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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 2, 16 St George's Tce, PERTH WA 6000
Tel:(08)9325 6029 Fax:(08)9325 7096
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT O'CALLAGHAN
C No 154 of 1998
SECURITY OFFICERS (WESTERN AUSTRALIA)
INTERIM AWARD 1996
Application under Item 51 Review Schedule 5
Transitional Workplace Relations and Other
Legislation Amendment Act 1996 re
Award simplification
PERTH
4.41 PM, TUESDAY, 9 OCTOBER 2001
Continued from 8.10.01
PN2473
THE SENIOR DEPUTY PRESIDENT: Good afternoon. Mr Ridley, I understand you are going to present me with your closing submissions.
PN2474
MR RIDLEY: That is correct, your Honour. I think Mr Clarke just wanted to hand up something as a matter of record.
PN2475
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Clarke?
PN2476
MR CLARKE: Yes, if I may, your Honour. I am sorry, I meant to do it yesterday. It is just one document in relation to the wages. It is the same rates applicable to ALHMW exhibit 3 and it is just the order that was issued for the wages by Commissioner Hoffman on 29 May this year.
PN2477
THE SENIOR DEPUTY PRESIDENT: I am sorry, Mr Clarke, you are going to need to help me. How does this relate to the matters in contention?
PN2478
MR CLARKE: For the award simplification process, what it is, is it indicates that the wages pertaining to the award have been increased in an order by the Federal Commission and it is basically to assist you with the document that the ALHMWU handed up which was their own calculations in ALHMWU3. And this just substantiates the rates in assisting you with the matter. Not that we dispute the rates with the ALHMWU but this was the actual Commission order reflective of those rates.
PN2479
THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Clarke. I still take it though that the parties are in agreement on the wage rates that are proposed for inclusion in this simplified award?
PN2480
MR CLARKE: Yes, as far as I am aware the rates are the - - -
PN2481
THE SENIOR DEPUTY PRESIDENT: Well, Mr Clarke, you are either in agreement or you are not in agreement.
PN2482
MR CLARKE: Yes, we are.
PN2483
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2484
MR CLARKE: We are in agreement and that is why I just wanted to hand this document up.
PN2485
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2486
MR CLARKE: To assist with the matter. I don't know if you want it marked as an exhibit at this stage.
PN2487
THE SENIOR DEPUTY PRESIDENT: Look, I won't mark it as an exhibit because I note it is simply a decision of the Commission. Thank you.
PN2488
MR CLARKE: Thank you. Thank you, your Honour.
PN2489
THE SENIOR DEPUTY PRESIDENT: Mr Ridley?
PN2490
MR RIDLEY: Thank you, your Honour. Your Honour, if my memory serves me correctly, what I didn't do in my substantive submission was to address the issue of redundancy pending what the other parties were going to put to you. It would now appear a matter of - for me now to put that to - those matters to you. And assert and seek to substantiate what we are seeking to have the TCR standard as we understand it to be factored into the award.
PN2491
THE SENIOR DEPUTY PRESIDENT: You would also need, I presume, Mr Ridley, to address me on why such a provision should be included in the award as part of the award simplification process.
PN2492
MR RIDLEY: Yes, absolutely, your Honour.
PN2493
THE SENIOR DEPUTY PRESIDENT: Given the submissions from the employers.
PN2494
MR RIDLEY: Very much so.
PN2495
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2496
MR RIDLEY: In reference clause 11 as proposed, the wording of that proposed clause is in fact the test case standard as determined in Print F6230 and the supplementary decision F7262. On checking the wording, I don't believe that any of that wording departs from that standard TCR clause. And so on that basis we would be putting it forward as being the test case standard. Now, in relationship to how this particular matters sits in relationship to the Principles and the Act, as has been put to you, your Honour, there has been some discussion in relationship to the applicability or otherwise of the national wage case Principles.
PN2497
What the union will be seeking to do is, briefly, of course, to go through those issues on the understanding that we believe that the award simplification Principles are paramount and that at best the national wage case Principles may have some relevance but at the end of the day it is the award simplification Principles that we believe should be prevailing above and beyond the determination of whether or not the TCR standards should go in the award or not. So it is like an alternate argument, if you like. I will deal very briefly with these national wage case Principles first. We have indicated that these Principles, at best, may have some guiding relevance but, as I said, it is the award simplification Principles that will prevail.
PN2498
In relationship to Principle 1, the role of arbitration in the award safety net, there appears to be an assumption that existing wages and conditions in awards protects employees, even though test case standards are not included. The existing wages and conditions in the Security Officers Award do not nor can they, in the union's opinion, constitute a safety net when what is a 16 year old test case standard or say a community standard is not incorporated. Although the existing award is defined as the safety net in - Principles 2 and 4 may it clear that the incorporation of a test case standard is neither above nor below the safety net.
PN2499
In reference to Principle 2, when an award or relevant agreement may be varied or another award made without the claim being regarded as above or below the safety net, and I make reference to B, to incorporate test case standards in accordance with Principle 4. And I don't think there is any doubt, any argument that the TCR provisions that are proposed in the award are, in fact, or is, in fact, the national test case standard. We will be saying in reference to Principle 3 that that is not relevant. In reference to 4, that clearly is relevant, as it determines what a test case standard is or makes reference to a test case standard. Principles 5, 6, 7, 8 and 9, we would be arguing as not relevant.
PN2500
In reference to Principle 10, that is making and varying an award above or below the safety net, once again I simply make reference to Principle 2. In reference to Principle 11, that is first of all an extension to an existing award, and I read the notable sentence from that, the relevant part of this Principle, and I quote:
PN2501
Any first award or an extension to an existing award must be considered with the Commission's obligations under Part 6 of the Act
PN2502
And we believe that clearly the obligations and responsibilities on the Commission in reference to award simplification is they flow from section 89 on and the WROLA Act in particular do clearly fall within the obligations of Part 6 and so we see no offence or no, if you like, conflict in terms of what we are seeking to have placed in the award with that particular Principle, even if it were determined to apply. In reference to Principle 12, economic incapacity, we wold be saying that given the paramountcy of the award simplification Principles and how it calls upon various sections of Part VI, we don't believe that that has any relevance at all.
PN2503
Now CCI have suggested along with, I think, with MSA that the TCR provisions should not be inserted but possibly some variation on the test case. If that is still the case, and I believe that from Mr Uphill's submissions, it seems that any proposal in reference to the changes that CCI are proposing will clearly fall outside the TCR standard and, therefore, under those circumstances, I think that falls outside the jurisdiction of this Commission in that regard, given the current application or the applicability of the award simplification Principles. I do note, and notwithstanding our submission that at paragraph number, I think it is 1944, that in fact CCI conceded the TCR standard does not fall foul of the national wage case Principles.
PN2504
Now, in reference to the award simplification arguments which we believe prevail in this matter, can I simply take, if I might, through what we believe to be the relevant Principles. In reference to - well, certainly, starting at page 31 of P7500, which is colloquially called the hospitality decision or the award simplification decision, at Principle 2, it indicates that:
PN2505
Awards will be varied so that they -
PN2506
the first dot point -
PN2507
act as a safety net of fair minimum wages and conditions of employment -
PN2508
which reflects section 88AB of the Act. At page 31 also, Principle 3:
PN2509
A simplified award is one which provides minimum working arrangements encompassing entitlements to pay and conditions and reasonable protections for both employees and employers in the accessing and granting of the entitlements.
PN2510
Then Principle 4:
PN2511
When varying an award pursuant to these Principles, the Commission will seek to ensure that at the end of the process, the award has the following characteristics:
PN2512
There are a number of dot points but one of the ones that we make reference to is that:
PN2513
It provides minimum entitlements for employees in relation to allowable award matters consistent with its safety net character.
PN2514
Reference has been made to Principle 8 at page 33 which indicates inter alia that:
PN2515
There is no requirement that an award contain provisions in respect of each of the allowable award matters.
PN2516
The union would contend that with regard to test case standard and in particular the - well, no, within test standards, TCR being a case in point, that reference, we believe, needs to be made to Principle 5 and the sixth dot point which reads: "Where appropriate the award" - etcetera, etcetera:
PN2517
... does not contain provisions that are obsolete or need updating.
