structure at the RBS would have a substantial impact to the commission structure, in that commission would have to be reduced which would have a direct impact on the number of sales it would make. A major component at about 30% to 35% of the costs of the art union run by the RBS is payment of salary and commission. Changing that component could negatively affect both returns and payments to sellers. 451 Ms Purcell said that those current sales staff who are experienced and have a significant card base have advised the RBS that if their potential to earn their current income is decreased they will leave. Once they leave, the issue for the RBS is to keep their current clients with the new staff who would be employed. That is an issue of risk. 452 About a year ago the RBS did a scenario where it was looking at increasing the base rate from $10 to $10.40 per hour without changing the commission structure. That scenario was checked over the last four art unions and on each occasion it brought the profit down to 39% or 40%. 453 There seemed to be as many systems for calculating bonus or commission as there were employers who gave evidence as to such payments. However, there was also evidence that in some cases, at Postel Ltd (operations now ceased) and at Flick, no bonus or commission was paid on top of the base hourly rate paid. On the other hand, there was no evidence that commission/bonus was the sole payment made. 454 Mr Westbrook's view was that telemarketers are engaged in selling, and have an expectation that the more they sell the more money they can make. If there is a fixed hourly rate of remuneration, inevitably one gets a result that, without some further incentive, the best sellers will perform in a very average way and the lower sellers would not be performing at all. Currently some people are happy to work and earn the base rate of $9 per hour, and AFFORD is happy for them to do that, because it still gives AFFORD a fair result. However, "if we had to pay $15 clearly they wouldn't be there and neither would we". That would be because AFFORD would not be able to justify the costs and still achieve a 40% outcome which, in terms of the legislation, AFFORD was required to meet. A fund raising exercise is involved, and if the funds are not raised the organisation is not going to keep paying the costs. There has to be a financial output at the end of it that benefits the organisation. 455 Contra to the claims of the employers as to the need for motivation, Mr Bridge said he did not require a bonus to be motivated to sell more books of tickets. It was a matter of pride or incentive for one-self, not money. Mr Bridge thought the rate of $13.10 proposed by Employers First for the first three months was reasonable, but thought there should be at least 3 or 4 sections in the rates of pay. He accepted in cross-examination by Ms Wellard that in most of the places he had worked, there had been one flat rate of pay with variations based on performance. 456 Ms Dal Bianco expressed to view that if telemarketers know they have set wages year in year out, bonuses are only going to be an extra additive (sic), the telemarketers have a little more security because they can walk in and do their job and not have that commission basis over their head. [I think the effect of her evidence is that a set base rate even without commission gives more security.] 457 To the extent that there is evidence before the Commission, it is obvious that no matter what term, "bonus", "commission" or "incentive", is used, incentives play a significant part in the organisation of the industry wage rate matrix. It is appropriate that the Award should make provision for such payments. 458 The proposed cl 5(2)(i) and (ii) provide that the minimum rates of wages per week for adult and junior telephone canvassers, shall be "inclusive of commission". 459 The terminology appears to derive from the fact that in setting rates per hour and devising a commission structure, some employers equate the rate per hour to a notional number of successful calls and set in place a commission structure to reward successful calls above that number. 460 Ms Marshall explained that the intention of the clauses is to make sure that all canvassers receive at least the minimum award obligations and then commission on top of that but leaving the organization free to develop the commission structure which allowed them to absorb that minimum award obligation before they then paid the commission. 461 However, the terminology, as it stands, could have the consequence, that commission earned by employees above the minimum rate would be absorbed into the minimum rate, and only after that amount had been achieved, would commission be payable. As Employers First's proposed clauses as to commission read, they would allow commission to be absorbed into the base rate eg the base rate might be $14 per hour, the telephone canvasser might earn $18 per hour commission, a total of $32 per hour. However, absorption of the commission into the base rate leaves the canvasser with pay of $18 per hour - $14 base rate plus the amount of $4 remaining after the $18 commission is absorbed into the base rate. I do not think that is the employers' intended outcome. 462 The employers can always work out a commission structure. If they have a base rate that has to be paid, they can calculate the number of sales that equates to and they can structure a commission structure that will pay in fact in addition to that base rate. 463 I award one base rate only and I also award provisions that could increase costs. Unless employers are already paying wages that take account of a 38 hour week, and, where appropriate, a casual allowance of 20% they will have to reconstruct the commission structure, if any, that they are operating at the moment. 464 The one classification and base rate that I award is that of telephone canvasser, that rate set at 82% of the rate for the Grade 3 clerical employee in the Clerical Award. Clause 5.2(iii) 465 Employers First proposes in this sub-clause that: Commission payments may be made to a telephone canvasser and may be offset against any payments prescribed by this award for telephone canvasser. 466 I do not accept cl 5.2(iii) as a whole. Commission payments may be made, but if a telephone canvasser has earned commission, that payment relates to the work he/she has done to earn that payment. It is not to be offset against any other payment prescribed by the award. Rates of Pay/Commission - Findings (i) In the face of insufficient evidence to justify them, cll 5.2(i) (ii) and (iii) in the terms proposed by Employers First, are not awarded; Clause 5.2 may include the following sub-clauses: (i) The classification of telephone canvasser; (ii) One base wage rate only that being for the classification of telephone canvasser, that base rate being set at 82% of the rate for the Grade 3 clerical employee under the Clerical Award; (iii) Junior rates are not awarded; (iv) Commission payments may be made to a telephone canvasser; (v) Telephone canvassers may be paid by way of base rate plus commission; (that would include the HWNS system of inbuilt commission rates); (vi) No telephone canvasser is to be remunerated solely by way of commission; (vii) Commission payments are not to be offset against any other statutory or award entitlement; and (viii) No base wage rates shall be "inclusive of commission". Basis of Employment - Casual/Part-time Part-time employment - Cl 5.2(iv) 467 Employers First sought the following provision in relation to part-time employment for telephone canvassers: 5.2 (iv) Part-time Telephone Canvasser A part-time telephone canvasser is a telephone canvasser who works a lesser number of hours than constitutes full-time work under this clause. Part-time employment may be limited to a specified period or periods of part-time employment, but need not be so limited. A part-time telephone canvasser shall be paid at an hourly rate, inclusive of commission, equal to the appropriate weekly rate of pay for a telephone canvasser divided by 40. [Note: The issue of the appropriate hourly divisor is considered later.] Part-time employment - Submissions - Employers First 468 It seemed to be the evidence there were casual and part-time canvassers although the evidence disclosed there was not much difference in the rates of pay in most organisations. 469 In relation to part-time employment there are two things in relation to this clause. No minimum or maximum daily engagements are included. An additional clause in the Further Amended Application has been inserted to provide for a part-time canvasser to be employed for a specified period or periods of employment, to deal with the issue that came out in the evidence of there being some quite substantial breaks between Art Unions or lotteries. That proposal may meet the difficulty between what currently exists in terms of employing part-time and casual people in the industry, for instance for organisations like the Royal Institute for Deaf and Blind Children which employs casual employees at $14 per hour for the initial period and then after that period, which is the probationary period, they then employ them as part timers at $14 giving them additional benefits. If the employers were then not able to employ casual employees, they would be forced to employ people part-time rather than casual workers. 470 In relation to part-time employment, the general approach of the Commission should be that employers should be able to offer the engagement which is required for the conduct of business without any artificial restrictions being placed on them other than those restrictions which are sufficient to avoid any unfairness being visited upon employees. In the Act this approach is reflected particularly by Chapter 2 Part 5 and s 21. 471 The established principles which should be taken into consideration are those that come from the State Part-time Work Case (1998) 78 IR 172 and the Principles for Review of Awards - State Decision 1998 (Review of Awards Case) [(1998) 85 IR 38]. The Principles for Review of Awards Decision is also relevant given paragraph (d) of the First Award principle which states that in determining the contents of a first award, the Commission will have particular regard to determining that the award would comply with the requirements of s 19 of the Act. Part Time Work - Submissions - FCU 472 Clause 5.2 ( iv) of the employers application seeks part-time employment to be limited to specific period or periods but need not be so limited and seeks removal of minimum hours engagements. 473 Part-time work provisions in the Clerical Award, cl 8 (d), allow the union and an employer to agree in writing to observe other conditions in order to meet special cases and the union submits that the clause, as currently standing, particularly with sub-clause (d), provides flexibility that the employers seek in their application. It makes it clear that there are no unjustified impediments to the part time work as is required by the s 19 Review of Awards Decision. 474 A part time work agreement can be entered into between an employer and employee provided they meet the requirements of ss 73 to 82 of the Industrial Relations Act 1996 and in particular s 79 (4) of the Act. This makes it clear any of following provisions for part time work in an industrial instrument have no effect, if they would prevent an employee from working part time under a part time work agreement. 475 Section 79(4)(c), a condition prescribing a minimum or maximum number of hours a part time employee may work, has no effect, if a part-time work agreement is entered into. The flexibility sought is available now, either by part-time work agreement to avoid the minimum weekly engagement or by way of cl 8(ii)(d) in the award allowing an employer and union to enter into other arrangements outside those listed in the award. 476 In addition to those two options, allowing for employers to access something other than a 12 hour minimum weekly engagement for part time employees, there is also the enterprise agreement option pursuant to ss 29 to 47 of the Act, as well as the enterprise arrangement available pursuant to cl 33 of the Clerical Award. 477 The Part-Time Work Case went to part time work agreements and the union acknowledges that with a part time work agreement there is no requirement there be a minimum weekly engagement. It is an option for employers to take up. 478 The restriction in the Clerical Award that previously existed on part-time work, only as to adult employees, was removed by consent as part of the s 19 review process before Sams DP and now part-time work is available to all employees. Casual/Part-time Employment - Evidence 479 AFFORD's telemarketers are employed on a casual basis. That is because there is a break of approximately 2 weeks after each raffle running over a 12 week period, and a 5 week break after the Christmas raffle is drawn. 480 AFFORD aims to employ 90 telemarketers at any one time, but the usual number is between 70 to 90. They are employed at the one location. One group of long term employees includes people who have been there for more than 10 years. There has been more attrition from persons employed since the expansion three years ago of the fund raising area. 481 The HWNS employs approximately 85 telemarketers, located at 4 sites, two in Sydney (Belrose (7-8) and Parramatta (30) ), and one each in Wollongong (11-15) and Newcastle (30). All of the HWNS telemarketers are permanent part-time employees. There were probably 3 or 4 who worked 37 ½ hours per week. Mr Brink of the HWNS said their turnover of staff is very low, the majority of those who have left having either retired or located interstate. 