C2370/897, Transcript of Proceedings [2001] AIRCTrans 2504 (1 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C No 23708 of 1997
C No 00712 of 1999

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE AUSTRALIAN PAINT INDUSTRY
(CLERICAL OFFICERS) AWARD 1992
RE AWARD SIMPLIFICATION AND SECTION 33
ACTION ON THE COMMISSIONER'S OWN MOTION

SYDNEY

2.20 PM, THURSDAY, 6 SEPTEMBER 2001

THIS MATTER WAS CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN1

THE COMMISSIONER: Appearances, please?

PN2

MR J. NUCIFORA: If the Commission pleases, I appear for the Australian Services Union.

PN3

THE COMMISSIONER: Who is with you in Melbourne?

PN4

MR T. HALLS: Commissioner, I appear for the Australian Industry Group.

PN5

MS K. BARRATT: If the Commission please, I appear for Employers First.

PN6

MS M. McDONNELL: If the Commission pleases, I appear for Australian Business Industrial.

PN7

THE COMMISSIONER: This is the first time this matter has been on the public record. It's appropriate that I put some introductory remarks on the public record. The matter commenced as a mention hearing in November 1997 but stalled during the first half of 1998, largely due to the tardiness of the ASU at the time in its approach to award simplification. A report back hearing was held on 29 June 1998 when the parties expressed a preference to deal with this award after the parenting manufacturing award was dealt with. A Commission file note in October 1998 notes that the parties to the Clerical Officers Award were contemplating the absorption of that award into the new manufacturing award.

PN8

I commented at the time to the ASU that I needed to be satisfied on the Clerical Officers Award's continuing relevance, if any. By a letter to the parties dated 20 January 2000 the Commission confirmed the making of a new manufacturing award and foreshadowed a timetable for a new Clerical Officers Award. No further development is recorded on the Commission's file until June 2001 when my associate wrote to you all in regard to a February 2000 draft which had been prepared by the ASU. The matter was re-listed for 27 August 2001 but adjourned by agreement until today for the parties to have more time to finalise their positions, particularly with regard to a classification structure.

PN9

On 28 August 2001 my associate re-distributed an electronic copy of the February 2000 draft. On 29 August 2001 the employers filed a copy of another draft titled "Draft Number 2" along with a list of outstanding issues. To date there's no recorded response from the union, so it would seem relevant to use the latest draft, that's the employer number 2 draft, as the template for any discussion today. Now, I have one fundamental question that I need a response from you all on, and that simply goes back to a matter raised first in 1998. Is it relevant that there be a separate Australian Paint Industry Clerical Officers Award? Mr Nucifora, what do you have to say about that?

PN10

MR NUCIFORA: We say yes, Commissioner.

PN11

THE COMMISSIONER: Why?

PN12

MR NUCIFORA: Because we have members and their employ is covered by this particular award which has some unique characteristics, as it always did, to the parent award. It's quite unique to this industry. There are clerical awards in other industries, and if you want I can go through some of those, but - - -

PN13

THE COMMISSIONER: Mr Nucifora, listen to me for a moment. Why couldn't the so called unique terms and conditions of employment of clerical officers merely be dealt with by way of an addendum or an appendix to the parent award?

PN14

MR NUCIFORA: Well, they could, Commissioner. I have to say that in this industry we've tried to follow what has occurred historically. That approach we have taken in other industries where it's appropriate. We do have a situation here where we haven't always enjoyed a co-operative relationship with the LHMU, but it's not specifically just because of that. But there has been a long history of having separate awards and prior to this award an operating agreement that applied to clerical officers. We say that given the time we spent early last year and just prior to that in trying to simplify this award and to update it, that we believe, and in discussing with the employers, that the award should continue.

PN15

THE COMMISSIONER: With respect, the fact that you've spent an awful of time on it is hardly justification for why the award itself should exist as an entirely separate award. After all, the award simplification process is about not only simplifying existing awards, it's also about rationalising awards.

PN16

MR NUCIFORA: Yes. Commissioner, I have to say that is an approach we have taken in other industries. There are 15 enterprise based awards in the oil industry, part clerical awards, and we're trying to rationalise that to one. It makes sense there. Here we have a tradition of ensuring that clerical administrative employees are not lumped into the same award, because there is a history of that. We were almost there in finalising the drafts there. Yes, and it's true, just like the old award, it would be very similar to the parent award. In fact, there are a number of areas that have to be - well, they don't have to be - for efficiency reasons ought be similar to the parent award.

