C0083/498, Transcript of Proceedings [2001] AIRCTrans 2674 (4 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 1, 17-21 University Ave., CANBERRA ACT 2601
(GPO Box 476 Canberra 2601) DX5631 Canberra
Tel: [phone] Fax: [phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C No 834 of 1998

PRIVATE PATHOLOGY INDUSTRY (A.C.T.)
(INTERIM) AWARD 1996

Review under Section 51, Item 51,
Schedule 5, Transitional WROLA Act
1996 re conditions of employment

CANBERRA

11.32 AM, WEDNESDAY, 19 SEPTEMBER 2001

PN1

MR G. ANDERSON: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN2

MS M. STANKO: I appear on behalf of Capital Pathology.

PN3

THE COMMISSIONER: Thank you, Ms Stanko. Mr Anderson.

PN4

MR ANDERSON: Commissioner, since this matter was last before you the parties have met and we are in a position this morning to - there was a document produced by the Department dated March the 19th this year, and that is the document that the parties have been discussing. As a result of these discussions we have in the region of 20 plus changes. The parties are in agreement. There is no issue that we believe we will need assistance with in coming to agreement on. They are essentially typographical formats and in the case of personal leave the parties are in agreeance that we would prefer the clauses that come with stats rather to the Department's suggestion, so - - -

PN5

THE COMMISSIONER: It is not the Department's suggestion. This is the Award Simplification Unit of the Registry. The Department has got nothing to do with it.

PN6

MR ANDERSON: I stand corrected, Commissioner.

PN7

THE COMMISSIONER: Thank you.

PN8

MR ANDERSON: Yes, the Unit's, perhaps we can refer to them as, suggestions. So if you did have the time, Commissioner, we think it might be useful if perhaps in conference or whatever you think is appropriate we could go through these 20-odd matters, some of which are very minor, others which might require maybe five minutes discussion or something like that. If you did have the time this morning - - -

PN9

THE COMMISSIONER: Well, I think we have the time and I think I will stay on the record because otherwise we might forget what we have agreed.

PN10

MR ANDERSON: Yes, that is fine, Commissioner.

PN11

THE COMMISSIONER: So you can sit down. We will act as though we are in conference, but I will keep it on the record. Yes, go ahead, Mr - - -

PN12

MS STANKO: Commissioner, we concur with the course of action proposed by Mr Anderson.

PN13

THE COMMISSIONER: Right, thank you. So it is the draft of 19 March we are going through, so - - -

PN14

MR ANDERSON: That is correct, Commissioner. Perhaps if we lead off and you can supplement it if I miss something.

PN15

THE COMMISSIONER: Yes.

PN16

MR ANDERSON: On the title page, the first page, we make the point that the Private Pathology Industry (ACT) (Interim) Award is no longer appropriate. It should be - no, in fact that is not the problem.

PN17

THE COMMISSIONER: That is in there. It is in the award title. We have got to keep the title on the - - -

PN18

MR ANDERSON: Sure, I understand.

PN19

THE COMMISSIONER: Yes, right.

PN20

MR ANDERSON: So under award title then, Commissioner, instead of 2000 of course it is 2001. Over the page - - -

PN21

THE COMMISSIONER: Feel free to say anything you like, Ms Stanko.

PN22

MS STANKO: I just did not want Mr Anderson to lose his train of thought, Commissioner. I am just seeking a point of clarification on operative date. Whilst I note that there is a reference that there was a decision in transcript on 24 July, and this document is dated March 2001, should we perhaps be changing that?

PN23

THE COMMISSIONER: I think we might.

PN24

MR ANDERSON: So 24 July is changed.

PN25

THE COMMISSIONER: Once we have gone through it I think the decision will be remade and it will be made today and then we will pick an operative date for the actual commencement of the award.

PN26

MR ANDERSON: Okay. So on to page 2. We need some guidance here, Commissioner. Under part 7 there is a schedule A of respondents. Given this is a common rule award in the Territory, our immediate response to that is, well, there is no need for the schedule of respondents. But perhaps there is a need that we are not aware of. We would be guided by yourself, Commissioner, in this.

