C0089/798, Transcript of Proceedings [2001] AIRCTrans 130 (2 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C NO 00897 OF 1998
C NO 50570 OF 1998

FRIENDLY SOCIETIES MEDICAL ASSOCIATION
INTERIM AWARD 1996

APPLICATION BY THE ASSOCIATION OF PROFESSIONAL
ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, TO
VARY RE CONDITIONS OF EMPLOYMENT

ADELAIDE

2.22 PM, TUESDAY, 13 FEBRUARY 2001

CONTINUED FROM 2.9.99 BEFORE VICE PRESIDENT ROSS

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN ADELAIDE

THE COMMISSIONER: Good afternoon. Are there any changes to appearances in this matter? The last time it was on formally it was probably before Vice President Ross, yes.

PN1

MR J. RYAN: I appear for the Shop Distributive and Allied Employees' Association. I appear together with MR B. DUFFY.

PN2

THE COMMISSIONER: Yes, thank you.

PN3

MR R. REID: Mr Commissioner, it has been so long since we have been on the formal record in this matter I am unsure if my client has actually been placed into an appearance, MS TINA HUDSON from the Company, National Pharmacies, along with MS ANN RICHARDSON.

PN4

THE COMMISSIONER: Yes, thank you. You are not a change, Mr Collison. Since this matter was last before me where I understood there was a level of agreement it would appear that was not an accurate reflection of the shop assistants' position. I have received an outline of submissions in response to directions and various other correspondence. I think the upshot of the range of correspondence is that both APESMA and the employers seek to have some sort of conference. Is that still the position?

PN5

MR REID: Yes, it is, Commissioner.

PN6

THE COMMISSIONER: Mr Ryan, any objection?

PN7

MR RYAN: Commissioner, I would like to place on the record some comments before the Commission decides whether or not to go into conference. I understand the conference has been requested by - at least we have received a copy of the letter addressed to yourself. It has got 12 January 2001 but I presume it is 12 February 2001. A paragraph indicates in the letter that the SDA had not sent to APESMA a copy of the draft award.

PN8

That correspondence to yourself was copied to the South Australian office of the Association late yesterday afternoon. I received a copy of that only this morning when I came into Adelaide and that was the first that I realised that there had been a mistake made by the Association by myself. I went back through the file on this matter and it is very clear that I did not send a copy of the draft award to APESMA. I made certain that a copy was hand delivered to the Commission on 6 February and a copy e-mailed to National Pharmacies on 6 February but I overlooked making certain that Mr Collison or APESMA got a copy. For that I am totally to blame.

PN9

What does concern me, though, Commissioner, is that it is very clear from the letter that was sent to you that both APESMA and National Pharmacies were in discussions yesterday where it must have become apparent that APESMA had not received a copy of that draft award that I had prepared. Whilst they had communicated with you and they are now seeking to have further directions on the matter on the basis of my not complying with the directions of the Commission, no one bothered to ring the national office of the Association.

PN10

Given that I had e-mailed a copy to National Pharmacies, if they were in consultations with APESMA over this matter it is surprising they did not offer the electronic version that I had sent to them straight to APESMA, and it is surprising that neither APESMA nor National Pharmacies bothered to ring me yesterday afternoon in the national office where I could have made certain that even at that late stage Mr Collison and APESMA got a copy of the draft award. I accept any comment that the Commission makes about - - -

PN11

THE COMMISSIONER: I think to be fair to you I do not think there is any basis, in a technical sense, anyhow, because I just noticed that the directions only require you to serve it on the respondent.

PN12

MR RYAN: To the extent that - the way these things work I accept that I made a mistake by not giving it to APESMA, but it does concern me that we seem to be engaging in a bit of point scoring by APESMA and National Pharmacies over the mistake I made, and I do not know whether we need further directions and further conferencing today, Commissioner.

PN13

THE COMMISSIONER: Well, let me just indicate that when I look at the transcript from 2 September 1999, which is going back a bit, it seems there was a fair bit of agreement. There certainly was not a range of disagreements at that stage. Certainly in the conference before me I gained the distinct impression that while there were some reservations of a couple of small positions, that the draft which had been to the award simplification unit was pretty much agreed.