PN17

But I think there are historical reasons, Commissioner, for keeping the clerical award separate here, as there are in other industries, whether it be road transport, whether it be breweries, and for very similar reasons. The clerical administrative employees are an occupational group. It would be fair to say, Commissioner, the change in work that's being done under the manufacturing award through technology, there are some overlaps, and we acknowledge that. But, Commissioner, I find it difficult to not promote rationalisation because we have done in other industries where we can.

PN18

We are setting aside awards where they're not either relevant or they could be rationalised into the main industry award. There is a concern here, one of them, of course, relates to over the years we haven't always had a co-operative relationship with the LHMU. We wouldn't like to be in a parent award where we were in fact as an occupational group and as a union a sideline.

PN19

THE COMMISSIONER: Well, I guess that's a question for the parties that represent employees to work themselves out. But as I understand, and correct me if I'm wrong, there have been some fairly substantial changes in the packaging of salaries and terms and conditions for clerical and administrative employees in the paint industry. Is that a correct understanding?

PN20

MR NUCIFORA: Yes, in reality a lot of it has occurred, we would think, outside the system. As quite often happens with officer workers, there are salary arrangements that are not covered in either collective agreements. Some are, such as Wattyl and Bristol and in the years gone by Taubmans and maybe Dulux, but in more recent times what tends to dominate is common law contracts of employment, such as in salary arrangements. I'm not aware of AWAs being particularly prevalent in the industry. By the same token we wouldn't have the same number of collective agreements that the LHMU would have.

PN21

THE COMMISSIONER: Yes, all right. Thanks, Mr Nucifora. I ask the same question of the employers as to the relevancy of this separate Clerical Officers Award. What's your position, Mr Halls?

PN22

MR HALLS: Commissioner, as far as this particular matter is concerned, the Australian Industry Group is a party to the Australian Paint Industry Clerical Officers Award. However, it is not an award which we service. Therefore, our position will be reflected by the submissions of Employers First, if the Commission pleases. So, I'm unable to answer that question.

PN23

THE COMMISSIONER: All right, thank you. Well, Ms Barratt, it seems as though you have got the position of taking the lead here. What do you have to say about it?

PN24

MS BARRATT: Commissioner, I understand that that very issue was raised in the Commission and in fact considered by the parties at the time the issue was raised, whether or not this should be a separate award, whether it should be rationalised into the parent award, and for reasons unbeknownst to me, the decision was made that the award should be kept separately.

PN25

THE COMMISSIONER: Do you know when that decision was taken by your predecessors?

PN26

MS BARRATT: Commissioner, one disadvantage, as I've explained to your associate, is that the file on this matter has gone missing, and it has caused me no end of difficulty in trying to understand the history of what has happened in this matter to date.

PN27

THE COMMISSIONER: Yes, I recall, when I was actually on the panel that covered the paint industry, that there was a lot of discussion around the parent award and the Clerical Officers Award primarily with Mr Cook. You haven't been able to chase it down through him as to where the file might be?

PN28

MS BARRATT: I've actually spoken to Mr Cook, Commissioner, and his understanding was that the file went to archives, and archives do not have the file.

PN29

THE COMMISSIONER: Okay. So, really, you're not aware of the history. But what is your position at this point in time with respect to relevancy of a separate award?

PN30

MS BARRATT: Commissioner, my instructions from APMF on that issue are that we've gone down the process of maintaining it as a separate award. One of the areas of concern from the APMF's perspective at the moment, and this really comes down to the issue of classification structure, is just how much the award is in use, because it is true salary arrangements are in place, whether they be in registered agreements or under the award. That has its primary impact in the classification structure proposal that has been advanced by the union. Hence the reason why it's become a bit of a controversial issue. The new structure proposed by the union goes, as far as the APMF is concerned, to classifications which aren't currently in the award and to areas where salary arrangements are in place.

PN31

THE COMMISSIONER: Yes, well, you've made some points in your written material to me about the classification structure and the rates of pay, and we'll leave that for a little bit later in this discussion. I was particularly concerned about this fundamental issue, the relevancy of a separate award. But you're instructed to continue to seek the making of a separate award?

PN32

MS BARRATT: I am, Commissioner.

PN33

THE COMMISSIONER: All right, thank you. Ms McDonnell, is your position any different?

PN34

MS McDONNELL: No, thank you, Commissioner. My position doesn't differ greatly from that put forward by Ms Barratt of Employers First, other than the respondent member who I actually appear for does actually utilise this award as a separate award from the parent award. So, this award is currently being used.

PN35

THE COMMISSIONER: The parent award being the manufacturing award, you mean?

PN36

MS McDONNELL: That's right, yes.

PN37

THE COMMISSIONER: You represent Wattyl, don't you?

PN38

MS McDONNELL: That's right, yes.

PN39

THE COMMISSIONER: Because ABI has a long history of representing the Wattyl group.

