C0082/698, Transcript of Proceedings [2001] AIRCTrans 3467 (11 December 2001)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C No 00826 of 1998
C No 90459 of 2000
C2001/5433
C2001/5445

PUBLIC SECTOR UNION (AUSTRALIAN CAPITAL TERRITORY HEALTH) AWARD 1992

Review under Section 51, Item 51,
Schedule 5, Transitional WROLA Act 1996
re Conditions of Employment

Application by Australian Capital Territory
to vary award

AUSTRALIAN GOVERNMENT EMPLOYMENT CLERICAL
ASSISTANTS, KEYBOARD AND OTHERS, SALARIES
AND SPECIFIC CONDITIONS OF EMPLOYMENT AWARD 1985
CPSU (SALARIES AND CONDITIONS OF SERVICE) ACT PUBLIC SECTOR AWARD 1998

CPSU (SALARIES AND CONDITIONS OF SERVICE)
ACT PUBLIC SECTOR AWARD 1998

Application by Australian Capital Territory
to vary award

CANBERRA

12.20 PM, MONDAY, 26 NOVEMBER 2001

PN1

THE COMMISSIONER: Could I just have the appearances on these particular matters. I know we have had them before, but I will take them again. It is easier than asking for changes.

PN2

MR T. O'SHEA: If the Commissioner pleases, I appear on behalf of the Australian Capital Territory.

PN3

MR S. RAMSEY: May it please the Commission, appearing for the CPSU with JENNIFER TRACEY.

PN4

MR G. STANNARD: I appear for the Minister for Employment Workplace Relations in relation to the Australian Government Employment Clerical Assistants, Keyboards and Others, Salaries and Specific Conditions of Employment Award. Also in relation to that award, the Managing Director of the Australian Fisheries Management Authority. And the other award I appear in relation to is the Public Sector Union Australian Government Statutory Authorities Award 1990 and that is for the Minister for Employment Workplace Relations and Small Business.

PN5

THE COMMISSIONER: But in this particular matter, Mr Stannard, you appear in 90459, the Australian Government Employment Clerical Assistant's Keyboard, is that right?

PN6

MR STANNARD: That is correct. Yes.

PN7

THE COMMISSIONER: Mr O'Shea, or is it Mr Ramsey?

PN8

MR O'SHEA: Commissioner, we are the applicant. The key application in this case is C2001/5445 to be followed up with C2000/90459. Commissioner, the first matter has been before you on two previous occasions: on 1 and 15 November. I can now state that the parties have reached agreement on the form of order to vary the CPSU's Salaries and Conditions of Service ACT Public Sector Award in relation to inserting certain classifications which presently appear in the Australian Government Employment and Clerical Assistance Keyboards and Others Award, and in relation to the preservation of certain employment conditions in the last mentioned award, Commissioner. There was an issue between the parties in relation to what provisions ought to apply for custodial officers in relation to special or protective clothing, in particular, and that matter has been settled between the parties by agreement.

PN9

Commissioner, also it needs to be pointed out that while the CPSU ACTU Public Sector Award is principally a 36 and three quarter hour week award for day workers, custodial officers are 38 hour week workers and it is necessary to make sure that the hours of work provisions of the award are appropriately expressed, and we have had discussions with the CPSU this morning about how that should occur and that is going to be reflected in a draft order which is to be handed up to you shortly. I might also point out to you, Commissioner, that in bringing in such classifications as technical officer and custodial officer into the CPSU ACT Public Sector Award, we will be converting the rates of pay from paid rates awards with incremental scales to properly fix minimum rates which are in accordance with the safety net adjustments of the Commission up to and including the May 2001 decision.

PN10

Commissioner, I will hand up a copy of the revised draft order. Commissioner, the order is relatively straightforward in that it inserts rates of pay for technical officers and custodial officers in clause 15. It inserts a provision relating to the advancement of trainee technical officers who are juniors. It varies the hours of work provisions and pin points four, five and six and it supersedes the Australian Government Employment Clerical Assistant, Keyboard and Others Salaries and Specific Conditions of Employment Award 1985. Commissioner, in relation to those parts of item 51 of the WROLA Act concerning the preservation of the previous rates of pay of people who are covered by the Clerical Assistants Award at the present time, item B(8), which has a deficient title of which we can fix, indicates that the rates of pay of those persons covered by that award at today's date will be the rates that were inserted by yourself just recently when the 2001 safety net was applied to those classifications.