482 The RBS employs mostly casual telesales agents. Each is offered an employment agreement on commencement of employment, that agreement setting out mutually agreed set hours and set days per week. The reason that the RBS employs telesales agents as casuals is because each art union stands alone and runs over a period of set weeks. 483 Amongst the 38 telesales agents employed by the RBS in January 2002, 8 were vision impaired, 8 were on a pension having taken the telesales job to supplement their pension and 6 were university students supplementing their allowances. 484 Ms Purcell said that it is flexibility of people who may want to work for a particular art union. Some are at work. The main issue for the casual basis is again so that people can have flexibility, so far as hours are concerned, so that they can work as much or as little as they chose, assuming that they are productive and able to carry out the tasks that are required. Staff themselves have been quite happy with that arrangement. 485 Ms Purcell said that a couple of agents have been employed since 1985, but, on the whole, the average length of service would probably be between 3 to 8 years. 486 The RIDBC employs about 69 (equivalent to 33.5 full time) Rainbow Lottery Operators. The optimum number of operators per shift is 25-30. All operators are initially employed on a casual contract basis usually for the period of one lottery (approximately four months), as a probationary period. Upon satisfactory completion of that probationary period, the operators are transferred to permanent part time. They continue to be paid $14 per hour, but in addition receive pro rata benefits. 487 Rainbow Operators tend to stay, some at least having been there since 1990, 1992, 1994 at the time Mr Harrington gave evidence. The morning shift is stable and in 2001 there was a turnover of only 3 or 4 people. 488 When Mr Hennessy was first employed by Pinpoint as a Customer Sales Representative (CSR) he was employed on a casual basis. As such he was not entitled to any bonus for sales he made, though full time CSRs were so paid. In late September 1999 he was made permanent part time and rostered to work 20 hours per week. 489 (I have included the evidence of G Hennessy although it is evident his work, in the main, or even perhaps at all, did not fall into the category of canvasser (other than a canvasser for the sale of goods). He did work in a call centre and his work with Computer Best Buys was the nearest to that category but as a canvasser for the sale of goods except for stints such as those selling Olympic tickets.) 490 Ms Dal Bianco was employed as a causal by both Australian Wine Selectors (AWS) which, all up, employed about 150 telemarketers and by Flick. At AWS, at the start, she worked up to 30 to 40 hours per week. At Flick, after initially working 4 to 8 hours per week, her hours increased to 20 to 30 hours per week. (There was a period of some months where she worked for both AWS and Flick and it would seem she redistributed her hours at work at that time.) 491 At Park Trent Mr Hastie started in September 1999 as a casual telemarketer but as at March 2001 had been promoted to Team Leader. He is now employed on part time basis and is on Level 3 of the organisation's in-house structure. 492 Ms Salway was employed as a casual telemarketer from May to August 2000, and since August 2000 had been employed on a part time basis. She said she was now permanent part time and was actually indentured into an apprenticeship at Park Trent, undertaking a TAFE course and on the job training over a period of 12 months. 493 On inspections Ms Cross of management said Park Trent ran a team of about 100 personnel from the floor of whom 80% were part time and 20% casual. 494 The charity raffles/art unions do not operate all year round, the Rainbow Lottery, for instance, closing from early December to late January. Part-Time Employment - Consideration Legislation - General 495 Section 21(1)(f) and (g) of the 1996 Act provides that the Commission must, on application, make an award setting, as conditions of employment, part-time work (f) and casual work (g). 496 Section 21(2) provides that those conditions are to be set: (a) in accordance with any relevant requirement of this Division and any other provision of this Act, and (b) with due regard to any established principles of the Commission or other matters considered relevant. Part-Time Employment - Consideration 497 "Part-time employee" is defined in the Clerical Award, cl 8(ii)(a) (196 IG 619 at 634) as follows: (ii) "Part-time employee" - (a) A part-time employee shall mean an adult employee who is employed to work regular days and regular hours, either of which are less than the number of days or hours worked by weekly clerical employees employed by the employer, but such days shall not be less than 2 per week and such hours shall not be less than 12 per week. … 498 In relation to hours, cl 6(iii) provides: (iii) Part-time Employees - The spread of ordinary hours of work, exclusive of meal times, shall be the same as those prescribed for weekly employees, but shall not in any case, be less than twelve hours per week. The ordinary hours of work shall not exceed eight hours per day. 499 With reference to part-time employees, cl 8(ii)(d) provides also that: (d) Notwithstanding the provisions of this clause, the union and an employer may agree, in writing, to observe other conditions in order to meet special cases. 500 Part 5 of Ch 2 of the 1996 Act, in ss 73 to 82 lays down the legislative provisions for part-time work. Without setting those provisions out in detail, they include the following: SECTION 73 EMPLOYEES TO WHOM PART APPLIES 73 This Part applies to employees for whom any conditions of employment are set by an industrial instrument. SECTION 74 WHAT IS PART-TIME WORK? 74 For the purposes of this Part, part-time work is work of a lesser number of hours than constitutes full-time work under the relevant industrial instrument, other than casual work. SECTION 75 THIS PART NOT TO AFFECT OTHER ENTITLEMENTS TO WORK PART-TIME 75 Nothing in this Part affects any entitlement that an employee has to part-time work under any industrial instrument. SECTION 76 ENTITLEMENT TO WORK PART-TIME WITH AGREEMENT OF EMPLOYER 76(1) [Part-time work agreement] An employee may work part-time in accordance with this Part with the agreement of the employer (a part-time work agreement ). 76(2) [Agreement in writing and signed] A part-time work agreement must be in writing and signed by the employer and employee. 76(3) [Content of agreement] A part-time work agreement must provide for agreement on the following: (a) … (b) the number of hours to be worked by the employee, the days on which they will be worked and commencing and finishing times for the work, (c) … (d) … 76(4) [Term of employment and agreement] The agreement may be limited to a specified period or periods of part-time employment, but need not be so limited. … 79(1) [Application generally] Part-time work under this Part is to be in accordance with the provisions of the industrial instrument applicable to the work concerned, except where the provisions do not have effect or are modified because of this section. 79(2) [Application pro rata] To the extent that any such provision of the industrial instrument is based on an employee engaged on a full-time basis, the provision is to apply pro rata to part-time work under this Part. … 79(4) [Inconsistent provisions] Any of the following provisions of an industrial instrument has, except to the extent that it is identified as a minimum condition by any such State decision, no effect if it would prevent an employee working part-time under this Part: (a) … (b) … (c) a provision prescribing a minimum or maximum number of hours a part-time employee may work. 80 An employer may request, but not require, an employee working part-time under this Part to work for longer than the hours agreed to under the part-time work agreement. 501 Section 79(3) further provides that: 79 (3) [Commission to make State decision on part-time work] A Full Bench of the Commission is required to make a State decision under Part 3 relating to part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time work agreements under this Part are to be subject. The minimum conditions must include minimum and maximum hours of work and other relevant conditions of employment. 502 On 20 November 1996, acting on its own motion under s 79(3) of the Industrial Relations Act 1996 (NSW) (the 1996 Act), the Industrial Relations Commission of New South Wales summoned industrial parties to show cause why the Commission should not take action under s 51 of the 1996 Act to make such a State decision relating to: Part-time work by employees covered by industrial instruments and to set, by that decision, minimum conditions of employment to which part-time agreements under Part 5 of Chapter 2 of the Act are to be subject, including but not restricted to minimum and maximum hours of work and other relevant conditions of employment. 503 On 26 March 1998, the Full Bench of the Industrial Relations Commission of New South Wales (Fisher P, Bauer and Schmidt JJ, Connor C) handed down its judgment, the State Part-Time Work Case [(1998) 78 IR 172]. 504 The approach of the Commission was stated at p 199: It is a matter of concern to the Commission to ensure that measures designed to be protective of employees, do not in reality operate to their detriment. By setting too high a minimum level of hours for part-time work agreements, part-time workers who need to obtain more than one job to satisfy their need for particular hours per week, may be denied the opportunity. By setting maximum hours too low, employees could be denied the opportunity of making arrangements suitable to their needs - forced to make a choice between too few hours of work or full-time work - neither of which may be readily accommodated by the employee. We have determined that the question of the minimum conditions for part-time work which we set must be approached primarily from the point of view of meeting the needs of employees for part-time work, rather than from the point of view of employers seeking to overcome award provisions which they regard as inflexible or expensive, or from the point of view of unions seeking to defend the provisions of awards or other industrial instruments which are perceived as hard-won. … 505 Those same principles are those that now guide the Commission in determining the present applications. 506 A further statement by the Full Bench at p 200 is also apposite to the determination of these proceedings, especially in the light of the Union's submissions that it would be unfair to telephone canvassers if they did not have available to them all the provisions of the Clerical Award as did other fellow employees who may be covered by that Award: We take the view that the enactment of s 79 of the 1996 Act does not require that in determining the minimum conditions the Commission would simply require the existing provisions of applicable industrial instruments to be observed in all part-time work agreements. The section does require the establishment of a single set of conditions available to all employees to whom an industrial instrument applies in the State. Those conditions are to be established under a statutory scheme which continues the system introduced in 1991 designed to give employees wider access to part-time work than may otherwise be available under such industrial instruments, but having the additional aim of protecting such employees from the risk of exploitation in such agreements. 507 Extracts from that judgment at p 197, together with some comments are set out below: The evidence demonstrated that profound changes have taken place over the last two decades in the composition of the workforce of New South Wales. Those changes include the increased participation of women in the workforce and the decreased participation in full-time work by young people, reflecting increased participation rates in tertiary education. The changes were accompanied by increasing requirements by employees of all ages, male and female, for part-time work, accompanied by increased demand from employers for such workers. 508 The evidence in these proceedings was in the same vein. Women take on the work of telephone canvassers, arranging it around their family responsibilities. University students work hours outside their lecture times and during university vacations. In other cases, employees come from full time day jobs to work at a second job as canvassers in the evening. Employers accommodate the desires of employees as to hours and days to be worked. 