C2001/4467, Transcript of Proceedings [2001] AIRCTrans 2578 (2 October 2001)

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


O/N 0186
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/4467

AUSTRALIA POST GENERAL
CONDITIONS OF EMPLOYMENT
AWARD 1999

Application under section 113(1) of the
Act by the Australian Postal Corporation
to vary the above award concerning
clause 31.1.3(b) and 31.1.3(c)

MELBOURNE

10.37 AM, TUESDAY, 11 SEPTEMBER 2001

PN1

MR P. RYAN: I appear for the Australian Postal Corporation in this matter.

PN2

MR E. KEANE: I am an industrial officer with the divisional office of the CEPU, communications division.

PN3

MR R. EVANS: I appear with MS L. PIPER for the Community and Public Sector Union.

PN4

MR B. NADENBOUSCH: I appear for APESMA.

PN5

THE COMMISSIONER: Thank you, Mr Nadenbousch. Right, now, it is an application under 113. There is correspondence received by the Commission from the AMWU indicating that, firstly, they have no objection to the application being granted and an order issuing in the terms proposed and that the AMWU will not be represented at the hearing and tenders its apology. Mr Ryan?

PN6

MR RYAN: Thank you, Commissioner. I probably should indicate at the outset that the CEPU gave notice of the initiation of a bargaining period in relation to negotiations in respect of a new enterprise agreement with Australia Post. Now, perhaps I should hand it up, Commissioner, if that - - -

PN7

THE COMMISSIONER: What is - - -

PN8

MR RYAN: Well, I was going to indicate that under section 170N of the Act that the Commission is not allowed to exercise its arbitration powers under Part VI in relation to a matter that is an issue between the parties.

PN9

THE COMMISSIONER: Is this matter part of the enterprise bargaining process?

PN10

MR RYAN: It is not, Commissioner.

PN11

THE COMMISSIONER: So then - - -

PN12

MR RYAN: It is not an issue really.

PN13

THE COMMISSIONER: So why is it bound by 170N?

PN14

MR RYAN: I just thought if the Commission was aware that there was a - a bargaining period had been notified.

PN15

THE COMMISSIONER: It is an application to vary the award.

PN16

MR RYAN: It is not an issue and the CEPU, as I understand it, will support the application in any event. It is up to them, I guess.

PN17

THE COMMISSIONER: So, we are all one big happy family?

PN18

MR RYAN: Yes, I think we should be able to proceed, Commissioner.

PN19

THE COMMISSIONER: Good.

PN20

MR RYAN: Thank you. The purpose of the application, Commissioner, is to vary the public holiday clause to correct a shortcoming in the clause which has the effect, or could have the effect, of giving employees in country locations in Victoria and Queensland a wrong public holiday. In those two states - which would be out of step with the general community in those locations.

PN21

THE COMMISSIONER: I note it is Melbourne Cup Day and Royal National Show. Now, each of those, as I understand it, is confined to the metropolitan area; is that right?

PN22

MR RYAN: That is exactly right.

PN23

THE COMMISSIONER: I think Geelong have Geelong Cup Day, I think.

PN24

MR RYAN: That is correct.

PN25

THE COMMISSIONER: Yes.

PN26

MR RYAN: And Traralgon have Traralgon Cup and Seymour and so on.

PN27

THE COMMISSIONER: Upper Combuktah West have no local football team cup day, I suppose.

PN28

MR RYAN: That is right or the show day. And in Queensland they actually prescribe the local show days at the various districts throughout the state in Queensland. And the Brisbane Show Day or Royal National Show Day in Brisbane is confined to the Brisbane metropolitan area. So the problem for us arises, that those locations outside the Melbourne and Brisbane metropolitan areas that have their own local public holiday which are observed by the general communities of those localities, in lieu of Melbourne Cup Day and the Royal National Show Day respectively.

PN29

Now, if you follow the award as it is currently described at clause 31.1.3(b) and 3.1.3.(c):

PN30

Australia Post employees employed in locations outside the metropolitan areas of Melbourne and Brisbane will be observing a public holiday on Melbourne Cup Day throughout Victoria or the Royal National Show Day in Queensland unless the respective state Governments prescribed a local substitute holiday under clause 31.3.1.

