C2201/542, Transcript of Proceedings [2001] AIRCTrans 192 (9 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2001/542
C2001/561

CRISIS ASSISTANCE SUPPORTED HOUSING
(QUEENSLAND) AWARD 1999

APPLICATION BY AUSTRALIAN SERVICES UNION
TO VARY RE SAFETY NET REVIEW APRIL 1999 AND
SAFETY NET REVIEW MAY 2000

BRISBANE

9.33 AM, MONDAY, 19 FEBRUARY 2001

PN1

THE COMMISSIONER: Could I take appearances, please.

PN2

MS M. ROBERTSON: I appear on behalf the Australian Services Union in both matters.

PN3

MR M. PATTI: I appear on behalf of the Queensland Community Services Employers Association.

PN4

MR S.H. NANCE: I appear on behalf of the Queensland Chamber of Commerce and Industry Limited Industrial Organisation of Employers.

PN5

THE COMMISSIONER: Ms Robertson.

PN6

MS ROBERTSON: Commissioner, we made application for the 1999 and the 2000 safety net adjustments to be made in relation to the Crisis Assistance Supported Housing Award. We did that by letter to you on 8 February and since then we've made application for substituted service which has been granted. I haven't heard anything in the way of objections from the employers about that, Commissioner. The employers have all been notified of the substituted service and have received draft orders, Commissioner. We have had some brief discussions about the draft orders and, Commissioner, for convenience sake, it might be easier if I talk about C number 542 and 561 together at this stage and separate them out.

PN7

The situation, Commissioner, is that the award was made as a first award in 1999 and it is operative from that date. No order was issued by the Commission until 20 July 2000. The award was made on the basis of seeking parity with other like industries in Queensland, so for example, the Social and Community Services Award, and the Crisis Assistance Supported Housing Award and the new Family Day Care Award all have very similar classifications and wage rates where there are relevant positions and that is certainly something that was seen as an industry benchmark.

PN8

Because an order wasn't issued by this Commission in relation to the Crisis Assistance Supported Housing Award until 2000, we have had no opportunity to seek to vary the award in relation to the 1999 safety net adjustment and also for the 2000 safety net adjustment. Family Day Care Award and the Social and Community Services Award have both been varied. We're faced with the situation where this award, people employed under it, are lagging behind their counterparts even though it's meant to be a parity based industry. Commissioner, what we're seeking to do is to have these safety net adjustments made and to have a measure of retrospectivity in them to bring them in line with the other federal awards.

PN9

Commissioner, we have been notified by the funding body, this is a non-profit industry. It's almost entirely government funded, that the money has been made available. Indeed, employers have already received funding for the equivalent of the $25 per week increase. They are already receiving that in their quarterly cheques, that they receive from the Department of Families, Youth and Community Care. We're endeavouring to get written authorisation of that from the department at the moment, Commissioner, but we haven't been able to locate that, so Commissioner, what we seek is some retrospectivity.

PN10

Alternatively, we're happy to discuss implementation of the safety adjustments but at this stage, what we're really seeking is parity with the other industries so that our members are not disadvantaged in relation to the safety nets. It's certainly the case, Commissioner, that enterprise agreements and enterprise bargaining are really not a feature of this industry, and employees in the industry are almost entirely reliant on safety net adjustments to keep pace with changes in wage levels. Commissioner, I'm happy to answer any questions, because I realise that this is a somewhat unusual request and I'm happy to do that but that's my submission, Commissioner.

PN11

THE COMMISSIONER: Very well, thank you, Ms Robertson. Mr Patti?

PN12

MR PATTI: Thank you, Commissioner. Commissioner, the QCCA does not have, in principle, have opposition to flowing on the safety net adjustments in accordance with the decisions of this Commission. However, Commissioner, our concern does go to the date of operation. The ASU are seeking, they see some measure of retrospectivity. We're talking, you know, looking at over six months for the 561, and 542, I'm looking at over a year, Commissioner, so our concern goes to the issue of retrospectivity. Ms Robertson has said this morning that there has been some undertaking or money being made available by the funding bodies to community based organisations.