509 The following findings were made in the State Part-Time Work Case in relation to individual Part-Time Work Agreements made pursuant to Pt 5, of Ch 2: (1) The hourly rates for part-time employees should be the same as those fixed by the applicable industrial instrument for full-time employees. ( at p 202) (2) Overtime to be paid; (at p 202) (3) Minimum daily hours at p 204 saying: We have determined to fix a minimum start per occasion of three hours per day, subject to a number of exceptions. We take the view that it would be wrong to deprive employees of existing work under current part-time work agreements, particularly in the absence of tangible evidence of exploitation. As we mentioned earlier, there was evidence of part-time work agreements before us which provided for work of two hours per day, on several days per week including agreements entered by employees suffering from disabilities who could not work for longer hours. We have determined to permit such arrangements where two hours per start is agreed for two or more days per week, provided that the arrangement is either sought by the employee whose ability to work other arrangements is restricted by personal circumstances, the place of work is within five kilometres of the employee's place of residence or where the applicable industrial instrument already makes provision for a minimum start of two hours. (4) No weekly minimum working hours fixed. (at p 205) It rejected a proposal that a weekly minimum of 12 hours be fixed stating (at p 205): We add that the approach again carries with it a real risk of direct and indirectly discriminatory consequences, in that it could particularly deprive women, young workers and those with disabilities from access to part-time work agreements which their personal circumstances require and which would not make such agreed arrangements exploitative in any sense. 510 In finding in the State Part-Time Work Case at p 202 that the hourly rates for part-time employees should be the same as those fixed by the applicable industrial instrument for full-time employees, the Full Bench was of course referring to employees who, if they worked full time would fall within the classifications and definitions within that award. 511 It is acknowledged that telephone canvassers are not at present covered by the Clerical Award and the burden of the evidence is that their working pattern is, in the main, different from employees under that Award. 512 To the extent there is evidence before the Commission, one factor that influenced the Full Bench in setting minimum conditions, is just as valid in these proceedings. The Full Bench was considering a submission that, in effect, minimum hours be set high enough to provide a "real" wage or income stream for part-time workers. In rejecting that concept, the Full Bench said at p 204, that to introduce it would carry the risk of introducing "indirect, possibly direct, discriminatory consequences for women and young workers who require part-time work of limited hours and for whom such hours are not, in any usual sense, exploitative … . For such employees the limited hours of work which they seek, based on their own requirements, may well achieve a "real" wage or income stream suitable to their circumstances". 513 In Re Principles for Review of Awards - State Decision 1998 (the Review of Awards Decision) [(1998) 85 IR 38], another Full Bench (Wright J (Pres), Hungerford and Schmidt JJ, Sams DP, Redman C) stated at p 52: Evidence led by the Crown was directed to the significant increase in part-time work and casual work in the State over recent years. That was clearly established and brings to the fore the need to ensure in modernising awards that appropriate provision is made for such work so as not to impose artificial impediments upon such employment. As has been observed by the Commission in a number of cases, for example the State Wage Case August 1997 (NSW) (1997) 73 IR 200, unemployment remains unacceptably high in the State. We accept it is appropriate in an award review for the parties to consider in particular whether the award unnecessarily imposes impediments to such work opportunities. That is consistent with the provisions of s 146(2) of the 1996 Act which provides: "(2) The Commission must take into account the public interest in the exercise of its functions and, for that purpose, must have regard to: (a) the objects of this Act, and (b) the state of the economy of New South Wales and the likely effect of its decisions on that economy. This subsection does not apply to proceedings before the Commission in Court Session that are criminal proceedings or that it determines are not appropriate." It is consistent also with the community's need for part-time work discussed by a Full Bench of the Commission in the State Part-Time Work Case March 1998 (1998) 78 IR 172 at 197-198. 514 Following upon the long extract from that judgment there set out the Full Bench concluded by saying at p 53: Issues such as this [sic] need consideration in the award review process. 515 In my view, that statement extends not only to the general review process, but to the making of awards in the first instance, the approach adopted in the State Part-Time Work Case. 516 The Commission in the State Part-Time Work Case was not dealing with the same situation the Commission is here dealing with in respect of the two applications before it. The Full Bench was considering minimum conditions to set in respect of a statutory scheme for part-time work agreements, which are individual agreements between an employee and an employer. In these proceedings, there are competing arguments as to the extent the provisions of an existing industrial instrument should apply to a category of employees being brought under its provisions for the first time. 517 Despite those differences, I find the approach and principles guiding the Full Bench in the State Part-Time Work Case and in the Review of Awards Decision to be very useful guides in this part of my consideration. 518 Although in the above case, agreements with individual employees were being considered, the employees affected by the present proceedings have, to a large extent, similar characteristics in respect of employment: many females fitting work in around school hours and their partners' working times and university students fitting it around lectures and examinations. Other people are simply seeking supplementary income, telephone canvassing for some being undertaken after they finish a full time day job. Part-time employment - Conclusions (i) Par 1 of the proposed cl 5.2(iv) is granted; (ii) For reasons set out later, the number of hours that constitutes full-time work under cl 5.2 is 38; (iii) The hourly rate of the part-time telephone canvasser shall not be inclusive of commission; and (iv) The divisor to calculate the appropriate hourly rate of pay for the part-time canvasser shall be 38. Casual Employment - cl 5.2(v) - Consideration 519 Employers First sought the following provision in relation to casual employment for telephone canvasser: 5.2 (v) Casual Telephone Canvasser An adult casual telephone canvasser shall be paid at an hourly rate, inclusive of commission, as set out in (vi) of Table 1 - Wages of Part B - Monetary Rates. A junior casual telephone canvasser shall be paid at an hourly rate, inclusive of commission, as set out in (vii) of Table 1 - Wages of Part B - Monetary Rates. These rates of pay have been loaded to compensate employees for entitlements and benefits otherwise available to full-time employees, including sick leave, annual leave, personal/carers leave etc. Where a State Wage Case decision prescribes a dollar amount, the casual rates in (vi) of Table 1 - Wages of Part B - Monetary Rates will be adjusted by dividing the dollar amount by 40 and adding a loading of 20%. Provided that each adjustment shall be calculated to the nearest five cents and any part of five cents not exceeding half of five cents is to be disregarded. 520 Clause 8(i) of the Clerical Award defines "casual employee": (i) "Casual employee" shall mean an employee who is engaged and paid as such, whose spread of ordinary hours shall be as set out in subclause (ii) of clause 6, Hours, and whose rate of pay shall be calculated pursuant to subclause (xi) of clause 5, Classification Structure and Wages. 521 Clause 6 (ii) provides in relation to hours: (ii) Casual Employees - The spread of ordinary hours of work shall be the same as those worked by weekly employees in the establishment concerned. Where there are no such weekly employees the spread of ordinary hours of work shall be those prescribed by subclause (i) of this clause. 522 (Those "ordinary hours" exclusive of meal hours prescribed by cl 6(i) are, in brief, 38 hours per week, between 6 am and 6 pm Monday to Friday and 6 am to 12 noon on Saturday.) 523 In relation to the proposed cl 5.2(v), I have already decided: (i) a minimum wage rate per week shall be included in the award for the telephone canvasser; (ii) telephone canvassers may be renumerated by way of base rate plus (not inclusive of) commission; (iii) commission is not to be absorbed into the base rate; and (iv) junior rates are refused. 524 I shall later deal separately with the loading to be paid to casuals and to the appropriate divisor to be applied to calculate hourly rates. Exclusions - Hours of work/Weekend Work/Penalties - Submissions - EF 525 The application, while not expressly setting out the intention to allow hours from Monday to Sunday without restrictions, is seeking ordinary hours on weekends without penalty pay. 526 Basically Employers First's application seeks to exclude hours of work and any incidental and related clause to hours of works such as shift work, overtime, meal allowance, finishing after overtime. Also excluded is cl 9, but only to the extent that applies to Sundays. The public holidays part of the award does not actually go to canvassers. 527 The reason for the exclusions is to retain the existing conditions for canvassers as currently operating, as reflected in the evidence before the Commission in relation to hours of work. That revealed that the canvassers are generally employed during the day and evening any day with particular emphasis on evenings and Sundays. The majority of the evidence was that with the exception of the telephone canvassers employed by the House With No Steps, they received the same rate of pay, with commission, on any day Monday to Sunday. 528 The House With No Steps has a certified agreement with the structure for an additional 50 cents for those employees on Saturdays. They are also the exception to the rule in that they have such an agreement applying to telephone canvassers. 529 The employers need people to work those particular hours because they need to contact people at home and to catch them at home the canvassers needed to call them after 6 pm and on weekends. 530 A pool of employees preferred to work these hours, for example, university students on later shifts. There should be no restrictions of the hours Monday to Sunday and no penalties, which is the current arrangement in place for those organisations based on the evidence. 531 The Commission should be cautious not to impose a restricted provision in the first award, particularly where the evidence shows that particular span of hours is necessary for the industry to operate. The existing flexibility within the industry should not be inhibited. 532 The conditions contained in Employers First's application are consistent with the existing conditions in that there are no current restrictions or penalties paid on any hours of work and should be maintained. This provision is consistent with Re Private Pathology Laboratories (State) Award (the Private Pathology Case) (unreported Glynn J, 91/1264, 17/6/93). In that particular award ordinary hours of 7 am to 9 pm was granted for that industry. It is also consistent with the First Award principle, that is not to disturb the current conditions. 533 In relation to weekend work, Employers First accepts the Commission's standard for weekend work is time and a quarter and time and a half; time and a quarter for Saturday and time and a half for ordinary work on Sundays and the Commission's standard is based on a number of decisions: Crown Employees Teachers Educational Teaching Service Award and other awards (unreported) Full Bench - Fisher P, Bauer J and Hungerford J (7 August 2001); Hairdressers and Beauty Treatment (State) Award (unreported, Full Bench - Fisher P, Bauer J and Connor C 20 November 1998); Private Pathology Laboratories (State) Award (unreported Glynn J, 91/1264, 17/6/93), Fruit Growing Industry (State) Award (unreported, Full Bench - Fisher P, Cahill VP, Cullen J and Buckley C (23 August 1991). 534 While Employers First accepts they are the Commission's standards for weekend work, it is not appropriate to impose them in this particular application, particularly given the evidence that no penalties are currently paid to those employees. 535 There are a number of reasons for penalties being paid. The first goes to social inconvenience in relation to weekend work. Based on the evidence, there is no social inconvenience in this industry for employees working on Saturdays. Secondly, this is the first award and that particular caution is required in imposing penalty rate structures when no penalties are currently paid. The imposition of such penalties could result in an increase in wages costs. Thirdly, the rationale set out in Re Crown Employees (Teachers' Education Teaching Service) Award (unreported; Fisher P, Bauer and Hungerford JJ; IRC89/566; 7/8/91) was to set compensation for social, not industrial, inconvenience of weekend work. Employers should not be deterred or penalised for operating on weekends and in many cases it was recognised that it is very much in the public interest to facilitate such weekend work, with its employment opportunities. 