PN27

THE COMMISSIONER: Well, I would be reluctant to - generally when an award is made there are named respondents, then the award will be common ruled. Common rule declaration can be removed at any stage. That might not mean - it is not something that happens very often, but I would be reluctant to remove named respondents unless you actually want them for some reason out of the award. It is not unusual to have named respondents in a common rule award.

PN28

MR ANDERSON: Yes. Well, now we know, Commissioner, that is fine. At page three, at subclause 3.3, again there is the commencement date.

PN29

THE COMMISSIONER: Operative date.

PN30

MR ANDERSON: In definitions at 4.4 there is reference to the award to be, which of course would be 2001. All of that page. On page 4, under subclause 6.2, the second line, last word refers to the "agreement", and that of course should be the award.

PN31

THE COMMISSIONER: Sorry, which clause was that?

PN32

MR ANDERSON: 6.2, the second line, very last word is "agreement", and it should be award. I do not know how we imported "agreement" into the document there.

PN33

THE COMMISSIONER: I thought that was a standard anti-discrimination clause, so I do not know how it got in there either. We will check that.

PN34

MR ANDERSON: So we say it should be award and that is agreed. So that is all on page 4. We move to page 5, at 8.3.1, where in the second line there is a cross-reference to the termination of employment clause there should be a capital E at "employment", of course. So that is "termination of Employment". At clause 8.3.2 and 8.3.3, again we were simply curious as to why these should be two separate subclauses. I do not think it is a big issue first, but it can stand the way it can. But in the existing award it is just simply one subclause. If the unit has a preference for that, well, we will bow to the preference, Commissioner.

PN35

THE COMMISSIONER: They are the same clause, are they, in the award?

PN36

MR ANDERSON: Yes.

PN37

THE COMMISSIONER: Well, they should not be.

PN38

MR ANDERSON: So that is fine. We will take it that that is okay, Commissioner. Then the next subclause 8.4, in the second line there is "his/her" and we say that should be deleted and replaced with "the", so as it reads, "By reason of redundancy may determine the employment. Over the page, page 6, again the "he/she" thing at 8.7.1, in the second line there is a "he or she". We suggest the employee would be more appropriate, in the second line. And again in the fourth line of 8.7.1. And again in the second line of 8.7.2. That was all on that page. We go over to page 7 and 8.9, the employers would like, and we have no objection to the insertion in the second line, after "instant dismissal", including the word "malingering", then comma - sorry, I guess it would be "malingering or inefficiency". So it is the insertion of "malingering or". That was all on page 7.

PN39

THE COMMISSIONER: So it is "malingering or efficiency within the first 14 days"? So you can instantly dismiss somebody - I do not have a problem with it, but that is the way it reads and I want to make sure that that is what you mean. The redundancy?

PN40

MS STANKO: It is actually a difference, Commissioner, from the current award, in that the current award does not include the reference to, "within the first 14 days". The current award reads:

PN41

This clause shall not apply where employment is terminated as a consequence of conduct that justifies instant dismissal, including malingering, inefficiency or neglect of duty, or in the case of casual employees, apprentices or employees engaged for a specific period of time or for a specified task or tasks for a period of less than 12 months.

PN42

MR ANDERSON: What clause is that, can you just give me the number?

PN43

THE COMMISSIONER: That is the current award. I cannot see the actual point of the clause in the first place. Well, I can see the point of some of it. But if somebody's employment is terminated as a consequence of those matters, then they have not been terminated for redundancy.

PN44

MS STANKO: No, because the current definition says - it clarifies that it is less than 12 months, in which case they are not entitled to a package. If one has less than 12 months service and one is made redundant - - -

PN45

MR ANDERSON: Yes, there is nothing.

PN46

THE COMMISSIONER: Well, that is fair enough. I mean, it is not necessarily fair enough, I am not making any judgment about whether or not it is a fair clause, what I am making a judgment about is it works, right. It is quite reasonable to say, no one is entitled to a redundancy package in under 12 months employment. What is not reasonable is to say, where you have been terminated for something else, you are not entitled to a redundancy package. Because if you have been terminated for something else, you are not redundant, so why would you be entitled to a redundancy package.

PN47

MR ANDERSON: Yes, that is a fair point. I mean, it is superfluous in there.

