C3276/898, Transcript of Proceedings [2001] AIRCTrans 1596 (16 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C No 32768 of 1998
C No 00546 of 1999

VICTORIAN LOCAL AUTHORITIES
INTERIM AWARD 1001

Application under section 33 of the Act
for review of above award on the
Commission's own motion

VICTORIAN LOCAL AUTHORITIES INTERIM
AWARD 1991

Review under Section 51, Item 51, Schedule 5,
Transitional WROLA Act 1996

MELBOURNE

9.03 AM, FRIDAY, 29 JUNE 2001

Continued from 6.6.01

PN1082

THE COMMISSIONER: Any changes to appearances?

PN1083

MR HENDERSON: MR B. MILLER is here with me today, if the Commission pleases.

PN1084

THE COMMISSIONER: Yes, thank you. Can we just go off the record for a minute.

SHORT ADJOURNMENT [9.03am]

RESUMED [9.32am]

PN1085

THE COMMISSIONER: The proceedings are resumed. Mr Henderson.

PN1086

MR HENDERSON: Yes, thank you, Commissioner. Following our discussions in conference, I have provided the Commission with four documents and I will just work through them. The first one is a document concerning the rate of kilometre allowance payment under the award.

EXHIBIT #NH14 RATE OF KILOMETRE ALLOWANCE PAYMENT UNDER THE AWARD

PN1087

MR HENDERSON: This exhibit replaces a document which we tendered on the last occasion.

PN1088

THE COMMISSIONER: NH13.

PN1089

MR HENDERSON: NH13, in fact. In that we have kept on the old definition of power mass units as being a determinant of the rate at which the allowance is paid in addition to the easier description of four cylinders and greater than four cylinders, and the parties are agreed on that. The next document that we have provided the Commission relates to part-time employment.

EXHIBIT #NH15 DOCUMENT RELATING TO PART-TIME EMPLOYMENT

PN1090

MR HENDERSON: Commissioner, this represents an agreed position between the parties, the only change being from our last discussions in paragraph (e) we have included the words "at the direction of the employer" rather than "at the request of the employer". The parties have also agreed to delay the implementation of this particular provision until 1 October 2001 in order to provide adequate time for employers to get their records in order, if I can put it that way, and we also have agreed that an employer who believes that they need longer than that time can apply at the appropriate time to the Commission for further relief from the implementation of it. Our next document that we tender is entitled Option for Annualised Salary.

EXHIBIT #NH16 DOCUMENT ENTITLED OPTION FOR ANNUALISED SALARY

PN1091

MR HENDERSON: Following discussions in conference, Commissioner, the parties have agreed to strike out the clause (X)1.3 and reserve leave to the unions to apply to the Commission if that is thought necessary at some later time in order to deal with this issue of the recording of the hours of work.

PN1092

THE COMMISSIONER: That was on the understanding that Mr Wilson's organisation will write to the employers, drawing their attention to the requirements of regulation 1(31)(D) and 1(31)(E).

PN1093

MR HENDERSON: That is correct, yes, thank you, Commissioner.

PN1094

THE COMMISSIONER: And that was 1(31)(D) as well.

PN1095

MR HENDERSON: That is correct. And in paragraph (X)1.5 the word "its" just before "nominated representative" should be deleted, so that will read:

PN1096

The employee may be represented in the discussions in relation to the making of an agreement under this clause by either their union or nominated representative.

PN1097

There is some controversy between the parties in relation to the last sentence on the notification to the appropriate union. The union presses a claim for this particular sentence. In doing that, we rely on the decision of the Commission in the Metal Industry Award simplification decision in relation to individual employees entering into what essentially are facilitative arrangements involving annualised pay. In our view, the union should be aware that such discussions are taking place, and we leave that matter to the Commission for determination. The next document we tender is entitled Senior Executive Officers.

EXHIBIT #NH17 DOCUMENT ENTITLED SENIOR EXECUTIVE OFFICERS

PN1098

MR HENDERSON: This document represents an agreed position between the parties, save for there is a slight amendment in paragraph (f) over the page where instead of 31 March, the parties have agreed on 30 June. So under this senior executive officer arrangement, existing agreements will continue in operation until 30 June 2002 unless they either expire or are terminated by the parties or a party seeks a review in which case the matter can be reconsidered.

PN1099

The outstanding issue in relation to this clause is the issue of the minimum rate of pay for senior executive officers. The Commission would recall that during the arbitration, the union had proposed a salary rate of $60,000 as being the appropriate minimum rate for a senior executive officer. The Commission made no decision in relation to that in its decision of 15 March 2001, but did observe that that rate equated to, I think, 230 per cent of the fitter's rate and was some 15 per cent in excess of the rate for a band 8D which is the top rate in the award, the band 8D being struck at 215 per cent of the fitter's rate.

PN1100

On reflection, having regard to the Commission's decision, the union has adopted the view that an appropriate rate for the minimum salary point for senior executive officers would be at 220 per cent of the fitter's rate as that rate fits in logically with the structure of the award. That rate at the current salary point would be $58,024. In our submission, Commissioner, given the definition that the parties have agreed on for senior executive officers, namely that a senior executive officer is an employee whose duties and responsibilities exceed those specified in the definitions, that the rate of 58,000 fixed at 220 per cent is an appropriate rate and one which can be easily justified by reference to the other rates of pay in the award.