PN2518
To try to understand what is meant by obsolete provisions and updating, it is obviously necessary to turn to pages 41 following of the hospitality decision, to get a sense of what is meant by obsolete provisions and updating. It indicates, the first paragraph under the heading, on page 41, item 49 - - -
PN2519
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, perhaps you could give me that heading, please.
PN2520
MR RIDLEY: Yes, I beg your pardon.
PN2521
THE SENIOR DEPUTY PRESIDENT: You see, I am sorry, but I am actually working off an internet version.
PN2522
MR RIDLEY: Sorry.
PN2523
THE SENIOR DEPUTY PRESIDENT: And I don't have the luxury of page numbers.
PN2524
MR RIDLEY: Certainly.
PN2525
THE SENIOR DEPUTY PRESIDENT: So I - - -
PN2526
MR RIDLEY: Okay, so we are going to - - -
PN2527
THE SENIOR DEPUTY PRESIDENT: - - - am following you with all due haste.
PN2528
MR RIDLEY: Okay. What was the - one of the major headings is items 49(7) and (8).
PN2529
THE SENIOR DEPUTY PRESIDENT: That is right.
PN2530
MR RIDLEY: We then go through a number of, if you like, sub-headings: Unnecessary Detail, Workplace Efficiency and Productivity, Facility of Provisions, Regular Part Time Work, Plain English, and then we come to Obsolete Provisions and Updating which are - you know, it is actually a few from the end of that.
PN2531
THE SENIOR DEPUTY PRESIDENT: Yes, I have it, thank you.
PN2532
MR RIDLEY: Thank you, your Honour. The first paragraph that follows that sub-heading is item 49(8)(d) of the WROLA Act, provides that:
PN2533
The Commission must review the award to determine whether or not it contains provisions that are obsolete or that need updating.
PN2534
Now, I will turn over the page, so that will mean about six paragraphs on - five or six paragraphs on. The decision goes on to say:
PN2535
In deciding whether an award needs updating consideration will need to be given to whether it has been varied to incorporate safety net adjustments and relevant test case standards. Examples of test case standards including those relating to -
PN2536
We understand that the enterprise flexibility provisions have been incorporated and accepted as so. There is dispute, as we know, over whether or not the personal carer's leave test case standards should be included. Of course, it is the union's submission that it should. I think there has been an acknowledgment that the national training wage wasn't appropriate. Parental leave. Superannuation, I will have to make further submissions on that as well. But at the bottom, we clearly have the nomination of the termination change in redundancy standard as being one which could well be considered and should be, in our opinion, considered as a matter for updating the award.
PN2537
If I was to follow this line of argument a little further, reference will need to be given to Print PR904 and 940. And if I may approach the Bench. At first instance, although I will making a couple of more references to this particular case, if I may ask your Honour to turn to page 4. And at first instance, what I would be submitting is that there is no doubt, and I don't think it is actually contested, that there is no doubt in the union's mind, and certainly on the basis of this decision, that the Commission in fact does have the power to update the award to insert a test case standard. And in this particular case it was not so much the insertion of the test case standard in toto, it was ensuring that the redundancy provision that was currently in the award in fact reflected the test case standard.
PN2538
That the removal of in fact the explicit exemption from the applicability of the TCR clause in that award, that is the exemption being of those employees subject to contract, would need to be excised from that clause so as to ensure that the award provision did reflect in toto the TCR provision.
PN2539
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, in the matter that you have provided to me, is Print PR904/940. Can you tell me whether Senior Deputy President Cartwright was simplifying an award that already contained a redundancy provision albeit an outdated one or was he simplifying an award that did not contain any reference to redundancy.
PN2540
MR RIDLEY: No, it did make reference to redundancy.
PN2541
THE SENIOR DEPUTY PRESIDENT: Thank you. Do you, as part of your submissions, draw any distinction between those two instances?
PN2542
MR RIDLEY: What I would seek to submit on that point, your Honour, is that Senior Deputy President Cartwright believed that it was incumbent upon the Commission to ensure that that award reflected the TCR standard as a process of the updating Principle or obligation as imposed by the award simplification decision. And that certainly the existence of a redundancy clause prior to award simplification is a matter that might be used to distinguish the applicability or otherwise of this case. But we would in fact be saying that the pronouncements of the award simplification decision in reference to updating is an obligation that I think is unavoidable and that this particular case simply re-affirms the view that there needs to be such a standard as part of the award that reflects the test case standard.
PN2543
Actually there is another case which I would also like to make reference to. And this is Print S5616. Now I think, I am pretty sure, S5616 has actually been handed up prior to today in a big bundle of documents that I would have handed over nearing the conclusion of - - -
PN2544
THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ridley, we have accumulated many big bundles of documents in this matter.
PN2545
MR RIDLEY: Yes. So - - -
PN2546
THE SENIOR DEPUTY PRESIDENT: But I take it you are referring to ALHMU8 which was a significant package of cases and awards - - -
PN2547
MR RIDLEY: Yes, that is right, your Honour.
PN2548
THE SENIOR DEPUTY PRESIDENT: - - - provided to me.
PN2549
MR RIDLEY: Now I didn't - because there are a number of relatively beefy documents, I didn't actually photocopy those again.
PN2550
THE SENIOR DEPUTY PRESIDENT: S5616 is a decision of Vice President Ross.
PN2551
MR RIDLEY: That is correct, your Honour. This case was an award simplification matter in relationship to the Industrial Catering, Cleaning and Incidental Services AWU and LHMU Award of 1988. The matter to which I would be making specific reference is page 20 of - well, it might be better to go paragraph numbers actually. Paragraph 83, 84 and 85. Where there is a discussion in relationship to whether or not the Commission did have the power to insert the termination, change or redundancy test case in that award in the context of item 51. And at paragraph 85 - - -
PN2552
THE SENIOR DEPUTY PRESIDENT: That, again, though, Mr Ridley, was a matter of updating an existing provision.
PN2553
MR RIDLEY: I think, your Honour, it was actually whether it could be incorporated de nova. I am certainly willing to stand corrected on that.
PN2554
THE SENIOR DEPUTY PRESIDENT: I am simply asking the question. I am not making an assertion.
PN2555
MR RIDLEY: No, my understanding was that it wasn't previously. There was no redundancy provision previously in the award. And at page 85 - - -
PN2556
THE SENIOR DEPUTY PRESIDENT: Paragraph 85?
PN2557
MR RIDLEY: Sorry, paragraph 85, the employers initially submitted that the Commission did not have power to insert the termination, change or redundancy test case standard into the award in the context of item 51 during the course of the hearing on 12 April 2000. Ms Fitzgibbon conceded, correctly in my view, that the Commission did have the power to update the award pursuant to item 51(7)(d) by inserting test case standards. And ultimately that is what Vice President Ross did. And I make reference to the award which is Print 23 - sorry, T3711, clause 13, which is where it can be seen the TCR standard has been incorporated into that award.
PN2558
THE SENIOR DEPUTY PRESIDENT: Now, Mr Ridley, can I refer you to paragraph 89 of Vice President Ross' decision. In that paragraph, he recounts that:
PN2559
During the course of the proceedings on 12 April 2000 I indicated that I would vary the award to insert the TCR standard but before issuing an order to give effect to my decision, I would re-list the matter to give the employers an opportunity to seek a section 107 reference in respect of their proposal. I will propose to adopt that course.
PN2560
I just wonder whether, firstly, you might care to comment on any such need for a section 107 reference and then I would simply be asking the employers whether were I to follow the approach adopted by Vice President Ross, the employers consider that I would need to give them the opportunity to consider such a 107 reference.
PN2561
MR RIDLEY: I think it is, from reading the decision, that the employers in that matter wanted to have a variation on - well, to in fact propose a change to the test case standard. And it is clearly, yes, you are correct, your Honour, to indicate that Vice President Ross certainly viewed that as a possibility and that the employers of course - it was open to them to make such an application. I will be saying a little later in my submission that in reference to what the CCI have proposed, which is clearly - sits outside the test case standard, that of course, such an option is open although clearly we don't believe, as I will later submit, that such proposed changes to the TCR standard are either warranted or necessary.
PN2562
THE SENIOR DEPUTY PRESIDENT: Thank you. Before you continue, Mr Ridley, Mr Uphill and then Mr Clarke, have you had the opportunity to look at Vice President Ross' decision in Print S5616?