PN48

THE COMMISSIONER: It just seems absolutely ridiculous, though it is probably a test case provision, something similar to it. I mean, the last part of it, which does not read properly anyway:

PN49

...and in the case of casual employees, apprentices or employees engaged for a specific time -

PN50

Or something. So what we are saying is, this clause shall not apply to casual employees, apprentices or employees engaged for a specified period of time or specified task or tasks. Now, that actually works. The other bit does not work.

PN51

MR ANDERSON: What, in the present award?

PN52

THE COMMISSIONER: Well, for a start, if you are terminated within the first 14 days, you would not be entitled to anything anyway, would you? We did have an argument about this, did we not? You would be entitled to time off or something or look for alternative employment.

PN53

MR STANKO: Commissioner, I have only just become aware too that what we have in front of us from the revised document does not reflect the drafting guidelines provided by the unit either, and we did not discuss it because we did not think it was of huge consequence. But it actually provides a second subclause:

PN54

Notwithstanding the foregoing provisions, trainees are engaged for a specific period of time shall, once the traineeship is completed and provided that the trainee services are retained, have all service, including the training period counted, in determining entitlements.

PN55

It seems to me to be a bit cumbersome for a lack of entitlement.

PN56

THE COMMISSIONER: Are you saying that is in the current award, that clause? I think we just go with what is in the current award, will we? I mean, it is stating the obvious in the first part and I suppose it is correct - I can only assume this is the TCR provision.

PN57

MR ANDERSON: Yes.

PN58

MS STANKO: It does not appear to be from the - I am referring to a document - - -

PN59

THE COMMISSIONER: What are you referring to?

PN60

MR STANKO: - - - "Guide to Drafting Awards" dated April '99 and it does not reflect that - - -

PN61

THE COMMISSIONER: It does not look like it.

PN62

MS STANKO: Would you like to have a look at it?

PN63

THE COMMISSIONER: Yes, could I have a look at it, thank you, Ms Stanko. Well, I do not know where the clause is in there - well, I can see where part of it came from - I do not know how it got to this stage. Is everybody happy for the standard test case clause to go in, or not?

PN64

MR ANDERSON: Yes.

PN65

THE COMMISSIONER: Which appears to be what Ms Stanko's got there? It is meaningless. You want malingering in though?

PN66

MS STANKO: I do not have a strong view, Commissioner?

PN67

THE COMMISSIONER: You do not have a strong view, Ms Stanko? Prepared to forego malingering? Only malingering in with the - these days anyway, I cannot see how it would apply personally in the case of a redundancy, and with the new legislation, if you sack somebody within 14 days and they are taken to have been on probation anyway, there is nothing they can do about it.

PN68

MS STANKO: I guess, Commissioner, our main concern was that there is the inclusion of, "within the first 14 days", in the current draft, that is not in the current award. And when you look at the impact of the timeframe being added here, it changes it somewhat. But if we are saying we go back to standard award - - -

PN69

THE COMMISSIONER: We will go to standard test case.

PN70

MS STANKO: Or standard test case, sorry.

PN71

THE COMMISSIONER: All right, we will go with the test case. All right, next.

PN72

MR ANDERSON: And that was all on that page. That was page 8. And at 9 - well, there is 9.3 and both Ms Stanko and myself are of a view that it should also include 9.4 and 9.5, which are in the current award at 4.4 - sorry, 4C, D and E. We would ask that these be included.

PN73

THE COMMISSIONER: According to our award simplification unit, statement of employment is not allowable and I do not know why 9.5 has been dropped. All they have suggested in relation to that is it should say, instead of "notwithstanding the provisions of 9.1.1", it becomes "notwithstanding the period of notice the employer shall have the right". So 9.5 can go back in, but according to the award simplification - and I will check it - decision, print number R2700 says it is not allowable.

PN74

MR ANDERSON: So E was back in with the appropriate change to the - - -

PN75

THE COMMISSIONER: Yes, the summary dismissal one should go back in.