536 There is a public interest in that the public to be able to be accessed by telephone canvassers to buy lottery tickets, and it may be the working public may not have access to those lottery tickets if no work is available on Saturdays. Imposing weekend penalty rates or penalty rates during the evenings Monday to Friday will impact on the operations of many worthy causes and may ultimately restrict their services if their revenue raising activities are limited in that way. 537 Although this variation when made will not apply only to charities, it is not unusual in sale industry type awards that no weekend penalties apply (see the Real Estate Industry Award (made 18 June 2001) and the Time Payment Collectors (State) Award (328 IG 1064). 538 In relation to the hours and weekend work, the preferred position is that which is currently contained in the application, which is to impose no restrictions at all on those hours of work for canvassers. Hours of Work/Weekend Work/Penalty Rates - Submissions - FCU 539 All the permanent building societies and newspapers awards have hours clauses applying to telephone canvassers as well as provisions dealing with extra payments for work done outside ordinary hours of work. The union says it would be unfair and contrary to the objects of the Act for there to be a variation to the Clerical Award allowing for telephone canvassers to be disadvantaged in terms of rates of pay and conditions simply because they were performing the work outside of the newspaper or permanent building society industries. 540 There was evidence about penalty payments for work done outside of ordinary hours which are already being paid at some companies. There was also evidence from two of the union witnesses, Gerrad Hennessy and Ms Dal Bianco going to their views that they should receive penalty payments for work performed outside ordinary hours. Hours of Work/Weekend Work/Penalty Rates - Evidence 541 Mr Westbrook said that payment of penalty rates would affect AFFORD because of its time slot of 6 pm to 8.30 pm to call residential customers. It is part of AFFORD's agenda in the next few years to expand its selling in the domestic area. That is the only time that AFFORD's development of further business in that area can be done effectively. If penalty rates had to be paid the equation of growth of business as against costs would probably prohibit AFFORD's interest in that expansion. The result would eventually be to diminish the size of the raffle. At the present time AFFORD does not operate its raffle section at the weekend. It therefore would not be affected by the fact that there are weekend penalty rates in the Clerical Award if that Award were to cover its telemarketers. 542 Mr Westbrook said that all tele-marketers received the same hourly rate of pay regardless of when they are working. 543 At Australian Wine Selectors, no penalty rates were paid for working at nights or at weekends. 544 Park Trent pays a 17% loading on the hourly rate after 7.30 pm. 545 Mr Hennessy was not paid any additional moneys for working at nights, or on weekends and public holidays. 546 Under the HWNS's Agreement, telemarketers working on Saturday are paid an additional allowance of 50 cents per hour for shifts finishing before 3 pm and $1 per hour for shifts finishing after 3 pm. An additional allowance of $2 per hour is paid for work on Sundays. Telemarketers work on Sundays only once or twice a year, the reason being to maximise sales to existing customers who have ot been able to be contacted during the regular shifts. People at the HWNS apply to work the shifts outside ordinary business hours. No employee is forced to work either at the weekend or until 7 pm. 547 Mr Brink said that the telemarketers for the HWNS targeting businesses Monday to Friday during business hours would not be affected by the penalty rate provisions in the Clerical Award. The shift work/penalty rates for Sunday also would not be of great concern to him. He was aware that for the period of time the HWNS Federal agreement operated, his organisation would not be affected by any changes to the Clerical Award. 548 The RBS has flexible working hours where there are no pay differences between working afternoon, evening or Saturday. Ms Purcell said that was done on a voluntary sort of basis. If night rates changed, day rates would have to. There would be the complexity of noting whether sales were made in the evening versus during the day, and whether there would be a change in commission for evening sales versus morning sales. Ms Purcell was not even certain it would be possible to do so. 549 The fundraising division of the HWNS which operates Monday to Saturday between the hours of 9.00 am to 7.15 pm. Its telemarketers in Parramatta and Newcastle work in five hour slots between those hours, usually as follows: Monday to Friday 9.00 am to 2.0 pm 2.15 pm to 7.15 pm Saturday 9.00 am to 2.00 pm 2.00 pm to 7.00 pm 550 Its telemarketers in Wollongong and Belrose, which only contact businesses, work Monday to Friday either from 9.00 am to 1.00 pm or 1.00 pm to 5.00 pm. 551 For residential sales the HWNS runs five hour shifts six days a week. The HWNS needs to sell 450,000 tickets for each of its art unions and it runs two art unions a year. Ninety five per cent of its sales are obtained by telemarketing. It is limited to selling those tickets in New South Wales, which it says is a fairly small market within which to sell that number. Each year approximately 2.5 million people are contacted. The majority of its customers are individuals rather than businesses, and the majority of customers are those contacted at their homes. 552 The HWNS has found that there is a greater success rate in contacting people at home after 6 pm Monday to Friday and on Saturdays. Mr Brink said that if the HWNS did not contact people during those times, there would be a significant drop in the number of tickets they could sell and a significant section of its market would become unavailable. At the HWNS the afternoon shift is slightly less popular than the morning shift, but the counter balance is that there tends to be better sales on the afternoon shift. 553 At the RBS, the hours of operation covered by its telesales agents are: 8.00 am to 8.00 pm - Monday to Thrusday; 8.00 am to 3.00 pm - Friday; and 9.00 am to 2.00 pm- Saturday. 554 Within those hours, shifts range from 4 to 8 hours. On average each telesales agent works 20 hours per week. 555 The RBS has also found there is a greater success rate of selling tickets in the evenings and on Saturdays. Telesales agents can make fifty sales in the evening, and earn commensurately greater commission, compared to twenty sales during the day. Many existing customers have indicated that they would prefer to be contacted during the evening or on Saturday. 556 The RBS art union tickets are sold at a cost of $30.00 per ticket. It therefore needs to be able to target a market which is able to afford to purchase the tickets. This means that its demographic market is the professional or working customer. These people are not available during normal business hours so the RBS needs to contact them after hours. 557 Ms Dal Bianco confirmed that she made more sales during the evening than in the morning, describing the morning shifts at AWS for her personally, contacting business people, who simply wanted to get on with running their own businesses, as "hell". Call backs at Australian Wine Selectors occurred on Friday evenings and Sundays depending upon how many telemarketers were on duty at the time. However, Saturday was not necessarily a good day to make sales as people had other activities and commitments. Whether there was a better opportunity on Sundays to make sales depended upon the time of the year. Before Christmas, for instance, there was a special shift put on to offer Wine Society members specials. 558 Ms Dal Bianco would work extra shifts when available if she had time on her hands and needed a little extra cash. At AWS there were a lot of university students. They and others would turn up for evening shift even if not rostered: "just pot luck". 559 Shifts and days worked can change with the canvasser's own circumstances. Ms Salway at Park Trent has worked between 3 and 5 evenings per week, or none at all when her husband's medical condition has required it. 560 At Flick there were two day shifts: 8.30 am - 12 noon and 12.30 pm - 4.30 pm/5 pm. There was also an evening shift (5 pm - 8 pm) in peak season on Monday and Tuesday only. 561 The length of shifts offered during the day by an organisation can vary. At AFFORD, for instance, telemarketers are employed from Monday to Friday only from 9 am to 8.30 pm in three time slots: 9.30 am/2.30 pm, 2.30 pm/6 pm and 6 pm/8.30 pm. AFFORD's sellers work regular shifts over 20 hours per week, but not all work 5 days per week. The period 6 pm to 8.30 pm is historically the time that sales to residential customers are optimised. Prior to 6 pm only 10 to 15% of such calls would be answered. 562 Most Rainbow Lottery operators work Monday to Friday for between three to ten shifts per week. Three core shifts cover the hours 9 am to 9 pm. Some operators work "extension shifts" which cross over two core shifts e.g. 9 am - 2.30 pm or 4 pm to 9 pm. A number of previous buyers had advised the Institute the evening is the preferable time to contact them, statistics show this is the only time prospective buyers can be contacted and there is a pool of employees eg university students who prefer to work evening hours. 563 At the RIDBC at least 3 times in any lottery cycle, work on Saturdays from 9 am to 2 pm is available as an option to operators. As explained by Mr Harrington, Saturday work is to contact people who have said they would buy a ticket, have had the ticket sent out, but not returned the money, and have not been able to be contacted during the week. Follow up is done for two reasons, the first to effect a sale, the second is that it is a requirement under the Regulations to have an audit trail in process. 564 Because Park Trent aims to invite individuals to attend conferences in New South Wales, Queensland and Victoria, its telemarketers, located in Wollongong, now work only in the evening from 5 pm to 8.30 pm, which includes a paid 10 minute break. When it had a New Zealand contract it started earlier, and with a Western Australian contract it finished at 11.30 pm. At that time, double shifts, 5 pm to 11.30 pm were worked, such shifts including two ten minute paid breaks, plus a half-hour unpaid break. Hours of Work - Part-time/Casual Employees - Consideration 565 Most canvassers about whom evidence was given were engaged on either a casual or part-time basis. Daily hours worked range from 2 ½ hours to 8 hours. 566 Employers First's primary submission was that there should be no restriction of ordinary hours Monday to Sunday, and there should be no penalties. Its alternative submission was, that if the Commission was of a mind to insert a spread of hours rather than adopt the approach in Employers First's application, it should not exceed the standards applying to other service industries of 6am to midnight, for example, in particular service industries where the award applies, Restaurant Employees (State) Award and Caterers Employees (State) Award. If the Commission was of a mind to impose that spread, given there is no evidence of operators working ordinary hours outside those hours, Employers First's alternative submission was that it would be appropriate to reserve leave to amend the award to take into account those hours. 567 The union seeks that ordinary hours of work of 6 am to 6 pm Monday to Friday inclusive and 6 am to 12 noon on Saturday as provided by cl 6(i)(a) of the Clerical Award (296 IG 619 at 629) should apply to telephone canvassers. 568 In extending award coverage to telephone canvassers for the first time, the award has to take account of the practicalities of the industry, or the section of an industry, that it covers. On the basis of the evidence, with all its deficiencies in these proceedings, the working world of the telephone canvasser is shown to be an inverted image of that worked by the usual clerical and administrative employee. Beyond that, however, the Commission has very little evidence as to the ordinary hours of work for the telephone canvassing industry generally. 569 Even though the strict 9 am to 5 pm clerical routine has become somewhat more elastic over the last few years, the majority of employees covered by the Clerical Award would be aptly described as day workers. They work during the day and go home at night. 570 On the other hand, although the hours of telephone canvassers, both casual and part-time, who gave evidence, if one includes the evidence of Mr Hennessy at Computer Best Buys whose current work was problematic as being within the definition, could stretch from 7 am to 11.30 pm, a significant number of such canvassers worked after 5 pm. They could work on all days of the week. The number of shifts worked, the length of those shifts and the number of days worked varied not only from witness to witness but also for each individual witness in the course of engagements. 