PN11

Commissioner, the application then goes on to insert some specific provisions for custodial officers which are not shared by other categories of employment in a special schedule and those conditions relate to meal breaks, an overtime allowance for custodial officer grade 4, and a special protective clothing provision. Commissioner, in relation to C2, the overtime allowance, that allowance has been updated in accordance with the principles in the glass industry award - sorry, the glass industry decision in relation to the movement of pay related allowances with increases in the key classification in the award, Commissioner.

PN12

In relation to other conditions of employment which were peculiar to classifications covered by A299, the application also includes a schedule D, which applies to provisions first aid allowance; a stretch of shift provision, intermittent motor drive duties, employees working in cold temperatures and of oxy-based substances. Commissioner, in relation to the first, third, fourth and fifth of those items, the parties have agreed to express those entitlements in terms of the same entitlement that is found in the General Service Officer and Related Classifications Award to provide for greater uniformity of employment conditions across the ACT Public Sector Commission.

PN13

Unless the Commission has any questions on that, that is the extent of my submissions. except to say that once the decision is made in C2001/5445 then it is appropriate for the territory to be taken out of A299 to leave it to the Commonwealth respondents and for them to be responsible for the item 51 review of that award, if the Commission pleases. I also note, Commissioner, that the two matters listed today in relation to the Australian Capital Territory Health Award are to be adjourned pending the employer finalising action to put in place a public sector management standard which will preserve the non-allowable elements of dental assistance, salary advancement and when that has occurred, Commissioner, the territory will apply for these matters to be re-listed.

PN14

THE COMMISSIONER: Thank you. Mr Ramsey?

PN15

MR RAMSEY: Thank you, Commissioner. We are happy with the application as handed up this morning by Mr O'Shea and we support that application. There are two matters though which I do need to deal with which are related to the movement of the custodial officer award classifications into the CPSU Award. If I could hand up some documents that the parties have agreed to put on the record about that matter. Commissioner, they are essentially an exchange of correspondence, but because the letters were emailed and they are not signed I have also provided for the file, a copy of the emails that are attached to those letters. Commissioner, the first is a letter from myself to Ms Junakovic of the department where we agreed on the - a proposal to insert the clause that has been put into the application that Mr O'Shea has handed up.

PN16

The relevant parts really are further down where we have agreed that we will put on file the matter of record two matters. One is with relation to the clothing allowance where the parties state that:

PN17

It is understood by the parties that clothing, whether provided or reimbursed, will be consistent with the terms of the JAC's Dress Manual issued from time to time by directive.

PN18

The award clause that will go in talks about reasonable cost. The parties agree that indeed the manual that is issued by directive and is applied

PN19

is the appropriate standard for determining what is reasonable. The other matter, Commissioner, there was an award entitlement for a civilian dress allowance that historically we ascertained only ever applied to one individual and somewhat eroded, or lost in the mist of time, Commissioner, as to how that came about. But, you will see the second paragraph, or the next paragraph, states:

PN20

The parties acknowledge that the custodial officer for civilian dress allowance is and has always been relevant to only one particular employee. It is not the intention of the employer to reduce the current award entitlement of that employee with respect to that allowance and the employer undertakes not to do so. It is acknowledged by the parties of the way in which that entitlement might be provided, is, and has been periodically agreed between the employer and the employee concerned.

PN21

Now, the second letter is the letter from Ms Junakovic back to myself where you will see in the third paragraph, she states:

PN22

The department also agrees to the items for inclusion and the proposed letter is a record to indicate that uniforms provided are as per the dress manual and that the civilian dress allowance is only for one particular custodial officer.

PN23

Now, there is not a single letter, Commissioner, but we would put to you that those letters combined on the record make clear the intention of the parties on the basis that the employer gives the undertaking with respect to that one employee the award entitlement has not been carried over into the CPSU Award. The union is satisfied that it is and only ever was payable to that one employee and is not a general standard. It is not paid to any other Custodial Officer 4. In fact I understand there are not any other Custodial Officer 4s, but in any event, those two letters, Commissioner, constitute the agreements between the parties and we would like those put on the file as a matter of record. As I say, Commissioner, because they are not signed and indeed Ms Junakovic's is not dated. That is the reason I have included the emails that are attached to those letters in the bundle that has been given to you. Commissioner, unless you have anything further, that is all I have.

