C0089/199, Transcript of Proceedings [2001] AIRCTrans 2240 (4 September 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8969
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00891 of 1999

LINFOOT CLEANING SERVICES INTERIM
AWARD 1995

Review under section 51, item 51,
schedule 5, Transitional WROLA Act
1996 re conditions of employment

MELBOURNE

12.13 PM, TUESDAY, 17 AUGUST 2001

Continued from 30.7.01 in Melbourne

PN1

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN2

THE SENIOR DEPUTY PRESIDENT: Good morning. I think given that we concluded in conference on the last occasion I will take appearances again.

PN3

MS D. MacTIEMAN: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN4

MR P. ROBERTSON: I appear on behalf of Linfoot Cleaning Services and with me I have MR L. LINFOOT.

PN5

THE SENIOR DEPUTY PRESIDENT: Who wants to tell me where we are at?

PN6

MS MacTIEMAN: I can start, and then I am sure Mr Robertson might wish to confer or confirm where we are at. Sir, there is a number of documents that have been forwarded to your today.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes.

PN8

MS MacTIEMAN: And they are - Mr Robertson has sent an updated copy of the award as from his perspective.

PN9

THE SENIOR DEPUTY PRESIDENT: Just stopping you for a moment, that is under cover of a facsimile, or memo of cover sheet, from Peter Robertson to my associate, and copied to the union and it contains a document, or there follows rather a document that is headed Draft 7 (3 August 2001) without prejudice. Is that correct?

PN10

MR ROBERTSON: That is correct, sir.

PN11

MS MacTIEMAN: Sir, I thought - - -

PN12

THE SENIOR DEPUTY PRESIDENT: I will mark that as an exhibit. I think this is our first exhibit. I will mark that as exhibit Linfoot 1.

EXHIBIT #LINFOOT 1 DRAFT 7 (3/08/2001)

PN13

Yes, sorry. I interrupted you.

PN14

MS MacTIEMAN: Sir, unfortunately Mr Robertson's letter to me - our e-mail system is operating under some difficulty at the moment so I didn't actually receive that this morning before coming here. But I don't think it is that different to that draft I have, so if you can just bear with us when we are going through that there may be some minor differentiation.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN16

MS MacTIEMAN: There were essentially from our last conference three items of disagreement between the parties. Firstly, that went to what should be included in the scope or - and items that went to that issue about whether TAFE colleges should be acknowledged as being under the coverage of this award.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MS MacTIEMAN: That was an item of disagreement between us. What we have agreed however as late as this morning is that the scope cause is as Mr Robertson has put - sorry, sir. If you can just bear with us.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MS MacTIEMAN: So the scope clause as is is there. What I sought to do to give clarification to the - to what is covered is by looking at, in the definitions clause 6.8, is to amend the wording of that:

PN21

that "school" shall have the same meaning as it had in the Education Act as at 1990.

PN22

This morning we have agreed however, just to - on a form of words which shall say at 6.8:

PN23

"school" shall have the same meaning as it has in the Contract Cleaners'(Ministry of Education) Award 1990.

PN24

THE SENIOR DEPUTY PRESIDENT: Can you just repeat that again? Contract Cleaners. Is that with an s apostrophe or not?

PN25

MS MacTIEMAN: S apostrophe, yes.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. Contract Cleaners'?

PN27

MS MacTIEMAN: Bracket.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MS MacTIEMAN: Ministry of Education. Close bracket. Award.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MS MacTIEMAN: 1990.

PN32

THE SENIOR DEPUTY PRESIDENT: Is that a State award.

PN33

MS MacTIEMAN: That is a State award.

PN34

THE SENIOR DEPUTY PRESIDENT: Okay, well why don't we add, after that, in brackets (WA)? Can we do that, or is that - will that make it difficult?

PN35

MR ROBERTSON: Some awards of the Federal Commission - - -

PN36

THE SENIOR DEPUTY PRESIDENT: Have that too.

PN37

MR ROBERTSON: - - - do include the word "Western Australia" in it.