PN14

Now, that raises in my mind the basis on which the SDA has been actually negotiating, Mr Ryan. Forty versus a couple there is a big difference. Now, that is not coming to the validity or otherwise of the point you make, it is going to the participation - as I understand it the SDA has participated in the negotiations right up till the last occasion before the Commission and that was on 22 January this year. As I indicated, I understood there to be very little area of disagreement, although there were some items. Either they were not competently represented or they were not bona fide. There may be a third possibility but I am not sure what it is.

PN15

MR RYAN: Commissioner, the Association has been engaged in active discussions and negotiations with National Pharmacies for quite a few years. The file on the award simplification goes back to 1997 when discussions took place about trying to update and fix up the award at that time. This is as a result of the introduction of the Workplace Relations Act. The Association has also had quite extensive discussions with the employer in relation to enterprise bargaining and certified agreement making.

PN16

There has been an enormous amount of work been done by the Association to try and resolve all of these issues. At the end of the exercise if agreement had have been able to be reached on key issues we probably would not be as strident in our opposition as we now are. The fact is that despite best efforts on both sides there has not been able to - agreement has not been able to be reached between the SDA and the Company and APESMA on the contents of this award, and on that basis, given that we have been pushed into an arbitration simply as a result of the way these matters have to be dealt with, I have identified with some particularity the clauses that we say we object to.

PN17

The difficulty with it is that whilst I have identified 40-odd provisions there, there are about half a dozen of them that are nothing other than references to interstate legislation which are all picked up comprehensively by our general claim that this is an award that relates to South Australia, therefore there is no need to have a reference to, for example, long-service leave according to the Act in any State or Territory, but it should be the reference that is contained in the current award which is the Long-Service Leave Act of South Australia.

PN18

So there are a quite a number of those sorts of references where we have opposed a particular set of words that are in the award but they really relate to one particular claim and that is whether or not the award is a South Australian based award or whether it is a national award. That is a particular matter that we have addressed in our outline of submissions, that this is an award that was made as a South Australian award and should be a South Australian award.

PN19

The changes that the employer made to their proposed draft contains a number of references where they have altered the structure of the language so that it is able to be applied in any State or Territory. Wherever that has occurred we have identified the particular clause or subclause or paragraph as being a matter we disagree with, but essentially they go to one issue and that is the question as to whether or not this is a South Australian award or to have operation outside the State of South Australia. That is a major problem we have with the approach adopted by APESMA and National Pharmacies.

PN20

Other than that it is much more in terms of probably minor detail but ones which we raise in the context that if this is to be a final arbitration of an award where the Commission has to determine the matters in accordance with item 51, then we are at least raising those up front and being honest about identifying all of the matters. They may not require lengthy submissions but they are matters where we would at least raise them directly before the Commission. If the Commission pleases.

PN21

THE COMMISSIONER: I understand what you are saying. It is that unless you got agreement on the particular matters that are important to you all bets were off and the negotiations were up until that point without prejudice. Is that a fair summary?

PN22

MR RYAN: That would have to be a fair summary, yes.

PN23

THE COMMISSIONER: I suppose that is fair enough.

PN24

MR RYAN: It is a package approach in the context that this was a - - -

PN25

THE COMMISSIONER: Yes, but did the union always say that they were taking that approach or is it just an approach you have taken at this point? I am not saying it is wrong but people should have been put on notice if that was the position.

PN26

MR RYAN: I would say I do not think that that would have been communicated to either APESMA or the Company. Even from my examination of the files going back to '97 I think it was probably put much more on: here is a particular issue, let us resolve this. If we resolve this we have got a deal, rather than: if we do not resolve this we have no deal on anything that has been agreed or has been discussed.

PN27

THE COMMISSIONER: I understood people were working through - it is not unusual in the context of award simplification for people to work it through and not make it conditional. Okay.

PN28

MR RYAN: The critical issue, Commissioner, with this one, which would be significantly different from the way we would operate in other areas, is that this was a consent interim award. This is not an arbitrated award that is being subjected to simplification. Whereas when we start with awards that have already been determined by the Commission the simplification process is much easier, but this is a consent interim award and on that basis to agree to a package of matters that would lead - - -

PN29

THE COMMISSIONER: But do you have any interest in pharmacists in charge and pharmacist managers covered by this award?

PN30

MR RYAN: I am not aware that we have any membership but we certainly have an interest. We are eligible to enrol pharmacists in the SDA.

PN31

THE COMMISSIONER: I see. So it is on that basis, because as I understood it it was that as far as the pharmacy assistants were concerned there was no attempt to go beyond the State of South Australia.

