C2001/5881, Transcript of Proceedings [2001] AIRCTrans 3653 (24 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2001/5881

ENGINE DRIVERS AND FIREMEN GENERAL
AWARD 1998

Application under section 113 of the
Act by the Construction, Forestry, Mining
and Energy Union to vary an award re
parental leave for casual employees

SYDNEY

10.49 AM, MONDAY, 10 DECEMBER 2001

PN1

HIS HONOUR: This is matter No C2001/5881. This is an application lodged on 12 November this year under section 113 of the Act to vary the Engine Drivers and Firemen General Award 1998. The application is lodged by the CFMEU. It seeks a variation of the award to insert a provision as to parental leave for casual employees following the parental leave for casual employees test case decision recorded in Print 904631 earlier this year. Could I have the appearances please?

PN2

MR W. BODKIN: If the Commission pleases, I appear for the CFMEU.

PN3

MR P. RYAN: If the Commission pleases, I appear for Employers First, and may I also make an appearance for Australian Business Industrial.

PN4

THE COMMISSIONER: Yes. Mr Bodkin, what's this about?

PN5

MR BODKIN: Your Honour, the application is in two parts. It's to insert a new parental leave clause in accordance with the recent test case decision concerning casuals, and it also seeks to increase the casual loading in the award which is currently 20 per cent. The application seeks to increase that loading to 25 per cent.

PN6

A copy of the application and the notice of hearing has been served on the parties on the substituted service list, and I hand up a copy of the registered post lodgement document in relation to that documentation. The parties were served by registered post on 20 November.

PN7

HIS HONOUR: What were they served with, Mr Bodkin?

PN8

MR BODKIN: They were served with the notice of hearing and with the application and the substituted service order. I have also received from the Victorian Hospitals Association a copy of a letter they forwarded to yourself on 30 November, your Honour, advising that they don't object to the - it's quite a curious letter. They say they have checked the draft order and advise they have no objection to the application being made. I take that as being a consent to the application.

PN9

HIS HONOUR: Yes, I think I've got a copy of that letter on file from Ms Boyle.

PN10

MR BODKIN: A draft order has been prepared, your Honour, and the draft order is essentially in the same terms as the application. The parental leave, the proposed variation in relation to parental leave follows the variation to the Metals Engineering and Associated Industries Award 1998, the order made in PR909399. There is a history of linkage between the Metals Award and the Engine Drivers and Firemen General Award, and the Engine Drivers General Award is in very similar terms to the Metals Award and in the past has followed variations to that award.

PN11

Parental leave for casuals being a test case provision, your Honour, would not of course be a variation above the safety net, and the union does not see why there would be any opposition to varying the award in the terms of the application and draft order.

PN12

Insofar as the casual loading is concerned, we see that as being an increase from 20 per cent to 25 per cent, we see that as being in the nature of a remedial variation. In other words, we seek to remediate the current safety net. We do not see that part of the application as being an application for a variation above the existing safety net. We say that particularly having regard to the comments of the Full Bench in the Metal Award Casual Case, the decision of the Full Bench on 29 December 2000, in Print T4991, where there is a discussion of this question of what constitutes a special - or whether the application would be in the nature of a special case, whether it would be in the nature of a remedial variation.

PN13

The Full Bench in that Metals Award matter found that the applicant would need to establish that a special case existed, but that application of course was for a substantial overhaul of the whole nature of casual employment in the Metals Award, and there were many aspects of that application which are set out in paragraph 4 of the decision.

PN14

Insofar as a remedial variation is concerned, there are comments in the Full Bench decision, particularly at paragraph 44, where it discusses a distinction between a remedial variation and changes beyond the safety net which involve questions of fact and degree. There is a statement in paragraph 44 that:

PN15

A variation of the award to adjust it to bring it more closely into alignment with what is perceived to be a more appropriate minimum standard condition is consistent with a remedial variation of the award.

PN16

Now having regard, your Honour, to the nexus that has traditionally existed between the Engine Drivers General Award and the Metals Award, and the fact that the Metals Award loading has increased to 25 per cent, the union would see an increase to 25 per cent in the casuals loading and the general award as a remedial variation. I might add that we anticipated that this would be a consent matter, and in doing so we did not seek to include in the casuals loading the highly prescriptive provisions that are in the Metal Engineering and Associated Industries Award, provisions such as the option to convert from casual to weekly hire and many other provisions such as the requirement of the employer to provide written documentation to an employee et cetera.

PN17

All we seek to do in this application is a straight forward increase from 20 per cent to 25 per cent. It would not alter the essential nature of casual employment under the general award, therefore we say that's another reason why it's no more than a remedial variation. It is not a variation above the safety net and it would not require the union to establish the existence of a special case.

PN18

Having said that, your Honour, it would appear that the parties represented by Mr Ryan are not, and he will speak to you on this, are not in a position to consent to the application, particularly in relation to the leave loading aspect. I do not think there should be any problem with the parental leave clause being a test case provision, it having now gone into a number of important awards of this Commission. I would not see any reason why the award could not be varied today for that matter to provide for the parental leave, the new parental leave provisions.

PN19

If that were done today, the employers could give further consideration to the leave loading aspect. We should also bear in mind that one of the major employers under this award, the Victorian Hospitals have consented apparently to the application. However, I leave it for Mr Ryan to advise you precisely what the position is in relation to respondent employers, members of Employers First and Australian Business Industrial.

