C2001/5431, Transcript of Proceedings [2001] AIRCTrans 3430 (6 December 2001)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEEGAN C

C2001/5431
C2001/5438
C No 00402 of 1999
C2001/5439
C No 00132 of 1999
C2001/5440
C No 00416 of 1999
C2001/5441
C No 00659 of 1999

AMWU (ACT GOVERNMENT SERVICE) AWARD 1998

SURVEYORS AND ENGINEERS ACT GOVERNMENT SERVICE AWARD 1985

AUSTRALIAN GOVERNMENT EMPLOYMENT PERMANENT PART-TIME WORK (MEWU) AWARD 1988

MEWU ARTISAN GRADES (ACT GOVERNMENT SERVICE) AWARD 1991

ARCHITECTS, TOWN PLANNERS, QUANTITY SURVEYORS AND INTERIOR DESIGNERS, ACT GOVERNMENT SERVICE AWARD 1999

Application by Australian Capital Territory
to vary award

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

CANBERRA

2.09 PM, THURSDAY, 15 NOVEMBER 2001

PN1

THE COMMISSIONER: Yes. I will take the appearances just for the record.

PN2

MR T. O'SHEA: If the Commission pleases, for the Australian Capital Territory.

PN3

MR S. RAMSEY: If the Commission pleases, for the AMWU.

PN4

MR P. SEAL: If the Commission pleases, for the Transport Workers Union.

PN5

THE COMMISSIONER: Yes, Mr O'Shea.

PN6

MR O'SHEA: Commissioner, on the last occasion in the absence of Mr Seal or any other representative of the TWU we deferred this matter for a couple of weeks, and it is probably just as well because on Tuesday we received correspondence from the National Industrial Officer of the Transport Workers Union regarding matters that had actually been not adequately dealt with by the draft order that had been presented. I have since prepared a draft order which should alleviate any concerns the TWU has. I understand from discussions with Mr Seal immediately prior to this matter that it is still for consideration with the TWU, but I believe and he can confirm this that he would be prepared to accept that the amended draft order be adopted as a draft today with the TWU being given seven days to assess its adequacy. If the Commission pleases.

PN7

THE COMMISSIONER: Yes. So have you got a draft order, Mr O'Shea?

PN8

MR O'SHEA: Yes, Commissioner. I will mark it. Will be ACT1.

EXHIBIT #ACT1 DRAFT ORDER

PN9

MR O'SHEA: The specific matters that are additional to the draft order that you saw earlier are the preservation of the pre-existing entitlement to excess fares and travelling time in the employment conditions Award. Also a call up of the on call and standby provisions in the excess fares and travel time award and a specific provision which is found in the transport supervisors award which relates to the extent to which employees are able to gain access to their sick leave entitlements for carers leave purposes. Transport supervisors award by clause 8(c) provides access after a date in 1996 to accrued entitlements with no limit of five days as presently occurs for other employees that are under the GSO award where they call up the relevant personal carers leave provision of the employment conditions award. So that is an exception which we seek to preserve in schedule C of the GSO Award. Commissioner, that concludes my submissions.

PN10

THE COMMISSIONER: Yes, thank you, Mr O'Shea. Mr Seal.

PN11

MR SEAL: Commissioner, the Transport Workers Union supports the submission of the Australian Capital Territory and we also accept that there are some conditions in those two awards that have been set aside that are unique to those particular awards and have been accepted by the Australian Capital Territory to be included in this particular draft order. However, Commissioner, we would seek that this order remain a draft order for some seven days in order to allow us to actually go through both those awards and thoroughly check the conditions and entitlements against the General Service Officers Award. Thank you, Commissioner.

PN12

THE COMMISSIONER: Mr Seal. Mr Ramsey?

PN13

MR RAMSEY: Commissioner, I probably should correct what I said before. As this applies to the GSO Award technically I probably do appear for the CPSU as well with respect to that award, but other than to do that I have no submissions about the order. Both the unions I appear for are happy with the order as proposed.

PN14

THE COMMISSIONER: All right. Thank you, Mr Ramsey. Mr O'Shea, NUW?

PN15

MR O'SHEA: Commissioner, I believe on the last occasion this matter was before you you had in hand a letter from Mr Stevens saying that they consented. The NUW have been provided with a copy of the revised draft order by email. I have not yet had any response, negative or positive, from that quarter. Commissioner, I just might say that once the order is finally made in this matter then there are two applications to set aside awards T157 and T181 and we also say that the two associated item 51 review matters are also dispensed with by the action to issue the order in amending the GSO Award. If the Commission pleases.

