C0083/299, Transcript of Proceedings [2001] AIRCTrans 3562 (18 December 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C No 832 of 1999
C No 835 of 1999
C No 854 of 1999

Transport Workers (Australian Capital Territory)
Award 1982

Transport Workers' - Home Milk Vending (ACT) Award
1996

Transport Workers Garbage (ACT) Award 1990

Review under Item 51, Part 2 Schedule 5 Transitional
WROLA Act 1996 re Conditions of Employment

CANBERRA

10.10 AM, MONDAY, 3 DECEMBER 2001

Continued from 13.8.01

PN408

THE COMMISSIONER: May I have appearances, please. Any changes?

PN409

MS J. TISDALE: I appear for the Transport Workers' Union.

PN410

MR D. MORPHETT: I appear on behalf of Mr Long who is no longer with the Confederation ACT. With me today is MR BILLINGTON from our organisation. He is here to take over. I have another matter at 11.30 and if I have to rush out today, he is here to assist.

PN411

MR F. GILLINGHAM: I appear for the Master Builders Construction and Housing Association of ACT.

PN412

THE COMMISSIONER: I have taken the liberty this morning of having the transcript recorded because this matter has now reached a stage, of course, back in August where it was recorded on the transcript due to some of the differences of opinion between the parties. Following that I addressed to the parties or sent to the parties a letter advising them to - it was a direction actually I think - to conduct certain conferences between the parties to see if they could resolve some of the differences that were remaining and I will ask the parties where they stand - although I understand there was some difficulty due to one of them being - going on annual leave - meeting on the dates that I set or from the date I set. I accept that but what is the current position? Who is going to speak, Mr Gillingham, Ms Tisdale?

PN413

MS TISDALE: If I could start, Commissioner. Mr Gillingham and I have had a number of lengthy discussions. We were concentrating on the parity allowance because that seems to me the main issue between us. I think fundamentally, Commissioner, the view of the Master Builders is they would like to see that allowance go and our view fundamentally is that we think that there is an entitlement, a legitimate entitlement, to an allowance in those circumstances. We have indicated that we are flexible in terms of perhaps remodelling the allowance or all of the construction related allowances in the award.

PN414

We could see a situation where we could roll them in together. We could play with the amounts. We could clarify when they apply and when they do not. I cannot say that we have got anywhere with that. I think, from what I see there is a fundamental conflict of interest perhaps between the parties that is perhaps not resolvable but I will let Mr Gillingham address you on that. Fundamentally, our position is we think that the matter is allowable, that there is a legitimate entitlement and that it is a very large thing for us to give away and we are not prepared to give it away. We are prepared to negotiate about how it might function more effectively in the award but that has not come to any fruition. And I am not sure, unless Mr Gillingham has something to offer this morning, I am not sure that it can.

PN415

In relation to whether the award contains properly fixed minimum rates of pay, that was not something that we discussed because it is my submission that they do. In my mind that is just unquestionable and there is actually nothing really to discuss on that matter although I think that that only becomes an issue because of the parity allowance and so that was where we directed our main discussions. But we certainly did try, in accordance with your directions, to come to some kind of arrangement but I think it has eluded us, Commissioner.

PN416

THE COMMISSIONER: Okay, thank you. Mr Gillingham.

PN417

MR GILLINGHAM: Commissioner, Ms Tisdale I think has summarised it fairly accurately. We did have discussions by telephone and Ms Tisdale did come to Canberra and we did have some hours of discussion and it did centre around the parity question. I did say at the conclusion of that that I would give some consideration to see how we could get over the matter and the only solution I have got - which I must apologise. I only did this on Friday and I have not spoken to Ms Tisdale about it. But we did very briefly talk about an award called the Transport Workers Union Construction Award which is a federal award of this Commission which operates in a number of states in the building, metal and civil construction industries and that award, by Commissioner Larkin on 28 September 1999, was simplified. There was an award simplification and the matter is in print 7500. What is said in the award itself, which was AWU 799592 - in the order it said in (a):

PN418

Further to the award simplification decision of the Commission issued on 23 December 1997 -

PN419

which was the print 7500 which was the award simplification decision and the decision issued by the Commission in print R8627:

PN420

The above award is varied.

PN421

And she simplified the award. Within that award, under part 5, and I would like to hand this up to the Commission in order to quickly explain what this is all about.

PN422

THE COMMISSIONER: Yes.