PN2563
MR UPHILL: Your Honour, only very briefly while Mr Ridley has been going through the document. I couldn't offer a considered view other than certainly it would be seem on the face of it that a variation from a test case standard needs to be the subject of a section 107 reference so the President can decide whether the matter ought to be dealt with by a Full Bench.
PN2564
THE SENIOR DEPUTY PRESIDENT: Yes. If I can take that step further for you, Mr Uphill. The question that I want to put to you is simply were I to follow the approach adopted by Vice President Ross in this matter, does your organisation of employers then seek to ask for an opportunity to consider whether you wish to make an application pursuant to section 107 for a Full Bench reference?
PN2565
MR UPHILL: Your Honour, effectively we may be needing to make such a request, given that if that is the only way that our argument to vary the test case can be accommodated, then that would certainly be our request that such an application be made.
PN2566
THE SENIOR DEPUTY PRESIDENT: Thank you. I will be alerted to that opportunity in my deliberations. Mr Clarke, your position on that matter?
PN2567
MR CLARKE: I basically concur with Mr Uphill but having read that decision by Commissioner Ross, I don't have it before me, but I do recall the matter that - the matters pertaining to that decision, certainly we would need further hearings pertaining to the award simplification process that before your Honour today.
PN2568
THE SENIOR DEPUTY PRESIDENT: You see, Mr Clarke, there are two issues here. The first issue is whether or not the Commission should consider the insertion of the termination, change or redundancy standard into this award where the award doesn't currently have any such provision. The second issue is a quite separate one. And that is whether or not in the event that a termination, change or redundancy were to be put in, it ought or ought not reflect the standard provision. Now, the question that I am raising here is in the event that a decision in this matter determined that a provision should be included, I take Mr Uphill's position to be that the CCI would want an opportunity to consider whether a Full Bench reference was to be sought to allow the employers the opportunity to argue for a provision which differed from the Commission's standard.
PN2569
MR CLARKE: Yes.
PN2570
THE SENIOR DEPUTY PRESIDENT: They are two related but quite separate issues.
PN2571
MR CLARKE: Yes. We would certainly - I would have to speak to my clients about that.
PN2572
THE SENIOR DEPUTY PRESIDENT: Well, then, for the purpose of my deliberations following this hearing, I will take your position to be the same as Mr Uphill's and ensure that in one way or form I will provide the employers with at least the opportunity to consider whether or not they were to seek a section 107 reference in the event that a termination, change in redundancy provision were to be included in the award.
PN2573
MR CLARKE: Thank you, your Honour.
PN2574
THE SENIOR DEPUTY PRESIDENT: Thank you. That is not presuming any conclusion in terms of my decision but rather ensuring that a process is built into the exercise.
PN2575
MR UPHILL: Your Honour, I would certainly agree with the remarks you have made in terms of the summary of our position. And just to reinforce the view that I think we ought to put to you, and that is the timing of those two elements is fairly crucial, given the course that if there was a decision to insert the standard TCR provisions from a certain date and then a reference under section 107 be permitted to consider a variation from the TCR standard from other prospective date, would effectively render my clients in an enormously difficult position of having to comply with the TCR provision from a certain date pending the reference under section 107 to have that provision varied.
PN2576
The point I raise, your Honour, is that we would submit that the entirety of the issue should be dealt with rather than the possibility of differing operative dates on obligations for employers. I hope I have made myself clear.
PN2577
THE SENIOR DEPUTY PRESIDENT: You have, thank you, Mr Uphill. Mr Ridley, sorry I interrupted you.
PN2578
MR RIDLEY: No, that is fine.
PN2579
THE SENIOR DEPUTY PRESIDENT: But I thought it best to clarify that issue while we were discussing the vexed question of a redundancy provision.
PN2580
MR RIDLEY: Thank you, your Honour. I suppose I have a different way of, if you like, tackling the thrust of the employers' arguments in reference to seeking a deviation from the standard. And perhaps if I might - I would now like to make reference to what I also handed out in that bundle of documents some time ago. And that is extracts from four Federal awards and a State award. Now, some of these have certainly been made reference to in Mr Uphill's submission. But it is fair to say that clause 14 of the Security Employees Award, the Victorian award as simplified, AW7966143, is or, sorry, does reflect the TCR standard.
PN2581
That clause 4.5 of the Security Employees ACT 1998 Award as simplified which is SO157CRA; that clause 31 of the Security Industry New South Wales 1999, that is AW796356; and clause 47, Security Industry Award Northern Territory - sorry, NT, Northern Territory, 1987, all have the test case standard inserted into those awards. The principal point that the union is seeking to make by making reference to these awards is that there appears to be general acknowledgment, as I think should be, that there is nothing particularly different or substantively different in States or Territories in the way that the security industry operates.
PN2582
On an examination of each of those awards in full, I think most people will come to accept that there is a large degree of similarity between the provisions os those awards and the Western Australian award, both the State and Federal awards, as it turns out.
PN2583
THE SENIOR DEPUTY PRESIDENT: I wonder whether they all had so much difficulty in reaching agreement on their simplified awards, Mr Ridley?
PN2584
MR RIDLEY: Your Honour, having not been associated with those negotiations, if there were some, I couldn't possibly comment. So the essence here is that those four awards do incorporate the test case standards. That as CCI made reference to in their submission, so does the Queensland award. But of course we do acknowledge that there were specific provisions which we would be arguing clearly fall outside of the test case standard but are, nonetheless, apparent in the Queensland award.
PN2585
THE SENIOR DEPUTY PRESIDENT: Mr Clarke?
PN2586
MR CLARKE: Sorry to interrupt, your Honour. Are we hearing new submissions here or is this a rebuttal or what is Mr John Ridley presenting to the Court at this stage?
PN2587
THE SENIOR DEPUTY PRESIDENT: I understand Mr Ridley is endeavouring to respond to the arguments that have been put by both yourself and Mr Uphill to the effect that the award should not be varied to take account of the TCR or standard redundancy provisions.
PN2588
MR CLARKE: Thank you, your Honour.
PN2589
MR RIDLEY: Thank you, your Honour. But in any event, I think Mr Clarke may recall that I clearly reserved the union's position in reference to making more substantive submissions on the matter of redundancy. And that was clearly understood, I believed. Well, okay, let's have an argument about it.
PN2590
THE SENIOR DEPUTY PRESIDENT: No, Mr Ridley, you can continue, thank you.
PN2591
MR RIDLEY: Thank you. In reference to the differences or otherwise, a couple of the employer witnesses, when pressed, certainly those that were confining their attention to - sorry, not confining their attention to WA, certainly did make some - did have some general agreement with the proposition that in large part there was no substantial difference between how the security industry operated nationally or in individual States or Territories. But in any event, there was no such evidence led in relationship to - by the employers to put the view that there is something uniquely different or substantively different in WA from the rest of the security industry in Australia.
PN2592
In reference to some of the specific comments raised by CCI in reference to the TCR matters, the proposal was originally put that the insertion of a test case standard should in fact be subject to section 113. We believe that the union's prior submission have in fact covered that matter and suffice to say that we don't believe the section 113 variation is necessary and that it is enough to argue the application of the award simplification Principles for the incorporation of the test case standard. There were matters asserted by CCI in relationship to why or how the TCR standard should be modified. And reference is now made to CCI9 which is a decision made by Fisher J, I think, in 1984.
PN2593
What I would like to do is make reference to three different cases and each of those three cases in fact are just the different reporting of the original test case, the 1984 test case. The first case is Print F6230.
PN2594
THE SENIOR DEPUTY PRESIDENT: Do I have that decision amongst my wondrous batch?
PN2595
MR RIDLEY: No, no, your Honour, I am - - -
PN2596
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2597
MR RIDLEY: No, I don't believe you do. And I am just about to hand those up. Mr Ridley, I am going to call this batch of three decisions including an AILR extract ALHMU10 in the fervent hope that that is the exhibit number that I am now up to.