PN31

In other words unless the state Governments prescribe a local holiday that a local holiday is in substitution for Melbourne Cup Day or the Brisbane Show Day the Melbourne Cup Day and Brisbane Show Day are the days that should be observed.

PN32

Now, is that happened Australia Post employees would be having a public holiday in those districts when the general community is working and Australia Post employees would be working when the general community would be observing a holiday. Now that unsatisfactory situation could not occur under the previous award. That is the pre-award simplification public holiday clause basically called up the - that clause basically called up the state Government proclamations or declarations in relation to the - - -

PN33

THE COMMISSIONER: So what this variation seeks to do is simply rectify something that was inadvertently inserted into the award simplification process. So you wish to go back to what was the status quo prior to the award simplification; is that correct?

PN34

MR RYAN: In terms of - not, quite because - in terms of the public holiday test case decision, what we had beforehand - and this is why we brought the Australia Post award into line with the public holiday test case - was that some of the substitution days for the Queen's birthday and Australia Day - - -

PN35

THE COMMISSIONER: Okay.

PN36

MR RYAN: - - - were - it is just a little bit different to - - -

PN37

THE COMMISSIONER: Yes.

PN38

MR RYAN: - - - what was prescribed previously in the Australia Post award.

PN39

THE COMMISSIONER: Okay, but in terms of the Melbourne Cup Day - - -

PN40

MR RYAN: Cup Day - - -

PN41

THE COMMISSIONER: - - - for instance and the Queensland National Show - - -

PN42

MR RYAN: Exactly. It would bring the award back into line with what existed exactly prior to the award simplification exercise.

PN43

THE COMMISSIONER: Okay, that is fine. Mr Keane?

PN44

MR KEANE: Thank you, Commissioner. The CEPU received a notice that the - intention to apply to the Commission to vary the award. Under our rules we put this matter out for a vote of the divisional executive across all the states. We just, yesterday - we concluded that vote in support of the application. It is our understanding, Commissioner, that the application seeks to confirm our long-held interpretation of what the award provided for especially in Victoria and Queensland. And it also seeks to confirm what we understand to be custom and practice. So we are not here to oppose the application, Commissioner, in fact we support the application. Thank you.

PN45

THE COMMISSIONER: Thank you, Mr Keane. Mr Evans?

PN46

MR EVANS: Thank you, Commissioner. The first point I would like to raise, Commissioner, and that is that the reasons put forward by the employer at this hearing in terms of employees working when the community is not is not one of the grounds that they have claimed in their application and it would be one that we would have a problem with given that there are several holidays that, particularly the public sector employees, have as award entitlements that are not observed by local communities throughout the year. And so - and it didn't appear in the application.

PN47

THE COMMISSIONER: It doesn't make any difference to the application though.

PN48

MR EVANS: It doesn't, Commissioner.

PN49

THE COMMISSIONER: No, Mr Ryan is taking a bit of licence in just expanding on the reasons for the - - -

PN50

MR EVANS: Well, we disagree with that - - -

PN51

THE COMMISSIONER: Okay.

PN52

MR EVANS: That particular reason put forward. In fact we disagree with most of the reasons put forward and we believe it does raise a question - the proposed variation - as to which holiday is observed. Using the words, or, would be possibly appropriate for the employer to indicate the process by which a holiday would be observed.

PN53

THE COMMISSIONER: How was it demonstrated in the past?

PN54

MR EVANS: Well, I was going to move on to that, Commissioner - - -

PN55

THE COMMISSIONER: Okay.

PN56

MR EVANS: - - - but in answer to your question I think Mr Ryan referred to local prescriptions and gazettals which again don't appear in the award as it stands or in the proposed varied award. And I think it does raise the question that - whether the employee gets to choose which holiday they are going to observe.

PN57

THE COMMISSIONER: But there must have been some process or some formula in the past that said, say, for instance, you are not entitled to the Queensland National Show Day because you are not in the metropolitan area. But if you are in Rockhampton, for instance, there might be some particular event up there which everyone took off and was recognised by Australia Post. So to identify that there must have been some recognition of that by the employees and Australia Post collectively. I don't assume it would have simply gone out for a vote; each employee select the day of their choice.