PN32

MR RYAN: Yes.

PN33

THE COMMISSIONER: So it is the extent that you have got coverage in respect of pharmacists, using that term.

PN34

MR RYAN: Yes, and there are other awards of the Commission that apply in other States that - - -

PN35

THE COMMISSIONER: To which you are a respondent?

PN36

MR RYAN: Yes, and which relate to pharmacists, the Community Pharmacy Award, and there is a particular issue which we need to address and that is that those other awards bind National Pharmacies, not as a party bound but on the basis that National Pharmacies having moved into Victoria and taken over existing pharmacies in Victoria who were covered by that award are bound by that award. We do not separate those sorts of issues just because we do not have membership at this time from the real issues that are underlying the move to try and get this South Australian award to extend interstate.

PN37

THE COMMISSIONER: Yes, I understand that point. I have got to weigh it up against whatever others might say. So it really is from a position of membership coverage, not from a position of membership that you make those submissions.

PN38

MR RYAN: Yes.

PN39

THE COMMISSIONER: So if there was consent - and I just do not know. As I understood it APESMA had the interest in the pharmacists and had membership amongst the pharmacists in those other States and it was consenting through the extension of this award to those other States in respect of this employer. Your position remains the same. You have got to weigh up - - -

PN40

MR RYAN: Absolutely. We do not want to be caught at any stage by the award having been determined to be a final award that covers pharmacists in all States and pharmacy assistants in South Australia and then be met by an application that we are opposed to to seek to extend the award to mop up the pharmacy assistants in other States. This was a consent interim award for a specific purpose and we opposed extension of the award beyond its original area of incidence. That has been very much a big issue in relation to the attempted enterprise bargaining negotiations between the Association and National Pharmacies over quite a long period of time, Commissioner.

PN41

THE COMMISSIONER: Yes. Mr Collison?

PN42

MR COLLISON: Yes, Commissioner. As you know, I sent you a letter very late last night seeking that we go into conference that some of these issues could be thrashed out rather than - - -

PN43

THE COMMISSIONER: Yes, I have got no difficulty with that. I am just inviting you if you wish to respond at that point, that is all.

PN44

MR COLLISON: Well, in terms of that point on the membership coverage of pharmacists the APESMA have coverage of pharmacists across Australia. We have been designated by the ACTU as the principal union covering pharmacists. Probably over the last six or seven years we have had a number of demarcation issues with the SDA over the coverage of pharmacists. I must admit there have not been any blow ups recently apart from perhaps this one.

PN45

I am satisfied that in our negotiations with National Pharmacies in terms of extending the coverage of this award to other States that pharmacist employees in those States, both our members and potential members, would not be disadvantaged by that. I am just addressing that point, Commissioner. We have substantial membership in other States.

PN46

THE COMMISSIONER: Yes, thank you. Mr Reid?

PN47

MR REID: Commissioner, if I could just respond to some of the comments made by Mr Ryan. By way of the services, you are probably aware of the letter that we sent through to the Commission and the other parties that was very late in the day. I think I indicated in the latter part of my letter - which quite correctly should be 12 February, I note, not January - that the parties had limited time to get together. That occurred late and immediately that we had the view regarding those 37 or 40-odd items we responded to the parties accordingly.

PN48

Mr Collison was not in a position to accept a document from us on that basis. Given the lateness of the day it was rather superfluous in any event. I think that is water under the bridge, but just by way of there are no dirty tricks involved, Commissioner, it is simply the way things panned out with timing. Mr Ryan indicated that there are probably quite a few matters amongst those lists of clause numbers that deal with the locality clause or the interstate arrangements that several of the parties are trying to achieve out of this exercise.

PN49

I indicate, sir, there are only six on my counting. There are a number of clauses amongst those which are quite meaty matters. Not only are they meaty but certainly from my client's perspective, Mr Commissioner, I am not quite sure what the issue is in regard to them. Some I can second guess, I am sure. So we are in a fairly prejudiced position in regard to dealing with a document with that number of concerns. If I can go back in a little bit of history just to indicate my understanding of what has occurred in regard to the negotiations up to this point in time.

PN50

I may have indicated to you, sir, at conference on the last occasion that we have been before Vice President Ross, I think, on three occasions, maybe four, as recently, as you quite correctly point out, on 2 September 1999. At that point in time I think we were up to draft number 4. It was fairly early days. Mr Tom Kidman from the SDA was involved in the negotiations and we came to the Commission on that occasion on an agreed basis with the exception of four identified matters. They were subsequently satisfied to the parties' needs and requirements and there had been some, what shall we say, finessing of the document in the interim, but by and large it had been considered an agreed document.