PN38

THE SENIOR DEPUTY PRESIDENT: Okay. Well then, that is not a good idea.

PN39

MS MacTIEMAN: For the longer hand would be of the - - -

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MS MacTIEMAN: - - - Western Australian Industrial Relations Commission.

PN42

THE SENIOR DEPUTY PRESIDENT: I think it is worthwhile because people reading this just won't know. So we will add on the Australian industrial Relations Commission.

PN43

MS MacTIEMAN: So that essentially deals with all those issues and having that clarification in definition clause now deals with all other - you know, points that related to that issue. So we are happy to leave then any other amendments that might have been sought in relating to that matter. So that clarifies that.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MS MacTIEMAN: The second - sir, I had also sent to your associate this morning a document which is headed basically "outstanding issues for arbitration".

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MS MacTIEMAN: So now - - -

PN48

THE SENIOR DEPUTY PRESIDENT: And the next matter was clause 10 - - -

PN49

MS MacTIEMAN: Well just prior to that there is just an editorial comment and it's "propose we leave this for your own discretion". Clause 8 currently is the respondent. I have suggested that that come some further up in the document and should be more correctly probably at clause 6.

PN50

THE SENIOR DEPUTY PRESIDENT: That may - - -

PN51

MS MacTIEMAN: Editorially it just looks - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MS MacTIEMAN: - - - ill-fitting.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, I don't know that you need a respondent clause. The employer was defined in clause 6.2 and clause 3 provides that it applies to cleaners who are employed by the employer in the industry of contract cleaning of government schools in the State of Western Australia. I don't know if clause 8 is necessary.

PN55

MS MacTIEMAN: That will just mean a lot of numbering changes.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, so would what you suggested, Ms McTieman. I am not fussed. If you are going to start fiddling around with it I would say delete it rather than move it.

PN57

MS MacTIEMAN: Yes.

PN58

THE SENIOR DEPUTY PRESIDENT: But if you don't want to fiddle around with it, leave it.

PN59

MS MacTIEMAN: Just another editorial comment. We had a brief discussion prior to coming in here this morning. Contract - clause 9 is headed "contract of service" at the moment.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MS MacTIEMAN: I think that is more accurately and appropriately "termination of employment".

PN62

THE SENIOR DEPUTY PRESIDENT: Yes. I am happy to make that change. Is that okay with you, Mr Robertson?

PN63

MR ROBERTSON: I go along with that, yes.

PN64

MS MacTIEMAN: Clause 10 then, sir, is probably where we have two issues of disagreement, and I will go to those. That is in, currently 10.1 which is a variation to the current wording of the award, or that - the relevant part of the appendix.

PN65

THE SENIOR DEPUTY PRESIDENT: Sorry, is that - what are you looking at now? The draft award?

PN66

MS MacTIEMAN: Clause 10. - I am looking at the draft award.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MS MacTIEMAN: Which is 10.1.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MS MacTIEMAN: And what - I can go to - what operates - perhaps if I can give you a bit of a clarification. Are you happy with me to go into detail at this point?

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, I think so. We will see if we can resolve this.

PN72

MS MacTIEMAN: Okay. Sir, essentially most people employed under this award and the award from which it is based, are employed on a part-time basis. I think the significant majority of employees would be employed under that category. And this award was developed on the basis many of - not only of the Contract Cleaning (Ministry of Ed) Award, but that award was borrowed - some of the concepts from the Cleaners and Caretakers Government Award, also a State award of the Commission.

PN73

In that award, because recognising that these people are essentially part-time and that they work only part of the school vacation period, is - was developing a system of rostered days off. Now rather than the traditional way of paying or accumulating rostered days off, that is, that workers, working additional hours and saving those hours for the rostered days up, of - because the time fractions worked by these people is relatively low, that what they do is they actually had a reduced hourly rate, and therefore they sort of were paying for their rostered days off during the school vacation time.