PN40

MS McDONNELL: That's right, yes.

PN41

THE COMMISSIONER: Well, that resolves that fundamental issue. Now insofar as the material provided to my office dated 29 August 2001, it spells out a new draft award titled, for want of a better description, "Paint Industry Clerical Officers Award 2001 - Draft 2" and an enumeration of a number of outstanding issues between the employers and the ASU. Mr Nucifora, have you had an opportunity to respond to those outstanding issues as spelt out in Ms Barratt's documents of 29 August?

PN42

MR NUCIFORA: Yes, I have, Commissioner. The reason why we didn't send in a response to Ms Barratt's issues raised on 29 August is that I have had discussions with her and it appears without prejudice on both sides that we are fairly close to reaching a final draft. The only real outstanding issue is the classification structure and rates of pay. But would it be worthwhile, Commissioner, I'm just going to ask this question, I've actually been through the whole lot and cross-referenced it with the old award. There are a couple of other things that come up that we wouldn't disagree and are just drafting omissions.

PN43

If I went through it quickly I could pinpoint where they are. Ms Barratt knows what I'm talking about. I would say that there are a couple of minor issues that we say go hand in hand in updating the award, such as notice clause, or posting of awards, for consistency with the parent award. There are a couple of things that the employers have raised, such as the part time clause provision in redundancy, and we would agree that's all part of updating this award to reflect test case or standards that have been accepted in other awards. I think they're resolvable. We're left with really the classification structure and rates of pay.

PN44

THE COMMISSIONER: All right. Well, let me re-state or perhaps place on the public record what the outstanding issues are in respect of classification and rates of pay. Can I take you to page 3 of the outstanding issues statement as filed? What I might do is perhaps give that package of documents, which is the outstanding issues statement plus the employer's draft number 2, I'll give that an identity and I'll describe that simply as exhibit EF1.

EXHIBIT #EF1 - EMPLOYER'S DRAFT AWARD DOCUMENT AND STATEMENT OF OUTSTANDING ISSUES

PN45

THE COMMISSIONER: I'm particularly mindful of the fact that I've marked a document which is already titled "Draft Number 2" as exhibit EF1. But we'll take the package of documents as EF1. Ms Barratt, would everybody have copies of that document?

PN46

MS BARRATT: Commissioner, everyone has been provided with copies of both documents.

PN47

THE COMMISSIONER: All right. So, you have that, Mr Nucifora. Do you have it, Mr Halls?

PN48

MR HALLS: Yes, I have that, Commissioner.

PN49

THE COMMISSIONER: Let's deal in the first instance, given what you've just said, Mr Nucifora, that you believe most of the issues are resolvable given a little time and that the real issue outstanding is spelt out on page 3 of the outstanding issues paper under the heading "Item 9 Clause 17 Classifications" and "Item 10 ASU Proposed Clause 18 - Rates of Pay." Now, I note here, and for the public record I'll quote it for the transcript, under clause 17 classifications:

PN50

The ASU is seeking the adoption of a new classification structure in the award consistent with the Clerical and Administrative Employees (Victoria) Employees Award ...(reads)... proposed award draft 2.

PN51

What's your position in respect of that quite plain statement, Mr Nucifora?

PN52

MR NUCIFORA: Commissioner, our position since we last raised this, I guess inviting with our draft back in February 2000 but prior to that, we've raised the Victorian clerical structure, our position being consistent with a number of award simplification matters where we have said that there aren't properly set minimum rates of pay and the classification structure hasn't been restructured as per the structural efficiency principle, then we have done that with the other awards at the same time as the item 51 award simplification process. I have a couple of those awards I can list here now, Commissioner.

PN53

THE COMMISSIONER: No, just answer me one thing, has this classification structure been reviewed since 1989? You're the one that's shooting it back to the award restructuring programs.

PN54

MR NUCIFORA: No, it hasn't, Commissioner, not the paint industry clerical structure.

PN55

THE COMMISSIONER: Well, with respect, that's exactly what you should be doing. This is not an appropriate vehicle to be serving up an entirely new classification structure that is built upon another award that may or may not be relevant to this industry.

PN56

MR NUCIFORA: This industry would be sitting on its own if we weren't going to treat clerical administrative employees in the private sector as they have been treated elsewhere. I can go through the industries, Commissioner, and I can go through the decisions.

PN57

THE COMMISSIONER: Have the other industry clerical awards, to use a generic term, been amended insofar as a classification structure is concerned in the manner that you now seek?

PN58

MR NUCIFORA: Yes, Commissioner.

PN59

THE COMMISSIONER: Consistent with that 1995 Victorian award?