PN16

THE COMMISSIONER: Yes. Well, I will make the order ACT1 in the terms set out. I will allow seven days for a final checking, but unless some party gets in touch within that seven day period to raise some problem with the order the order will take effect from 22 November. Yes, Mr O'Shea.

PN17

MR O'SHEA: Commissioner, I appear for the Capital Territory in this matter.

PN18

THE COMMISSIONER: We will take the appearances being given from the last time, Mr O'Shea.

PN19

MR O'SHEA: Yes, Commissioner. These applications stem directly from the previous application 2001/5432 which amended the GSO Award to accommodate the categories previously covered by the subject awards. In that case, Commissioner, given that - well, on the basis that the TWU signifies that it is satisfied that its issues are covered by the variation to the GSO Award we say that it is an appropriate step then to - in support of the parties intentions to substantially rationalise awards in the ACT Government sector to set aside the awards. If the Commission pleases.

PN20

THE COMMISSIONER: Thank you, Mr O'Shea. Mr Seal?

PN21

MR SEAL: Commissioner, we support the application.

PN22

THE COMMISSIONER: Thank you, Mr Seal. Mr Ramsey?

PN23

MR RAMSEY: Yes, Commissioner, we support the application.

PN24

THE COMMISSIONER: Yes. Well, both awards will be set aside conditional upon the other order in the previous matter being made. The order setting aside each award will be made with effect from the same date. And that does dispense with the two item 51 reviews of those two awards.

SHORT ADJOURNMENT [2.17pm]

RESUMED [2.27pm]

PN25

THE COMMISSIONER: Yes, Mr O'Shea.

PN26

MR O'SHEA: Commissioner, I made brief submissions on the last occasion this matter was before you which summarised the objectives of the parties here. One is to meet the obligations of item 51 in relation to a number of awards which will be superseded by the new award. One is to effect a great significant rationalisation of awards covering ACT Government employees. The other is to put in place an award which covers allowable matters and to also give effect to a greater rationalisation of the code of conditions which govern these employees relative to other ACT public sector employees. So you will see, Commissioner, that the form and content of this award goes quite a deal - mirrors in many ways awards that have already been brought to this Commission for simplification and rationalisation. And that is all I wish to say having made submissions earlier in the case. I have provided a copy of a revised draft award to your associate electronically.

PN27

THE COMMISSIONER: Yes, I have got a copy of that. Is the date on it - it was provided on Tuesday and it has got a draft without prejudice 15 October, is that right, on the front of the award? It does not matter, Mr O'Shea. I think it must be it.

PN28

MR O'SHEA: That would be correct, Commissioner. One thing I might point out, Commissioner, is that in terms of item B2.3 in schedule B the question of preserving the current entitlement to pay of employees of the awards which are superseded by this award does require the rates of pay in the most recent safety net to be reflected in the award, at least by reference to the relevant print number and the date of that print. So you will notice that the award that has already been converted has that information, that is, you can refer to that print number to know what the rates of pay ought to be, or the minimum rates of pay ought to be for employees who are covered when that first award was converted. Similarly, for the remaining three awards it does require the safety net print number and date to be inserted to be effective, Commissioner. But otherwise, I understand from the AMWU that they are happy with the draft. If the Commission pleases.

PN29

THE COMMISSIONER: Thank you, Mr O'Shea. Mr Ramsey?

PN30

MR RAMSEY: Indeed, Commissioner, the AMWU is happy with the draft. I spoke to Mr Whitehead this morning. All the matters that prevented us from finalising the matter last time it was before yourself have been dealt with with the ACT Government and just subject to us all being satisfied we have all got the same draft we would support the application.

PN31

THE COMMISSIONER: Thank you. I have never seen government spelt so many different ways in one award in my life, Mr O'Shea, just in the heading. Never mind. What I intend to do is make an award in the terms of this draft and the award will take effect from 30 November. That will allow plenty of time to check the rest of the spelling throughout the award if not a few other more substantive - right. That is that one done. And I will issue a very short decision in writing at the time I make that award. Yes, Mr O'Shea.