PN74

So then, what happened, but it was never actually prescribed in the parent award, even though that is how it has operated. So effectively what happens is that the weekly rate, whatever it is at the time, for part-time employees is divided by 40 and people are paid that lower rate. And what - sorry. So what we say in terms of using that, if there were full-time workers, that wouldn't actually happen for the full-time workers. The full-time workers would actually work the extra two hours to accumulate their rostered days off.

PN75

Similarly, it happens with school cleaners that are actually employed by the Education Department directly. There is that distinction between a full-time person and a part-time person and how they accumulated their rostered days off. So what I sought to do - I think the parties recognised that this needed to be clarified because it has been a bit of an issue in the industry for the last little while, that Mr Robertson came up with a form of words as is in the current draft. I expressed that I wasn't particularly happy with that because I don't think - in 10.1 he deals with the full-time people and I don't think that that is accurate.

PN76

I have put alternate wording in the document that I forwarded to you this morning - - -

PN77

THE SENIOR DEPUTY PRESIDENT: Yes.

PN78

MS MacTIEMAN: - - - at clause 10.1. So 10.1 is as per the current wording with the parent award. To what I have done - - -

PN79

THE SENIOR DEPUTY PRESIDENT: Sorry. What - hang on. Which document are you looking at?

PN80

MS MacTIEMAN: Okay. So - - -

PN81

THE SENIOR DEPUTY PRESIDENT: Your outstanding issues for arbitration document now, are we?

PN82

MS MacTIEMAN: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: I will mark that as exhibit ALHMWU1.

EXHIBIT #ALHMWU1 DOCUMENT RE OUTSTANDING ISSUES FOR ARBITRATION

PN84

Now in that document, what clause am I going to?

PN85

MS MacTIEMAN: You are going to clause 10.1 in the first instance.

PN86

THE SENIOR DEPUTY PRESIDENT: And that is as per the award?

PN87

MS MacTIEMAN: That is as per the current wording of the award.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes.

PN89

MS MacTIEMAN: It just deals with that the award is a 38 hour a week award, however it - for full-time employees, they work the 40 hours per week to accumulate rostered days off.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes. I am just - - -

PN91

MS MacTIEMAN: What I have then sought to do, we have 10.2, which is a new, a new subclause.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes.

PN93

MS MacTIEMAN: To make the distinction between how RDOs accumulate. And 10.2.1 is how they accumulate for full-time employees, that is the two extra hours per week. I need to, in that clause, also add the words:

PN94

... which will be taken during school vacation ...

PN95

THE SENIOR DEPUTY PRESIDENT: Where should those words be added?

PN96

MS MacTIEMAN: Sorry. I just need to add on the words at the end:

PN97

... and employees.

PN98

So agreed between the employer and employees.

PN99

THE SENIOR DEPUTY PRESIDENT: I see. Yes.

PN100

MS MacTIEMAN: And then I have added in 10.2.2, which in my view is then making it clear about how it operates in relation to part-time employees. That is:

PN101

... in the case of part-time employees the 12 rostered days off shall accumulate by the employees being paid an hourly rate derived by the weekly rate being divided by 40 for each hour worked.

PN102

THE SENIOR DEPUTY PRESIDENT: Yes.

PN103

MS MacTIEMAN: If that is accepted as being included, then all the other amendments that we have sought - Mr Robertson has, in the annual leave clause which is clause 17 - has made an amendment to there which I find acceptable. At 17.5.1, that is on the draft. The Linfoot 1 document?

PN104

THE SENIOR DEPUTY PRESIDENT: Yes, I have got that.

PN105

MS MacTIEMAN: He has made an amendment to the existing wording there. Sorry, sir, I - he has actually deleted that. At the previous draft he had included the words in 17.5.1:

PN106

... the employees shall be paid ...

PN107

midway through that paragraph:

PN108

... the employees shall be paid 2.92 hours pay (38 divisor) or 3.08 hours pay (40 divisor) in respect of each completed week of continuous service in that qualifying period.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. So do you want that back in?

PN110

MS MacTIEMAN: Well that would follow that that would need to be included, and I think - well that wording will have to be included whether you accept my wording or whether you accept Mr Robertson's wording. So I think that that is a necessary addition in any event.