EXHIBIT #ALHMU10 BATCH OF THREE DECISIONS INCLUDING AILR EXTRACT
PN2598
MR RIDLEY: Thank you, your Honour. The essence, as I recall, of CCIs argument is that there would need to be an exclusion from any TCR clause inserted of those people that lose a job as the consequence of the end of or loss of contract by an employer. The purposes of referring to each of these three cases is to indicate that quite clearly - and I must point out that the TCR decision came after Fisher's J decision. In reference to F6230, pages 206 to 207 - - -
PN2599
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, again, my apology for interrupting you. Can I refer you back to the discussion that I had with Mr Uphill and Mr Clarke. And simply ask whether, if I were to indicate to the parties that in the event my decision in this matter was such that I determined that the test case provision should be inserted, I have indicated to Mr Uphill and Mr Clarke that I would give them an opportunity either by way of another hearing or by way of a specific reference in any decision, to consider whether or not they sought a Full Bench reference so as to argue for something other than the test case standard. Now, if I adopted that approach, then what I am suggesting to you is that it may not be necessary - - -
PN2600
MR RIDLEY: Sure.
PN2601
THE SENIOR DEPUTY PRESIDENT: - - - for you to present argument to me in this forum about a variation of the standard. Now, I am happy to hear argument from you but I do need to make it quite clear to you that I see the standard as being something that is within the domain of a Full Bench to deviate from. Unless there is agreement on a variation to that standard which the parties agree adequately reflects the specific circumstances in their industry. Now, agreement on such a variation in this particular award doesn't appear to be all that likely. And, hence, I am wondering whether it is necessary that you actually present submissions on whether or not a variation from the test case standard ought to be countenanced.
PN2602
Because I am indicating to you that either we will end up with an award that doesn't have a redundancy provision at all and, hence, is an award that your union can consider whether, in the future, it needs to make a separate application for the inclusion of such a provision or, alternatively, we will end up with an award where the Commission has foreshadowed an intention to adopt the standard unless any of the parties seek a Full Bench reference. And on that basis, I doubt very much that you need to present argument to me at this stage anyway on this question.
PN2603
MR RIDLEY: Certainly, your Honour. I am more than happy to truncate the submission. I suppose I am just trying to use every conceivable angle to make sure that there is less likelihood of an embracing of a section 107, given the arguments that we are seeking to put forward. That is all I am seeking to do. But I am happy to truncate the submissions in reference to any deviation from the standard.
PN2604
THE SENIOR DEPUTY PRESIDENT: Very well.
PN2605
MR RIDLEY: And just simply for the record, that also would be in reference to another matter that was raised in relationship to a deviation. And that is whether or not there should be an acknowledgment of past service. And that is something that obviously would be a deviation. But I am just simply raising that that is a matter that we would obviously not countenance very well.
PN2606
THE SENIOR DEPUTY PRESIDENT: Can I summarise your position, as I understand it, Mr Ridley. You are seeking that the award be varied as part of the simplification process to incorporate in its entirety the Commission's test case standard in relation to redundancy?
PN2607
MR RIDLEY: That is correct.
PN2608
THE SENIOR DEPUTY PRESIDENT: You are further foreshadowing that in the event that the employers sought to argue for a Full Bench reference, such that something other than the standard would be countenanced in this award, then that would be a matter that would be opposed by the union?
PN2609
MR RIDLEY: That is correct, your Honour.
PN2610
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2611
MR RIDLEY: If I may now turn to the response to the matters put forward by the employers in relationship to regular part time employees.
PN2612
THE SENIOR DEPUTY PRESIDENT: This represents your more traditional address in reply, I take it?
PN2613
MR RIDLEY: Yes, it does.
PN2614
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2615
MR RIDLEY: It does indeed. I recall CCI claiming that there will be a substantial increase in costs associated with part timers accessing overtime. I think one of the references might be - I think is PRP in 1945. And the other was, it is my understanding that from the current award provisions, there is no prohibition on a part time employee in fact accessing overtime. But in fact the employers failed to provide any evidence about what might in fact unfold if a regular part time employee were to in fact access overtime. There have been a number of assertions but there has been little or no substantive evidence to try to substantiate their view.
PN2616
The evidence is, I think, somewhat imprecise about what might be the effect on the current stock, if you like, of regular part time employees in relationship to overtime. I think until such time as there is a greater degree of consistency and regularity with regards to part time employees, and I talk about consistency of treatment, it would be, I think, somewhat unwise to just simply say or accept that the alleged impost of overtime for a regular part time employee, one, would be particularly significant and, two, if it were to be more regular than not, then of course that would lead both the employer and the employee into a situation where they could review as envisaged the type of or characteristics of that regular part time employee's employment.
PN2617
Because we see if overtime is simply that one off, that contingency stuff, then that is one thing. If, in fact, there is a greater degree of work that is being put towards a regular part time employee that may start off to have been overtime at first instance, but then if that can be seen to be part of a growing workload for that particular person, then that clearly would be a matter which would be rendered in writing as an amendment to - as envisaged by 9.2 of the proposed award. In fact I think it is probably what we might identify as the so-called irregular part time employee who would pick up any of this overtime work. But of course they would not be paid overtime rates.
PN2618
They, in fact, would be the people, certainly it is envisaged, it would be the casuals that we would be seeking to carve out in the new award that in fact are more likely to be picking up this overtime work. So I am not at all convinced by what is put forward as being a major inhibition to ensuring that regular part time employees have access to overtime. The issue in relationship to enabling regular part time work - the union is saying that part time work already exists and that the witnesses generally accept the concept of there being a distinction, if you like, between a regular pattern of work being experienced by some part time employees and by others what we might call as an irregular pattern of work.
PN2619
The thrust of what I am saying is simply that part time work exists. We are now trying to ensure that where that part time work does fall within the characterisation of the proposed clause 9, that those people are afforded that certainty and consistency that comes with that regularity and that for everyone else who clearly does not fall within that definition, people that we would otherwise have called casuals, that they be in fact rewarded accordingly. And if a casual employee under the preferred scenario ends up having a regular pattern work, then obviously that is something that may very well encourage the making of an agreement between employee and employer about setting that person or taking that person out of the casual pool into something that is more akin to the regular part time work mode.
PN2620
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, the evidence of Mr Drury was that the, from the employers perspectives, the costs associated with the employment of a regular part-time employee and a casual employee were very similar. The submissions from the employers might be summarised in part as expressing concern that if employers have to pay part-time employees overtime rates for work done outside of their regular work roster, then that could disadvantage those employees to the extent that they might not be offered that additional work.
PN2621
In the course of Mr Clarke's submissions, I put to him a range of provisions that have been included in various different awards and I just wonder whether you might comment for me on first of all the extent to which there is or is not a potential for the application of the overtime provisions to employees who are working in excess of their regularly rostered hours. And secondly, whether there might be alternatives that should be considered so as to eliminate any such risk.
PN2622
MR RIDLEY: I think it would be foolish for me to say that there is simply no potential that overtime applying beyond the regular hours worked either by a full-timer for that matter, or a regular part-timer may inhibit the work that they get. Having said that, though, it seems that we need to look at any pattern of overtime work that in fact would be emerging. If it's, as we understand, overtime is something that's - well, normally, I should say, is an issue of emergency, there's an unforeseen contingency. In those circumstances, if the security officer's on site and there, then, more than likely they will simply pick up the time just simply because they have to. There's no other person around to pick up the work.
PN2623
If where there is an army of casual people or part-timers as they're currently called, who are waiting at the end of the phone, then yes, of course there's always a possibility where there is enough lead time to fill that gap in the roster that that gap could have otherwise gone to someone on site or about to be on site. I think this is always going to be a difficult balancing trick between looking at what currently happens and whether we believe that overall it's fair and equitable in terms of the distribution of work and the remuneration that each of those people get under those circumstances as compared to perhaps a new regime as we're proposing or effectively proposing through the award clauses.
PN2624
I will simply say: yes, there is a potential, but I think it also will be heavily dependent on the nature of the overtime work that comes a person's way or doesn't come to a person. As I said, the emergencies are more likely to be covered by the person on site. Any other overtime, the more planned overtime is a consequence of annual leave or what have you. I suspect that the employer will have a range of different ways of ensuring those holes are plugged anyway and that wouldn't simply be overtime for anyone. In reference to the second part; that is, should we not be looking or exploring the possibility of, if you like, paying overtime at a different rate and possibly at a casual rate.
PN2625
That certainly does pose some fairly significant problems for the union because at the end of the day we don't see a great distinction between a full-time employee being offered overtime as compared to a regular part-time employee being offered overtime. The essence, I suppose, is that whether or not you are full-time or regular part-time, there is a consistency and certainly for whatever reason, it may be the preference of the employee, it may be circumstances, who knows, we don't really see any justifiable rationale why a regular part-time employee should in fact potentially lose out on what would be overtime pay remuneration, you know, where they were paid instead at the casual rate.