PN51

Mr Kidman and also a couple of operatives from the national office in Melbourne had come over for a number of meetings. Indeed, I think on four occasions we set aside specifically half a day to break the back of the negotiations. At no stage during those discussions was I made aware that what was being agreed upon and progressed to the Commission was not just that, an agreed basis that it was without prejudice. Having said that I suspect that everything is without prejudice until it is approved by the Commission.

PN52

Clearly the understanding of my client - I cannot speak for APESMA - is that we were progressing that in good faith and one wonders about bargaining in good faith as a result of what we find here today. I say that, sir, because when we did come before you on the last occasion we were advised that agreement had been reached except for two items which were the locality clause, which has been discussed here today, and the salary sacrifice clause.

PN53

It was that understanding that the matter was progressed for here today. It was not until the award was sent through by e-mail on Wednesday, towards the end of last week or the middle of last week, and then the letter late on Friday which indicated that rather than being just a number of clauses, two or so, we are up to the 40 mark now. I simply ask of Mr Ryan is the process that we have negotiated for 2½ years just simply all going to come to nought in terms of that process, because it appears to me, sir, as I indicated, that a number of those clauses are quite mitty and pithy matters.

PN54

My concern is that the matter is not going forward in good faith. In respect to the carriage of that process of negotiation, the way it was conducted it was clear to me at least, and I believe my client, that APESMA had carriage for the pharmacists. That was the way the negotiations were conducted from day 1. I understand Mr Ryan's point, that the constitutional coverage of the SDA is such that it can also have coverage for some pharmacists, and I am not arguing that point, but the process of negotiation was the effect on SDA for the pharmacy assistants and that may have some reliance on the fact that there is no, as just confirmed by the SDA, membership of pharmacists in this State.

PN55

However, that was the clear understanding. On the basis of that, that fundamental clause that seems to be the fly in the ointment regarding the locality clause was devised, and that is that the pharmacists covered by APESMA would have national coverage and we would quarantine the SDAs members to the State of South Australia only. Again, our understanding was that it was an agreed outcome. So I guess, Mr Commissioner, the background to the matter I put to you purely for the perspective that my client is getting extremely frustrated by the process.

PN56

We are going miles apart rather than coming together in one quantum leap and it concerns me that we have got this matter listed for arbitration today and appears to me, or feels like to me at least we are starting all over again. Clearly, as indicated by my advice on behalf of my client, sir, we are not in a position to be putting up argument on 30 separate sets of provisions of the award and hence that is why I am seeking the Commission's direction as to how to proceed from here. If the Commission pleases.

PN57

THE COMMISSIONER: When would you be?

PN58

MR REID: Several weeks, two weeks. I wonder if I could just throw this suggestion.

PN59

THE COMMISSIONER: I am conscious of what Mr Ryan said, that because they had fallen over on some matters it was a question of all bets are off. He poses some difficulties for me in terms of - well, you know, they are not difficulties I cannot surmount but I just wonder whether it would not be useful if I adjourned proceedings and allowed you to have some discussions and then got a report back. Because it may be that you can narrow those issues in dispute. It may also be that the matter can be progressed on the basis of written submissions. I am just not sure how much evidence people would want to be bringing.

PN60

The alternative would seem that we adjourn, come back in two weeks and hear the parties. I am not comfortable with re-opening the conciliation process, although I am not saying I will not, but I am not comfortable with that re-opening the conciliation process in the context of there having been significant conciliation in these proceedings up until now and it would just be an invitation to parties when they did not get what they wanted just to involve the Commission in protracted conciliation. I do not know that I can do that.

PN61

That is not wanting to be critical of anyone. I am just simply stating the obvious fact, that the Commission does not want to be playing those games. At some point in time it is put up or shut up, to use the vernacular. My thinking at the moment, and I have got to give Mr Ryan a response, but my thinking at the moment is to adjourn you into conference, to get a report back in, say, an hour as to how you are going. If the parties are one about the Commission being involved in the conciliation then I would, on the basis of that report back and what progress has been made, consider that. That is my suggestion. You might like to take instructions on that, but let us hear what Mr Ryan has got to say anyhow.