PN76

MR ANDERSON: Yes. Again on page 8 at 11.3, the first line, there is reference to "sick leave", that should be "personal leave". And at 11.4 the wording is simply dropped out from the patent award and then the words "will not apply" make sense, so "will not apply". Then over the page there is nothing on 9, nothing on 10. On 11, the classification "technical officer" - well, that is at 12.1.7. In the second line there is reference to "30 September", that of course hopefully will be today's date.

PN77

THE COMMISSIONER: Well, whatever day we decide the award is going to commence.

PN78

MR ANDERSON: Yes. Then at "Grade 2", there is a couple of errors there. At the second last line there is reference to "Grade 2.1". That should in fact be 2.2, and then it reads:

PN79

And after 12 months satisfactory full-time or equivalent service and thereafter shall be paid at the grade of 2. -

PN80

What was the - - -

PN81

MS STANKO: 2.3.

PN82

MR ANDERSON: 2.3, yes. Yes, it has been changed by hand to "2.2". It should actually be 2.3. So that 2.1 in the second line becomes 2.2 and returned to 2.3.

PN83

THE COMMISSIONER: Are you sure about this?

PN84

MS STANKO: And delete the words "thereafter".

PN85

THE COMMISSIONER: Yes.

PN86

MS STANKO: Commissioner, if I can perhaps explain. I fluke picked up this area which I believe I made some time ago when the award was originally drafted. The movement in the salary scale for the grade 2, in practice and as it follows from the respective state award that it was originally drafted, is the same as in grade 1. If you look at grade 1, the second sentence:

PN87

A grade 1 employee shall be paid on commencement at grade .1 and after 12 months satisfactory full-time ...(reads)... the employee shall progress to 2.1.

PN88

Similarly, if you look at the grade 2, the current last sentence, it reads:

PN89

A grade 2 employee shall be paid on commencement at grade 2.1 and after 12 months satisfactory full-time or equivalent service -

PN90

It should read - delete the words, "and thereafter":

PN91

- shall be paid at grade 2.3.

PN92

As it read now, one jumps from 2.1 to 2.3, at 12 months service.

PN93

THE COMMISSIONER: Well, as it read there it does. As it reads in the award it does not. See, as it reads in the award it says:

PN94

A grade 2 employee shall be paid on commencement at grade 2.1 and after 12 months satisfactory full-time ...(reads)... and thereafter -

PN95

which should not be in there:

PN96

- shall be paid at grade 2.3.

PN97

It has got the three steps.

PN98

MS STANKO: That is what we have relayed to you. And where I am inaccurate is in saying that that was in the original award, it was in the previous draft then.

PN99

THE COMMISSIONER: Well, it might be in this draft, what is supposed to be under technical officer grade 2 is what is in the current award, is it not?

PN100

MS STANKO: Yes.

PN101

THE COMMISSIONER: What I just read, but with the words "thereafter" deleted.

PN102

MS STANKO: Yes.

PN103

THE COMMISSIONER: You do not expect a grade 2 employee to start on grade 2.2, do you, they start on 2.1.

PN104

MS STANKO: No.

PN105

MR ANDERSON: No.

PN106

THE COMMISSIONER: Yes, right. So the current award provision will replace that. I think something has just got dropped out. The bit between 2.1 and 2.3 has got dropped out, just by accident. Yes.

PN107

MR ANDERSON: Page 12 fine. The rates of pay shown from page 13 to 14 do not include the most recent national wage case.

PN108

THE COMMISSIONER: So that will be updated, yes.

PN109

MR ANDERSON: That has to be updated. And as a consequence of that 12.2.1 has also to be updated, so I am flagging that. It refers to the safety net review 2000. So that to be corrected. And that is all on page 15. 16 is fine, as is 17 and 18. Then we come to 19 and there is two things here. The protective clothing, I have a question mark there. The unit raised the issue of wording. Did you have something you had there?

PN110

MS STANKO: I will quickly find it. Commissioner, it changes the current award prescription and we believe it inadvertently perhaps changes the intent.

PN111

THE COMMISSIONER: What is the current award provision?

PN112

MS STANKO: Inadvertently not marked it.

PN113

MR ANDERSON: It is under the general conditions, I think. Yes, it is 7K(c) in the Treasurer's Report.