PN2626
I can certainly understand why your Honour feels that it is important to perhaps explore the issue, but it would be the union's submission that we cannot and would have great difficulty in seeing that there is any substantive difference between how one treats a full-timer as opposed to a regular part-time employee.
PN2627
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2628
MR RIDLEY: In reference to the proposed award clauses, I think it's been generally accepted that the clauses that are proposed that reflect the guts of the Workplace Relations Act are simply uncontested, or at the end of the day, I think it's accepted that the Commission is obliged to insert such clauses. And I think in general terms, reference to section 88(a), subsection (a) and (b) of the Act, looking generally at section 88(b), the further objects of the Act, 88(b)(3) I think is also another justification as to why we need to be incorporating such regular part-time employee provisions, and that is where it makes reference to the need to prevent and eliminate discrimination because of or for a number of reasons, but I would actually cite as being probably one of the reasons that comes from the witness testimony of Richard Whitworth, and that is of family responsibilities.
PN2629
He certainly made reference to there being some difficulties associated with the way that he was obliged to wait by the end of the phone and basically accept all work that came to him, which is quite clear that he in fact did for a long time, a long period of time where I think he indicated quite clearly that that posed some stresses and strains on what he had to do in reference to keeping his family. You know, feeling part of the family and ensuring that his family responsibilities were appropriately met. So I think that within the general parameters of part 6 of the Act and given the general prescriptions in relationship to the need to have some form of regulation of regular part-time employees and also being mindful of section 89(a)(4) where it clearly limits the Commission's powers in relationship to what it can do with regards to people's hours, but I also make reference, of course, and balance the constraints as imposed by 89(a)4) to those provisions of 89(a)(5).
PN2630
Now, all of these things when put together, in the union's opinion, do not prevent the incorporation of the remaining subclauses of 9.2. We believe that each of those subclauses - those contested ones being effectively 9.2.2, 9.2.3 and 9.2.5, although 9.2.5 I will come to later - are matters which certainly don't offend those initial sectors in part 6 and we believe are quite important in terms of ensuring that the overall implementation of a regular part-time employee clause can in fact work and our opinion, what working means is that everyone can be quite clear about what the responsibilities and obligations that are placed on them.
PN2631
We have heard in evidence that the tendency in the past, although we acknowledge that to some degree the practices have been improved to some extent, not committing things to writing can lead to not so much dispute but just simple uncertainty about people's terms and conditions of employment. And I think in today's age and given that a number of employers have lifted their game, so as to speak, in relationship to committing things to writing, appointment letters, terms and conditions of employment, things that one would think is just simply good operational or managerial practice.
PN2632
We are not asking for anything more than that. We are just seeking to ensure that there is a regime in place which does clearly outline the over-arching regime that an individual employee will be expected to work under. Now, in reference to once again the hospitality decision and the Principles, and I would say that these, simply making reference again to these Principles is a way of seeking to underline the general thrust of our arguments as to why such a clause for regular part-time employees should go in, and I think we have probably almost done these Principles to death, but I might just very briefly refer to them as Principle 2; the first dot point, where it simply makes reference to a safety net of fair minimum wages and conditions.
PN2633
I don't think there can be any real argument that since this reference to regular part-time employees in the Act, I think that it's more than reasonable to infer from that and the way that part 6 is worded that a fair minimum set of wages and conditions must incorporate some regular part-time employee clause. In reference to Principle 3, I think it's quite clear that what it's saying is:
PN2634
The simplified award is one which provides minimum working arrangements encompassing entitlements to pay and conditions and reasonable protections for both employee and employers in the accessing and granting of the entitlements.
PN2635
It seems to me absolutely essential that the matters identified in 9.2.2 are critical for the ensuring of that people can access and grant entitlements, that is, because they know exactly under what terms and conditions they're employed. They also know what the rosters are, or that they have been informed about those, the days, and that seems to be an integral part of both the employer and employee understanding, having committed to writing, exactly under what circumstances they're employed. In reference to Principle 4, the second and fourth dot points we believe are relevant.
PN2636
Principle 5, the sixth dot point. And then items 49.7 and 49.8. Page numbers, of course, are not overly helpful, your Honour. I understand that but that's simply the heading in relationship to regular part-time work. Now, Mr Uphill made reference to a number of the awards that I had actually reproduced TCR or redundancy sections for, and paying some close examination to those awards in reference to their regular part-time employee or like clauses revealed some interesting issues. In CCI4, which is the New South Wales award, now I think what I need to do is, because there were additional pages that I felt were necessary to take into consideration.
PN2637
MR RIDLEY: In reference to the New South Wales clause, there are a number of subclauses that make up what might be the regular part-time employee provisions. As far as I can see, they start with 7.7 and 7.9 because I think it's quite important to be looking at regular part-time employee or part-time, depending on the nomenclature, in whatever award it is, together with the casual employee definitions or provisions. I think it can be seen that clause 8.3 in large part reflects the union's proposed clauses. It also makes specific reference at 8.3.4 that there should be a clear distinction or demark between a regular part-time employee and that of a casual employee.
PN2638
11.2 further makes reference to casual employees, and I think that's particularly relevant in terms of not so much the content but that there is clear attention to assuring that there is an appropriate demarcation and there is therefore no slippage between the two groups, and that it clearly provides at 11.3 for the possibility of overtime being paid to a regular part-time employee. There are further provisions in relationship to casuals at 16.3 and then shift duration provisions at 17.2. CCI5, which omitted a particular page, and that is the Security Employees ACT Award.
PN2639
MR RIDLEY: Sorry, there is another side to that. The double-sided one that I'm now handing up. Effectively ignore the repeat. It's just the other side, the rest of that particular clause.
PN2640
THE SENIOR DEPUTY PRESIDENT: I take it that's part of the same exhibit?
PN2641
MR RIDLEY: Yes, yes. I just realised. Simply the purpose of handing up this is that we accept that CCI5 as put forward is that it's pretty much the union proposal but the only other thing that I would make reference to is that there is a casual employee definition which I think should be noted, together with reference to 6.2 and it does not appear to exclude the possibility of overtime being paid to a part-timer. CCI6 was the Northern Territory - an extract from the Northern Territory Award. Now, I think the interesting thing about this award is that it appears only at clause 9 and I'm not sure that that clause is actually incorporated in CCI6.
EXHIBIT #ALHMU13 EXTRACT FROM THE SECURITY INDUSTRY NORTHERN TERRITORY AWARD 1987
PN2642
MR RIDLEY: Actually, I think the version I got was, yes, it might have been. There may be some confusion on my part but look, in essence what clause 9 appears to do is that it only seems to provide for a weekly employee or a casual employee and I certainly couldn't find any reference to part-time, which seemed a little odd. CCI7 was the Victorian Award that in large part was pretty much the same as the union proposal in this matter. The Queensland Award - - -
PN2643
PN2644
MR RIDLEY: Yes, that's correct. Look, I acknowledge that it's within the State jurisdiction, that it's not subject to award simplification, but in reference to that specific issue of accessibility of part-time to overtime, if I simply draw the Commission's attention to clause 4.4.2, which provides for the possibility of overtime being paid.
PN2645
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I'm going to interrupt you just on a question of programming. I know time flies when you're having fun, but - - -
PN2646
MR RIDLEY: And we're all having fun, aren't we?
PN2647
THE SENIOR DEPUTY PRESIDENT: You did indicate to me that you anticipated that your submissions would take in the order of an hour and I'm aware that the time is now 5 minutes to 6. Can you give me an idea on how much longer and I will then multiply that by a factor of two and make an assessment as to how long we need to sit for?
PN2648
MR RIDLEY: Three quarters of an hour? It doesn't have to be doubled. Not doubled. Tripled, maybe, though.
PN2649
THE SENIOR DEPUTY PRESIDENT: Look, I'm going to go off record for a moment, please.