PN111

THE SENIOR DEPUTY PRESIDENT: And that is by way of clarification?

PN112

MS MacTIEMAN: Yes.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes. So it comes in after 2.92 hours pay and then is it in brackets?

PN114

MS MacTIEMAN: Yes. 38 divisor.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes.

PN116

MS MacTIEMAN: Or - - -

PN117

THE SENIOR DEPUTY PRESIDENT: Yes. And I would close the bracket there, or, yes?

PN118

MS MacTIEMAN: 3.08 hours paid.

PN119

THE SENIOR DEPUTY PRESIDENT: Bracket 40 divisor.

PN120

MS MacTIEMAN: That's right.

PN121

THE SENIOR DEPUTY PRESIDENT: Yes. Do you agree with that, Mr Robertson?

PN122

MR ROBERTSON: Sir, perhaps if I could allow Ms MacTieman to follow through. I agree with the proposal that was originally put, yes.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. So those words will go in, regardless happens to 10.1 and 10.2.

PN124

MS MacTIEMAN: That is correct, yes.

PN125

MR ROBERTSON: Yes, sir.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN127

MS MacTIEMAN: So, that is how we (a) believe that is truly reflective of what actually happens, and it gives greater clarity to the operation of the award in our view.

PN128

THE SENIOR DEPUTY PRESIDENT: Yes. Is that all you wish to say on that topic, Ms MacTieman?

PN129

MS MacTIEMAN: On that particular topic. There are other issues in the hours clause that we are still, you know, that I wish to say something on. But I think we should deal with that issue first.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Robertson?

PN131

MR ROBERTSON: Thank you, sir. The difficulty in relation to the divisor of 38 or the divisor of 40, sir, is raised by the union in discussions concerning the simplification of this award, and in the wider context of the parent award to this award, which is the Contract Cleaners' (Ministry of Education) Award. As the award stands, sir, no divisor, either 38 or 40, is prescribed in the award. The practice in the industry is for some employers to use a divisor of 38, and for some employers to use a divisor of 40. The union has a view that their members are disadvantaged by using a divisor of 40 as opposed to a divisor of 38 in certain circumstances.

PN132

Our position has always been, and remains, that there is no distinction between using the divisor of 38 and using the divisor of 40. And we maintain that position. What Ms MacTieman is seeking to do, or the union is seeking to do by including in exhibit ALHMWU1 clause 10.2.2 is to create a regime what separates a part-timer from a full-timer. By implication, a part-timer - the hourly rate for a part-timer is calculated by dividing the weekly rate for a full-timer by 40. By implication, that divisor is not able to be used for a full-timer.

PN133

And I don't think that distinction is realistic. In our view, sir, the more realistic situation is as per exhibition LINFOOT1 in clause 10.1, as we have there, where we simply say that the hours for either - well, for a full-timer, and because of the operation of clause 11 part-timers, this would apply to part-timers as well. That the provisions of this clause:

PN134

... the ordinary hours of duty for a full-time employee shall be an average of 38 per week, with the hours actually worked being 40, to be worked eight hours per day on any five days of the week, using a divisor of 40.

PN135

And that applies to all employees, that a divisor of 40 is used. Not only to part-timers, but also to full-timers.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes. Now, Ms MacTieman, do you not accept that, I take it?

PN137

MS MacTIEMAN: That is correct, sir. I just don't think that that is as accurate as it could be. And we are not trying to install a new regime. As I said before, where this concept of paying part-time employees in the manner that is operating, comes from those employees who were directly employed by the Education Department. That award from where some of these concepts are taken clearly makes the same distinction. It has a different regime for full-time workers than it does for part-time workers, because they do operate differently.