PN13

We haven't sent anything in writing to the State. Subject to the union being able to provide that we may be able to discuss it further but our issue really goes to the issue of the date of operation. So Commissioner the issue really is one of, I suppose, retrospectivity; that it be made a cost impost on that sector and it's going to, I suppose, hinge upon whether the department itself will be able to provide that funding. We haven't sent anything in writing to date so that's our major concern. However, it's the situation that if funding wasn't available we'd be seeking a date of operation for the case number 561 of 2001 from two weeks from today's date of operation so that we could inform our membership and in relation to the case 542 of 2001 in accordance with principle 8 of the decision of the Industrial Relations Commission print number, I think, S5000, Commissioner. We would be saying 12 months from the date of case 561 of 2001.

PN14

However, Commissioner, we are in a position to sit down and talk to the union in more detail. They are our submissions at this point in time, may it please the Commission. However, Commissioner, we are in a position to sit down and talk to the union in more detail. They are our submissions at this point in time, may it please the Commission.

PN15

THE COMMISSIONER: Very well. Thank you, Mr Patti. Mr Nance?

PN16

MR NANCE: If the Commission pleases. These are two applications seeking to flow on the safety net's adjustments being 10 and 12 dollars respectively and then a further $15 safety net adjustment. The problem has arisen because of the making of this new award. The Commission - I retract that, Deputy President Duncan made the award or issued the consent award dated 20 July 2000. Contained in that award were wage rates and a transitional arrangement which reverted back to 1999 and there was a transition of wages up to the present rates that are currently in the award.

PN17

The first issue that we need to address is whether you can have an order, a variation before the actual order of the Commission when the award was actually made. You see, that's the first issue that we need to see how we can get around. The second issue - - -

PN18

THE COMMISSIONER: I think that would be easy to respond to. I mean, you can't vary something that didn't exist.

PN19

MR NANCE: That's right and this is - which leads me into the situation where it may be a situation where the parties may need to get together and come back to you with a proposal which may satisfy the - sorry, that satisfy the wage fixation principles treated as some sort of a special case. But I premise my remarks on the basis that we have not seen any letters from the department which states that the money has been available or the money has been paid in respect to this matter. Further, that leads to the next question which is case B542 which is the flow on of the $15 and again I would state that we do want to see the employees disadvantaged by not receiving the $15. That's not the question.

PN20

The question is that we do need some time lapse between the payment of the first one to the payment of the second one if the money is not available or alternatively members have not accessed that money. The third issue is that at some stage we're going to be getting another wage increase, another national wage increase coming up fairly soon, which can be from anywhere between $8 to $28. Now, if we're looking at trying to put all these pay increases into one hit we, in effect, may be looking at around a wage increase around $53. Now, that would be a significant wage increase for any organisation.

PN21

Commissioner, it is my submission that there may be some benefit to adjourn this hearing at this stage to allow all parties to speak to the department, the funding body, to see what has actually been paid or what has actually been made available to these organisations and I agree with Ms Robertson, the organisations are funded 100 per cent in wages though I wouldn't say 100 per cent of total costs. I don't think that's ever the case. And again we just have to see what the impact of looking at any sort of retrospectivity will be on these organisations. If the department has stated that they're quite happy to make 12 months retrospectivity, for example, and that's not going to impact on our organisation or on our members then that's something that I'm quite prepared to look at.

PN22

However, if the department is stating no, we're quite happy to make the $12 or the $15 available now, then I do have concern looking at any sort of retrospectivity. On that basis, Commissioner, I would just seek to have this matter adjourned till our further discussions between the parties and further discussions between the department and an appropriate time to have a report back to you on the status of those discussions, if the Commission pleases.

PN23

THE COMMISSIONER: Thank you, Mr Nance. Ms Robertson?

PN24

MS ROBERTSON: Thank you, Commissioner. I hear Mr Nance asking for an adjournment and certainly we have sought to receive evidence from the Department of Families, Youth and Community Care in the form of a letter or the form of a statement about the measure of funding. Mr Nance and Mr Patti would probably be aware that their members are already in receipt of this funding, however we can endeavour to obtain that sort of evidence. Commissioner, in relation to the question about whether you can make a variation where there is no order for an award, that's an interesting point which has come to this Commission before, namely in matter C32560 of 2000 where the Commission was requested to make a safety net adjustment in relation to an award that had been restructured and therefore had new wage rates.