PN60

MR NUCIFORA: Yes, Commissioner. I can give you some of the awards now.

PN61

THE COMMISSIONER: I think you should do that. Perhaps you should also formally send me a copy of extracts of those awards to clearly demonstrate to me that the classification structure which you seek in this award is consistent with the classification structure inserted in other industry awards during the award simplification process.

PN62

MR NUCIFORA: Yes.

PN63

THE COMMISSIONER: Because I think the point of difference that I'm sensing here is the employers are saying if you want to change the classification structure, it should be the subject of a separate application which, presumably, one party, being the employers generally, will make an application to the President for a 107 reference, rather than using the vehicle of award simplification to completely re-write the award classification structure.

PN64

MR NUCIFORA: In each of those simplified awards there was a decision by the relevant Member of the Commission that it was consistent with item 51. In fact, in the Clerks Breweries Award, Vice President Ross had referred to the Victorian clerical structure as being appropriate when setting properly set minimum rates for clerical administrative employees.

PN65

THE COMMISSIONER: Were the classifications changed at the time of the award simplification of the Clerical Breweries Award, brewery industry people?

PN66

MR NUCIFORA: Not the classification structure, Commissioner, because the six level structure was already there in that award. But in other awards a new structure had been applied, such as the Clerical Administrative Employees Health Insurance Industry Award. That was simplified in recent weeks where the original interim award called up a number of state clerk awards. Now, in the end the new structure, which was the Victorian clerical structure, was applied as being consistent with item 51. Commissioner, on each of those occasions the Member of the Commission under item 51 had, in effect, acknowledged that the Victorian clerical administrative employees structure was the appropriate structure.

PN67

THE COMMISSIONER: Have you had this discussion with the paint industry employers?

PN68

MR NUCIFORA: Not with the APMF, but I have more recently with Ms Barratt and I have had lengthy discussions with Mr Cook and Mr Rozier at an earlier stage.

PN69

THE COMMISSIONER: Yes, well, some of this certainly brings back some memories of mine of when we were last dealing with this matter in conference, and it's still not resolved, and yet the employers are still resisting using the award simplification process as the vehicle for restructuring the classification structure. Why is that?

PN70

MR NUCIFORA: We would say that they're not properly set minimum rates and they need to be under item 51(4), and that's why we would say the time to resolve it, as it has been with these other awards, is through award simplification. The four level structure in the Paint Industry Clerical Officers Award goes back a long, long way, well before the 1989 structural efficiency principle decision. It goes back to at least 1982 and probably to the 1970s.

PN71

THE COMMISSIONER: So, there's a four level structure in the existing award?

PN72

MR NUCIFORA: Yes.

PN73

THE COMMISSIONER: And a six level structure in the Victorian model award, for want of a better description?

PN74

MR NUCIFORA: Yes, Commissioner. Commissioner, I might just add, when this has been done through simplification we have agreed with the employer so as to ensure there's no increase in labour costs, but particularly the smallest businesses, smallest paint manufacturers that might be their clients, we have agreed in some of these other awards to phase in the new structure. That has occurred at least in the Health Insurance Industry Award, the Clerks ACT Award. We have agreed, because we weren't seeking, as a result of award simplification, to do anything but to ensure there's properly set minimum rates in the award.

PN75

THE COMMISSIONER: Ms Barratt, what's your position in regard to this qualification that the current classifications are not properly set minimum rates and that this is an opportunity to do exactly that?

PN76

MS BARRATT: Commissioner, the position we've advanced to the unions so far is that the Commission is bound by the pay rates review decision in setting properly fixed minimum rates under the award. That sets out a process, quite a clear process, as to how the Commission and the parties determine whether rates are properly fixed.

PN77

THE COMMISSIONER: Why hasn't that been done already?

PN78

MS BARRATT: Commissioner, the difficulty that has arisen is that the documentation between the union and ourselves on what happened in the 1989 to 1992 era is not entirely clear as to whether or not rates have been properly fixed. I've certainly made some investigations of my own and, in fact, have called upon the Commission's files to enable us to ascertain whether or not rates were properly fixed in that period. If they haven't been, Commissioner, then the process is clear as to how that is done, and that is to take the key classification rate, line it up with the metal industry award, and most importantly, then fix the internal relativities in terms of the classification structure.

PN79

THE COMMISSIONER: Yes, I'm aware of what the process is. How long do you expect that your analysis might take before you have enough material to advance this?

PN80

MS BARRATT: We're hoping that it should be done in a week or so, Commissioner. We're just waiting on the files at this stage. The issue, of course, then becomes the classification structure and just so we make our position clear on that, we have said to the union that where classification structures have been introduced in award simplification, they have been done by way of consent. We've asked the union for any arbitrative decision which they can point us to which demonstrates that the Commission indeed has made that particular finding, that in fixing rates the Victorian classification structure should be put into the award.