PN138

THE SENIOR DEPUTY PRESIDENT: I am always a bit reluctant to weigh into these things in award simplification matters. They are properly the subject of 113 applications if you want to start changing the words in an award that is to be simplified. Here I have the additional concern that there may be some implications beyond the immediate parties to the award. My inclination is to leave the hours clause as was, and if you want to make an application to vary under 113, well we can deal with it them. The hours clause, of course, will have to be altered in accordance with what the award simplification unit suggests, I suppose. Insofar as agreement in clause - subclause 2(a) and so on. That should be - in the absence - - -

PN139

MR ROBERTSON: Agreed. If the hours - - -

PN140

THE SENIOR DEPUTY PRESIDENT: Sorry. Go on.

PN141

MR ROBERTSON: If the hours clause, particularly in relation to clause 10.1 is to remain unchanged, sir, then we say that the amendment to clause 17.5.1 should not be included either.

PN142

THE SENIOR DEPUTY PRESIDENT: Yes.

PN143

MR ROBERTSON: In other words, that should remain the same as well.

PN144

THE SENIOR DEPUTY PRESIDENT: So that is the way it is in your draft without the words we have just added in today, is it?

PN145

MR ROBERTSON: That's correct, sir.

PN146

THE SENIOR DEPUTY PRESIDENT: And that is the way it is in the current award?

PN147

MR ROBERTSON: That's correct, sir. I beg your pardon sir. In 10.1 in exhibit LINFOOT1, the current award doesn't have the words "using a divisor of 40" - - -

PN148

THE SENIOR DEPUTY PRESIDENT: That is so.

PN149

MR ROBERTSON: - - - as the last - - -

PN150

THE SENIOR DEPUTY PRESIDENT: Yes. I can see that. But what clause is the equivalent of clause 17.5.1?

PN151

MR ROBERTSON: In the - - -

PN152

THE SENIOR DEPUTY PRESIDENT: In the award.

PN153

MR ROBERTSON: - - - existing award, sir?

PN154

THE SENIOR DEPUTY PRESIDENT: Yes.

PN155

MR ROBERTSON: I think it is clause 13(5)(a), sir.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes. Well I think in the absence of agreement that is the course I will adopt. And, Ms MacTieman, if you want to make an application to vary, well, that is a matter for you.

PN157

MS MacTIEMAN: Thank you, sir.

PN158

THE SENIOR DEPUTY PRESIDENT: So in exhibit LINFOOT1, clause 10.1 will stop at the - after the word "week" in the first line of - it may not be on the same part of the page. After the word "week" where there is currently a comma there will be a full stop and the words - the last few words in the clause being "using a divisor of 40" will be deleted. The suggested amendments made to clause 17.5.1 a little while ago will not be made. Okay. What is the next point?

PN159

MS MacTIEMAN: The next issue, sir, is - if you can just wait for a second. Can I just have a look at - sir, if - where we are at disagreement is that in the previous draft what we have in clause 10.1.2, which is:

PN160

the 12 rostered days off will be taken at times agreed between the employer and the employee ...

PN161

THE SENIOR DEPUTY PRESIDENT: Yes.

PN162

MS MacTIEMAN: And the union sought to have the words:

PN163

... and such agreement shall be conveyed to the union ...

PN164

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN165

MS MacTIEMAN: And similarly, at the wording 10.4.2:

PN166

The minimum engagement for an employee shall be two hours in any one period provided that a one hour minimum may apply to the casual and part-time employees by agreement between the employer and the employee concerned. The union shall be notified of such arrangements.

PN167

THE SENIOR DEPUTY PRESIDENT: Yes.

PN168

MS MacTIEMAN: Sir, my position in relation to that is I am prepared to leave that notification out in 10.1.2, but I do seek to have it included in 10.4.2. And I appreciate that that is what might be perceived as in contravention of some of the provisions of the section 51 items - - -

PN169

THE SENIOR DEPUTY PRESIDENT: Yes.

PN170

MS MacTIEMAN: - - - but I would like to say that, firstly, I don't think that such a notification clause is actually proscribed by 51(7). If we go through those items there, there is no reference to that such notifications shall be deleted. I would imagine that Mr Robertson is going to rely on 51(6) and that is that conditions are not to be restricted. We don't see that the employers notification to the union of a different operation, of notifying us where one hour minimum is applying as being onerous on the employer. The reason why we actually seek to have this, this is in all our contract cleaning awards, sir, in the State jurisdiction.