571 Because telephone canvassers have distinct areas of potential customers, one consisting of businesses, the other of residential buyers, the result is that the hours during which the canvassers, with some overlap between the two sectors, operate are the traditional 9 am/5 pm business hours and 5.30 pm/6 pm to 8.30 pm/9.30 pm hours when the majority of workers have returned home. 572 To the extent that there is relevant evidence in this case, it would seem that full time work is the exception rather than the rule in the industry. However, as already noted, the evidence is deficient even in respect of the limited area of telephone canvassers. The direct evidence as to employers has come from the charity area only. The award sought to be varied is a common rule award. 573 The shifts being worked, and the weekend work, are, on the evidence, in the main not based on eight hour shifts or thirty eight hour weeks. The HWNS Agreement provides for a 37.5 hour week and for overtime and for weekend penalty rates. The RBS Agreement also provides for a 37 ½ hour week, but that Agreement does not apply to its telesales operators, nor it seems does the RIBDC Award which has a 38 hour week apply to its Rainbow Operators. 574 The canvassers about whom evidence was given, are required less often to work on Sunday than on Saturday and less often on Saturday than Monday to Friday. However, in some cases weekend work is the norm. At Australian Wine Selectors, for example, the same shifts are worked on Saturday, as are worked from Monday to Friday: 9 am - 1 pm (morning/business), 1 pm - 5 pm (afternoon, residential) and 5.30 pm to 9.30 pm (evening, residential). On Sunday, the shifts are 10 am - 2 pm (morning) and 2 pm - 6 pm (afternoon). (One exception was that no Saturday afternoon shift was worked in January and February. People had no money after Christmas.) 575 Weekend work, whether available weekly or only on an infrequent basis, is sometimes worked by volunteers e.g. Postel Ltd (now ceased operations) and the RIDBC Rainbow Lottery operators. At the RBS work on Saturdays was introduced three years ago and telesales agents were asked to volunteer to work on those days. Because the success rate was so good, more telesales agents now wish to work on Saturdays, to the extent that a roster has had to be introduced. 576 Employers try to accommodate the wishes of the canvassers as to shifts to be worked, within the roster restrictions, although, at the Australian Wine Selectors, they preferred that people worked more than two shifts per week. 577 Ms Hancock submitted that the Clerical Award as it stands, now provides, by means of the shift work provisions, the ability to work in the evenings outside ordinary hours. The difficulty with that submission is, as I have noted more than once, in that, on the evidence, there is an inversion of working patterns for telephone canvassers as opposed to the general run of clerical and administrative employees. "Ordinary hours" for many telephone canvassers, on the evidence, are evening hours. That would suggest that the shift work provisions may not be appropriate or reasonable in respect of telephone canvassers. 578 The Clerical Award provides for ordinary hours of work until 6 pm Monday to Friday. Therefore it is only those shifts that extend beyond that time that would be affected by penalty rates. However, two provisions could come into play, one being the overtime provision for work after 6 pm, (cl 6(iii)) which would apply the additional rate to the whole shift. Mr Brink's counter to that was that if extra rates were to be paid for the afternoon shift, those rates would have to be matched for the morning shift. Sellers would all want to work the afternoon shift "because I don't think the sellers see it as the great inconvenience that maybe clerical workers do". (Transcript p 54 25/2/2002) 579 According to Ms Hancock it would be less onerous to pay HWNS sellers as shift workers a 17% loading, than paying time and a quarter overtime. 580 It was the position of all the employers who gave evidence that they needed to contact their customers outside normal business hours. Payment of penalty rates would cut down their revenue as would any increase in the base rates. A specific example is evidence from AFFORD that if the grade 2 rates of the Clerical Award were to be applied to its telemarketers, the hourly rate it would have to pay would increase by $6, apart from any increases deriving from payment of penalty rates. 581 It was said that at least two unfavourable consequences would flow from that. Reduction in revenue would mean an inability to employ the same number of telephone canvassers, leading to a further vicious downward spiral of reduced revenue, and fewer telephone canvassers employed, and eventually fewer services being able to be offered by the charity concerned. Secondly, the charities would find it more difficult to keep within the 60:40 ratio of costs to profits required under the Lotteries Act. 582 Employers First submits that the proposed clause should reflect the current position that, in the main, weekend penalty rates are not paid. That, to me, is not a proper application of the First Award or Extension to Award principle. There are certain industrial standards enjoyed by award covered employees and first awards are often the means of extending such standards to employees otherwise unable, because of weakness of bargaining power, or for any other reason, to access those conditions. 583 The union contended that it would be unfair for telephone canvassers to be disadvantaged in terms of pay and conditions in comparison with telephone canvassers covered by the permanent building societies and newspapers awards. 584 However, examination of those awards (without the assistance of any evidence from employees covered by them) indicates that the functions of those employees go much wider than the very limited focus of the telephone canvassers who gave evidence in this case. Those awards do not support the proposition that there should be similar pay rates or conditions for telephone canvassers as applied in those industries. 585 In the Private Pathology Case the Commission awarded ordinary hours of 7 am to 9 pm because the evidence adduced supported such an award. The evidence in this case as to the situation of telephone canvassers (other than canvassers for the sale of goods) is inadequate to support such a provision in a common rule award. 586 The Commission sometimes sees it as appropriate as in the SACS Case to provide very basic benefits to start with for a previously unregulated industry, in the anticipation that those basic benefits will be built on incrementally in later award negotiations between the parties. 587 Unfortunately, in the present case, the evidence before the Commission is quite deficient as to what weekend penalties, if any, are paid to telephone canvassers in the non-charity areas. For all the Commission knows, those weekend penalty rates accepted by Employers First as standard, or some variation of them, may already be paid. Without evidence, the Commission is not in the position to make a considered decision on the issue. The decision not to simply extend the relevant provisions of the Clerical Award is not to be taken as having been made on the merits. 588 The inverted pattern of work referred to above strongly indicates that the ordinary hours of work provided by the Clerical Award would not be appropriate. That position is not a new one. As already noted at [179], I expressed the view in the TCI Report that the appropriate spread of hours for the telemarketing and market research industry was one of the matters that could be appropriately considered in later proceedings. 589 It is almost twenty years since the Commission in the TCI Report anticipated that applications would follow in relation to appropriate hours and other matters. If Employers First's primary submission was accepted, it is a matter of conjecture as to when another attempt might be made to bring the telephone canvassers under some proper industrial regulation. 590 Rather than leave the ordinary hours of telephone canvassers wide open over the whole 24 hours of the day, and over 7 days, however, I decide, once again on balance, that there should, at this time, be a provision inserted as to ordinary hours for telephone canvassers. 591 As an interim measure, I propose to award an hours provision which takes into account that there is the 12 hour weekday span and 6 hour span of ordinary hours on Saturday in the Clerical Award. 592 Contrary to the submission made by Employers First, the evidence, such as it is, suggests that work on Sundays is neither widespread nor regular. The HWNS's telemarketers work only once or twice a year on Sunday and under the HWNS Agreement are paid an allowance of $2 per hour for such work. The AWS does operate on Sundays, but the Commission has little evidence as to the industry generally outside the charities areas. 593 The ordinary hours for telephone canvassers as contained in cl 5.2 shall be worked between the hours of 8.30 am to 8.30 pm Monday to Friday and from 8.30 am to 2.30 pm on Saturday. 594 The overtime provisions of the Clerical Award would only come into operation after the telephone canvasser has worked a conventional 7 ½ to 8 hour day, as part of working a 38 hour week as a full time employee. 595 I make no provision as to Sunday work. Minimum and Maximum Engagements - Submissions - EF 596 This is a first award and the evidence was that there was no restriction on hours of work or part-time employment, no minimum engagements or maximum engagements. In inserting part-time provisions into this award it would be inappropriate for the Commission to put any restrictions on the actual minimum engagements and maximum weekly engagements. 597 The State Part-time Work Case went into the demographics of those people who are wanting part-time work those generally being young people and women. In this case the evidence is the workforce is predominantly female and young people, some university students looking for flexible work which is generally part-time based around universities or females when their children are at school. 598 In relation to the minimum weekly hours there is no good reason to set minimum weekly hours for telephone canvassers. Indeed it could result in discriminatory consequences to those women and young people who are currently employed and particularly students who, given their personal circumstances, generally work at night. To put a minimum weekly restriction on what they can or cannot work, which is how it is expressed in the Clerical Award at the moment, at two days, might artificially restrict the employment opportunities for those people. 599 Based on the State Part-time Work Case and the comments by the Full Bench at p 183, it is submitted that no weekly minimum engagements should be given in this award. Two cases considering the insertion of that provision in an award since then have followed that decision, and awarded no minimum weekly hours for casual employees (see Re Storeman and Packers General (State) Award, (unreported Redman C, 2 December 1998, and secondly, Re Real Estate Industry (State) Award, (unreported, Neil C, 21 December 2000) ). 600 The approach in the application, setting no minimum hours, is in line with the general principles of the Commission and also those of the community. There has been a general trend to loosen restrictions on part-time work in the way sought in this application. 601 Moving to daily minimum engagements, the union has not sought any minimum daily engagements to be specified for part-time employees. The Clerical Award currently, at cl 8, does not prescribe any minimum daily engagements. For that reason the employers do not propose any daily minimum engagements. However, if the Commission were to award a daily minimum engagement it should be consistent with what the Full Bench in the State Part-time Work Case found was appropriate for part-time engagement. Casual Employees - Minimum Engagements- Submissions - FCU 602 As to the casual work, the employer application at cl 5.2 ((v) seems to have no minimum engagement period for casual employees and the minimum engagement in the clerical award now is four hours per engagement. That entitlement is cl 5 (ii) 1. 603 The union submits to have different provisions applying to telephone canvassers and clerical employees and telephonists would not meet s 10 of the Act or be in line with the objects of the Act particularly s 3(a) and (e). Maximum Weekly Hours - Submissions - EF 604 In relation to maximum hours, in the State Part-time Work Case the Full Bench rejected an application by the union to set maximum weekly hours of less than 30. 605 It was decided that part-time work agreements may be entered for any number of hours less than the fulltime hours fixed by the Industrial instrument. That is relevant in relation to the fixing of maximum hours if the Commission was of a mind to do it in this particular award. 