PN81

THE COMMISSIONER: But, with respect, Ms Barratt, if this award has relative low significance and application, what's the problem?

PN82

MS BARRATT: The Victorian structure, as you're probably aware, Commissioner, goes not only to clerical employees in the traditional sense, but also goes to administrative employees and we say goes beyond the structure that's currently in the award.

PN83

THE COMMISSIONER: But so what? This is the opportunity to revamp awards and if a new classification structure goes beyond the existing classification structure, that might be a natural consequence of a review of the classification structure. Why is that resisted?

PN84

MS BARRATT: But indeed at this stage we're saying precisely that should happen. A proper review of the current classification structure should be made. A determination then should be made as to whether or not the Victorian classification structure addresses the deficiencies, if indeed they exist, in the current structure. We certainly formed the view that the current structure is adequate and has been adequate for the industry, and that's why the structure hasn't been changed.

PN85

THE COMMISSIONER: I just get the sense that there's resistance for the sake of resistance.

PN86

MS BARRATT: I don't think that's the case, Commissioner. The structure goes well beyond, in our view, the coverage of the current award.

PN87

THE COMMISSIONER: In what way? I can't immediately recall what the 1995 Victorian clerical classification range is, but where does it depart significantly from the range of classifications in the Paint Industry Clerical Officers Award?

PN88

MS BARRATT: It goes beyond pure clerks, it goes to areas of payroll, to help desk areas, to lower managerial positions, and certainly companies are of the view they don't wish to have an award impinge on those areas.

PN89

THE COMMISSIONER: But what difference does it make? If they don't have anyone in those classifications, or if they've got them on a salary package anyway, what difference does it make?

PN90

MS BARRATT: Well, indeed, when you're putting a new classification structure in, Commissioner, new rates are also put in, and those new rates could well impinge on those salary arrangements.

PN91

THE COMMISSIONER: Yes, all right. So, you simply don't want a new classification structure to impinge beyond the existing area of coverage of the award?

PN92

MS BARRATT: Those are my instructions at the moment, Commissioner.

PN93

THE COMMISSIONER: Well, Mr Nucifora, it seems to me that the gauntlet has been put to you previously, that where these structures have been changed as part of the award simplification process, it's been done by consent, and you've been asked to bring to Ms Barratt's attention any ones that have been determined by the Commission in the face of resistance by the employers. Are you able to detail where that's occurred?

PN94

MR NUCIFORA: I've got to say in most of those cases no, they weren't arbitrated in the end, they were by consent, and there was resistance in most of those in the first place. But once we had indicated to them unless we wanted to go about reinventing the wheel and having a full work value in the paint industry again, and however long that might take, that this was the opportunity to in fact update the award.

PN95

THE COMMISSIONER: Well, with respect, that to me sounds like a shorthand way of getting around a proper work value.

PN96

MR NUCIFORA: Well, we have raised that. It was raised with the ACT Clerks Award, we have raised it with other awards, the Health Insurance, let's have a full work value. But once we look at particularly the Clerks Breweries decision and prior to that the Victorian Clerical Administrative Employees Award, once it was simplified and the six level structure was considered by those Members of the Commission as being consistent with item 51(4) and the pay rates decision, then we're otherwise reinventing the wheel of what a general clerk is. We all know that a general clerk is equivalent to the 100 per cent metal trades rate. Then the six level structure, I would argue at the top at grade 6, if I look at grade 1 in the current paint industry award that says:

PN97

Work carrying a high degree of responsibility making extensive use of specialist knowledge or experience.

PN98

That's almost a shorthand, arguably, of what grade 6 is. But we're not talking about going into managerial levels, we're talking about what happens in other industries and what happens in Victoria.

PN99

THE COMMISSIONER: Well, with respect, Mr Nucifora, why don't you lift your horizons out of Victoria and look at the manufacturing sector at large across the country? Rather than just constantly referring to the Clerks Breweries Award and the Victorian health sector, look at manufacturing at large. That will probably have more sway with the employers, I would think, and it'll certainly have more sway with me.

PN100

MR NUCIFORA: Yes, I understand that, Commissioner, and we could look to manufacturing at large. I'm just looking at the list of awards to see if there are any manufacturing awards there. Well, I've mentioned already the six level structure is there in the Clerks Road Transport and Customs Clearing. They're not manufacturing but they have been there from the beginning. They weren't totally arbitrated. They were tested, though, and there were some aspects that were arbitrated that didn't go specifically to the core of the six level structure.