PN171

Mr Linfoot's company is one of very many cleaning operators that work in the Education Department. Those other parties that are bound by the relevant State awards still have this requirement put upon them. And, sir, the whole notion of contract cleaning in the school system is about to change, where there will be a dual operation between contractors and directly employed people. We have been very mindful in how that operates as being that it operates in a fair and a practical way and that particular companies don't get advantage over others.

PN172

That the cleaning practices applying to employees is seen to be done fairly an not placing a difficulty on employees as a whole and on a collective basis, not just what may relate to an individual. And as a party to the award we see that we should have some ability to keep tabs on how it is actually operating, and whether certain provisions are being over-used and over-used to the detriment of employees covered by the provision. So all we see, which is at - is a variation to the current provision where in fact the union has to give their agreement.

PN173

We are not even seeking to have that restriction put on. We are merely seeking that we are notified of such arrangements so we have a fair and reasonable opportunity of what is - opportunity to know how the award has been applied in this area where we have a range of members, and at the moment there will be three different awards that will operate under that system.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Robertson, what do you say about that? We are only dealing with 10.4.2 now. 10.4.1 is acceptable - 10.1.2 as you have drafted it is acceptable to the union. So that will - - -

PN175

MR ROBERTSON: If I could just - could I just look at 10.1.2, sir. Having looked at that I don't even think we need that because I think 10.1.2 simply repeats what is said in 10.1.1.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I think we can delete 10.1.2. Ms MacTieman? Do you have a problem with that. It does seem to be otiose.

PN177

MS MacTIEMAN: Sir, it - where it came from originally, the repetition was because there was actually a lot more prescription in the body award for when the rostered days off are taken. So I don't have a difficulty with that because different schools have had to come to different arrangements for the rostered days off. I don't particularly have a difficulty with that. As long as the people get their 12 rostered days off, this is an important thing, and the other thing is not.

PN178

THE SENIOR DEPUTY PRESIDENT: Well 10.1.2 doesn't appear to me to add anything to 10.1.1.

PN179

MS MacTIEMAN: No. It used to.

PN180

THE SENIOR DEPUTY PRESIDENT: Yes.

PN181

MS MacTIEMAN: Doesn't now.

PN182

THE SENIOR DEPUTY PRESIDENT: All right. Well, that will go. Now, Mr Robertson, 10. - - - [12.43pm]

PN183

MR ROBERTSON: 4.2, sir.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes, what do you say about that?

PN185

MR ROBERTSON: Our primary position, sir, is essentially what the union is seeking is a variation of the award. It doesn't - the provision the union seeks to have inserted is not in the existing award. It is not a matter for the simplification process.

PN186

THE SENIOR DEPUTY PRESIDENT: But the existing award does have a requirement in clause - where are we, 5(b), that requires there to be agreement between the employer, the union and the employee concerned for the minimum of one hour. The reference to agreement with the union has been deleted, but the union seeks that it be notified of such an agreement. To the extent that that is a variation of the award, it is a variation that is consequent upon the agreement of the union being deleted. But I do ask this question of both of you, is it an allowable award matter?

PN187

MR ROBERTSON: That is the next position we would take, sir, that what the union seeks is not an allowable matter. Nor would we say it is a matter that is incidental or necessary for the effective operation of the award.

PN188

THE SENIOR DEPUTY PRESIDENT: Yes. I have some sympathy with that view, Ms MacTieman, unless you can persuade me otherwise.

PN189

MS MacTIEMAN: In terms of that it doesn't comply with 89A(6)?

PN190

THE SENIOR DEPUTY PRESIDENT: Yes.

PN191

MS MacTIEMAN: Well, sir, for the reasons that I said before, in terms of the operation of this award in comparison to how other employers are bound to operate, that Linfoot would be getting an advantage. I know that might not be of particular concern to you.