PN58

MR EVANS: I agree with you, Commissioner, but I don't see that - I guess I am just pointing out that the variation doesn't address that question. I was going to move on to saying that the CPSU position in relation to this application is that award entitlements should reflect custom and practice. And they have not - we have not been able to find instances of members observing both holidays, and whilst I invite the employer to discuss how the holiday might be observed, we don't oppose the variation.

PN59

THE COMMISSIONER: Right, thanks. Mr Nadenbousch?

PN60

MR NADENBOUSCH: We are in the same position. We don't oppose the variation, Commissioner. But I was just listening to what Australia Post have to say this morning about the way in which it is intended that the award change will apply and I think what was said was that the local equivalent would be by way of proclamation or gazettal, or words to that effect. Perhaps we can get that clear in a moment, because I notice that the change that is proposed in the application we have is, in the case of Victoria, expressed as being Melbourne Cup Day or local equivalent. It doesn't use the words proclaimed or gazetted. Whereas in Queensland - - -

PN61

THE COMMISSIONER: Yet it does in Queensland.

PN62

MR NADENBOUSCH: But it does in Queensland. And I am just wondering whether anything turns around the way in which - it was put this morning by Australia Post that the local communities would take the lead from whatever source was said - perhaps we could get that clear because I don't want to walk away from here hoping that we had clarified the situation because, as I said - - -

PN63

THE COMMISSIONER: Yes.

PN64

MR NADENBOUSCH: - - - we don't oppose this, but it is just to be clear about what was intended, that is all.

PN65

THE COMMISSIONER: Thank you. Yes, Mr Ryan?

PN66

MR RYAN: Commissioner, in terms of the actual wording that was used in the application to vary, we have really just, sort of, adopted that from the - some major awards, like, the Metal Industry Award - the exact words used in the Metal Industry Award. The local equivalent could be prescribed by gazette. In fact in examples I have been given - and there are only a couple in relation to Victoria - they are indeed prescribed by gazette.

PN67

THE COMMISSIONER: Right.

PN68

MR RYAN: So, you know, I mean, we could - we would have no objections to - really what we are trying to do is return to the situation that existed prior to the award simplification.

PN69

THE COMMISSIONER: What were the words in the award prior to the award simplification? I assume that there was no dispute over those words and they applied - - -

PN70

MR RYAN: No, basically, the - I have got the words here, Commissioner, but basically the words were that Australia Post employees - this is in relation to Melbourne Cup Day or the Brisbane Show Day or the local show day, would observe holidays as prescribed or proclaimed by the various state Governments or Commonwealth Governments or territory Governments and it was covered under that clause which I have here.

PN71

THE COMMISSIONER: So, what is wrong - if that clause, sorry, if that clause operated effectively, what is wrong with reinserting it?

PN72

MR RYAN: Well, it just doesn't - if you did that you would have to remove the specific holidays which are - there is one additional holiday prescribed in the test case standard.

PN73

THE COMMISSIONER: Right.

PN74

MR RYAN: And they are prescribed and I think that was the intention of the Full Bench when it, sort of, provided the, sort of, guidelines on the safety net standard which should apply to public holidays. And so a state or territory public holiday has to be prescribed. And that brings up the - basically, the eleventh public holiday including Easter Saturday, or 10 public holidays, excluding Easter Saturday. So, that holiday has to be prescribed. If we remove that holiday, if we actually put in the clause as was prescribed in the pre-award simplification, we would have to remove that specific - one additional holiday as prescribed for each state or territory.

PN75

We could add a couple of words to - or equivalent, as prescribed by the local council or municipal authority or state Government. We could add words like that, but as I say, we picked up the words that were applicable in other awards.

PN76

THE COMMISSIONER: Yes.

PN77

MR RYAN: So - and that is the way it was intended it would apply.

PN78

THE COMMISSIONER: It is just that there is a variation as Mr Nadenbousch has pointed out. I mean, you used the terms, Melbourne Cup Day or local equivalent but in dealing with the Queensland issue you say, or the day gazetted for the local show in the appropriate area.