PN101

We could have a full work value but our point is that the Commission has accepted on a number of occasions now - and as recent as last week, I forgot to mention the Business Equipment Clerical Administrative Employees Award. That was the matter before Commissioner Larkin and once again the six level structure has been accepted there. Now, Business Equipment has some manufacturing related areas, not as much as here in paint. We're prepared to look at what the paint manufacturing industry has that's specific to that industry in terms of if they're concerned about the new structure going further than the old structure.

PN102

THE COMMISSIONER: Mr Nucifora, what's the current paint industry equivalent of C10?

PN103

MR NUCIFORA: In the current award?

PN104

THE COMMISSIONER: Yes.

PN105

MR NUCIFORA: It might've been grade 3, I'm not sure, Commissioner. Grade 3 or - you see, it says general clerical duties. That's looking like a general clerk, the grade 3 general clerk rate.

PN106

THE COMMISSIONER: What clause of the award is it?

PN107

MR NUCIFORA: As it turns out, Commissioner, I haven't got the current award here but I do have the draft award, this is the draft 2, and in that it would be clause 17 on page 18 of draft 2.

PN108

THE COMMISSIONER: So, which one do you say is equivalent to C10?

PN109

MR NUCIFORA: Well, I think it might've been grade 3. That talks about general clerical duties. But there's a lot more that goes to the general clerk.

PN110

THE COMMISSIONER: Just a moment. Perhaps Ms Barratt can clarify that for me. Ms Barratt?

PN111

MS BARRATT: Commissioner, we've undertaken an exercise looking at the metal industry award as aligned with this award and we set it at grade 2, although there might be a slight issue about relativities.

PN112

THE COMMISSIONER: And in the 1992 Clerical Officers Award, what grade is it? What's the equivalent of C10?

PN113

MS BARRATT: The key classification rate has always been grade 2.

PN114

THE COMMISSIONER: That's even in the existing award?

PN115

MS BARRATT: Yes.

PN116

THE COMMISSIONER: Thank you.

PN117

MR NUCIFORA: That's taking it one step higher, so the metal trades rate is at a higher level than the current structure. The current structure is clearly one that's outdated. It's 20-years-old at least, probably more.

PN118

THE COMMISSIONER: Well, Mr Nucifora, whose fault is it that it's over 20 years out of date? You had years to do something about correcting this classification structure.

PN119

MR NUCIFORA: And, Commissioner, we have been before the Commission, and certainly the structural efficiency principle you might remember that it was Mr Muller who was then on behalf of the union, it wasn't before yourself, Commissioner, but back then I've got a decision here before Munro J where he did raise the big structure. That was back in 1990/1191. We have been raising this all along, Commissioner. It's not the first time. I'll give you the print number, Commissioner.

PN120

It was a decision of Munro J in J1125 where clearly Mr Muller then on behalf of the union was putting what was then the Commercial Clerks Award, the Victorian structure. Now I know we might sound like a broken record, Commissioner, but over time the Federal Commission has adopted the Victorian structure and we have used that as a reference. We say that, Commissioner, because we're actually worse off in the Breweries Award. We were pared back in the Breweries Award because the rates of pay were actually higher.

PN121

THE COMMISSIONER: What did you say was the effect of Munro J's decision in J1125?

PN122

MR NUCIFORA: In that matter, Commissioner, he does refer to, of course, the structural efficiency principle arising out of the 1989 decision and the issues that went to the structure and of course, at the time you might recall the award modernisation clause had to be inserted, there were other structural efficiency clauses that had to be inserted into the award. But he also mentions there that - I'll just quote from it, Commissioner:

PN123

Mr Levicki indicated that the APMF considered the existing structure already manifested the capacity for multi-skilling and for career development. The ASU pressed ...(reads)... Clerks Award in Victoria.

PN124

He doesn't go on to determine that, but he does go on to say to the parties that the agreements to the wage increase, that they should continue to work through and determine a new classification structure.

PN125

THE COMMISSIONER: So, you've had 10 years and we haven't advanced very far?

PN126

MR NUCIFORA: Well, each time I've tried to discuss the issue and I have raised it with Mr Rozier and raised it with Mr Cook - I must admit I've only raised it with Ms Barratt in recent weeks and I'm not in anyway - I mean, it's only been a short period of time for her, I understand that. But I have raised it a number of times and we raised it again in our draft of February 2000. It's my brief, Commissioner, and as we have been doing all along, to pursue the Victorian clerical structure as at least to properly set minimum rates back in 1991. But there have been a number of clerical awards that have not been updated as a result of the 1989 structural efficiency principle and we have sought to do that at the same time as award simplification.