OFF THE RECORD [6.00pm]
RESUMED [6.03pm]
PN2650
MR RIDLEY: Very quickly, in terms of wrapping up the regular part-time employee matter. There was reference to Richard Whitworth, that he would have been better off financially or he's better off financially working under the current regime as opposed to the proposed regime and how we think it might fit his circumstances. I'm not suggesting he's clearly representative of all people but certainly because he was a witness. I think on any reasonable examination of ALHMU 5, it can be seen that there were periods where he was clearly - he would have fallen within the regular part-time category and that of course would have certainly netted him probably the same amount of money, but certainly would have allowed, I think, a greater degree of planning and consistency over a period of time.
PN2651
Then when one looks at the last month or so, I think even he would feel a lot happier if he had in fact been given casual rates rather than in fact been waiting at the end of the phone just to have an ordinary rate paid sort of once in a blue moon. I mean, it's very difficult and I'm certainly not seeking to pronounce a judgment on how people think and feel about these things, but I think over-arching, we need some overall framework for consistency and regularity and certainty and I think that most of the witnesses would simply agree that there is such a trend, there are such patterns in the way that they work a number of their employees and that in fact it wouldn't be something that would be so difficult to tolerate.
PN2652
There are a number of other matters now which I would like to go through and that's the Chubb-Westrail EBA and CCIs comments on that, personal leave and superannuation clauses and then just the respondency schedule, and then I will make some brief commentary to Mr Clarke's submissions. So you never know, your Honour. Okay. Turning first to the relevance or otherwise of the Chubb-Westrail EBA, which is ALHMWU. I think it's very, very important for us to be mindful of what section 95 says. It says that it does not have the power to include terms in an award and then it qualifies that.
PN2653
The power to include terms, of course, is quite distinguishable from taking cognisance of, and we would be arguing at first instance that the Commission is certainly in a position to take cognisance of this particular agreement because in any event, the union is not seeking to have the terms of that EBA incorporated into the award. It's maintained its stance on this on the basis that Mr Connell sought to make some mileage about the problems that would ensue if there was some regulation of part-time employees. All we're saying is that is in somewhat striking contrast to an EBA that Mr Connell in fact was the Principle Chubb negotiator for.
PN2654
Now, CCI made reference to print R7898, CCI8. I think what's interesting to note in this case is the union in that case was seeking to argue that the negotiated flexibilities in an EBA should be introduced as an award provision, and that can be seen at page 13 of the extract that was provided to the Commission. And that's under the heading of role and function of certified agreements and awards, and it's that second paragraph. But there was not a statutory imperative or prescription for what was argued there. In other words, what the union was arguing was not backdropped by item 51, for example.
PN2655
So what we're saying is that it is submitted that Senior Deputy President Marsh's statements in conclusion need to be examined with care and it's paragraph 80 at page 16. What the union is asserting is that where there is a statutory obligation and we know there is in reference to award simplification and the matters before us, 51.7:
PN2656
To review an award, the existence of provisions in a certified agreement which reflects in part or in full a statutory obligation is relevant and applicable.
PN2657
And further, the qualifications in section 95, that is, would not be inconsistent with Principles established by a Full Bench, and we know the award simplification decision is a set of Principles formulated by the Full Bench that apply in relation to determining wages and conditions of employment and would not be otherwise contrary to the public interest. So in reference to regular part-time employees, we know that there are explicit provisions in the Workplace Relations Act, that I think it is a reasonable interpretation of the objects of the Act together with part 6 to say that, well, any regulation of part-time employment would be seen to be generically consistent with the public interest.
PN2658
So although CCI might think my interpretation is somewhat fanciful, I think the reality is that at worst this case, all it does is perhaps limit what the Commission, limit the argument of the union to the paragraph that we can find on page 15 of that decision, pretty much sitting in the middle of that page, and I quote:
PN2659
It is not sufficient to proffer examples of certified agreement provisions as evidence that the industry as a whole has a need for it and therefore the award under review should reflect the provision.
PN2660
In essence we're saying that unlike this particular case, there is a legislative imperative, item 51, that such matters are incorporated into an award, that in this case it almost if you like reverses this automatic flow on, but in any event, in any event, section 95 allows for the potential for such a flow on if those two qualifications are actually met. 6 - no, I need to make reference to a number of specific clause issues now. In reference to clause 16.3.2, this is the matter as to whether or not we simply maintain the wordings proposed, that is, between the employer and the majority of employees, or we have the employer and employee - employers in brackets. A simple assertion in this regard is that we believe that - we are proposing that by using the phrase "majority of employees", that provides clear and unambiguous wording. There's only one person involved and obviously that person's a majority.
PN2661
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, can I seek clarification on that question. Do you see the words "majority of employees" as applying to the majority of employees who would be affected by any such change or do you see the words "majority of employees" as incorporating the majority of all of the employees of the employer?
PN2662
MR RIDLEY: It's very much the former. That is, those that are actually affected by the change. We certainly acknowledge that there has to be a distinction drawn from all employees from those that are actually affected by the change. And in terms of the general parlance used, we believe that the hospitality case at page 145, which makes reference to the wording in relationship to hours of work, and it's simply at 26.5 makes reference to the employer and the majority of employees. Clause 16.4.1. We don't believe there's any case made out to change 5 to 6 hours on both counts. We're reflecting the current award.
PN2663
If there were to be a change pursuant to 16.3.2, that is, where a 12-hour shift is actually implemented, then 16.3.2 clearly allows for the possibility of consequential changes been made in other arrangements and it could easily incorporate 16.4.1. In reference to callbacks, which is clause 18.1 - I simply say too that the proposed changes for 16.4.1 don't fall within award simplification Principles either. Nor, would we say, do the changes proposed for 18.1 and we believe that if anyone, if any employee is called back to work for any reason, then simply that should be seen as work and paid accordingly.
PN2664
At clause 22.2, I may have indicated before, but at 22.2, the fourth line, where it says 3 days, it shouldn't say 3 days. It should say 2 days. We weren't in fact attempting to up the ante on the number of days available, it was simply a typo.
PN2665
THE SENIOR DEPUTY PRESIDENT: I'm sorry. Can you just repeat that?
PN2666
MR RIDLEY: Of course. At clause 22.2, which makes reference on the fourth line to "augmented by a further 3 days of paid leave credits", that's in relationship to compassionate leave and the current award only provides for 2 days and so that 3 should read 2. And a quick history of negotiations. We initially had the carers test case in as a proposal. CCI some time ago requested that we change it and we changed back to what we now have. At the end of the day, what the union is seeking to have incorporated in the award is a provision which reflects either an identical wording or in substance the personal carers leave test case. And the reason that there has been, if you like, some fudging on that, your Honour, is that we had sought to get some agreement from CCI.
PN2667
This is quite some time ago now, and we in fact acceded to their request that we go back to the wording that's currently proposed. But the essence of our argument is that whether it be the identical words of the test case or identical substance, is what we're proposing. I do recall Mr Uphill indicating that if he were pushed, he would probably have a preference for, obviously with no disrespect to the Full Bench that determined the wording, that perhaps a more plain English version may be the way to go. Clause 28. That's the training clause. In essence, that's not a contested clause.
PN2668
We would be saying that we don't believe that the provisions of that clause would be offending the award simplification Principles or in particular what is allowable or non-allowable pursuant to section 89. Now, I actually do have, although it's probably not really necessary, sorry, I forgot this. The personal leave test case wording. I'm quite happy to hand this out. I'm sure we can recite it off by heart.
PN2669
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, you needn't hand out that document. From my perspective, you're very right. I'm getting very close to being able to recite it.
PN2670
MR RIDLEY: The next clause that I would like to make reference to is superannuation. Now, I would have to apologise for my lack of forthrightness on this particular matter. On checking the proposed clause, I am now quite confident that in fact this clause reflects the superannuation test case and I would like to make reference, if I may, to a couple of cases. I don't think we need to dwell on these matters, your Honour. I just think it's more a matter of record.
PN2671
THE SENIOR DEPUTY PRESIDENT: I will call this document ALHMU 14 and I will note that it's - - -
PN2672
MR CLARKE: Excuse me, your Honour. 15, I think it is.
PN2673
PN2674
PN2675
MR RIDLEY: And the page reference of ALHMU 16 is page 5. I think it's page 5. No, it's not, is it? Okay. What I seem to have done, I can't quite explain at the moment, in R7700, is there are two page 5s which are not the same. What I was trying to do was make reference to the test case standard that was being subsequently formulated in that case for the National Building and Construction Industry Award, which - the photocopier has blurred the image - but it's the next page following. Presumably it's not 5, it's 65. It doesn't really make sense, does it? 65 or 62 doesn't make any sense to me at all. Look, I apologise, your Honour. It seems to me that - - -
PN2676
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I suggest - - -
PN2677
MR RIDLEY: It could be 55.