606 If the Commission was of the view a weekly hours provision is required, the employers submit the appropriate maximum would be 40 hours a week, given the increase in costs in the making of this award, particularly from the fixed minimum rates of pay. Further, if the Commission was of the view to grant maximum weekly hours of 40 before overtime then time off in lieu of overtime provisions should be allowed to cope with work outside those hours. Minimum and Maximum Hours - Findings Minimum Daily Engagements 607 There is evidence of shifts of 2 ½ hours. There is also evidence that people sought work "on spec", for instance, turning up in the evening at AWS, although not rostered on, in the hope of being put on for a shift. 608 I endorse the sentiments expressed by Schmidt J in Re Storeworkers - Davids Distribution Pty Limited NSW Distribution Centres Award 1998 [(1998) 85 IR 179 at 190]: … in my view it would be quite wrong for the Commission to exercise its discretion to artificially limit any unemployment opportunities … 609 A minimum daily start for telephone canvassers shall be 2 ½ hours. Weekly Minimum Working Hours 610 None are fixed for casuals or part-time employees. Maximum Weekly hours - Part-time and Casual 611 Other than such hours shall be less than 38 per week, no maximum weekly hours are set. Hours - Divisor of 40 - Submissions - EF 612 In sub-cl 5.2(iv), the employers propose that a part time telephone canvasser shall be paid at an hourly rate, inclusive of commission, equal to the appropriate weekly rate of pay for a telephone canvasser divided by 40. In sub-cl 5.2(v) it is proposed that a divisor of 40 be applied to the rates for casuals in the circumstances there set out. 613 A divisor of 40 is appropriate for calculation of casual and part time rates of pay in the employers' application. Section 22 of the Act states that "The number of ordinary working hours must not exceed 40 hours averaged over a week." Section 22(3) provides that the ordinary working hours of an employee cannot be reduced by an award unless the reduction is made by a Full Bench of the Commission. 614 The number of hours in the Clerical and Administrative Employees (State) Award is 38. 615 Ms Marshall did not necessarily agree with the proposition that Employers First seeks an extension to an existing award. Conditions for telephone canvassers are not regulated at the moment and are sought to be included in the award as a first award within an award. Even if one took the approach that it was an extension to an existing award, the 40 hour divisor is still appropriate, because in accordance with Principle 13 of the State wage fixing principles the Commission must have regard to what are the conditions currently applying. 616 Now given that there is no evidence in these proceedings as to whether or not canvassers work 38 hours or 40 hours a week, in fact the evidence has brought out they work much less than 40 or 38, that does not necessarily mean that 38 should be the divisor. The appropriate divisor is 40, given what is the standard number of ordinary hours in a sense prescribed by the Act (see Re Foremen Metalliferous Mining Award [(1984)7 IR 386]. The same reasoning can be applied to the 1996 Act, that is that the standard of ordinary hours is that which is contained within the Act and that is a 40 hour week. Employers First accepted that hours had been reduced from 40 to 38 in the Clerical Award. Hours - Divisor of 40 - Submissions - FCU 617 The next part of the Employers First submission goes to the divisor of forty hours to determine hourly rates. It is stated that a divisor of forty is the appropriate divisor for the casual and part time rates of pay. With respect to that, the union would say two things. Firstly, that submission in itself does not address the issue of inequality and unfairness, which is really at the heart of the union's application, in that clerical and administrative employees including telephonists with whom telephone canvassers may work and who may already enjoy award coverage, are subject to a divisor of thirty eight. To make an award in the form that Employers First seeks would merely be to perpetuate an inequality that already exists. 618 Further, forty hour weeks are not the norm in the industry. In the House With No Steps Fund Raising Agreement 2000 cl 5.1, ordinary hours of work, the ordinary hours are listed as being an average of thirty seven and a half per week over a four week cycle with no more than ten hours worked on any one day. Clause 5.4 provides that "Overtime rates shall be payable once an employee has worked more than thirty seven and a half hours in one week". 619 The Royal Institute For Deaf and Blind Children Employees (State) Award, at cl 5, Hours of Work, provides that the ordinary hours of work for day workers are 152 hours per twenty eight calendar days, which is thirty eight hours per week if it is averaged out, and at (ii): "The ordinary hours of work for shift workers shall not exceed an average of thirty eight hours per week in each roster cycle." Although it cannot be said with certainty that a thirty eight hour week applies to the telesales employees at that organisation, it is the possibility because the witness was just not in a position to say yes or no. 620 The evidence shows supervisors of telephone canvassers could be covered by the Clerical Award as it currently stands. The union says, why should the entry level telephone canvasser whom they supervise receive a less favourable condition in determining the hourly rate. 621 The union feels all the changes sought to be made to casual and part time work would not provide fair and reasonable conditions of employment in accordance with s 10, nor be in line with the objects of the Act, and particularly, a) and e): a) to provide a framework for the conduct of industrial relations which is fair and just and e) to facilitate appropriate regulation of employment through awards, enterprise agreements and other industrial instruments. Hours - Divisor of 40 - Consideration 622 Both parties accept that the Clerical Award has already been varied to provide that ordinary hours of work shall not exceed an average of 38 hours per week (cl 6(i)(a) ). 623 Both applications thus seek to vary an existing award which already provides for a 38 hour week. 624 I do not accept the employers' contention that to apply a divisor of 38 to the rates paid to telephone canvassers requires any further proceedings pursuant to s 22(1) before a Full Bench. 625 From the evidence I am not in a position to know to what extent a 38 hour or 40 hour divisor is used. To the extent that the 40 hour divisor is currently used by employers, the awarding of a divisor of 38 hours will lead to increased costs. To the extent I have been able to calculate, that increase would range from $2.30 to $2.60 per hour for casuals on the rates proposed by Employers First. There would also be increases for those employees employed on a part-time basis. 626 The divisor of 38 is to be applied to the rates of pay for telephone canvassers. Casual Telephone Canvassers - Loading - Submissions - EF 627 The rates of pay that EF proposed have been loaded to compensate casual employees for entitlements and benefits otherwise available to full-time employees "including sick leave, annual leave, personal carer's leave et cetera". That loading is set at 20%. That includes 8.66% for the annual leave component. The other 12.33% makes up for those things available to permanent part time workers or full-time workers. 628 Employers First has taken a mathematical approach to calculating the loading. The percentages contemplate five days of sick leave, 11 public holidays, two days' bereavement leave and four weeks of annual leave. A mathematical approach was appropriate (see Cafes, Canteens, Delicatessens etc (Casual Loading) Case (41 SAIR 712 at 730) ). 629 Where sick leave and bereavement leave are calculated in the mathematical approach they are notional, because it seems to the employers that not all employees would take advantage of all their five days sick leave in any one year and it is impossible to say that a person would make use of the bereavement leave available to them in any one year of employment. (No evidence, eg of statistics as to the taking of sick leave in the industry was tendered.) 630 Employers First have sought to include an all inclusive rate, given the evidence, that no casual loading is paid to casual employees currently. (In reply that submission was somewhat modified.) As to the loading in an award when it is effectively a first award, there are a number of factors relevant to the consideration of the loading. First of all no loading is currently paid to casuals. That was a consideration in Re Social and Community Services (State) Award (the SACS Case), (unreported, Glynn J; 88/1278 & ors; 6/8/90). In that case, it was found that 73% of employees were paid a casual loading and a loading of 15% was awarded. 631 There seems to be in State awards varying quantums of loading, and on Employers First's research of State awards, the casual loadings tend to vary between 10 and 20%, exclusive of annual leave. The Nurses, Other Than in Hospitals (State) Award has a loading of 10%, and it is not unusual for the Commission to grant casual loadings at that level in state awards. 632 A consideration to be given to the amount of casual loading to be granted is that the rates that are proposed in the application are consistent with the Minimum Rates Adjustment principle and consistent with the First Award principle of the wage fixing principles. The rates in Employers First's application as properly fixed will result in an increase to base salary and eventually the hourly rates of pay and combined with the part time rates, will result in substantial increases for part time employees and a cost impost on employers. What the employers have proposed is appropriate in those circumstances. 633 It is not inappropriate for the Commission to award the loading in this first award for casual employees which is not as high as those in an ordinary award such as the Clerical Award, which has been subject to longstanding negotiations and bargaining between the parties. 634 Considering the issue of casual loadings in an award free area, the Commission should hasten slowly rather than hurry and not award greater casual loadings than proposed. Particularly in an industry where a first award will be imposed on them, the lower end of the range is appropriate, given there are no casual loadings currently being paid. Casual Loading - Submissions - FCU:EF 635 Clause 5.2 (v) of the employers application seeks a casual loading of 20% to casual employees inclusive of annual leave component of 8.33% which is the 1/12 provided by the Annual Holidays Act, s 4(3)(b)(ii). 636 That entitlement to the 1/12 loading in the Annual Holidays Act is currently provided in addition to the 20% casual loading found in the Clerical Award so in effect the casual loading the employers seek is the 20%, less the annual leave component of 8.33%, which is equal to 12.33%. To have a lower casual loading for telephone canvassers to that provided to those clerical employees and telephonists under the clerical award would cause confusion and inequity in the workplace. 637 The major problem that the union has with the proposal is that the telephone canvassers do not work in isolation. They have either come from clerical ranks such as data entry, which is what Gerrard Hennessy did, or they have progressed through the rank into other clerical administrative roles and those roles are seen as promotions. 638 Further, there is the issue of telephone supervisors. The union sees an inherent problem with supervisors being covered by the Clerical Award when the people that they are supervising are on or currently may not be covered by the award. If the Employers First application is successful they will be covered but will have inferior rates of pay and conditions, one of which would be the casual loading. That situation is not fair and just and would not do anything to promote any harmony in the work place. 639 If the cost impact is such that an employer is really going to suffer, then there are avenues that they can take up either through the Economic Incapacity principle or through s 18 of the Act to ease that burden if they can show that it does in fact exist. Examples given by Employers First of the alleged cost impact on employers, are not always accurate, Mr Hastie's rates, for instance, being compared with casual rates when he was in fact a permanent part-time employee. Casual Loading - Consideration 640 There is in this case minimum evidence as to the payment of a casual loading. That is in contrast to the SACS Case relied upon by EF, where evidence showed that 73% of employees were paid a casual loading. 641 Employers First arrived at its proposed 20% loading for casuals by assuming that the average loading was somewhere between the 10% awarded by Maidment J in Re Nurses &c Other Than in Hospitals &c (State) Award (unreported, 91/1330 & ors, 24/9/92) and the 20% awarded by Marks J in the Restaurant Award. In the Nurses case, Maidment J was considering the amalgamation of two awards. In one award the casual loading was 7 ½%, in the other 20%. (There was a further complication in that the 7 ½% loading had been reduced from 12 ½% in 1989 as an offset to granting the 4% second tier increase.) The 10% loading granted was the compromise figure decided by Maidment J. 642 It is not correct to say, as was originally submitted by Employers First, that no casual loading is currently paid. The amount of the loading is not always separately quantified, but the RBS casual rate of remuneration of $10 per hour is inclusive of all leave provisions other than long service leave. (Ex 5) The RIDBC casual rate of $14 is also inclusive of all loadings. 