PN423

MR GILLINGHAM: I have taken from the loose leaf version of that award the rates of pay and allowances structure and the Commission will note that the grading is set in terms of nine grades and the Commission has put in the percentages which go to the - I guess the '89 decision. Now, Commissioner, what that award now does is support our position that the parity allowance has no place in the ACT award. And I hand up - and I must apologise, Commissioner, and my friend will probably take exception - but I hand up a copy of an industrial circular which we issued and this arose as a result of Commissioner Deegan on 16 November varying the ACT award to give effect to the safety net adjustment in the 2001. We did agree that that matter proceed to the Commission because of the way this matter was proceeding.

PN424

But this wage sheet I hand up to the Commission will show - and both the ACT award rates plus what is involved in relation to adding on rates for people who are covered under the Construction Industry Award. The Commission will note on the second page of that, where it commences - there is a number of columns which in the first part sets down simply the ACT rate against the classification and there is a second column with two figures in it which incorporate - if you go to the top of the preamble to it, says that for construction purposes we have included the parity and ACT - the industry allowance and another allowance.

PN425

Now, Commissioner, if you look across at the National Construction Award you will find that our rates in the main, when you go across and look at the various groupings, are comparable on the total award rate under the award that I referred to, the Transport Workers Construction Award, with their total award rate in the last column. But if you go to the ACT wage schedule there and we incorporate all of the increases, the Commission will see what I was trying to get at in the earlier submissions about the big distinction between on site construction rates and - because of the parity allowance and the rates which are contained in the national award. And in our submission there is one of two solutions.

PN426

One, that the Commission deletes the parity allowance from the ACT award or alternatively - and there was concerns expressed by the union about the effect of that - that people will get substantial reductions in the ACT and there is two answers to that, Commissioner. One, there can be a provision which would be incorporated that if people are in excess of the award with the deletion of the parity, that a savings provision be incorporated for those persons or alternatively - and the alternative to it, the second part of that, Commissioner, why I consider that it is not of great concern was the fact that the decision of the magistrate where he said that a number of allowances are not applicable unless effectively the person is employed by a builder for on site construction and works on site construction as distinct from our transport people who are delivering - drop off their equipment and so on and leave.

PN427

So in the strict legal context of the current award, you could count the number of people who may be affected who are employed directly by a builder or a construction company or by a civil engineering company who are actually working on site continuously or for the majority part of their time. So any effect of the deletion of the amount, in our submission, would be very negligible. The other solution to the matter would be to say, given that this award of Commissioner Larkin which has been simplified and which in our opinion has been based on the appropriate hundred per cent and the - below that and above that, in terms of the '89 decision.

PN428

It may be appropriate to delete reference to construction work, for example with industry allowance and parity allowance and so on and simply put in a provision in the ACT award which says - and there is an alternative to this, that says, that the national award applies, ie, the Transport Workers Construction Award to transport workers who are employed in the ACT and that they will be - this award will have application. Or, alternatively, because these have been properly fixed in our assessment and has application in a number of states in Australia and covers, within the scope of persons engaged on site construction work, and it is defined as, in the award:

PN429

On site construction work means all work performed under the award in connection with the erection, repair, renovation, maintenance, ornamentation or demolition of buildings or structures.

PN430

And that effectively conforms with the Building Industry Award on site construction definition. And the application of this award goes to Victoria, South Australia and its incidence is:

PN431

...applicable to the transport of goods, wares, merchandised material or whatsoever, whether in raw state or natural state ...(reads)... on building construction sites provided the employees undertake these duties for two hours aggregate or more per day.

PN432

In other words, Commissioner, the alternative if the union and the Commission did not see substance in my submission to include a simple provision that this award will have application in the ACT, it may be appropriate to insert both the construction rates of pay and related matters as is contained in the national award to be reflected into the ACT award, and that would get over any problems that we have in relation to the way the parity allowance has distorted the rate and which we consider has impacted therefore upon the wage relativities having regard to the 1989 decision.

PN433

Now, Commissioner, I must say that in putting that I have not been in the substance of the discussion around that to Ms Tisdale who, listening to her today, clearly will not entertain it. But I should also add that she did come to the discussions with an open mind in terms following that direction that you gave and we did have lengthy discussions in trying to come to appropriate resolution. Unfortunately we did not, and I did add that I would see if there was some other mechanism in which it could come up, and this is the mechanism that I am - that is the only one I can think of at this time.

PN434

THE COMMISSIONER: Okay. Just in conjunction with what you were talking about ..... and the existing employees.