PN62

MR RYAN: Commissioner, I certainly do not feel that there is much point in going into conference. As long as both APESMA and National Pharmacies are of the view that the award is to be extended outside the State of South Australia for any employee of National Pharmacies then we will be stridently opposing the approach adopted by those two parties to the award. That is going to be our major issue.

PN63

THE COMMISSIONER: Of course, that is easily overcome and that is just make the award in regard to South Australia.

PN64

MR RYAN: That is right.

PN65

THE COMMISSIONER: Then have the award simplified. If that means that all your stuff has gone and a simplified award in general terms is made on that basis then they can make application to extend the coverage of the award as a separate issue.

PN66

MR RYAN: That is right.

PN67

THE COMMISSIONER: That leaves that fight to another day and you might like to consider that, if that is going to resolve all the issues between you.

PN68

MR RYAN: It would certainly go a large way to resolving the issues.

PN69

THE COMMISSIONER: Anyhow, they are the sorts of things that you can confer about, it would seem to me. Now that I have made that suggestion, in my absence it might be that magic occurs.

PN70

MR RYAN: The other matter I would raise is that if we do go into conference or if you direct us into conference, if at the conclusion of the conference there is not a resolution of the issues I believe it would be appropriate for at least the Association to outline in a little bit more detail but not fully the issues of concern that we have got with a number of the clauses. Because if there is going to be a formal arbitration the other parties may benefit from me identifying, I think, the cases that I would have relied upon, the decisions of the Commission that I would believe are relevant so that it would be a much more focused argument when it does get dealt with by yourself, Commissioner. If the Commission pleases.

PN71

THE COMMISSIONER: I cannot imagine there would be any objection to that.

PN72

MR REID: Mr Commissioner, with respect, I am wondering if there is a fourth option, and I am without instruction here, but while we are on our feet putting things forward perhaps I can raise it. Vice President Ross, as I indicated on the previous occasion, took the draft as it was off to the award simplification unit. Leaving aside the clauses that the SDA have got some significant problem with but which I think they have identified and red-circled for that purpose, eg, locality clause and maybe some other minor variations spinning off from that, I am wondering if it is of any value that that same process run its course and the document come back to the parties to have a look at.

PN73

I put that forward without giving it too much thought, to be honest, with my client on the basis that the draft that Mr Ryan has put forward I do not think anyone can challenge or question to a certain extent in regard to the validity of it. It has picked up the test case decisions as they are and dropped them into the award as it currently stands. It has almost rubber-stamped the major test case decisions, but the process that the parties quite by design have been involved in throughout negotiations took into consideration that the award that we are talking about as such is an enterprise specific award.

PN74

It only has application to one respondent employer, and the parties took some pains over a long period of time to try to modernise the award, put it into a format that was user friendly basically in conjunction with the provisions pursuant to section 143 of the Act, to put it into plain English and into a proper content and structure and the like. Whereas Mr Ryan's, or the SDAs document would be a little persuasive earlier on in the proceedings, it would appear to us that it has been an inordinately waste of time not to bring forward the benefit of the document that we have drafted.

PN75

THE COMMISSIONER: I may or may not have a copy of Mr Ryan's document, or do I have? That is the one with Commissioner Raffaelli's name on the front.

PN76

MR REID: Yes, that is correct.

PN77

THE COMMISSIONER: So that is the one.

PN78

MR RYAN: Yes. It has got Commissioner Hingley struck out and Commissioner Raffaelli on it. It had a covering letter addressed to you, Commissioner, dated Tuesday, 6 February.

PN79

THE COMMISSIONER: The letter has separated from it.

PN80

MR RYAN: It has got Adelaide, 13 February 2001 as the typed in date for the making of the award.

PN81

THE COMMISSIONER: So I have got that document.

PN82

MR RYAN: Yes, that is the document.

PN83

MR REID: What I am signalling, Mr Commissioner, is that the clauses that the SDA have identified in terms of either not in the draft 9 - - -

PN84

THE COMMISSIONER: Sorry, could I just interrupt you there. I am just having real problems hearing you over our friends out there.

PN85

MR REID: Yes.

PN86

THE COMMISSIONER: Press on. Which document were you saying ought to be put past the award simplification unit?

PN87

MR REID: Draft 9. It is only a thought and I would like to canvass it with the other parties as such.

PN88

THE COMMISSIONER: I thought one of the earlier documents had been past - - -

PN89

MR REID: Draft 4, but there have been some changes since that time. That draft, also I might point out, has picked up the changes that the award simplification unit had indicated in part.