643 In the House With No Steps Agreement, there is a casual loading of 20% which is inclusive of an amount for annual holidays. 644 I accept that there should be a casual loading paid to telephone canvassers. However, what is sought by Employers First is, in effect, a first award for those employees. The Commission lacks evidence as to the extent of payment of a casual loading to telephone canvassers currently. 645 On the other hand, the application also seeks to insert into the Clerical Award a clause that brings telephone canvassers, to a lesser extent, within the coverage of that Award. That Award provides for a casual allowance of 20% plus an allowance of 8.33% for annual leave (that being equivalent to the 1/12 provided by the Annual Holidays Act. 646 As already noted, the pattern of work for telephone canvassers is an inverted one to that generally worked by employees, including telephonists, covered by the Clerical Award. The extent to which disadvantages, beyond the lack of general award conditions, that are appropriate to be taken into account for clerical employees generally, are relevant to telephone canvassers is not known. Nor is it known whether there may be a balance of advantages peculiar to telephone canvassers, that would affect the amount of casual loading appropriate to be awarded. The evidence in this case does not allow the Commission to come to any general view on that issue. 647 On balance I award a casual loading of 20%, inclusive of the 8.33% provided for under the Annual Holidays Act. 648 The Savings Clause which I also will award will protect those employees who may already receive a casual loading in excess of 20%. Clause 5.2(vi) (Inclusions Clause) 649 Sub-clause 5.2 contains within it a further sub-clause (vi), which might be referred to as an "Inclusions clause" in contrast to cl 40 Exemptions. 650 The provisions there listed shall apply to telephone canvassers. Costs of the Claim - Submissions - FCU 651 Section 146 of the Act requires the Commission to take into account the Objects of the Act in exercising its functions and the first of those is relevant to this case: s 146 (1) (a), remuneration and other conditions of employment. 652 When exercising that function, the Commission must take into account public interest and for that purpose must have regard to the Objects of the Act and the state of the economy in New South Wales and the likely effect of its decision on that economy. 653 As to the state of the economy in New South Wales, there is no evidence that any decision made in these proceedings would have a detrimental effect in New South Wales. The employers witnesses gave evidence that the decision, if awarded in the Union's favour, could have a negative impact on their organisation specifically. 654 They cited in particular the requirements of legislation regulating the lotteries and art unions they were running as making it almost impossible for them to take on extra expense for employees. The general concern was the legislative constraints placed on the charities in terms of the 60/40 split, where 40% has to be taken in profit. 655 The Union submits that there are various ways that these concerns can be overcome, but the first is s 18 of the Industrial Relations Act 1996. This section provides an exemption and is available to employers who apply to the Commission and can satisfy the Commission of the requirements of that section. If successful, the result is an exemption granted by the Commission from either all or part of the award. 656 The second option is the Economic Incapacity principle, Principle 15 of the Commission Wage Fixing Principles. It provides that an employer can apply to temporarily or otherwise reduce, postpone and/or phase in the application of any increase in labour costs determined under the principles on the ground of very serious or extreme economic adversity. Such application shall be processed according to the Special Case principle. In any event, the cost of a claim is not of itself enough to make an application fail, (see Re Health and Community Employees Psychologists (State) Award 2001 [2001] NSWIRComm 302 at [52] (unreported; Wright J, President, Hungerford J; Sams DP; McKenna C; IRC98/3376; 29/11/01) and the Teachers (Non-Government Pre Schools) (State) Award 2001, [2001] NSWIRComm 335 (unreported; Schmidt J; IRC00/2261 and 2262; 14/12/01). Costs of the Claim - Consideration 657 The fundraising activities of the charities are regulated by the Lotteries and Art Unions Act, 1901 which is administered by the Department of Gaming and Racing. Under the provisions of the Act, charities can only spend a maximum of 60% of the revenue raised by the fundraising activity on expenses. 658 Each of the charities, concerning which evidence was given, receive some government funding. Although figures for each were not provided, where they were, less than 30% came from that source. Each one had various other sources of income, but the one source they had in common was fundraising activities, one of which was either a raffle or art union. 659 In 2000 the total revenue of the RIDBC was approximately $21,000,000. Of that revenue, 47% was derived from fundraising, which includes their lotteries. Three lotteries are conducted each year. Each lottery generates approximately $1,000,000 in revenue. 660 Mr Harrington, from the RIDBC said that his lottery is not an Art Union because of the prize value being $20,000. 661 The RBS's operating budget for the financial year 2000/01 was $19,573,000. The Society's four art unions a year contributed approximately $800,000 net income. 662 In respect of costs that might flow on to employers by the application of the Clerical Award to telephone canvassers, the Commission does not have before it evidence from what I might call commercial operators of call centres, or of other employers of telephone canvassers, as opposed to employers who operate within the strictures of the Lotteries and Art Union Act 1911. Those commercial operators, while not subject to the same legislative restrictions as affect the charity area, undoubtedly would have their own financial imperatives to contend with. 663 Even in relation to the charities area, the Commission does not have figures before it to be able to come to any positive view as to the extent of costs to the employers by making any of the variations granted. 664 Employers First accepted that there has been no evidence of that increase in costs but as a matter of logic if the Commission considers that with both applications inevitably there will be an increase in the base rate of pay and currently there is no casual loading paid to casual employees and ultimately there will be a casual loading in the award. To impose penalties for weekend work would increase the wages costs for employers. 665 It is logical, as was submitted by Ms Marshall, to assume that there will be costs. That submission was based on the parties' common ground that no matter which application was granted there would be an increase in base rates of pay. 666 Just how great would be the increase is moot. 667 To the extent that employers are not already paying them, there will be increases in costs arising from the awarding of a casual allowance of 20% (though the 1/12 loading for annual leave should already be being paid to all casual employees) and of setting the divisor for hourly rates at 38 per week. Further costs may also result from the decision as to ordinary hours/weekend work. 668 The charities anticipate a curtailing of their activities in the event that the telemarketers are brought within the Clerical Award, and in particular, within its wage rates and penalty rate provisions. However, that approach is similar to that which limited increases in wages to nurses, social workers and others in years past. That approach in essence is that to increase wages to the employees means less moneys to spend on socially desirable charitable activities. Therefore, the employees receive less money than their work deserves and so subsidise, by way of those wages not received, the socially desirable work. 669 That approach is not acceptable. The employees should be paid whatever is fair and just for their efforts. If there is then a shortfall in moneys available for the charitable works, it may be that society, in one form or another, will have to bridge that gap, after, of course, the charities have exercised what economies they can. 670 The extent to which increased costs to employers as a likely outcome to the granting of an award application, are to be taken into account by the Commission have been considered on many occasions. Recent expositions include that by the Full Bench (Wright J President, Hungerford J, Sams DP, McKenna C) in Re Health and Community Employees Psychologists (State) Award [2001] NSWIRComm 302 (unreported; IRC98/3376; 29/11/01) at [52] where it was said: ... In other words, it seems to us, in discharging our statutory duty to make an award setting fair and reasonable conditions of employment the cost implications, whilst most important, are to be taken into account as one factor, but not decisively so in itself, which may cause the refusal of a claim. ... 671 In applying the above principle, Schmidt J in Re Teachers (Non-Government Pre Schools) (State) Award [2001] NSWIRComm 335 (unreported; IRC00/2261 and 2261; 14/12/01) added at [326]: ... It is also relevant to note, given the many concerns expressed about the ongoing financial viability of some services, that the Wage Fixing Principles themselves make provision for such concerns to be dealt with, if they are in truth seriously held. That is, by way of an appropriate application made to the Commission in accordance with the Economic Incapacity Principle (see (2001) 104 IR 438 at p 485). ... 672 The avenues referred to by Schmidt J, are as are avenues within the Clerical Award and the 1996 Act, open to the employers of telephone canvassers should their fears as to the successful outcome of the applications be realised. Savings Clause 673 Neither application sought the insertion of a savings clause, the possibility of which was first raised by the Commission. Neither the FCU nor Employers First opposed the inclusion of such a clause, though there was some debate about the form later proposed by Employers First and, in the light of the inevitable increase in the base rate accepted by the parties, the need for it. 674 Upon consideration, I have decided that such a clause should be included. 675 Because of certain outcomes I was considering in relation to the applications, I recalled the parties on 11 July 2003, requesting further submissions on the issue. 676 In written submissions, Employers First referred back to the savings provision it had proposed on 1 October 2002, that provision having been granted in the Private Pathology (State) Award, a first award made by Glynn J in Re Private Pathology Laboratories (State) Award (unreported; Glynn J; 17 June 1993). 677 The clause originally proposed by Employers First was in the following terms: Nothing in this award shall act to reduce the wages and conditions employees currently being paid or observed as at the date of the making of this award. 678 Employers First's submissions continued: In submitting that the clause from the Private Pathology Laboratories (State) Award is an appropriate clause, it is our intention that the savings provision is one which is designed to ensure that an employee does not suffer any disadvantage overall by the making of the a new Award. For clarity, therefore, it is submitted that the savings provision earlier referred to should be amended to read as follows: Nothing in this award shall act to, on balance, reduce the overall wages and conditions of employees currently being paid or observed as a result of the award. 679 The FCU submitted: The parties can not [sic] agree as to the content of an appropriate savings provision at this stage. This position may change once the decision in the matters is handed down. The union respectfully reserves it's [sic] right to approach the Commission to amend the content of this savings provision once the decision is handed down, but prior to the decision taking effect. At this stage however, the union submits that an appropriate savings provision would be as follows and should be inserted into the Clerical and Administrative Employees (State) Award at clause 36(v) Transitional Arrangements - Hours of Work. 36 (v) No employee employed as a "canvasser (other than for the sale of goods)" shall suffer any detriment with respect to conditions of employment as a result of the decision in IRC 4692 of 1999 and IRC 3613 of 2001 - award coverage of "canvassers (other than for the sale of goods)". Such detriment includes a reduction in the hourly rate of pay and increase in current hours of work. No "canvasser (other than for the sale of goods)" is to receive less pay as a result of this decision. In the event that the employee would receive less pay, the current pay will be maintained until overtaken by award increases. Daily hours of work for "canvassers (other than for the sale of goods)" will only be increased by agreement of the employee and the employer. 