PN114

MS STANKO: "Where an employer requires an employee to wear protective clothing, the employer shall supply and maintain such clothing free of charge to the employee, by the employer laundering or dry cleaning such clothing". Our preference would be for that wording to be retained.

PN115

THE COMMISSIONER: I am sure it would, but we cannot do it. That is not allowable.

PN116

MS STANKO: Right.

PN117

THE COMMISSIONER: It does not deal with an allowance. It has got to be an allowance. Under the legislation, we are not allowed to make awards about things other than money, so in order to give a protective clothing provision, it has got to turn it around so that there is an allowance attached, or a reimbursement attached. However - and that is the main thing, but you can get away from paying it by agreeing to supply the clothing, but you cannot have a provision which just says, "You will supply clothing" or "You will launder clothing". It must be that, "You will be paid an allowance", unless - - -

PN118

MR ANDERSON: That is what the union - - -

PN119

THE COMMISSIONER: - - - you launder and provide the clothing. So it has the same effect, Ms Stanko.

PN120

MS STANKO: Yes.

PN121

THE COMMISSIONER: Employers who go ahead doing what they were doing under there, will not have to pay anything, but it has got to be in that form or else it is not an allowable matter.

PN122

MS STANKO: Our only concern had been by possible implication, an employee could perhaps think, "Well, you've required me to wear protective clothing. You shall reimburse me for the cost and maintenance, including laundry and dry cleaning".

PN123

THE COMMISSIONER: All right. So, all you say - what you are saying is currently the employer has to supply and maintain any protective clothing they want worn?

PN124

MS STANKO: And we want to retain that status quo.

PN125

THE COMMISSIONER: Right. Well, if they want to wear protective clothing - well, it does not matter what - - -

PN126

MS STANKO: It excludes it, Commissioner.

PN127

THE COMMISSIONER: It excludes it. The provisions of this clause shall not apply where such clothing is supplied and maintained. It is a matter for the employer. If the employer does not supply and maintain the clothing, then they will have to reimburse the employee. So as long they are doing it, the employee has got no argument. There is no suggestion they have to pay anything. It is just turning the - well, turning the emphasis around to make it allowable.

PN128

MS STANKO: Yes.

PN129

THE COMMISSIONER: I think - I can understand why you had a concern, but it is not - - -

PN130

MS STANKO: I understand.

PN131

THE COMMISSIONER: Well, you know, it is not a problem. And if anybody suggests that Ms Stanko notify a dispute, we will straighten them out, all right?

PN132

MS STANKO: Okay.

PN133

THE COMMISSIONER: Thank you. Okay, next.

PN134

MR ANDERSON: Right. Underpayment of wages, at 16.6. The employers were of the view that that was an outdated subclause given that people don't get paid by pay packet any more and we have no objection to it being deleted.

PN135

THE COMMISSIONER: I think it is a good idea. It looks a bit sort of old fashioned to me.

PN136

MR ANDERSON: Yes.

PN137

THE COMMISSIONER: Okay.

PN138

MR ANDERSON: Thanks for that, agreed to be deleted. And then we go to superannuation and that is okay. That takes us to page 23, hours of work - that is fine. Likewise, over the page, to clause 20, your overtime is fine. And the next thing I have got is at page 26, under 24.2, just a small error here. In the second last line on 24.2, there is a reference to clause 12.2. It should of course be subclause 12.2. And then we come to the personal leave, which is clause 25 in the document, and at 25.1.2, 25.1.3, we - neither of us are happy with the unit's suggestion there. We prefer the personal leave clause as it is presently in the present award, and our question, I guess, Commissioner, is this and is this a situation where the unit's - yes. Well, we have got to go that way.

PN139

THE COMMISSIONER: I do not think that is a problem, so long as your personal leave clause works.

PN140

MR ANDERSON: Yes. Well, I will have a look at - - -

PN141

THE COMMISSIONER: Where is it in the current award?

PN142

MR ANDERSON: Yes, at - - -

PN143

THE COMMISSIONER: If only - it would be a lot easier to find under the new award, these things.

PN144

MR ANDERSON: Yes, that is one plus of section 89, Commissioner, there is no doubt. It is 7B and 7C, and indeed 7D because it is the old sick leave, bereavement and family - so B and C - 7B and C.