PN90

THE COMMISSIONER: I see.

PN91

MR REID: What my client would not like to lose, sir, is the fact that they have re-modernised that award with the test case principles.

PN92

THE COMMISSIONER: Yes.

PN93

MR REID: Whereas it is not rubber-stamped test case principles or decisions like Mr Ryan has placed in, which is fine, but put in a way, and they are within the award, but into a more modern context, not just laid test case decisions over an old outmoded and jargon-dated award. So we would be seeking that we continue with draft 9.

PN94

THE COMMISSIONER: This must be the only large city in Australia where they would permit this sort of work to go on so as to disrupt everybody else.

PN95

MR REID: I think any construction work in Adelaide is good sounds. It has been quiet for so long.

PN96

THE COMMISSIONER: It is the nature of construction work but in some places they do not allow it to occur during business hours. However.

PN97

MR REID: I just simply put that forward as an option.

PN98

THE COMMISSIONER: Yes, that is a secondary point. So that what you are saying is that we have got an award that has been constructed around a single employer which may not reflect in precise terms the - it reflects the import of test cases but not the precise terms.

PN99

MR REID: Exactly, not verbatim.

PN100

THE COMMISSIONER: Could we just go off the record for a minute.

OFF THE RECORD [2.54pm]

RESUMED [2.55pm]

PN101

THE COMMISSIONER: I was just discussing off the record a proposed approach, and the value of that taking place in the absence of the Commission is that parties can be more frank with each other than you might otherwise be given that it would be up to the Commission to arbitrate it. Mr Ryan doubts if it would be of much value. Well, I live in hope, so I propose to adjourn the proceedings into conference to direct you to confer and report back in a reasonable time. I will have my Associate come and see you in about three-quarters of an hour and you can report back on the progress. The proceedings are adjourned on that basis.

OFF THE RECORD [2.56pm]

RESUMED [4.39pm]

PN102

THE COMMISSIONER: Yes, Mr Reid.

PN103

MR REID: Commissioner, I thank you for your involvement earlier in the afternoon. The interim period of time that the parties have had to confer on this matter has been fruitful, it appears. There have been a number of issues narrowed down out of the list that was provided by the SDA and those matters were dealt with by analysing draft 9 of the award, or proposed award. In essence, Commissioner, I do not think it comes as any surprise that the major provision that the SDA was seeking to have removed from the draft clause was clause 6, coverage of award, in respect to the increasing of the locality clause outside the State of South Australia.

PN104

My client was prepared to look at that dependent upon what other changes were sought out of the list of the SDAs letter. It is not necessary or desirable I believe to go through all the ins and outs. I think for the record if I can indicate to the Commission those areas where there is still some minor work to be done, but I think it would be fair to say that we have in principle agreement subject to a review of some of these matters. They are as follows. As I have indicated, clause 6, the locality clause, coverage of the award I think is the title.

PN105

Clause 3, anti-discrimination. It has been agreed that that clause is a little outdated or reflects the age of the negotiations I believe. There is a new test case decision that needs to be inserted and there is no disagreement on that. Clause 8, the disputes settlement or grievance procedure. The National Pharmacies has indicated their preparedness to include a fairly recent test case decision of Tutor Leave being bound to that clause in respect to training that is - - -

PN106

THE COMMISSIONER: Yes, it is not technically Tutor Leave.

PN107

MR REID: Yes, indeed. The SDA has provided in their draft document, Commissioner, an actual clause, a fairly long-winded clause. All we are indicating to the union is that we in principle agree with that but we just need to make sure and be comfortable with the drafting that has been provided.

PN108

THE COMMISSIONER: There are shorter ones.

PN109

MR REID: I would have thought. Mr Ryan indicates to me that there is some level of protection in the extent of the clause so we would just like to review that. At clause 13.2 my client has given the undertaking to review the pharmacy assistant level 4 and level 1 classification. Level 4 currently talks about management roles which appears to be somewhat inconsistent with the Act. That is the Pharmacist Act I believe.

PN110

Level 1 appears to be a little high in its requirements for an entry point classification. I do not think we will have any difficulty making those to be more meaningful. Mr Ryan also indicates, sir, that it is out of step with the industry in general and therefore it is opportune that it would be changed to suit, but the words will have to be agreed. Clause 14. There needs to be a little bit of an investigation in regards to the casual classifications, or some clarification more precisely.

