C0093/299, Transcript of Proceedings [2001] AIRCTrans 3561 (18 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C No 00932 of 1999
C No 00792 of 1999

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE AGL GAS COMPANIES AWARD
1996 AND GAS INDUSTRY SALARIED OFFICERS
(GAS EXTRACTION, TREATMENT SEPARATION
AND SUPPLY) AWARD 1987 RE AWARD
SIMPLIFICATION

SYDNEY

9.07 AM, MONDAY, 3 DECEMBER 2001

Adjourned sine die

PN1

THE COMMISSIONER: Could I have appearances please?

PN2

MR G. BEARD: I appear on behalf of the Australian Workers Union.

PN3

THE COMMISSIONER: Thank you, Mr Beard.

PN4

MR M. MASKELL: If the Commission pleases, I appear for AGL.

PN5

THE COMMISSIONER: Thank you Ms Maskell. What I propose to do before hearing the part review of the award, I am going to go into conference there is just a couple of issues in the comments document that was forwarded with the draft award that I think I need to clarify with the parties and will return back to the record and deal with the part review of the award. Is there any comments before we go into conference? We will go off the record, thank you.

OFF THE RECORD [9.08am]

RESUMES [9.26am]

PN6

THE COMMISSIONER: Yes, I think we have addressed the different comments and issues that were included in the two draft awards that were forwarded to the parties. I think that it remains for me to hear and I presume Mr Beard, you are going to be presenting submissions on both awards for me and then Ms Maskell, I will hear from you.

PN7

MR BEARD: Yes, Commissioner, with regard to the Gas Industry Salaried Officers (Gas Extraction, Treatment, Separation and Supply) Award 1987, you are aware that the Item 51 review of this award has taken some considerable time and has been subject to a great deal of time and effort through the parties and conferences chaired by the Commission. The parties obviously, Commissioner, believe that this award is affected by item 50 of the WROLA Act of 1996 and we are in fact at this stage very pleased to be able to state on the record that agreement has been reached between the parties and the Commission in regard a partial review of the award.

PN8

The document that in fact reviews the award and will create new awards will be, as I say, an agreed position between the parties which will reflect the requirements of item 51 of part 2 of schedule 5 of the Act. The wage rates, Commissioner, as you are aware, will not be subject to the review at this stage. The parties believe that we are better off at this stage to complete the wages review at some stage early next year but because we have reached agreement in regard to the other provisions contained in the award, it is in the best interests of the parties to finalise those today.

PN9

The provisions of the award, Commissioner, do reflect conformity with criteria set out in item 51 of the WROLA Act. Paragraph 6 of item 51 has been applied to the provisions as well as paragraph 7. I also bring to your attention, Commissioner, that issues concerning training leave have been included in the dispute settlement clause. The current 1987 award at clause 24 in fact has a provision for trade union training leave and rather than that whole - - -

PN10

THE COMMISSIONER: Is it 24 or 26.8, Mr Beard?

PN11

MR BEARD: I thought it was clause 24 in the 1987 award.

PN12

THE COMMISSIONER: No, in the draft it's at page 6 in the draft.

PN13

MR BEARD: Yes, that's correct. I was referring to the trade union training leave is in the old award and therefore we believe that rather than just delete the entitlement provided by that clause entirely we can in fact take the provision relating to training leave for dispute resolution for job delegates or other elected employee representatives to have available to them training in regard to dispute resolution. We believe that that is in the best interest of the parties and I also believe that it does in fact fit into the review process.

PN14

Section 89A paragraph 6, in fact which relates to matters which are incidental and necessary for the operation of the award, we believe is tailored to provide for a situation such as this. The draft document, Commissioner at this stage, doesn't have the most recent test case provision in regard to parental leave and that was specifically in regard to eligible casuals and we believe that it is in the best interests again of the parties to have the award as up to date as possible and therefore we would ask that the current updated test case provision be included in the award.

PN15

I understand that item 51(7)(d) provides the Commission with the capacity to make sure that the award provisions are as up date as possible. The other provisions of the draft, Commissioner, we believe are within the parameters of section 89A of the Act and therefore are allowable. The operative date would be from first pay period commencing on or after today's date and for the new award to be operative for a period of six months. The parties as you are well aware, Commissioner, have been involved in this quite long and tedious process and it does provide some comfort to us to at least be a major part of the way down the item 51 review process with the ratification of the draft. If it please the Commission.

PN16

THE COMMISSIONER: Thank you, Mr Beard. Ms Maskell?

PN17

MS MASKELL: Thank you, Commissioner, just briefly by way of submissions as I say on behalf of AGL that we concur with the AWUs submissions both generally and specifically with respect to this part review of the award in question. We believe that this partial review meets the requirements of item 51 and section 89A and we understand that the parties will confer to complete the review of the award with respect to those clauses relating to wages. I also support Mr Beard's submissions in regard to the training leave in the disputes procedure. It is a current entitlement and believe it should be maintained in this draft of the award and that it is both incidental and necessary to the effective operation of the award.

PN18

Similarly with the parental leave test case provision in regard to eligible casuals we are quite happy to have that included in this draft in accordance with item 51(7)(d). Thank you, Commissioner.

PN19

THE COMMISSIONER: Thank you. We haven't addressed the AGL Gas Award.