PN435

MR GILLINGHAM: Yes. Commissioner, could I also say that Ms Tisdale was very kind to forward also an updated version of our working draft which I suspect the Commission probably got a copy of as well.

PN436

THE COMMISSIONER: Yes.

PN437

MR GILLINGHAM: I have not with all honesty had the time to check that in detail with the earlier material that she had submitted. It has usually been a fairly accurate content, so I think as far as my position is concerned the only issue that we have where we are a distance on is in relation to the parity allowance question.

PN438

THE COMMISSIONER: Okay. There is a few things that have come up as a result of that draft as well which have been pointed out by the Award Simplification Unit which just on a quick glance - I have seen it for the first time today because it only arrived with the mailbag this morning. It seems to be more in the sense of layout rather than any major changes. But certainly there would be a copy to be forwarded to the parties to have a look at. It seems to me, just on first glance again, to be mainly the headings and the way they have been utilised although there is one I notice here - yes, well, as the English would say, the bleeding obvious, wage rates, and so they must be converted to minimum wage rates. That is fairly obvious. There is other one I just noticed. Yes, clause 12.3.2, the last sentence on that page, "Employees shall receive a minimum payment of four hours", they are asking there is this consecutive? If it is not, it is not allowable. And they refer to Print 2700, page 23 and 66.

PN439

MS TISDALE: It does not say that it is consecutive, so I do not see that there is a problem.

PN440

THE COMMISSIONER: Yes, if it is not consecutive, it is not allowable, so you would have to - - -

PN441

MS TISDALE: I am just really not sure that is the case, Commissioner.

PN442

THE COMMISSIONER: Yes, okay. Well, that is just one I have just picked up. The rest seem to be the headings mainly. But I will address a copy to the parties. I am aware now that Mr Gillingham has a put a proposition today - or proposition this morning which you have not had time to look at, Ms Tisdale. No doubt you want time. Do you want transcript?

PN443

MS TISDALE: I can say now that this is not something that we would - I do not think this is a proposal that we will be able to entertain at all.

PN444

THE COMMISSIONER: I think you just look at it. You are just alerting the Commission I understand, but I think if you just look at the proposition.

PN445

MS TISDALE: We will look at it, but we are talking about an award that has not even been through a broadbanding process. I mean, it has got extra cents for every different task. Like that does not seem to be properly fixed or efficient in my view. It is an award that only applies in Victoria and South Australia and it is an award that would result in substantial reductions in pay for people who would be employed in construction work under our award in the ACT.

PN446

THE COMMISSIONER: It may not for existing employees though, in terms of SOP employees.

PN447

MS TISDALE: Well, yes, but new employees are our members as well and - I mean, I did not realise that we were going to reiterate the matters that were heard at the arbitration, but I would just say that there is no principle in the Commission's statement of principles to review allowances and reduce allowances just because the employer does not want to pay them. That is not within the principles. It is an allowance. It is an allowable matter. If we can come to a position where we can vary the award by consent because we think that is in the broader interests of everyone involved, so be it, but in our view it is just not possible to delete an allowance because it provides for some greater total award rate of pay than is payable in some other state, in some other industry, or under some other award.

PN448

The parity allowance only applies in Canberra. It is a Canberra thing. So pulling awards that apply in South Australia, a notoriously low paid state, and trying to say that we should be paid in Canberra, have the same allowances in Canberra as are paid in South Australia is just, in our view, nonsensical. But it is not within the statement of principles. It is not within the logic and rationale of providing proper minimum award standards for employees in the ACT. So we will look over the award, the Construction Award, but just on the face of it it just does not seem to have any proper application in the ACT.

PN449

THE COMMISSIONER: Yes. Mr Gillingham, you have heard Ms Tisdale. She has not had the opportunity to look at your propositions fully.

PN450

MR GILLINGHAM: I would like her to have a look at it, Commissioner, because I think it is of some significance in that the - well, she says that it applies in South Australia, it applies in that sub-state in Victoria also, even though it rains quite a bit there, Commissioner. It has been completely updated and has been subject to award simplification and in that award simplification, in our submission, Commissioner Larkin has also set down the appropriate relativities between classifications which go to the 1989 decision. And in addition, if one goes across to the ACT groupings in the current award with the wage levels the Commission will see some correlation between the properly fixed rates in this award.

