C2001/1617, Transcript of Proceedings [2001] AIRCTrans 1027 (30 May 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2001/1617

AGL GAS COMPANIES AWARD 1996

APPLICATION BY THE AUSTRALIAN WORKERS UNION
TO VARY RE EXPENSE RELATED ALLOWANCES

SYDNEY

10.28 AM, THURSDAY, 10 MAY 2001

HEARING CONTINUING

PN1

THE COMMISSIONER: May I have the appearances, please?

PN2

MR J. BYRNE: If the Commission pleases, I appear for the Australian Workers Union.

PN3

MR W. TREGLOWN: If the Commission pleases, I appear on behalf of Australian Gas Light.

PN4

THE COMMISSIONER: Thank you, Mr Treglown. Mr Byrne?

PN5

MR BYRNE: Thank you, Commissioner. We seek to vary the expense based allowances in clause 26 of the AGL Gas Companies Award 1996. The union sent a copy of the notice or application and a copy of the draft award off to the respondent company and this is outlined in the statement as to service sent by registered post of 3 May 2001 and we seek to tender the draft order.

PN6

THE COMMISSIONER: Mr Treglown?

PN7

MR TREGLOWN: Commissioner, we actually have a problem with this on a number of fronts firstly, the draft order is inconsistent with the I guess the application or the calculations used to arrive at the amount on the draft order. The draft order suggests an amount of $31 for clause 26.4.1 and if I go over the far page the calculations bring that out to $29.95. So we have a problem with the calculation to start with.

PN8

Secondly, we have a problem with this matter being raised at this time given that these issues are part of and are being addressed as part of the award simplification process through the AWU offices and that matter is pending and listing for hearing I think on 24th.

PN9

THE COMMISSIONER: Who is hearing that matter?

PN10

MR TREGLOWN: Commissioner Larkin, I believe. Thirdly, and most significantly, we are somewhat disappointed in this application given that we have just recently completed the negotiations for a certified agreement and that agreement has been forwarded to the Commission for ratification and is also listed for the 24th and in the process of negotiating that certified agreement, firstly, the issue of tea money which we were in this place just recently about.

PN11

The issue of tea money was addressed and taken care of on the basis of it being paid at $8.30 when calculating a new overtime multiplier and what we did in the certified agreement was to agree to an overtime multiplier of 1.85, thereby doing away with the various multiplies in awards generally, that's only time and a half for the first two hours or whatever and then double time and the difference for public holidays overtime. So we pay all overtime, including tea money, at 1.85, and that was the agreement reached in the negotiations for the certified agreement.

PN12

Now I'd raised clause 11.1(f) of that certified agreement and that is before this Commission for certification on the 24th and there is a clause in that certified agreement that goes to no disadvantage and that in part says in assessing the difference, that is the difference between what individuals would have got and had they stayed on the old multipliers for overtime and what they get under the new arrangements negotiated, we said that we'd put a clause in there to ensure there was no disadvantage to individuals if someone worked predominantly Sundays for instance, 1.85 would be a lesser amount. So we agreed to an arrangement where there would be no disadvantage and that took into account tea money as well at $8.30 and the clause in part says:

PN13

In assessing the difference the comparison will include regular or rostered overtime ...(reads)... of this agreement.

PN14

So we can only - given that this issue wasn't raised at all other than tea money would be included in the overtime multipliers as that states - this is almost cynical in its application and we are quite disappointed in it and as far as the question of the other allowances are concerned - what is it called the miscellaneous or incidental expenses - that also was part of those negotiations that resulted in a package offer being brought forward and accepted by the unions at that time and the incidentals allowance was reduced from I think $24.00 down to what is the ATO guidelines of $13.25 unreceiptable and untaxable, that was also part of the negotiations. So we are here today on two particular issues that were dealt with part of those certified agreement negotiations and we simply don't agree with the need to have them varied at this stage. If the Commission, pleases.

PN15

THE COMMISSIONER: Mr Byrne?

PN16

MR BYRNE: Thank you, Commissioner. Regarding Mr Treglown's point regarding the negotiations of the enterprise agreement the matter was raised with Ms Maxwell about the expense based allowances hadn't been varied since 1996 since the award was made and indeed I sought some advice from our industrial officer, Mr Rudd, of the AWU, and said could we go ahead and bury the award irrespective of what is in the enterprise agreement and he thought we were quite within our rights in accordance with allowance movements allowed for under the wage case principles to seek to vary the award in terms of the CPI has moved since 1996.

PN17

THE COMMISSIONER: What's happening in the award simplification?

PN18

MR BYRNE: Not very much I can assure you. It is a very slow and cumbersome process so we haven't made too much territory at all. Mr Beard, from the AWU is looking after that matter for us.

PN19

THE COMMISSIONER: Isn't that the appropriate area then to handle or for you to derive some differences or simply some adjustments to it, isn't the award simplification - - -

PN20

MR BYRNE: I have to take some advice on that.

PN21

THE COMMISSIONER: Yes, okay I was just wondering. So on what basis then in the act are you basing your claim on, how do you see yourself progressing the claim for the act it way it is framed, the principles etcetera.

PN22

MR BYRNE: Simply I took my advice from our industrial section of the AWU who said we can just pursue it on the basis of the national wage case principles and real return of CPI.

PN23

THE COMMISSIONER: Well, how?

PN24

MR BYRNE: By making an application to vary the award.