PN145

THE COMMISSIONER: Okay. Well, can we - now, I will just see if there is any problem. No? Okay. Well, I do not have a problem with that, leaving it in there, except that it is not the accepted modern version, but that is fine. If you understand the way it is and it works, I do not have a problem with it at all. You are entitled to have what you want as far as I am concerned, as long as it is still referred to as sick leave, bereavement leave and family leave, fine. So we just put back the award provisions?

PN146

MR ANDERSON: Yes, yes, that is good.

PN147

THE COMMISSIONER: Was there - with the current - or with what was suggested by the unit, why did you have a problem with it?

PN148

MR ANDERSON: Well, the - - -

PN149

THE COMMISSIONER: Does it do the same thing or not? That is what I am trying to find out.

PN150

MR ANDERSON: Well, it depends how you read whether it does the right thing, Commissioner. Our fear was that the way it is written in the unit's suggestion, it confuses bereavement leave and sick leave, and the - and whether you can actually accrue. It casts greyness over whether you can accrue bereavement leave. Now, we know - we agree, you cannot accrue bereavement leave and that is very clear in the present clause, but we believe - - -

PN151

THE COMMISSIONER: You think it does not?

PN152

MR ANDERSON: - - - reading it, it makes out a grey area.

PN153

THE COMMISSIONER: All right. Well, I am happy with it because I found a lot of trouble with a lot of these personal leave clauses and trying to interpret them, so I prefer it the way it was all divided up into the various parts. Fine. So instead of personal leave, we go back to the old sick leave, bereavement leave and family leave.

PN154

MS STANKO: Commissioner, there is one point I am not clear of.

PN155

THE COMMISSIONER: Yes?

PN156

MS STANKO: In the detail provided by the unit, there is reference to carer's leave.

PN157

THE COMMISSIONER: Yes.

PN158

MS STANKO: And I do not believe we have a current reference to carer's leave in the award.

PN159

THE COMMISSIONER: That is family leave.

PN160

MS STANKO: I beg your pardon.

PN161

THE COMMISSIONER: See, these days, it is all personal leave - - -

PN162

MS STANKO: That is right.

PN163

THE COMMISSIONER: - - - and we have just personal leave, but we tend to say, "You can use so much of your personal leave, or sick leave, and you can use so much for carer's leave, or you can use so much for whatever else". So this is a lot clearer. We are leaving what is in there, in there, all right?

PN164

MS STANKO: Yes.

PN165

MR ANDERSON: Yes.

PN166

THE COMMISSIONER: Do you want me to call "family leave", "carer's leave"? Or are you happy with "family leave"? It is up to you.

PN167

MR ANDERSON: We are happy - well, family leave is - yes, we prefer family leave.

PN168

MS STANKO: Family leave is fine.

PN169

THE COMMISSIONER: Okay. The only reason I will over-rule that is if it causes problems with our award database. The term "carer's leave" is what they use now. This is so they can do searches and people can find the same provisions. I do not have a problem with bereavement leave and sick leave, and you are keeping yours separate whereas some people use them, as you know, for other things. But it may be that we have to change "family leave" to "carer's leave", and I do not think it makes any difference. It has the same effect and it applies to the same people.

PN170

MR ANDERSON: Yes. Good, okay. So, we are right there, are we? We move on from - perhaps it could wait, Commissioner. There is a problem.

PN171

MS STANKO: Sorry.

PN172

MR ANDERSON: That is okay, that is okay. Nothing on page 29 or 30, 31, 32, 33, 34 - that is it, Commissioner.

PN173

THE COMMISSIONER: That is it, then. All right. Well, in that case, subject to just checking those couple of technical matters which you will be informed if there is a problem, then as far as I am concerned, with those amendments, that is the award as simplified. Commencement date?

PN174

MS STANKO: We thought today.

PN175

THE COMMISSIONER: Are you happy for it to commence today?

PN176

MR ANDERSON: We are happy today, Commissioner.

PN177

THE COMMISSIONER: All right, then, commencement date will be 19 September. With any luck, we should be able to get it out within the next week or so because it has not got very many changes to be made. I will adjourn.

ADJOURNED INDEFINITELY [12.10pm]