PN20

MR BEARD: No, I can go on with that now if you want. I thought it might be easier to break the two up. Again, Commissioner, the review process of the AGL Gas Company's award 1996 has been a long and tenuous situation. However, in similar lines with the Salaried Officers Award, in order to at least effect the review process in regard to award provisions except those pertaining to wages, agreement has been reached in regard to review of the award. The draft, Commissioner does include now, provisions which are in accordance with section 89A of the Act.

PN21

The award again, has been varied to reflect an appropriate training clause in the dispute resolution clause. The old award or 1996 award in fact had provisions relating to trade union training leave and therefore we believe that the capacity for the Commission to include dispute resolution training for union delegates and/or other elected employee representatives should be included in the new document.

PN22

The draft contains the old parental leave clauses test case as such, Commissioner and therefore we would ask that the updated parental leave test case clause which includes reference to eligible casuals be inserted into the award. The parties will undertake continuation of the exhaustive process of looking to have the wage rates become properly fixed minimum rates and we would hope to be in a position at some stage early next year to advise you of the progress in regard to that matter.

PN23

However, on behalf of the union, I endorse the contents of the draft to you and ask that it be operative from the first pay period commencing on or after today's date and to be in force for a period of six months. Just briefly, Commissioner, I just remembered the clause in the draft in regard to redundancy isn't the test case clause it does in fact reflect essentially the current provisions in regard to entitlements for employees and also as reference in regard to redeployment which currently exists in the award specific clauses and wording which were in fact not allowable, have been deleted from the clause and we now believe that the clause in regards redundancy would be acceptable to the Commission under section 89A. If it please the Commission.

PN24

THE COMMISSIONER: Thank you Mr Beard. Ms Maskell?

PN25

MS MASKELL: Yes, thank you, Commissioner, as before we endorse the AWUs submission with regard to the AGL Gas Company's award, we understand that this is a part review with the exception of those provisions relating to classification structure and salaries and we understand that the parties are to confer with respect to finalising this review in that regard. We also endorse the AWU submissions with regard to the trade union training leave provisions in the dispute's procedure. The insertion of the recent test case provisions relating to eligible casuals as far as parental leave is concerned and we are satisfied that the redundancy provisions as drafted preserve the intent of the current award. If the Commission pleases.

PN26

THE COMMISSIONER: Thank you, Ms Maskell. If there is nothing further I plan to give my decision in relation to both of the awards before me for part review.

PN27

The first matter relates to a review of the Gas Industry Salaried Officers Gas Extraction Treatment Separation and Supply Award 1987 pursuant to item 51 of the WROLA Act and having reviewed the award, consistent with the award certification principles and having heard the submissions of Mr Beard and Ms Maskell this morning the award will be varied so as to remove the provisions which cease to have effect under item 50 of the WROLA Act other than those clauses which are administrative in nature or are both incidental to allowable award matters and necessary for effective operation of the award.

PN28

I have decided that I will not review a number of clauses at this stage. Those clauses are clause 3.6 which is a definition going to the composite rate. Clause 7, which is salaries. Subclause 11.5, 11.8 and clauses 19 and 20 as those awards make reference to a composite rate. Further, clause 12, the first day, will not be reviewed at this stage for the same reason. The parties are directed to discuss these clauses and advise me of the outcome of those discussions by the end of January 2002.

PN29

Once varied, the award will satisfy the criteria set out in sub items 6 and 7 of item 51. In relation to clause 26.8 of the new draft award forwarded to the parties, dated 19 November, I am satisfied that the provisions in that clause relating to training for persons who have a role in the dispute settling provisions of the award fall under section 89A(6) of the Act. In my view the provision and the submissions made by the parties this morning are in accordance with the leave allowability test case decision and the clause is accepted as incidental and necessary for the effective operation of the award.

PN30

The award to be known as the Gas Industry/AWU Gas Extraction, Treatment, Separation and Supply Award 2001 will operate from the first pay period to commence on or after 3 December 2001. It shall remain in force for a period of six months. The next matter before me this morning relates to a review of the AGL Gas Companies Award 1996 pursuant to item 51 of the WROLA Act. Having reviewed this award consistent with the award simplification principles and having heard the submissions of Mr Beard and Mr Maskell this morning, the award will be varied to remove provisions which cease to have affect under item 50 of the WROLA Act other than those clauses which are administrative in nature or are incidental to an allowable award matter and necessary for the effective operation of the award.

PN31

I have decided that I will not review at this stage, clause 16, rates of pay. Once again, I will direct the parties into discussion in relation to the rates of pay in the award and the parties are to advise me by the end of January 2002, the outcome of those discussions. Once varied the award will satisfy the criteria set out in sub item 6 and 7 of item 51. The award at clause 10.8 of the new draft dated 19 November refers to training for persons who have a role in the dispute settling procedures.

PN32

Having considered that the existing provisions in the award and having heard the parties consent submission placed to me this morning, I am satisfied that that particular provision is allowable pursuant to section 89A6 of the Act and furthermore is in accordance with the Full Bench test case decision in the allowable award leave matters decision. The clause is accepted as incidental and necessary for the effective operation of the award.

PN33

The award to be known as the AGL Gas Companies/AWU Award 2001 will operate from the first pay period to commence on or after 3 December 2001. It shall remain in force for a period of six months. If there is nothing further, I would simply thank the parties for the time effort and work that they have put into the two awards and I will await advice by the end of January 2002 so that we can finalise both awards in relation to the rates of pay.

PN34

That being said I wish you both a very merry Christmas and a safe and happy New Year. The Commission is adjourned.

ADJOURNED INDEFINITELY [9.45am]