PN25

The Commission was unable to do that at the time as the new wage rates hadn't been issued in an order of this Commission. However, in that case the safety net adjustment was incorporated into the new rates at the time that that order was to be made and that was very clear in that matter. So there is some precedent there for, if not a variation before an order, then certainly to have a recommendation that the orders be amended to incorporate the safety net adjustments and we submit that that could be the case with C561 of 2001 here today. Commissioner, we would prefer not to seek an adjournment but if there were to be an adjournment we would like this matter reconvened at the earliest instance, preferably today, Commissioner. There are some pressing issues that are facing us and we would dearly like to have this matter resolved.

PN26

I believe that with discussion we are able to do that but in terms of the documentary evidence from the funding body that will not be difficult to obtain and in fact it could probably be done this morning. So Commissioner, I'm loathe to agree to Mr Nance's request for an adjournment on the basis that this matter might not come up before this Commission again for some time. We are willing to talk to the employers, however, about the issues of retrospectivity. As I said, the employers are already in receipt of the extra $25 per week enhancement and in most cases - no, in many cases, Commissioner, are paying that to their employees. Other employers, however, are holding it back.

PN27

The third issue, Commissioner, that we need to discuss with the employers is the issue about probably the 2001 living wage case and the impact there that that might have on funding but that's not a matter that's really before us today. So Commissioner, I believe that there is some ability to make these orders but in relation to the adjournment, Commissioner, we will talk to the employers but if I could request that this matter be brought on very quickly. That would be our submission.

PN28

THE COMMISSIONER: Ms Robertson, how is you say that I can provide retrospectivity in this matter? Is that not inconsistent with the principles of the Full Bench?

PN29

MS ROBERTSON: Commissioner, on the face of it is inconsistent with the principles of the Full Bench given that this award has been operative and waiting since 12 April '99 an awaiting an order of this Commission which was received on 20 July last year. The fact that the award has been operative, even though not made, is something that we would argue is akin to the decision in C32560 where the issue was taken up by when the order was to be issued that the rates are adjusted to include it.

PN30

THE COMMISSIONER: But even if the award was made, I mean, simply put the decision of the Full Bench in the safety net adjustment in print S5000 is that of principle 8, paragraph (a):

PN31

The operative date will be no earlier than the date of the variation to the award.

PN32

So my question is that you can't or at least the Full Bench decision is that the Commission will not provide retrospectivity to safety net adjustments.

PN33

MS ROBERTSON: Yes, that is how the principle is written, Commissioner. We might be able to get some help from a 1995 decision which was a decision of O'Connor, Ross and Foggo in relation to the Shop Assistants Union and the Retail and Wholesale Shop Employees Award where that union was seeking to have the second $8 a week increase from that wage case varied, and if I can just take us to that. It's a case which works on where - the argument is that some employees had received the increase and some hadn't and so inconsistency was being created throughout the industry and there is an issue there about whether - you know, where the first 12 months had elapsed and where it hadn't. I'm happy to make that available to the Commission. I have only a photocopy here but that's in terms of issues of retrospectivity or issues of when increases should take effect. That's been the most helpful reference I've been able to find. I hope that answers your question, Commissioner.

PN34

THE COMMISSIONER: Why is it that we need retrospectivity? Tell me why it is that on 21 July an application wasn't made to vary the then made order of Deputy President Duncan to reflect the '99 safety net adjustment?

PN35

MS ROBERTSON: Commissioner, I cannot answer that question at this time but I can certainly endeavour to find the reason for that. Commissioner, the issue of retrospectivity is one that we're seeking. In the alternative we'd like to seek some advice from you about the implication of the first '99 wage adjustment and when the 2000 wage adjustment would be able to take effect should we abandon or not pursue issues of retrospectivity. If we could seek some advice from you about how those adjustments might in fact be able to be introduced.