PN111

Again, I do not think there is anything there that is insurmountable, simply an understanding of where the provisions have gone and no benefits lost to employees. I think that will be shown to be the case. At 21.2, tea breaks.

PN112

THE COMMISSIONER: That is at 14.3, is it?

PN113

MR REID: That is correct. 21.2, tea breaks. It needs to be slightly extended to indicate its application to various classifications of employees. By that I mean categories of employees, casuals, part time and full time, and that the tea break and meal break would not be combined at the requirement of the employer. Again, no disagreement with that, just a case of finding the right words to satisfy all parties. At clause 23, annual leave, a clause in the existing award that indicates that annual leave cannot be cashed out, it has to be taken when leave occurs other than for termination. It has not been included and there is no difficulty with re-inserting that provision.

PN114

The SDA simply wants to revisit the question of whether annual leave as it is currently drafted in the award in terms of its members' expectations and acceptance of taking single day absences, which was the intention of the parties in earlier negotiations, whether that is suitable and acceptable to their membership and will advise accordingly. That is the full list. As I indicated to you, sir, I do not believe there is too much that we cannot meet agreement on.

PN115

In respect to the latter, I have just been instructed, regarding the single day absences. If the Commission is of the view - and perhaps it is a question for you, Mr Commissioner, without notice, so to speak - 20 single day absences, would the Commission's view be that that would be an adequate provision in regards to meeting the safety net requirements and consistent with award simplification? The parties are grappling with that conclusion.

PN116

THE COMMISSIONER: On its face no, but let me do some research. That really is a pronouncement I would not want to be held to.

PN117

MR REID: Yes. The intention of the clause is not that the employer would be requiring absences of that nature, it would be as a request by the employee, but whether in fact it can be comprehended as being an adequate provision to meet those tests or whether in fact it would be seen as offending those tests is something that we probably need to be aware of. But I will leave that.

PN118

THE COMMISSIONER: Just bear with me while I have a look at the clause.

PN119

MR REID: The final thing I wish to say, Mr Commissioner, is that both parties are committed to having this matter finalised expeditiously. We would be keen to have a date in the very near future to have these outstanding questions and draftings completed so that we can have this matter wrapped up, given its longevity to date.

PN120

THE COMMISSIONER: Not that early as tomorrow.

PN121

MR REID: No, sir, it would take probably - I think we have been talking about in the order of a week. If the Commission pleases.

PN122

THE COMMISSIONER: Yes. I think I might have some difficulties with that. The earliest date I have is 6 March.

PN123

MR RYAN: If the Commission pleases, if I may address the Commission on these matters. The outline of the issues that has been raised is reasonably accurate. There is one that was left off the list and that is there is an issue we raise in relation to the disputes resolution clause which was that there needed to be another slight amendment to that clause which allowed any employee to be represented at any stage of the proceedings by the person of their choice, including the union, and the employer has agreed to pick that up. In relation to the annual leave - - -

PN124

THE COMMISSIONER: I think you probably need that in order to get the trade union disputes resolution, do not you?

PN125

MR RYAN: That is an issue we say is a part XA matter that has got to be - - -

PN126

THE COMMISSIONER: That is agreeable.

PN127

MR RYAN: Yes.

PN128

THE COMMISSIONER: Yes, otherwise it would not be necessary and, whatever the other word is.

PN129

MR RYAN: Yes. The issue in relation to annual leave, Commissioner, is that I am very strongly personally opposed to the concept of single day annual leave, but that is much more a matter of philosophy than anything else. In relation to the context of this award the Association is prepared to consent to the clause that has been presented in draft 9 from the employer if the Commission is satisfied that the clause as drafted which allows for the taking of single day absences constitutes a fair and equitable safety net in accordance with section 88A.

PN130

THE COMMISSIONER: It just does not restrict it at all, does it?

PN131

MR RYAN: No, and also whether it is consistent with award simplification. If the Commission determines that it meets those two requirements then we simply have no difficulty - we will accept it and consent to it. Given that I sort of approach this issue with such a very strong personal bias against this clause, that is why I am indicating to the company we are happy to accept that clause if the Commission says that it meets the requirements.