PN1101

Secondly, in our view, it is essential that there be a rate fixed for senior executive officers because in our submission failure to do so would mean that the award does not provide an appropriate safety net for those employees. We also say that given the substantial flexibility built into this clause to enable senior executive officers to reach agreement with their employers on alternative arrangements for payment, that to include such a rate is not an onerous matter for employers. So on that basis, in our submission, fixing the rate at 220 per cent is consistent with the requirements of the Act and the Commission's current approach to fixing of wages, and we would request the Commission determine to make an order along those lines.

PN1102

THE COMMISSIONER: So where would it go in clause 8?

PN1103

MR HENDERSON: It would go in - it would need a separate clause, Commissioner, probably just underneath the - in fact, where 8.6 is there, we would include the main text of the exhibit, I think, and then in the rates of pay - - -

PN1104

THE COMMISSIONER: Well, if it is going in clause 8, doesn't that just then become - it seems to me that that is where it does go.

PN1105

MR HENDERSON: That is right.

PN1106

THE COMMISSIONER: So you just put the figure - I mean, if I was with you on that figure or whatever other figure:

PN1107

An employee at this level will be entitled to receive the minimum salary rate of - - -

PN1108

MR HENDERSON: Well, we were going to put it in at the tables to keep the rates together, but I mean, we are happy to talk to Mr Wilson about that.

PN1109

THE COMMISSIONER: So it would be another band or - - -

PN1110

MR HENDERSON: Well, not another band, but it would be over here with the bands so that the salaries are all kept together.

PN1111

THE COMMISSIONER: Yes, okay. So it brings me back to that other problem; yes, I understand.

PN1112

MR HENDERSON: I am sorry, I didn't catch that.

PN1113

THE COMMISSIONER: Well, it comes back to the need to finally draft the terms of the award.

PN1114

MR HENDERSON: That is right, yes.

PN1115

THE COMMISSIONER: I mean, you wouldn't have a clause 8 saying it will be in clause 8.

PN1116

MR HENDERSON: No. No, and we would need to redraft those references there, but other than that the rest of the clause is agreed.

PN1117

THE COMMISSIONER: Yes, thank you.

PN1118

MR HENDERSON: So that actually brings us to a conclusion of the matters where the parties were apart on the simplified award.

PN1119

THE COMMISSIONER: I think except that I need to receive a copy of the - or formally identify the copy, which I will mark as W4, of the draft.

EXHIBIT #W4 COPY OF DRAFT AWARD

PN1120

MR HENDERSON: Subject to what Mr Wilson has to say, we would then seek some time to settle the order and with recourse to the Commission if necessary, but with a view to having it finalised by the end of July.

PN1121

THE COMMISSIONER: With an operative date of?

PN1122

MR HENDERSON: 1 July. If the Commission pleases.

PN1123

THE COMMISSIONER: Well, first pay period on or after?

PN1124

MR HENDERSON: I think first pay period on or after is the standard approach.

PN1125

THE COMMISSIONER: Yes. No, I just - - -

PN1126

MR HENDERSON: No good reason to depart from it here.

PN1127

THE COMMISSIONER: Before you sit down, Mr Henderson, I do have another question and it is something that - the rates of pay specified here, do they include the current safety net adjustment?

PN1128

MR HENDERSON: No, they don't, Commissioner. This award was one of the vehicles for the last safety net adjustment and I understand the order is being settled.

PN1129

THE COMMISSIONER: It was one of the orders before the Full Bench?

PN1130

MR HENDERSON: It was one of the - that is correct.

PN1131

THE COMMISSIONER: I see.

PN1132

MR HENDERSON: But the rates as shown in this exhibit don't include the adjustment, no.

PN1133

THE COMMISSIONER: And is it the intention that they be included in the - well, I guess it depends on which one happens first, doesn't it?

PN1134

MR HENDERSON: Well, I think it would be appropriate for W4 to be varied to include them because the order made pursuant to the decision of the Full Bench will have an operative date earlier than 1 July.

PN1135

THE COMMISSIONER: That is what I mean, yes.

PN1136

MR HENDERSON: Yes. So we will amend it to incorporate those.

PN1137

THE COMMISSIONER: So you need to keep that in mind. Yes, thank you. Ms Baulch. Nothing? Yes, Mr Wilson.

PN1138

MR WILSON: Yes, thank you, Commissioner. I don't take exception to the vast majority of what Mr Henderson has said. Certainly in terms of travel, we agree with the terms of the document NH14. NH15, the part-time provisions, again following our discussions in conference, we concur with that. The annualised salary, NH16, we once again agree with the exception of point, as it is listed on NH16, (X)1.5, the second sentence in that paragraph which Mr Henderson alluded to where it says:

PN1139

The employer must notify the appropriate union of its intention to commence discussions.

PN1140

We don't believe that that is an appropriate provision to be in that clause. We believe under the simplification processes that that sort of provision, as I understand it, is non-allowable, so we would argue that that should not be part of that particular clause.