PN32

MR O'SHEA: Commissioner, these applications follow on naturally from the making of the new award in matter 2001/5431. Commissioner, it may be necessary to discuss with your associate what the final form of the orders are. It would appear that in relation to what was the MEWU's Permanent Part-time Work Award there may have been some confusion in previous renamings of that award or in previous orders. I think I may have to come into chambers at some stage or another and sort through with your associate what the form of those orders ought to be in the next few days. But given that the new award is not to be made until the end of this month that gives us sufficient time to sort out the confusion there. But in relation to the Artisans Award, the Surveyors and Engineers Award and the Architects and Others Award the making of the new award provides the opportunity for those awards to now be set aside, or to be set aside after the making of that award. Just at the same time, Commissioner, there are a number of associated item 51 matters which the Territory says can now be dispensed with.

PN33

THE COMMISSIONER: With 5439, the one you need to talk about the actual title of the award, you still want it set aside though once we have discovered what it is we are setting aside?

PN34

MR O'SHEA: Yes.

PN35

THE COMMISSIONER: We believe it is the ACT Government Service AMWU Award, do we? It seems and odd name. 1988, is that right?

PN36

MR O'SHEA: Well, Commissioner, I have just put the problem in my terms is that we seem to have lost - we seem to have lost the MEWU Part-time Work Award and that is the one we have always intended to set aside. But there seems to be some tortuous path being set up by the renaming and renumbering of these awards.

PN37

THE COMMISSIONER: I see.

PN38

MR O'SHEA: Commissioner, it might be possible for us to perhaps make a submission in writing in relation to this matter.

PN39

THE COMMISSIONER: I do not think that is a problem, Mr O'Shea. I made an order on 9 February which deleted the words "Australian Government Employment" and inserted "ACT Government Service" and I deleted "MEWU" and inserted "AMWU", but it should now read "ACT Government Service (AMWU) Permanent Part-time Work Award".

PN40

MR O'SHEA: Well, if there is no difficulty there, Commissioner, that is good.

PN41

THE COMMISSIONER: Well, unless some other award has been made, or some order has been made since that order on 9 February. It does not appear to have.

PN42

MR O'SHEA: And, Commissioner, you are looking at award 805155, is that correct?

PN43

THE COMMISSIONER: I am looking at which award, Mr O'Shea? 805153.

PN44

MR O'SHEA: Okay, Commissioner. In the notification, Commissioner, application 5439 was notified to be in relation to the Australian Government Employment ACT Government Service (AMWU) Award 1988 and that is what caused me confusion. But if you have found the award, Commissioner, and it corresponds to that application and that award number that relieves me of any confusion.

PN45

THE COMMISSIONER: I just think at some stage when I made my order on 9 - I think the order is right. I think it has been translated into the award incorrectly if the permanent part-time part of it has been dropped. That is all. You had something to add to assist, Mr Ramsey?

PN46

MR RAMSEY: No. I fear I am going to muddy the waters greatly, Commissioner.

PN47

THE COMMISSIONER: Good. Go ahead.

PN48

MR RAMSEY: The material that Mr Whitehead has provided me refers to the award as the Australian Government Employment Permanent Part-time Work MEWU Award 1998 which is the one that you have just - - -

PN49

THE COMMISSIONER: 1998?

PN50

MR RAMSEY: 1998.

PN51

THE COMMISSIONER: But it was 1988.

PN52

MR RAMSEY: It would have been 1988. It is the one you have just identified that the order of 9 February changed.

PN53

THE COMMISSIONER: 2001 changed the name.

PN54

MR RAMSEY: But the award number I have been given is 765684.

PN55

THE COMMISSIONER: 765684. Yes. Well, that is what got printed out as AMWU - sorry, Australian Government Employment ACT, but then - when we change the name it gets a new AW number. There you go. So as a result of my order of 9 February it got a new AW number and is now 805153, AW 805153. However, our system seems to think that it is called the ACT Government Service AMWU Award 1988. It is not. It is called the ACT Government Service Permanent Part-time Work (AMWU) Award 1988. We did not change the date since we were only changing the title. All we did was change the title to reflect that it only applied to the ACT Government Service and that the MEWU was now the AMWU. But, as I said, our system I think might not have picked it up properly so we will correct that. But that is the award we want set aside and it will be set aside.

PN56

MR O'SHEA: Then all is clear.

PN57

THE COMMISSIONER: Thank you. All these awards will be set aside with effect from the same date as the making of the new award, 30 November.

PN58

MR O'SHEA: Thank you, Commissioner.

ADJOURNED INDEFINITELY [2.34pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACT1 DRAFT ORDER PN9