PN127

THE COMMISSIONER: Well, Ms Barratt has said that she's doing some research on the Commission's records at the present moment, and that might be pretty useful for everybody if we had some sort of exposure to what's contained in those records rather than everyone relying on people's memories and unfortunately in Ms Barratt's case lost files. But it seems to me that if there is an opportunity for the parties to resolve their differences on the question of a classification structure and rates of pay, that's where you ought to now primarily focus your attention, and I'm prepared to give you an opportunity to do that.

PN128

But it won't be another 18 month opportunity. It might be about a one month opportunity. I guess in the end if you can't resolve your differences on a new classification structure, then I will determine it. It's as simple as that. I am obliged to review this award. The purpose of all of the conferences and the exchange of correspondence to date has been to assist the Commission in carrying out its statutory duty to review the award. I can assure you I will review it, as you've heard me say in the past, and if the parties cannot reach a consent position which is consistent with the award simplification requirements of me, then I will determine it separately.

PN129

I'll certainly hear what you've each got to say, but in the end I will determine it, and it won't necessarily be one or the other's point of view. So, with that general context and framework what I would like to do, subject to any views you have, is to perhaps adjourn this hearing for approximately one month and to set a report-back date, certainly not to leave it open-ended, set a report-back date and direct you to confer in the meantime to endeavour to resolve this classification structure difference and rates of pay, consequential rates of pay differences. At the same time, to the extent that you're able, reach an agreed position in respect of the other outstanding issues that are spelt out in the employer's first document dated 29 August, and I'll then hear what you've got to say in a month's time. After that I expect I will then review the award formally. So, are there any comments in response to that?

PN130

MR NUCIFORA: Commissioner, just in terms of the time, I'll be away in a month's time. I would be happy to try and resolve it before I go away in late September, but it really depends on what Ms Barratt has to say about that. Then I would be returning in the week commencing 22 October.

PN131

THE COMMISSIONER: Well, you'll probably need a bit of time to catch up with what happens. You've certainly got some time to do something about it in the meantime. I'm happy to adjourn these proceedings until some time after you return, but certainly no later than, let's look at the fourth week in October. I would be happy to reconvene these proceedings, say, on Monday afternoon, 29 October, unless anyone has got any objection to that.

PN132

MR NUCIFORA: No, Commissioner.

PN133

THE COMMISSIONER: Ms Barratt?

PN134

MS BARRATT: No objection.

PN135

THE COMMISSIONER: Mr Halls?

PN136

MR HALLS: No objection, Commissioner.

PN137

THE COMMISSIONER: Ms McDonnell?

PN138

MS McDONNELL: No objection, Commissioner.

PN139

THE COMMISSIONER: We'll do it at 2.15pm. I think, given the vagaries of time and distance, Mr Nucifora, it might be greatly helped if the parties are still in a position of having different views at that time, then I think I would like to see you face to face rather than on the end of a video screen. If in fact a consent position is reached by then and some final submissions are put to me on a consent basis, then we can do it by video conference. But I think if you concentrate between now and when you go on leave on trying to resolve those differences and then further on your return you've got a week to try and sort that out, failing any resolution or complete resolution, I'll hear final submissions, effectively, on the afternoon of 29 October.

PN140

I'll plan for it to be in Sydney unless there is any other reason as to why it should be elsewhere. If the parties are not in a consent position at that time, then I think I should insist on your presence here, Mr Nucifora, because it might very well be that I can help resolve some of the outstanding differences at that time and I really cannot do that in a mediation or conciliating sense with you on the end of a camera.

PN141

MR NUCIFORA: Yes, thank you, Commissioner. It may be, and I wanted to ask Ms Barratt, that in the next few weeks we might've been able to make some further progress. It's up to her. In that case we might've been able to contact you before the end of September.

PN142

THE COMMISSIONER: If you can do that before you leave by the end of September I'll do whatever I can to try and fit the parties in. I'm sure if you've reached a consent position it's not going to take a lot of formal hearing time and perhaps we can do it in this exact same mode.

PN143

MR NUCIFORA: Yes, Commissioner. I just need to hear from Ms Barratt.

PN144

THE COMMISSIONER: Ms Barratt?

PN145

MS BARRATT: Commissioner, I have indicated to Mr Nucifora that we're simply not, adopting the position we oppose the structure, the structure has been circulated amongst the APMF members. They are currently reviewing that structure and how it impinges on their organisations and have also been asked to come back to me with their difficulties and their accommodations. So, it's not just a question of saying at this stage we reject your structure outright. We are at least attempting to see whether any accommodation can be made with the union.

PN146

THE COMMISSIONER: Are you saying that the union's proposed six stage structure is currently with the members that you represent for their consideration?

PN147

MS BARRATT: That is exactly right, Commissioner.