PN451

So I am not, by the way, Commissioner, seeking to - well, I am in a way, I guess, as she suggested, to argue further from our original arbitration, but this came up as a genuine approach because we did talk about some solutions and I did ask at the time when we were discussing it is there any national award and it was Ms Tisdale that got me on the scent because I did not even realise there was this award, so I will blame her. But in looking at this it does go t the very nature of what we are on about and there are other allowances and it is the implication - what is the implication of fixing this award in the proper simplified manner having regard to the Commission's current guidelines? It will not have, in our submission, any effect on current employees in the ACT covered under the current award or the proposed simplified award as I have put up the suggestions to the Commission.

PN452

And as a - not a carrot, Commissioner, but as a suggestion to my friend I have suggested that we could put in a provision that if as a result of this new award there is a reduction, that there should not be a reduction. In other words, a form of a saving clause. I would ask Ms Tisdale and her organisation to have a look at it, if it is at all possible, Commissioner.

PN453

THE COMMISSIONER: Okay. Well, I think you should have a look at this, Ms Tisdale. It seems to me to be a proposition which is trying to resolve the problems between the parties that exist right now. And it was to some degree in line, not necessarily the results that come out, but was in line with what I was directing parties to do anyway. So those could have a look at it, Ms Tisdale. And I will send a copy of the draft from the simplification unit the changes that they foresee in the document. How long would you need to have a look at it, Ms Tisdale, bearing in mind it is coming up to the Christmas period?

PN454

MS TISDALE: I actually think this is something that could be done quite quickly. I will discuss it with the branch this afternoon. I do not need to read the transcript. We could respond in a week.

PN455

THE COMMISSIONER: Okay. Is that all right with you, Mr Gillingham?

PN456

MR GILLINGHAM: Yes, Commissioner.

PN457

THE COMMISSIONER: Okay. Well, I will have a report back from the parties. I will set a time down which is about a fortnight from now. It will probably be done by video conference. Just before we close on that issue, Mr Morphett, do you want to add anything?

PN458

MR MORPHETT: No, thank you, Commissioner.

PN459

THE COMMISSIONER: Next is the Transport Workers Australian Capital Territory Award - Garbage Award. Some of the things in the Garbage Award relying on things happening in this award, from memory, do they?

PN460

MS TISDALE: Yes.

PN461

THE COMMISSIONER: Yes.

PN462

MS TISDALE: The Garbage Award, Commissioner, is a bit of a problem in that its whole rationale - the rationale of the rates of pay, the total award rate of pay under this award does not fit with the Commission's current approach, does not kind of fit within the current statement of principles. The award rates have their history in the idea of parity. They followed the New South Wales State Refuse Award and the rates of pay were pegged - - -

PN463

MR GILLINGHAM: I am sorry, Commissioner, might I be excused. I have not got an interest in this.

PN464

THE COMMISSIONER: Yes, that is all right. Okay. I understand that.

PN465

MS TISDALE: So the rates of pay in the ACT Garbage Award were pegged to the New South Wales state rates of pay. They were therefore significantly higher than the federal properly fixed minimum rates. Once a process of properly fixing the minimum rates in the Garbage Award occurs it would result in significant disadvantage to our members employed under this award. That is because in the federal award, what we could call the nominal parent award, the award that covers the rest of the country, apart from New South Wales and the ACT, there is a properly fixed minimum rate and there is an industry allowance.

PN466

Now, that industry allowance has been set on work value grounds and takes account of the disabilities that are special to working in this industry. Things like starting very early in the morning, running behind a truck, working in the rain, dealing with noxious materials, all those things that are special to this industry, and those two things make up the rate of pay. Because the ACT award did not follow that logic, worked according to a different logic, it has no significant industry allowance, but it has very high rates. When those rates are converted to minimum rates they become the same as the federal award, but there is no proper industry allowance to compensate for the disabilities that are special to this industry.

PN467

So from our perspective, once the very high rates go from this award, it really serves no special purpose. There becomes no reason to keep a separate ACT Garbage Award. All it had going for it was its rates and they now would be gone after the end of this process. So after having discussions with the branch and having some preliminary discussions with the main employers who employ people in the refuse sector in the ACT what we are looking to do is eventually - well, through a series of processes - to set this award aside and to common rule the Federal Refuse Award so that it covers the ACT.

PN468

The Federal Refuse Award is in the very final stages of being simplified. We are actually hoping an order will be issued by Commissioner Holmes before the end of the year. The final draft is with him at the present time. And that is a good award. It is updated. It has been worked through very substantially by the main industry parties. It has been brought into line with the way this industry functions now as opposed to 20 years ago when the award was created. We would be seeking to preserve some particular conditions that apply in that ACT Garbage Award.