PN192

THE SENIOR DEPUTY PRESIDENT: Well, I don't even know that I accept that they would be getting an advantage, but you are right. That is not a consideration, is it, in whether or not it complies with 89A?

PN193

MS MacTIEMAN: Sir, again, it is one of those issues that - I know that unions rights as party to awards have been limited. But if the Commission is of the mind that unions still remain as parties to the awards, then they need to be afforded some rights to know how awards are operating. And even though there are facilitative provisions, it is difficult for it to understand what is happening in an industry if there are opt out clauses from minimums.

PN194

The minimums have been put in there for the reason of giving people - so they are not coming to and from work for shorts periods of time and suffering the costs that are associated with doing short periods of work. So there is a reason why the two hour minimum is there, as you would appreciate. When there is a deviation from that, it needs to be seen that that system is not being overly used, and overly used to the detriment of employees that are covered by the award.

PN195

THE SENIOR DEPUTY PRESIDENT: Well, it can only be applied by agreement with the employee.

PN196

MS MacTIEMAN: Yes, sir, but I am - - -

PN197

THE SENIOR DEPUTY PRESIDENT: I suppose you would say well, take it or leave it, is not really an agreement.

PN198

MR ROBERTSON: There is also the point, sir, that should the provision be inserted, it requires an employer to inform the union of arrangements that have been put in place by agreement with potentially non-union members who do not wish the union to know what they have or have not agree to.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes. Look, I think the simple answer to it is that it is not incidental and necessary for the effective operation of the award. I am against it, Ms MacTieman. So those additional words won't go in. What is the next point please?

PN200

MS MacTIEMAN: Sir, I think, sir, it is - the only other point that we have of difference in the last time we were before you in conference, and it has been resolved. It is back to the annual leave clause.

PN201

THE SENIOR DEPUTY PRESIDENT: Which is clause?

PN202

MS MacTIEMAN: 17, of the draft, the Linfoot one.

PN203

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN204

MS MacTIEMAN: And at 17.4 - - -

PN205

THE SENIOR DEPUTY PRESIDENT: Yes.

PN206

MS MacTIEMAN:

PN207

That the loading prescribed by 17.3 shall not apply to proportionate leave on termination, except where termination is a result of the termination of the employer's contract.

PN208

And that is an agreed wording now.

PN209

THE SENIOR DEPUTY PRESIDENT: Right, and then the final sentence is also agreed:

PN210

In such cases proportionate payments shall be made.

PN211

MS MacTIEMAN: That is correct.

PN212

THE SENIOR DEPUTY PRESIDENT: Yes, that is agreed. Very well. They are the only points, are they, that need to be dealt with?

PN213

MS MacTIEMAN: They were the only points of difference.

PN214

MR ROBERTSON: Yes, sir.

PN215

THE SENIOR DEPUTY PRESIDENT: Very well. Well, I think we have resolved the issues to the extent that was necessary. I have made some rulings. Mr Robertson, would you prepare a final document and I will make the award in those terms, having regard to the agreements that you have outlined today and the rulings I have made today.

PN216

MR ROBERTSON: I will, sir.

PN217

THE SENIOR DEPUTY PRESIDENT: How long will it take you to do that?

PN218

MR ROBERTSON: I should have that to you by the end of next week.

PN219

THE SENIOR DEPUTY PRESIDENT: Very well. I will direct that you provide the union and me a proposed award consistent with what has occurred today, within 14 days of today's date. If the union is satisfied that it is accurate and my staff is also satisfied that it is accurate, I will make a simplified award in those terms, without the necessity for a further hearing.

PN220

MR ROBERTSON: Thank you, sir.

PN221

THE SENIOR DEPUTY PRESIDENT: If there is nothing else, I will have the Commission adjourned.

ADJOURNED INDEFINITELY [12.50pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LINFOOT 1 DRAFT 7 (3/08/2001) PN13
EXHIBIT #ALHMWU1 DOCUMENT RE OUTSTANDING ISSUES FOR ARBITRATION PN84