PN36

THE COMMISSIONER: Well, let me say that from what I've heard you allege that the funding for both increases has already been paid to the employers.

PN37

MS ROBERTSON: Yes.

PN38

THE COMMISSIONER: And that as a result they are going to have some windfall because the employees aren't receiving the wage increases. The employers say, "Okay, well, we will have a talk about all of that and check that out and find out whether we have been receiving a funding" and I think, if I can paraphrase Mr Nance, "because we don't want to see our employees disadvantaged" or words to that effect. It seems to me that to the extent that the principles that overlap all of this - well, perhaps they underlie it all - is that the principles provide no retrospectivity and they also require 12 months to have elapsed between the operation of the '99 increase and the 2000 increase.

PN39

Now, to me there is a way through all this and that is for the Commission to vary the award consistent with the '99 safety net adjustment and that variation would come into effect from today; to issue an order that the award will be further varied in 12 months time to give effect to the May 2000 safety net adjustment; and to recommend to the parties that if in fact the employers are already receiving funding from the Commonwealth for the 2000 increase that the parties come to the Commission with an extremely brief certified agreement, the effect of which is to flow the safety net wage increase through a certified agreement to the employees so that they get the money for which the employers have already been compensated by the Commonwealth.

PN40

And that way it appears, other than in retrospectivity, and the parties of course can agree on retrospectivity in their certified agreement; I can' certify the agreement retrospectively, but you can have operative dates preceding certification contained in the agreements, and that way the award is consistent with every other award, and that is that it complies with the terms of the Full Bench. The first safety net flows into the award, and the employees will get the benefits of the second safety net until such time as the agreement runs out, during the interim, through a certified agreement. Does everyone sort of understand - well, kept up with that?

PN41

MS ROBERTSON: I believe I've been able to keep up with the Commissioner.

PN42

MR PATTI: Yes, Commissioner.

PN43

THE COMMISSIONER: Well, if you have, do you have any questions?

PN44

MR NANCE: I've got no questions, Commissioner. I will just have to go back and talk to our people about it, but I accept that's really the only way that this wage increase is going to flow through, based on the principles as they stand.

PN45

THE COMMISSIONER: Well, I'm not prepared to commit that that's the only way. I'm prepared to adjourn on the basis that I will issue the orders that I've indicated; that is, that the award will be varied. It will be varied by giving effect to the '99 safety net adjustment as and from today. The order will also provide that the award will be varied in 12 months time to give effect to the 2000 safety net adjustment, and that the parties are going to go off and try and reach some agreement - certified agreement about the things we've discussed earlier.

PN46

If you can't get an agreement, then, Ms Robertson, the union can re-list this matter and argue that the order I've made should be varied in some way; that is, to bring the operative date forward. That door is not closed to you; any order the Commission makes is just another order. It can be varied, revoked - so the mere fact that I've done that doesn't close the door to your position. In the event that you can't cut a deal with the employers, you might want to come back and run a case; that there's some special case that needs to be considered in this circumstance. Okay. So let me go back to the employers - do you have a view about the order I propose to make? Do you - - -

PN47

MR PATTI: Commissioner, we understand the order that you are proposing, and we'll be taking it back to our membership, to the executor of the QCCA, and put it to them, but I can't see any problems with that, but I'd seek instructions from the executor itself.

PN48

THE COMMISSIONER: Well, the only problem with that is they might have a view about it, but I intend to make the order today. So I was really asking you for something - - -

PN49

MR PATTI: Well, Commissioner, we would be giving recommendations to the executor to follow, and consent to the arrangements that have put to the parties today.

PN50

MR NANCE: If the Commission pleases, we've got no objections to the orders being made, in respect to the operative date being today for the $10 and $12, and 12 months time for the further $15. And if we can come up with some other path, then we may be coming back before you, and either as a special case or as a certified agreement, but that's something that we will discuss with all parties, including the Government, if the Commission pleases.

PN51

THE COMMISSIONER: Very well. Thank you. Well, I'll adjourn the Commission on that basis.

ADJOURNED INDEFINITELY [10.00am]