PN2678
THE SENIOR DEPUTY PRESIDENT: - - - what might be appropriate is that you actually make your submission. In the course of my research into the matter, I will advise the parties that I will go back to the original decisions.
PN2679
MR RIDLEY: Certainly. I actually think it's probably 55 or 62, which would be the next couple of pages on, and that simply sets down the superannuation test case and that wording as depicted there is exactly the same wording other than I think simply the reference to what fund as we have in the proposed award. I have yet another example of a test case standard that our national office has provided but that in no way departs from what's either in the proposed award or what's basically incorporated into R7700.
PN2680
The net effect of all of this is that we would be simply asserting that as a matter of course, that clause 29 as proposed as a test case standard be incorporated, that we observe that in reference to the frequency of payment, one of the matters that's been of keen interest to the employers, that in the current award and in the test case, it makes reference to monthly and we of course would see absolutely no reason for there to be any change in what's proposed or in particular to the frequency of payment.
PN2681
The only other matter that I think is now left in reference to wrapping up my commentary on CCIs submission is in reference to the respondent's issue and I make reference to another roping-in award. And simply the purpose of raising print number PR908332 is to provide substantiation that there are two further companies to be incorporated into the list of respondents, being Tango Security and Maximum Security Corporation. To that end we have - - -
PN2682
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I will for the sake of completeness, I will give this an exhibit number and I will note that it's print PR908332 and I will call it ALHMU16.
PN2683
MR RIDLEY: 16?
PN2684
PN2685
MR RIDLEY: And following on from that and with thanks, sincere thanks to CCI, we have sought to propose a further amended list of respondents including Tango and Maximum but also incorporating what we understand to be the new addresses as indicated by underlining and prior to the underlined addresses, the crossing out.
PN2686
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, can I ask in relation to this ALHMU18, whether you or indeed either of the employer representatives, are in a position to advise me of whether these respondents are still in the business of employing people pursuant to this award?
PN2687
MR RIDLEY: What I can do with some confidence is indicate that, for example, when we're obliged to serve respondents of the award in terms of safety net adjustments, the RTS are the ones that we have now sought to change the addresses of.
PN2688
THE SENIOR DEPUTY PRESIDENT: Sorry, the RTS?
PN2689
MR RIDLEY: Sorry. Return to sender.
PN2690
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2691
MR RIDLEY: But I cannot say with any categorical assurance that each one of those are actually in the security industry as we speak and employing security officers.
PN2692
THE SENIOR DEPUTY PRESIDENT: In which case, can I foreshadow to you that my current intention is that when my decision is finalised in this matter, it's quite possible that that decision will address not just the issues that are in dispute, but various other possibly quite minor matters that are contained in the agreed part of the award. And I would propose that I publish that in the form of a draft order. There would be some parts of that draft order that would not be negotiable. They would be those parts that reflected my decision. But that I do that by way of a web page attached to the Commission's web page and that I would suggest that it might be appropriate that I write to each of the respondents identified in ALHMU18 so that those respondents have the opportunity to then present argument in the event that they consider that they should no longer remain a respondent to this award. Can I ask first of all whether, in your view, that would be an appropriate approach, Mr Ridley?
PN2693
MR RIDLEY: No, I don't fundamentally disagree. I think it's important, however, as you have indicated, that inviting respondents to provide arguments why they perhaps may no longer be a respondent can be a useful exercise. It's not dissimilar from our roping-in applications where - and we have been known to agree - where there has been some verifiable evidence that someone who we have logged and then sought to rope-in does not employ security officers. Therefore it's not appropriate for the award to cover them. And I use that term security officer obviously given the parlance of the award. And we would accept some assurances with some verifiable evidence that in fact that's the case and so therefore we wouldn't be pursuing in those circumstances a roping in of that particular organisation.
PN2694
I suppose we would have to be extraordinarily careful about where the onus of proof lies, and clearly it would be on that respondent and we would have to be totally accepting of the evidence that they provide, or not, as the case may be, before considering any removal from the respondency schedule.
PN2695
THE SENIOR DEPUTY PRESIDENT: Yes, I understand.
PN2696
MR RIDLEY: I would certainly treat the issue with some caution but I'm not simply fundamentally disagreeing with your proposition.
PN2697
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Uphill and Mr Clarke, would you have any objection to the approach that I'm foreshadowing in this respect?
PN2698
MR UPHILL: I don't have any difficulty with that approach, your Honour. Although I just wonder from when you write to the respondents and the respondent doesn't respond presumably because they're no longer in business what the implication is on their silence.
PN2699
THE SENIOR DEPUTY PRESIDENT: Well, there are two sorts of silence in that regard, Mr Uphill.
PN2700
MR UPHILL: Yes.
PN2701
THE SENIOR DEPUTY PRESIDENT: One might be a letter returned with no known address and the other might be the employer who chooses not to respond. As I see it, the employer who chooses not to respond is probably going to find themselves remaining a respondent to the award.
PN2702
MR UPHILL: I don't have a problem with that, your Honour. It's that respondent who no longer exists and presumably that would result in the letter being returned.
PN2703
THE SENIOR DEPUTY PRESIDENT: I would presume so. In which case I would also presume that it might well be the subject of a future conference involving the parties without any presumption at all about the outcome of that. Yes, Mr Ridley?
PN2704
MR RIDLEY: Thank you, your Honour.
PN2705
THE SENIOR DEPUTY PRESIDENT: Sorry, Mr Clarke. I presumed, Mr Clarke, that MSA would not be one of those firms in respect of whom I received a "return to sender" letter.
PN2706
MR CLARKE: You will, your Honour, because they have the incorrect address again. They predominantly have a habit of - LHMWU, of serving the address of Bannister Road and they know full well what the address of MSA Security is. Their organisers have - - -
PN2707
THE SENIOR DEPUTY PRESIDENT: Well, Mr Clarke, perhaps you could tell me now what address you want me to incorporate and change ALHMU18 to reflect?
PN2708
MR RIDLEY: Sir, I don't make the mistake, your Honour.
PN2709
THE SENIOR DEPUTY PRESIDENT: Mr Clarke, I'm going to let you continue your quest for the right address unless you have got it. Have you got it there?
PN2710
MR CLARKE: Yes, it's I believe, Unit 5, 567 Newcastle Street.
PN2711
THE SENIOR DEPUTY PRESIDENT: Unit 567 Newcastle Street.
PN2712
MR CLARKE: Unit 5, 567 Newcastle Street in Leederville.
PN2713
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Clarke.
PN2714
MR CLARKE: Just with ALHMU exhibit 17 I did attempt to contact, speaking of chasing people up at addresses, Men in Black Security and others. There are two entities listed in New South Wales and Senior - - -
PN2715
THE SENIOR DEPUTY PRESIDENT: ALHMU17 is the decision of Senior Deputy President Harrison?
PN2716
MR CLARKE: That's correct. I understand the dilemma, but I did advise Senior Deputy President Harrison pertaining to Men in Black Security, they didn't exist. However we proceeded anyway with that roping-in. Thank you, your Honour.
PN2717
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Clarke. Yes, Mr Ridley?
PN2718
MR RIDLEY: Thank you, your Honour. I suppose the only casual aside that I would make to the correction in the MSA address is that it corresponds with a number of other companies that have been referred to previously in the proceedings. Now very briefly if I may now just respond to Mr Clarke's submissions. My understanding is that in reference to both alarm reset and the First Aid allowance that MSA has effectively conceded that whether they - leaving aside arguments as to whether or not they fall within award simplification we will of course be arguing that they don't. Now there is simply no evidence to suggest that somewhat previous to these hearings that they should have been removed or were absorbed or removed, the making of the Federal award. So of course the union's submission would simply be that they were made.
PN2719
THE SENIOR DEPUTY PRESIDENT: Sorry, what clause was that, please?
PN2720
MR RIDLEY: I beg your pardon, I think it's 14.1.4 and 14.1. - sorry, 14.1.1 and 14.1.4: Allowances.