PN25

THE COMMISSIONER: Yes, but you have got to put up an argument for it. I mean just saying for it to be varied on the national wage principles, okay, there's nothing wrong with that approach but on what basis are you making that.

PN26

MR BYRNE: Based on the CPI movements since 1996, the index movement. I admit that the calculation sheet, and I'm here to sort of substituting for Mr Rudd who had another matter before Justice Marsh today, so he was going to present this matter for us so it seems there is a difference in the calculation of 26.41 where the calculations come to 29.55 when the claim is for $31. But the meal allowance is as per the draft order for 9.90 a variation in the 26.51 as per the draft order.

PN27

THE COMMISSIONER: What about the adjustments to allowances over the period time, how long is it since there has been an adjustment.

PN28

MR BYRNE: Since 1996 when the award was made, Commissioner.

PN29

THE COMMISSIONER: What about the principles that were in force then you could have made adjustments to it.

PN30

MR BYRNE: We haven't done that and we seek to vary it now.

PN31

THE COMMISSIONER: In other words it hasn't been done in the past so you're seeking a catch up.

PN32

MR BYRNE: Yes.

PN33

THE COMMISSIONER: Mr Treglown?

PN34

MR TREGLOWN: I can only reiterate what I said before, Commissioner. We simply don't agree, since 1996 we have negotiated agreements that cover these two particular clauses and the fact that they weren't raised for adjustment since then indicates that there was an acceptance that in the overall sense that the negotiations were acceptable. This is a double dip if you like. Certainly as far as the tea money is concerned it is a double dip because it is included in the overtime multiplier and if we were to go back now, and whilst it seems an insignificant amount, if we were to go back now and recalculate the tea money, what makes that no disadvantage clause much more significant because we'll be going back well in excess of 12 months to ensure that there is no disadvantage. We have an operative date on our certified agreement, by agreement the new rates would apply obviously from date of certification but there is an arrangement to look at this no disadvantage right back to January.

PN35

So apart from the issues now being raised at all it is included in the overall sense with the certified agreement and certainly as I say the tea money is part of the overtime calculation as we argued here in this place just recently and the incidentals is an amount that was agreed with the union to be that amount which would not be taxable as agreed by the Australian Taxation Office and to now put in a claim to more than double it we just don't think it is legitimate. If the Commission, pleases.

PN36

THE COMMISSIONER: Mr Byrne, I'm of a mind to adjourn these proceedings to allow the parties to confer and I will need more substantial argument than you have been able to put forward so far and appreciating the fact that Mr Rudd probably had the carriage of this, to a time to be set down so that the parties can confer in the meantime and to see if Mr Rudd can put forward an argument, if you like, which can assist me that I should vary it as the application you are seeking in the Commission. Can I just say, who has got the carriage of the certified agreement, a lawyer.

PN37

MR TREGLOWN: It has been forward to Sydney but I'm not sure who has got it.

PN38

MR BYRNE: It is listed for 24th I think before Commissioner Larkin.

PN39

THE COMMISSIONER: Right, okay.

PN40

MR BYRNE: Just on that point of the overtime multiplier, the overtime multiplier was given to us at 1.85 which includes meal allowance but no specified amount, we didn't see any workings as to why it was 1.85 with any particular $8.30 for tea money involved.

PN41

THE COMMISSIONER: Wouldn't that be something you should have done at the time? If you were going to accept the $1.85 as a multiplier, well I would have thought you would have queried it at that time. What's the basis of it to be able to accept it.

PN42

MR BYRNE: We did and there was no explanation given, that is what the company wanted to pay in lieu and they gave us some workings on overtime work like 226 people and how they would be affected, there was a variation where some were affected negatively and some were affected positively and they thought that was a fair - it wasn't calculated on the basis of - at 1.75 which it was previously and here is $8.30 added on to it to get 1.85, there was no calculations produced during the course of negotiations.

PN43

THE COMMISSIONER: But did you think how that would calculate?

PN44

MR BYRNE: We'd actually asked for 1.9 and the company rejected that offer based on the $8.30.

PN45

THE COMMISSIONER: Yes, but you accepted $1.85 out of that eventually?

PN46

MR BYRNE: Well we had to, eventually, because the company wouldn't vary it.

PN47

THE COMMISSIONER: Well you still accepted it though, didn't you?

PN48

MR BYRNE: Yes, we did, yes, but there was no part of a meal allowance mentioned in that clause 11(1)(f) at $8.30. What we're doing is seeking to vary the award under the National Wage case principles for expense based allowances.

PN49

THE COMMISSIONER: I think you should just confer on this and as I said I'll relist this matter. When are the parties available? When's the simplification on?

PN50

MR BYRNE: They're on the 24th as well.

PN51

THE COMMISSIONER: I'll relist it for after the 24th to see what comes out of those decisions. I understand we've got the AWU here on the 25th at 11.30 to do National Wage variation. It couldn't be more appropriate, could it? So I would suggest that we put it on for 11 o'clock, is that okay?

PN52

MR BYRNE: Fine, Commissioner.

PN53

THE COMMISSIONER: We'll see what the parties have done with the other areas and their discussions and then we'll tackle it from there, but I know that I will need a better argument, no reflection on you Mr Byrne, from Mr Rudd who has made the application to convince me to vary the award. I'll put it on at 11 o'clock then on 25 May. This Commission stands adjourned.

ADJOURNED UNTIL FRIDAY, 25 MAY, 2001 [10.43am]