PN1141

Commissioner, in terms of the senior executive officers, which is NH17, once again following our conference we concur with the wording of the document save to say where Mr Henderson has included the figure of 58,024, which is 220 per cent fitter's rate, we don't propose to make submissions on that, Commissioner, but simply to rely on the decision of the Commission, whatever that might be, in that particular instance. But other than that, following the conference, we do agree with the content of the SEO document.

PN1142

I think the only thing that remains for me to say is in terms of the process from here, we are quite comfortable with 1 July or the first pay period on or after 1 July save for the part-time provision which would be 1 October, I believe, and we would certainly agree to provide an order to the Commission by the end of July, Commissioner. I think that is probably all that needs to be said, if the Commission pleases.

PN1143

THE COMMISSIONER: Yes, thank you, Mr Wilson. I just need to ask the parties about the terms of NH15, that there is agreement that that operate from 1 October, again I presume the first pay period on or after 1 October, but is that for the totality of the clause including subclause (i)?

PN1144

MR HENDERSON: Actually, Commissioner, what we need to do - I think that is right, I think we should have the whole clause come into operation in the one point, but at the same time I think both parties omitted to make any comment to the Commission about what happens to the interim award, and it would seem that the interim award effectively would go out of operation on 1 July when this award comes into operation, given that it is expressed to replace - the order would in fact express that it was replacing that award.

PN1145

THE COMMISSIONER: Except insofar as it relates to part - - -

PN1146

MR HENDERSON: Except in relation to part-time employees.

PN1147

THE COMMISSIONER: So you just have to be careful with the wording of that clause so that the supersession of the interim award - - -

PN1148

MR HENDERSON: That is right. So we will liaise with - - -

PN1149

THE COMMISSIONER: It just needs some careful wording, that is all.

PN1150

MR HENDERSON: - - - with your Associate on that, but I think that is the way it would be done.

PN1151

THE COMMISSIONER: Yes. Well, I propose - yes, very good. On 15 March this year I announced the interim decision in respect to the award simplification of the Victorian Local Authorities Interim Award 1991 and the parties have been engaged in discussions both with and without the Commission since that time to resolve the outstanding matters, some of which are relatively significant and others which go to matters of detail, and in particular go to the formatting and actual drafting of the new award.

PN1152

The provisions of exhibits NH14, 15, 16 and 17 and W4 represent the culmination of that exercise and I think that it leaves two matters outstanding. The first relates to the option for annualised salary and the issue of whether or not the employer must notify the union of its intention to commence discussions with an employee regarding an annualised salary. In view of the safeguards that are contained within that clause, and in particular the requirements that there be an annual review of the agreement and records kept in writing of the agreement, and the fact that the employee has the option to be represented in discussions by their union or a nominated representative, I can see no value in - or no purpose - sorry, I can see a purpose, but I can't see a purpose that goes to the employee or the employer in retaining that proposed sentence.

PN1153

Let me just say that I find it difficult to understand why an employee would not take up the option of being represented by the union or a nominated representative in those discussions, but I guess there is no accounting for taste. But nonetheless, I don't see a place for a requirement upon the employer to advise the union and accordingly I so decide and determine the matter. In regard to exhibit NH17, the dispute there is that the union wishes to set a minimum rate for a senior executive officer based on 220 per cent of the fitter's rate or the base rate, if you like, base tradesman's rate in the award. I see considerable merit in that application and so determine.

PN1154

The award will be varied generally in accordance with exhibit W4 and the four exhibits that I have mentioned, NH14, 15, 16 and 17, with effect from the first pay period commencing on or after 1 July save and except that the provisions in respect of part-time employment will not operate until the first pay period commencing on or after 1 October and in respect of the provisions covering part-time employees, those that are currently contained in the interim award shall apply until that first pay period commencing on or after 1 October 2001.

PN1155

The senior executive officer clause in its own terms provides for an operative date of 30 June 2002 subject to earlier operative dates where either the agreement that is currently in place expires or is terminated or there is an application for review in accordance with the terms of that clause. The parties are directed to confer and liaise with my associate in respect to the production of the final order with the right of recourse to the Commission as presently constituted if they are unable to reach agreement on the terms of that order. They will have six weeks in which to provide the final form of the order to me for signature.

PN1156

If there is nothing further, it remains for me to congratulate the parties on what has been a very difficult job. They have applied themselves with appropriate skill and expertise and their members should be grateful for what has occurred. The proceedings are adjourned. Thank you.

ADJOURNED INDEFINITELY [9.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NH14 RATE OF KILOMETRE ALLOWANCE PAYMENT UNDER THE AWARD PN1087
EXHIBIT #NH15 DOCUMENT RELATING TO PART-TIME EMPLOYMENT PN1090
EXHIBIT #NH16 DOCUMENT ENTITLED OPTION FOR ANNUALISED SALARY PN1091
EXHIBIT #NH17 DOCUMENT ENTITLED SENIOR EXECUTIVE OFFICERS PN1098
EXHIBIT #W4 COPY OF DRAFT AWARD PN1120