PN2721
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, my understanding was that with enormous reluctance and heartfelt grief - - -
PN2722
MR RIDLEY: That's right. They conceded that they should remain.
PN2723
THE SENIOR DEPUTY PRESIDENT: Yes. And Mr Clarke agreed they should remain.
PN2724
MR RIDLEY: That's right. And I was simply reinforcing that. The next issue very briefly is there's been a little bit of sort of polemic and rhetoric and posturing about the number of people, various organisations before you are representing and there was in MSA - where has it gone? In MSA 3 an interesting figure emerged. Just so as to give this a little bit more perspective I would just like to offer up the following document. The following document is a consequence of a request that I made of P.S. Coulthard of the Commercial Agents Squad.
PN2725
PN2726
MR RIDLEY: I do recall Mr Clarke making reference to a figure of around 11,000, that's fine I don't have difficulties with 10,800 being reflected at 11,000. But I think what is interesting is that the next sentence that follows the breakdown of that grouping within the statistics and that is that 75 per cent of those people have 3 year licences and they could not give me any indication as to of that 10,800 who in fact might still be operating as security officers. Really I think the issue of who represents whom and who has the most authority or weight I think has pretty much been dispensed with in the comments that you have made, your Honour, from the Bench. But suffice to say that - - -
PN2727
THE SENIOR DEPUTY PRESIDENT: Yes, the hordes of independent security officers representing themselves behind you speaks for itself.
PN2728
MR RIDLEY: That's correct, your Honour. There have been some, what I might suggest as being quite inappropriate remarks made about the union's activities or otherwise, its competence or otherwise. But I'm not here to defend my performance at all. I am somewhat concerned about some of the comments made in reference to Jenny Testa's witness testimony and I would simply like to say that we stand by her evidence. It is clearly reflective of what she honestly believes that she has seen and experienced in dealing with hundreds of members over the last 2 to 2-and-a-half years, that in fact not only has she been dealing with member issues, she also deals with non-members.
PN2729
But I think that her witness testimony in fact has not been undermined to any large degree although that's sought to be done. And I think that a lot of the commentary that she's sought to provide to the Commission gives us a view and I think quite a comprehensive view in reference to our members about what they experience on a day to day basis and the difficulties that they face. There's been quite unwarranted and unnecessary reference to this 120 hours, 160 hours and I did check the transcript on that. I think overall the points that Ms Testar has made, and that was subject to my final submission so I feel no reason to reiterate those. But I would simply be asserting that notwithstanding the comments that we would be fully endorsing and supporting the commentary that she's given under oath.
PN2730
Now, Mr Clarke certainly covered a lot of the ground that Mr Uphill has and I feel absolutely no desire or there is no necessity for me to repeat myself in reference to what I either said in my final submission or what I have said today. Now I'm just quickly checking. Yes, I suppose I have one comment to make in reference to the payment of wages and that - I'm almost loathe to make mention of this but I suppose I was a little bit disturbed to have what appeared to be such an intractable view expressed in reference to an employee. I assume that person is still an employee of MSA who appears to be a Muslim.
PN2731
The point that I would simply make there is that if an employee does nominate a bank account one would assume that under those circumstances that an employer, a responsible employer would simply say: well, okay, that's your nominated bank account, we will simply pay the money into that. I think the posturing associated with that example is somewhat unfortunate notwithstanding the somewhat topicality of the - - -
PN2732
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, I took Mr Clarke's example to be nothing more indeed trusted to be nothing more than an example where an employee may nominate an account to which the employer has difficulty paying. Now, Mr Clarke, am I wrong in that regard?
PN2733
MR CLARKE: No, you're not, your Honour.
PN2734
MR RIDLEY: Well, clearly if that's an example of where there is no bank account then I would have to accept that.
PN2735
THE SENIOR DEPUTY PRESIDENT: Thank you.
PN2736
MR RIDLEY: Excuse me, your Honour. Look, your Honour, I think having covered all the substantive matters that had been raised by Mr Uphill and Mr Clarke, the only one thing that I might add is in reference to there being no evidence of any employee losing out, I think that's once again been covered by your comments, your Honour, in relation to what have been clearly a number of unfortunate corporate failures over the last 12 months or so. But I did make reference to a company that in fact was a respondent - is/was a respondent to the Federal award being New Breed which in fact was liquidated and it took with it effectively $1.2 million of group tax and superannuation from our members, or a number of our members.
PN2737
So I think the reality is that corporate failures will happen and I would simply yet again underline the need for there being a more regular payment rather than an irregular payment in reference to those with the view that perhaps, perhaps the losses that are incurred are more likely to be a month and possibly not 12 months. And that's just simply reflective of your views yesterday. On that note the union would conclude its submissions.
PN2738
THE SENIOR DEPUTY PRESIDENT: Mr Ridley, just before you do, I have one question and I almost hesitate to ask it because it relates to a matter which is agreed between the parties. But I am interested to know with reference to the proposed clause 12.2 being wage rates in the document ALHMU7. Which of the classifications is proposed as the key classification for the terms of the minimum rate adjustment envisaged by the Principles and for what reason is that particular classification proposed as the key classification? I'm not necessarily expecting that you would answer the question given that is, I hope, an agreed matter.
PN2739
MR RIDLEY: Yes. Yes, it is.
PN2740
THE SENIOR DEPUTY PRESIDENT: So long as someone provides me with that information.
PN2741
MR UPHILL: Your Honour, if we make reference to Commissioner Parks' decision of 28 April 1993 - I beg your pardon, your Honour.
PN2742
MR RIDLEY: Sir, as I think I indicated earlier on that decision sets down how each of the classification levels relate to the Metal Workers bench-marked classifications. The level 1 then is nominated as being at 87.4, level 2 is 91, level 3 is 93.5 and level 4 is actually nominated as level - sorry, is 96 per cent with the C10 rate as we understand it to be obviously 4 per cent above that level 4 rate.
PN2743
THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Ridley, I take it that closes your case?
PN2744
MR RIDLEY: Yes, it does, your Honour.
PN2745
THE SENIOR DEPUTY PRESIDENT: Thank you. Look, I can advise the parties that I'm going to reserve my decision in this matter. As a result of a number of other arbitrations that are proceeding over the next few weeks it may be into next month before I can provide the parties with a decision. Can I also advise or put you on notice that I currently propose producing a decision which addresses the matters that are in dispute and upon which I have heard submissions in this particular case. I would also propose to address the matters that are the subject of agreement contained in ALHMU7.
PN2746
In the event that I propose any changes to the agreed positions then I would do so by way of a draft order giving the parties the opportunity to advise me of whether or not they disagree with the changes that are proposed by the Commission. It seems to me that as there are some issues in the award upon which you have reached agreement it would be inappropriate for me to change that agreement unless I gave you the opportunity to indicate why it was that you had come up with those particular words. As I have indicated earlier, the matters that are the subject of my decision would not be produced in draft form for the parties to comment on. No doubt you will comment in any event.
PN2747
Can I also indicate that obviously a significant amount of work has gone into this particular arbitration and I acknowledge and appreciate the parties forbearance in terms of the difficulty we have had in scheduling the matter including but not limited to today. Thank you for your assistance in that regard. On that matter I adjourn these proceedings.
ADJOURNED INDEFINITELY [6.53pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #ALHMU10 BATCH OF THREE DECISIONS INCLUDING AILR EXTRACT PN2598
EXHIBIT #ALHMU11 CCI4 NEW SOUTH WALES AWARD PN2637
EXHIBIT #ALHMU12 SECURITY EMPLOYEES ACT AWARD 1998 PN2639
EXHIBIT #ALHMU13 EXTRACT FROM THE SECURITY INDUSTRY NORTHERN TERRITORY AWARD 1987 PN2642
EXHIBIT #ALHMU14 SECURITY INDUSTRY CONTRACTORS AWARD PN2644
EXHIBIT #ALHMU15 PRINT L5100 SUPERANNUATION TEST CASE DECISION PN2674
EXHIBIT #ALHMU16 PRINT R7700 PN2675
EXHIBIT #ALHMU17 PRINT PR908332 PN2685
EXHIBIT #ALHMU18 REVISED LIST OF RESPONDENTS PN2686
EXHIBIT #ALHMU19 DOCUMENT REQUESTED FROM P.S. COULTHARD, COMMERCIAL AGENTS SQUAD PN2726
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