680 ABI maintained its position that neither application should be granted, but submitted: In the event that the Commission allows either application, a savings clause is unnecessary given that: (a) in the scheme of the Act, awards of the Commission are made setting fair and reasonable conditions of employment for employees to whom the award will apply, and (b) other than those conditions set by an award, the employer and employee are free to set the conditions which shall apply to the employment. Savings Clause - Consideration 681 In this judgment, the Commission has awarded a base rate for telephone canvassers, a casual loading of 20% and a divisor of 38 to calculate hourly rates. It may be that despite those increases some employees (exclusive of commission) may be receiving a higher hourly rate and it is not the Commission's intention that that situation should change. 682 I have considered the two clauses suggested. The particularity of the union's clause could in my view, pose the danger that detriments not specifically mentioned might be regarded as excluded. 683 In the light of the canvasser's different position to clerical employees, including telephonists, generally, in respect of such things as wages/commission mix and hours, I have decided to award a savings clause almost in the final terms proposed by Employers First, those terms including the words "on balance". 684 A savings clause, in the terms set out below, shall be included in cl 5.2: Nothing in this award shall act to, on balance, reduce the overall wages and conditions of telephone canvassers currently being paid or observed as a result of the award. Time Payment Collectors Award Submissions - Employers First 685 Employers First is seeking to rescind and replace the Time Payment Collectors (State) Award, in effect folding it into the Clerical and Administrative Employees Award. That is done given that it does cover the work of canvassers, although it has quite a limited coverage. By doing that Employers First seeks to extend the coverage of the Time Payment Collectors Award in a sense and by doing that the Commission should have regard to that award and the conditions contained in the award. 686 The application by Employers First seeks to retain the hours of work structure which currently exists in the Time Payment Collectors (State) Award. It was its submission that these conditions are appropriate and reflect the existing conditions for the work of canvassers. 687 The fall back position in relation to that is that it is not rescinded and folded into the award, but even if it is the case the Commission should have regard to the provisions in the award. Submissions - FCU 688 The Union notes that the rescission of the Time Payment Collectors (State) Award is sought in the employers' application. While the Union has no objection to that application, it says that it should not be treated as having any bearing on these proceedings. The award is obsolete and an application for rescission of it will be filed by the Union if the award is not rescinded in these proceedings. That award dealt with the work of time payment collectors who would collect payment installments from people who had purchased goods from door to door canvassers. The rescission of that award in no way relates to the issue of telephone canvassers and their appropriate rates of pay and conditions of employment. Time Payment Collectors Award - Consideration 689 The parties were not able to advise the Commission as to why this award was not rescinded or declared obsolete at the time of the s 19 review. 690 The Industries and Callings of the Time Payment Collectors &c (State) Conciliation Committee (227 IG 86 at 92) included: All persons employed as canvassers or collectors for time payment, hire purchase, cash order or money lending businesses, and persons employed as clear-out men in connection with such businesses, throughout the State, excluding the County of Yancowinna; ... 691 The hours of work structure in the Award sought to be retained by Employers First as appropriate for telephone canvassers was a negative. No ordinary hours of work were prescribed. 692 I do not think that it is appropriate to fold into the Clerical Award, in relation to what is, in effect, a first award for identified people, an award for people who cannot be identified and about whom there is absolutely no evidence. 693 The Commission, by consent, rescinds the Time Payment Collectors &c (State) Award published 25 October 1991 (265 IG 957) and all variations thereof, that recission to take effect as from 2 February 2004. Conclusions 694 The applications are concerned with bringing "telephone canvassers (other than canvassers for the sale of goods)" within award coverage. 695 Set out in the course of this judgment is the bulk of the relevant evidence before the Commission as to the two applications before it. 696 The evidence of Ms Gaffney and Ms Graham did not go to the work of telephone canvassers at all. It is arguable, in the absence of more information that Mr Gerrad Hennesy, at Computer Best Buys, fell into the category of telephone canvasser for the sale of goods. His work in the other business units was call centre work, but not that of a canvasser. 697 The only direct employer evidence received came from the charities area. Although some of that area is already covered by industrial regulation, that latter evidence had some relevance is presenting a more complete picture of the work of telephone canvassers, other than canvassers for the sale of goods, and an indication of pay and conditions (achieved by agreement and therefore not transferable per se to an arbitrated award). 698 In relation to the organisations employing telephone canvassers, concerning whom evidence was given, two at least, Postel Ltd and the Spastic Centre call centre, had ceased operations. 699 Although some employees did give evidence as to their perceptions of the management of the organisations by which they were employed, an overview of their evidence, e.g. at Park Trent, taken with some corrections to it advanced, without demur, from the Bar Table, suggested that the perceptions, though genuinely held and which did not influence an outcome, were not entirely accurate. There were areas where the evidence of employers would have been useful to present a clearer picture. 700 The Clerical Award is a common rule award covering all telephone canvassers, other than canvassers for the sale of goods, in New South Wales (excepting, of course, those now covered by other valid industrial instruments). It would not be appropriate to insert conditions that affect the charity area particularly because, for instance, of the requirements of the Lotteries and Art Unions Act 1901, to organisations operating on a commercial or market basis. 701 The existence of the category "telephone canvassers (other than canvassers for the sale of goods)" as the evidence shows, can lead to situations both farcical and futile. It throws up the possibility of much time being wasted in disputes as to such fine points as whether a telemarketer asking a person to buy a diary or a set of knives to aid a charity is a canvasser for the sale of goods while doing so, and, so, and I make no finding on that point, is then not covered by the award, whereas when, in the alternative in that same call, he/she asks for a donation for that charity, he/she would be covered. 702 The first problem lies in the retention of a restriction which probably was relevant in an earlier era. The fact that the term distinguishes "canvassers" from "canvassers for the sale of goods" suggests that it was differentiating, for instance, between commercial travellers or people who sold goods door to door. 703 By not taking the opportunity to bring the term into line with what is happening in the modern workplace including call centres, the parties are perpetuating a most unsatisfactory system of industrial regulation for that group of employees. In a call centre per se or in an organisation where telemarketing, under whatever term is used, is carried on, employees could have either coverage under the Clerical Award or no award coverage at any given time depending upon whether they were properly described as "telephone canvassers not for the sale of goods" or "telephone canvassers for the sale of goods". The award coverage of an individual could change during the same shift in accordance with the particular campaign being run by the call centre. 704 The second problem lies in the now agreed restriction of coverage to "telephone" canvassers. "Canvasser" is an older term but it does embrace a wider group of employees than the more recent term "telemarketer" or variants of that term. 705 Although evidence was not brought in respect of certain employees, after the applications were amended to confine the provisions sought to "telephone" canvassers, it is clear that there are persons who could be classed as "canvassers (other than for the sale of goods)", who do not use the telephone eg selling memberships to gyms in shopping malls. That agreed amendment left the possible coverage of such employees even more fragmented or non-existent. 706 There are not only present difficulties but also possible future difficulties in tying the function of the employee to the tool used, i.e. to the telephone or similar technology. General knowledge suggests that not everyone regards the ability of canvassers to contact people in their homes as being in the public interest. Legislation, on my understanding, is already in place to set time limits on such contacts. (Those possible future difficulties are raised for the consideration of the parties and have played no part in this decision.) Decision (1) The parties are to confer and draft a new clause 5.2 to be inserted into the Clerical Award, that clause embodying the matters decided in this judgment. In the event that the clause is agreed it may be forwarded to Electronic Services (formerly the Settlements Section). If the clause is not agreed, the parties may approach the Commission for a Settlement of Minutes. (2) The Commission varies cl 42(ii), Area, Incidence and Duration of the Clerical and Administrative Employees (State) Award in terms of the Union's Amended Schedule filed 3 April 2002 to include the words "telephone canvassers (other than canvassers for the sale of goods)". (3) The Commission varies cl 42 of the Clerical Award to include the following new sub-clause: It shall also apply to telephone canvassers (other than telephone canvassers for the sale of goods) except those employers in the industries covered by the following awards in force from time to time, viz., Clerical and Administrative Employees, Hire Cars and Taxis (State); Clerical Employees in Metropolitan Newspapers (State); Clerical and Administrative Employees in Temporary Employment Services (State); School Support Staff (Catholic Schools) (State); and Clerical and Administrative Employees in Permanent Building Societies (State). (4) The Commission, by consent, rescinds the Time Payment Collectors &c (State) Award published 25 October 1991 (265 IG 957) and all variations thereof, that recision to take effect as from 2 February 2004. ****************************** Operative Date 707 On 11 July 2003, I recalled the parties, asking them for written submissions on two issues, one of them being the operative date of any variations granted. 708 Employers First and the union were in agreement that the operative date for the implementation of the decision should be three months from the date of decision. 709 ABI did not make any submission on the issue, maintaining its position that the Commission should not grant either application. 710 The Commission does have evidence that some organisations will be affected by the provisions awarded to telephone canvassers, specifically in relation to the base rate/commission wages matrix. It can be inferred, I think, that other organisations who also have commission/wage structures, could also be affected. 711 The art unions and raffles run by the charities in relation to which evidence was given, are run over set periods of time of three to four months or even more. It would not be reasonable to introduce award changes that would affect the commission structure in force for the duration of a discrete art union or raffle. 712 I would anticipate that any necessary restructure of base rates/commission will take time. To allow that to occur, the variations now made to the Clerical Award, shall operate on and from the first pay period to commence on or after 2 February 2004. *************************** 713 Taking into account Practice Direction No 8, and having formed the view that matter no 3613 of 2001, as amended and filed 24 February 2003, is an application that would reasonably be expected to be heard by a Full Bench pursuant to the Special Case principle, I hereby refer it, pursuant to s 193(1), together with an associated matter no 1413 of 2003, being an application by the Federated Clerks' Union of Australia, New South Wales Branch for variation of cl 7 shifts of the Clerical and Administrative Employees (State) Award, to his Honour the President for his determination as to their further progress. *************************** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.