PN148

THE COMMISSIONER: So, they have the current structure and also Mr Nucifora's alternative structure before them at the moment?

PN149

MS BARRATT: That's right.

PN150

THE COMMISSIONER: Well, that's a positive sign, I have to say. When do you expect that you might have some sort of consolidated response in respect of that to confer with Mr Nucifora about?

PN151

MS BARRATT: I came back to Mr Nucifora on all outstanding issues other than rates of pay and classifications and I indicated to Mr Nucifora that once we had the Commission's files and, indeed, a position from my members which I'm hoping will be in the next two or three weeks, we could come back to him with a position on that.

PN152

THE COMMISSIONER: That's positive, Mr Nucifora, and that's fairly consistent with what you have in mind.

PN153

MR NUCIFORA: Yes, Commissioner.

PN154

THE COMMISSIONER: The timing mightn't quite work.

PN155

MR NUCIFORA: No, that's all right.

PN156

THE COMMISSIONER: In which case you can probably go on leave and enjoy yourself and we'll all concentrate on trying to get something sorted out. The weight will be on our employer colleagues to sort it out in the meantime.

PN157

MS BARRATT: If I can indicate for the record, Commissioner, our primary position still is that the current structure addresses our needs but certainly we need to undertake that exercise in the companies to see in fact whether or not that still holds true.

PN158

THE COMMISSIONER: I think what you also have to keep in mind when you're making contact with your members is that this Victorian structure appears to have been adopted in a number of other general industry awards that include clerical classifications. So, the proposal the union has in mind is not new. It's not new to other industries, it's not new to the Commission. Perhaps it might be a step sort of out of the 20th century and into the 21st century.

PN159

MS BARRATT: I'll take those comments onboard, Commissioner.

PN160

THE COMMISSIONER: Ms McDonnell, do you have any comments to make about the timing or the proposals?

PN161

MS McDONNELL: No, the timing is fine by our organisation, thank you, Commissioner.

PN162

THE COMMISSIONER: I'm conscious of the fact that you represent one of the significant players.

PN163

MS McDONNELL: Yes. At this stage we would also be seeking specific instructions from our member in relation to the proposed structure put by the ASU in this matter and also following that we will confer with the employers first to ascertain a combined response with regards to the research that is currently being undertaken with regards to the Commission's file and also a combined response with regards to the proposed structure.

PN164

THE COMMISSIONER: Perhaps if I repeat my comments to you to convey to your member in respect of the adoption of a Victorian based clerical structure in other general industry awards, that obviously gives that structure some strength and some breadth of acceptance. Whether it suits the paint industry is really for the paint industry employers to decide or, in the end, it's a matter that I will have to decide if the parties can't find consent.

PN165

MS McDONNELL: Certainly we'll take those comments onboard and certainly I'll pass those on. Thank you.

PN166

THE COMMISSIONER: Thank you. Mr Halls, any comments?

PN167

MR HALLS: Commissioner, no additional comments. We concur with the submissions of Employer First, if the Commission pleases.

PN168

THE COMMISSIONER: Can any of the employer representatives tell me whether they are representing the interests of the Dulux group?

PN169

MR HALLS: Commissioner, the Australian Industry Group has no current members under the Australian Paint Industry Clerical Officers Award. Hence the reliance on the submission by Employers First.

PN170

THE COMMISSIONER: Thank you, I appreciate that comment. Ms Barratt?

PN171

MS BARRATT: Commissioner, I can confirm that we're appearing on behalf of Dulux as a member of APMF.

PN172

THE COMMISSIONER: Thank you, because I'm aware that in earlier proceedings in the paint industry generally Dulux was often separately represented by a firm of Melbourne lawyers, I think, from memory, but you have a clear representation for them. All right, I think I'll adjourn these proceedings now generally. I'll plan to re-list the matter at 2.15pm on 29 October in Sydney for the purpose of hearing any final submissions in respect of the award simplification of the Australian Paint Industry Clerical Officers Award.

PN173

If there is not a consent position at that time I will receive final submissions preceding my formal review of the award. I'll adjourn the proceedings now until that time and date to be fixed. I would finally comment that if the parties' position changes prior to Mr Nucifora commencing his annual leave and you seek the opportunity of putting some alternative position or some agreed position before me prior to that date of you going on leave, Mr Nucifora, then I'll do whatever I can to re-list the matter at short notice and we might be able to deal with it more expeditiously. I'll adjourn proceedings now.

ADJOURNED UNTIL MONDAY, 29 OCTOBER 2001 [3.11pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #EF1 - EMPLOYER'S DRAFT AWARD DOCUMENT AND STATEMENT OF OUTSTANDING ISSUES PN45