PN132

In all other respects the issues that we have raised have either been agreed with the company at the moment or are the subject - or will require to be the subject of an exchange of documentation between us to just clarify the exact words that we have both been discussing. In that respect, Commissioner, that is where it is in the interests of both parties that we finalise that part as soon as possible. I suspect that the best way of finalising that part of the matter is for you to at least give a direction as to when documents should be exchanged or filed or served or filed with the Commission.

PN133

Even if the Commission cannot deal with this matter until the first week of March it would probably be advantageous to ensure that the parties get our part done. As I have assured Mr Collison, I will not leave him off the loop this time and I will make certain he gets a copy of any documentation that we initiate. If the Commission pleases.

PN134

THE COMMISSIONER: Yes. We might go off the record - not just yet, but we will go off the record to talk about that process. So the employer is actually reviewing a number of matters, there is agreement about replacement for a number of matters and there is agreement to agree, I suspect, in regard to a few matters like the level of salary for level 1 and the issue of the inconsistency for level 4.

PN135

MR RYAN: Just on those two wage matters, Commissioner, there is no alteration of the actual wage rates within the award, it is really just the definition of the classification that attaches to that wage rate.

PN136

THE COMMISSIONER: I thought there might have been some necessity for that entry point, for level 1.

PN137

MR RYAN: No, we are not touching the wages at all. It is just touching the definition.

PN138

THE COMMISSIONER: The nature of the work for that entry level. I see.

PN139

MR RYAN: That is right, yes.

PN140

THE COMMISSIONER: Then you have got the casual issue. So there is potentially a high level of agreement and from the sound of things it is only the annual leave one where I may be called on to determine.

PN141

MR RYAN: We are not arguing it. We are simply identifying - - -

PN142

THE COMMISSIONER: No, you are looking for a recommendation from me.

PN143

MR RYAN: Yes, we are identifying it and if the Commission is happy with it - - -

PN144

THE COMMISSIONER: Well, I am not in a position to say whether I am or not at the moment.

PN145

MR RYAN: No, but that is really the determinant from our perspective.

PN146

THE COMMISSIONER: Okay. Well, I can give some thought to that.

PN147

MR REID: Mr Commissioner, I should say, and I think it is probably obvious without me stating it for the record, and I have made this comment to the unions as well, the locality or the coverage of award clause was a significant plank of the award obviously for my client. We have given in principle agreement subject to these matters for the deletion of that arrangement, but I say for the record that for the listed items only we are prepared to make that deletion if in fact the union were to come back and indicate there are a whole range of other issues, and I do not believe that is the case.

PN148

MR RYAN: No, this is it.

PN149

THE COMMISSIONER: Yes, everyone is protecting their position here and I understand that.

PN150

MR REID: Indeed.

PN151

MR RYAN: I am not going to raise any other issues. I mean, we have dragged this one out and there are no other - there is no second agenda.

PN152

THE COMMISSIONER: No, I can understand that. Mr Collison.

PN153

MR COLLISON: Yes, I need to protect my position here, Commissioner. I mean, I have witnessed today a revisiting of the negotiations that we had in 1998 and 1999.

PN154

MR RYAN: And '97.

PN155

MR COLLISON: I do not think they were that detailed in '97 according to my records. Anyway, Commissioner, I understand the locality clause will be restricted to South Australia and that is a position that APESMA can agree to. I do not have any problems with the other changes that have been proposed and have been reported to you today, however, I would certainly want to see those changes on paper before I agree to them to be sure that our members are not disadvantaged by any of those.

PN156

THE COMMISSIONER: That is a very reasonable position, if I may say so. We will just go off record to discuss how we are going to progress the matter.

OFF THE RECORD [4.53pm]

RESUMED [5.00pm]

PN157

THE COMMISSIONER: Arising out of that discussion I would direct that the Shop Distributive and Allied Employees' Association is to provide its proposals for alteration to draft 9 to the other parties to the award by close of business on 23 February 2001. If I did not say in writing I now confirm in writing. The other respondents to the award are to provide written responses to each other and to the Shop Distributive and Allied Employees' Association by close of business on 2 March 2001.

PN158

The matter will be listed for hearing at 10 am on Wednesday, 7 March in Adelaide at which time I would expect we will be able to conclude the matter. I understand that is everybody else's expectation too. I am pleased to see that you have been able to progress that matter. I am particularly pleased you have been able to progress it in the absence of the Commission and we will adjourn proceedings until 10 am on Wednesday, 7 March. Thank you.

ADJOURNED UNTIL WEDNESDAY, 7 MARCH 2001 [5.02pm]