PN79

MR RYAN: Well, I guess it is the way the respective state Governments - - -

PN80

THE COMMISSIONER: Proclaim.

PN81

MR RYAN: - - - proclaim the holidays. And I could show you the way they do it for the Brisbane Show Day. It is proclaimed by the state Government once a year and they have schedules of local show days as they apply to the various districts. It is a one-off proclamation that applies throughout Queensland. And I have it here to hand up. I can hand it to the parties.

PN82

THE COMMISSIONER: Right.

PN83

MR RYAN: So that is why it is a bit different than in respect of Victoria. In Victoria it operates differently and there is - I have also got a letter here from the Minister, I think, it is Industry Services, where he has written out to the CEOs of the various municipal councils and he explains to them that, you know, how they are supposed to declare the local cup day in lieu of Melbourne Cup Day. It is, Melbourne Cup Day, as I indicated, under the Victorian Public Holidays Act, only applies within the municipal area of Melbourne - Melbourne metropolitan area.

PN84

THE COMMISSIONER: Yes. Does that answer your query, Mr Nadenbousch?

PN85

MR NADENBOUSCH: Yes, look, I don't want to make a big issue over it, Commissioner, it was just the fact that my colleague expressed things in a particular way which didn't seem to be reflected in the application, on reflection.

PN86

THE COMMISSIONER: But the explanation - - -

PN87

MR NADENBOUSCH: Yes.

PN88

THE COMMISSIONER: - - - is that they do things differently in Queensland, which we all know anyway.

PN89

MR NADENBOUSCH: We know that, don't we?

PN90

THE COMMISSIONER: Yes.

PN91

MR NADENBOUSCH: Yes, that is right, that is fine. In any event, this discussion will be all on the record so there can't be any ambiguity about the intention.

PN92

THE COMMISSIONER: No. Mr Evans, what do you say? Does that - - -

PN93

MR EVANS: Commissioner, I think the Queensland way of doing things is the good way. If they were doing it in Victoria then - - -

PN94

THE COMMISSIONER: But the award can't prescribe the way in which a state Government should do things.

PN95

MR EVANS: No, Commissioner.

PN96

THE COMMISSIONER: Though we would like to, I suppose, sometimes.

PN97

MR EVANS: But it would appear then in lieu of any - I mean, it would appear that it would be appropriate if there was some table outlining what the local councils were doing, that be provided on an annual basis. It doesn't need to say so in the award - to staff, so they know which day they are getting, because as it is worded now, if they don't get a local equivalent, they take Melbourne Cup Day which would seem to defeat the purpose of the application from the employer's point of view. But we are happy with that process, Commissioner.

PN98

THE COMMISSIONER: Right. So in terms of Queensland, once Australia Post become aware of the gazetting of the various show days in the state of Queensland, you ask that they provide that to their employees; is that correct, by way of what - of notice?

PN99

MR EVANS: Through the unions as well, Commissioner, yes.

PN100

THE COMMISSIONER: Mr Ryan?

PN101

MR RYAN: I guess we would have no problems with that, Commissioner. I will impose that duty on our state colleagues in Queensland.

PN102

THE COMMISSIONER: Yes, I think they put one copy on the fax and then push a button that goes to everyone.

PN103

MR EVANS: That is right, Commissioner.

PN104

THE COMMISSIONER: If their index finger is a bit sore they can use another finger, I suppose. Yes, thanks. All right, there appears to be no objections to the variation that is being sought. It seeks to clarify what was in existence prior to the award simplification process. Mr Ryan from Australia Post has indicated that the words used try to identify the different processes used in Victoria and Queensland in determining what is the appropriate holiday outside the metropolitan area and within the metropolitan area.

PN105

The Commission is satisfied that the variation should be made. The variation shall - when does it come into effect? Have you got a draft order?

PN106

MR RYAN: I have Commissioner, I have a draft order to hand up and - - -

PN107

THE COMMISSIONER: Okay, I will have that. Well, the variation will come into force from today's date, 11 September and shall remain in force for a period of six months. No further business, the Commission wishes you all good morning.

ADJOURNED INDEFINITELY [10.56am]