PN24

THE COMMISSIONER: Thank you, Mr Ramsey. Mr O'Shea, have you got anything to say about those letters?

PN25

MR O'SHEA: Yes, Commissioner, I have had discussions with Mr Ramsey and Ms Junakovic about this and the exchange of letters accurately reflects the intentions of the parties and explains the reasons behind the form that the draft order now takes.

PN26

THE COMMISSIONER: Thank you. You mentioned a heading that needed some change in your draft order, Mr O'Shea, and I gather - - -

PN27

MR O'SHEA: Yes, Commissioner, B(8) at the top of page 2 I think should be titled, "Preservation of Pre-existing Wage Entitlements". That would probably be adequate.

PN28

THE COMMISSIONER: Right. And the safety net adjustment you are referring to was done on the last - was that done separately, Mr O'Shea? Was that done on the last occasion?

PN29

MR O'SHEA: Commissioner, that was done on 15 November.

PN30

THE COMMISSIONER: It was the 15th.

PN31

MR O'SHEA: And the C number evades me at the moment.

PN32

THE COMMISSIONER: Right. Okay. Thank you, Mr O'Shea. Mr Stannard, you do not have a role in this particular application because the Commonwealth was never part of it.

PN33

MR STANNARD: No, but later on I do.

PN34

THE COMMISSIONER: Yes. Thank you. Yes. Well, I am prepared to make an order in the terms of the revised draft handed up by Mr O'Shea today with the amendments that we have referred to and ensuring that the print number of the safety net adjustments is included in B(8). Is there a date of effect that is of any significance to this particular?

PN35

MR O'SHEA: Well, Commissioner, without wanting to speak on the Commonwealth's behalf, we are here today and we requested this timing - - -

PN36

THE COMMISSIONER: So, this can be do done as of today, could it not?

PN37

MR O'SHEA: Yes, indeed.

PN38

THE COMMISSIONER: It could?

PN39

MR RAMSEY: Yes, Commissioner.

PN40

MR O'SHEA: And in particular - - -

PN41

THE COMMISSIONER: And we will worry about the Commonwealth later?

PN42

THE COMMISSIONER: - - - if we could finalise - - -

PN43

THE COMMISSIONER: Removing the ACT?

PN44

MR O'SHEA: That is correct.

PN45

THE COMMISSIONER: Yes.

PN46

MR O'SHEA: In 90459 of 2000.

PN47

THE COMMISSIONER: Which is something we can do after we have done this?

PN48

MR O'SHEA: Yes.

PN49

THE COMMISSIONER: Yes. All right. Well, I will make that order and will have effect as of today's date 26 November 2001. Now, yes, you have already recorded on C 90459 of 2000 which is the application which you referred, Mr O'Shea, to remove the ACT from the Commonwealth Award AO299. Right? Or is it?

PN50

MR O'SHEA: Yes, Commissioner, it is. An amended draft order was handed up to you on 15 November.

PN51

THE COMMISSIONER: Right. This is the one that says, "Provided this award does not apply to the ACT", etcetera?

PN52

MR O'SHEA: That is correct.

PN53

THE COMMISSIONER: And you are not pursuing the earlier application which was to take the classifications out?

PN54

MR O'SHEA: No, Commissioner, that was on the basis that an earlier understanding between the Commonwealth and the Territory that the Commonwealth may actually vacate that award, but a lot of water has flowed under the bridge as far as that is concerned since then.

PN55

THE COMMISSIONER: All right. Mr Ramsey?

PN56

MR RAMSEY: That application is fine with the CPSU, Commissioner.

PN57

THE COMMISSIONER: All right. Mr Stannard, removing the ACT from AO299.

PN58

MR STANNARD: Yes, that is fine, Commissioner.

PN59

THE COMMISSIONER: All right. Everybody agrees that that can be done as of today's date and it can have no ramifications? Mr O'Shea, you are absolutely safe, we have covered all the bases?

PN60

MR RAMSEY: Yes, Commissioner.

PN61

THE COMMISSIONER: All right. Well, I will make an order in terms of the revised application that was handed up on 15 November in this matter. That order will take effect as of today's date, 26 November 2001. Yes, the two awards, the Public Sector Union Australian Capital Territory Health Award (1992) and the associated item 51 file will be adjourned sine die to be relisted at the request of the ACT. Thank you, Mr O'Shea, you are excused.

ADJOURNED INDEFINITELY [12.36pm]