PN469

There are some idiosyncratic things that come from its history and from the fact that it operates in a public sector culture historically. We would anticipate though that there would be some trading, some gains and some losses, but overall it would be a good result for everyone. That is something that we would seek to negotiate with the employers and I think we could come to a consent position on that. I believe that Confact have members - represent members who are also employers in this sector and we would also be having discussions with them. So that is what we would like to do.

PN470

We think that that is in a lot of people's interests. It is in the Commission's interest, I think, to have one less award to administer and I think it is in the employer's interest given that they are all - the major employers are all national companies, to only have one award to operate under for all of their federal areas rather than having to deal with two separate awards with quite different logics and structures and so on. So that is in a reasonably preliminary stage. We would need to wait for the Federal Refuse Award to be handed down which, as I said, hopefully will be before Christmas. We have already commenced negotiations with various interested parties and we would be seeking to come quite quickly to an agreed series of applications that would involve varying and common ruling the Federal Refuse Award and setting this one aside. That is certainly what we are hoping to do.

PN471

THE COMMISSIONER: Okay. Good. Mr Morphett?

PN472

MR MORPHETT: Yes. If it please the Commission, I have had the opportunity to discuss this proposal briefly I think of Thursday last week and we are unable to take a firm position on whether or not we would agree or disagree at this stage. One of the issue, as she alluded to, would be to wait to see what the outcome was of the simplification of the federal award and obviously equipped with that information I could then take that back to my members and advise them of this possible path and the ramifications if that was the case.

PN473

I will probably take, if you agree to allow us the opportunity to take that time, I will endeavour to look at what the minimum rates would be if it had gone through the appropriate process in the ACT because obviously I will need that information to advise my members informatively of what the difference would be. If there is any great pressure for transport workers regarding some of their more broadly Australia wide concerns then, I mean, there are a variety of different vehicles by which those issues can be addressed.

PN474

As far as taking out an ACT award and substituting it for a federal award then that is a much broader concern to the Confederation and I think to others of our members who I have not had the opportunity to discuss this with.

PN475

THE COMMISSIONER: I think it might be an idea in view of what you put, Mr Morphett, that you alert your members to the current developments so that when you do come back for the award, the federal award that is, has been simplified, then they are aware of what you are talking about and not getting hit by a surprise, like all of a sudden a change in direction. I think it is far better for them to be informed beforehand that there could be considerations that may change the outlook.

PN476

And, as I said and Ms Tisdale has somewhat touched on, it seems to me that this one area where because the way contracts are let etcetera that it is mainly the bigger organisations who are getting contracts in this area and they are tending to operate cross borders, if you like. Borders are no longer a problem as far as their operation is concerned. So there is some merit I think in what has been put about looking at that award as the vehicle for this and somehow we take this award away. Okay.

PN477

The other thing, Ms Tisdale, when you have reached a position with the branch in regards to the ACT award would you let Mr Gillingham know before we get to the hearing. Maybe he has got some further input to put to you as a result of whatever your input is. Okay? Give him that opportunity.

PN478

MS TISDALE: Yes.

PN479

THE COMMISSIONER: Thanks. Now, the other one is the Milk Vendors Award which I know that both parties are involved in. As far as I am concerned that award is practically ready to go except there is one change in it that I have made and if the parties are in agreement with it I am prepared to sign an order to reflect the changes to it, and that is in the award, the last award I got as a draft, it referred to the respondents which I agree were attached to the previous award - or the existing award, but in fact with the common rule now applying to that award there is no longer a need for respondents to be mentioned, specifically be mentioned, and I have made some changes to the wording which reflect, if you like, the fact that it is a common rule award and the respondents are all employees, if you like, in the ACT as applies to the classifications, etcetera. But what I will do is, I will let you have a copy of this to have a look at. It is dated 3 December which is today's date but I will not sign it until the parties have had an opportunity to look at the draft decision. I will put draft on it. So if you are in agreement with it, well, I might process it that day, if you can simply just advise me by letter, both parties. Nothing further to add? Thank you. We will get copies for you.

PN480

MR MORPHETT: Pardon me, Commissioner, just one quick thing. It might be advantageous for me to be able to get from Ms Tisdale a copy of the Federal Garbage Award as it is currently looking like it may be simplified.

PN481

THE COMMISSIONER: Yes. Okay. We will adjourn these proceedings.

ADJOURNED INDEFINITELY [10.51am]