PN20

HIS HONOUR: Yes, Mr Ryan.

PN21

MR RYAN: Thank you, your Honour. Your Honour, I obviously come here with two hats on today and for those members of ours respondent to the award and indeed those members of Australian Business Industrial who are respondents to the award. The point my friend makes in regard to the changes to parental leave to extend that provision to casual employees, is certainly correct as far as my organisation is concerned. We would not object to the making of the variation in respect to the parental leave today subject to just a final check of the wording of the clause.

PN22

However, my instructions, or the request for me to appear on behalf of Australian Business Industrial this morning was made on the basis that the matter was listed for directions and the discussion did not centre around any breaking up of the application. My instructions from that organisation do not extend to be able to give effect to that position that my friend puts forward. In respect of the increase to the casual loading, this is an area that both organisations as I can adduce from the conversation I had with Australian Business Industrial this morning. Both organisations do need to have further consideration and particularly further response from members as to their position on the increase to casual loading.

PN23

Given that position, your Honour, perhaps it might be appropriate for a hearing date to be set down with, certainly an undertaking from myself that I can contact my friend here and to provide details of whether or not there is going to be any opposition to either party if you like, of the application. So that really is the position that I can only put forward to you this morning in respect to the application.

PN24

HIS HONOUR: It's pretty unsatisfactory, the position, isn't it, Mr Ryan. You have had a month's notice of this, they are not particularly difficult concepts. The movement from what was it 20 per cent to 25 per cent at least one of your clients paid some part, fairly minor in it, ABA and the other one is a test case decision. The matter has been with you since November and you are not in a position to know, or those you represent don't know what they are doing about it. I think the idea of having a further hearing date seems to me to be putting bandaids on in attention to matters that should be dealt with.

PN25

What I propose to do, in relation to the parental leave, which I doubt whether any amount of ingenuity or consultation with clients who would appear not to know much about it and are unlikely to know much about it if they are not in the habit of reading test case decisions, is going to add a great deal to the total sum of human knowledge or anything you are going to put to me short of coherent instructions from somebody who has got authority to give them. I suggest that be done fairly rapidly. I would in relation to the parental leave part if Mr Bodkin can come up with a draft order that excises the rest of the application granted so as that all of these things go through effectively from today.

PN26

But you can show cause within a week in writing if you like, why that order should not be made and get instructions from whoever wants to seek instructions about it. As for the casual rate increase, from 20 to 25 per cent, I think that should be stood over generally. You can be directed to confer about it and sort out what it is that you are doing when that matter goes through. I can't see why the parental leave can't be addressed so that effectively the application raises two questions and whoever is giving instructions could be asked those questions and if they want to oppose a Federal test case standard being implemented in a reasonably timely way on this award then they can devote themselves over the Christmas period to putting on the written submission in a very total form in a very short space of time.

PN27

MR RYAN: Yes, your Honour as I indicated my organisation is prepared to consent to that second part of the application today. It is only that casual loading issue that, if you like, complicates the application and Employers First does not object to the making of the parental leave clause.

PN28

HIS HONOUR: Yes, well, I think in the circumstances, it is clear enough what I propose to do. I will provisionally vary the award with effect from today to give effect to the parental leave. I can't do that by consent because I don't have full throated consent from all the parties to it but effectively that means that clause 33 is deleted and a new clause 33 will be inserted. The only question I think then is date of operation and when did this entitlement come from. Here we are, on top of page two:

PN29

An eligible casual employee employed ...(reads)... under the award ...

PN30

That should be 10 December, shouldn't it?

PN31

MR BODKIN: Yes.

PN32

HIS HONOUR: As an eligible casual employee employed on or after ...

PN33

Now why is that 4 July 2001.

PN34

MR BODKIN: That's the date that was settled on in the metal and engineering award, your Honour.

PN35

HIS HONOUR: I see, under the term of the award as of 4 July 2002 well that is still prospective, yes, provided that is consented to I can give effect to that. Is there any difficulty with that particular clause do you know Mr Ryan from those from whom you have got instructions?

PN36

MR RYAN: Your Honour, not from my organisation. As I say I haven't got instructions from - - -

PN37

HIS HONOUR: I know you haven't got them. I am prepared to vary the award on that basis with that provision as amended, that shall be entitled to parental leave under the term of the award as at 10 December 2001 and the other date will stay as is. The variation of preparing a draft order, orders shall come into operation at the beginning of the first pay period on or after 10 December 2001 and to remain in force for a period of 6 months and can you supply a draft copy of that order, Mr Bodkin within the week.

PN38

MR BODKIN: Yes, your Honour.

PN39

HIS HONOUR: I will sign that order within five working days from it being lodged but I direct that it be lodged and served on the parties represented today. That is Mr Ryan's clients, with an indication that the Commission required that cause be shown by written submission in writing why this order should not be made within five working days of the date of service. That service can be done by facsimile.

PN40

To translate that, Mr Ryan, Mr Bodkin will send out a copy of the draft order that he wants made. He will lodge it, it will go to you or to both of your clients by facsimile, and they are to show cause in writing within the deadline of five days why that order should not be made. I would prefer it if they would indicate that they consented if they're not going to show cause, and I will sign the order with date of effect from today at the conclusion of that five working days. So the sooner you can get that done, Mr Bodkin, the better, and I can hopefully get it cleaned up before Christmas.

PN41

In relation to the increase from the casual rate, I'll stand that over to be restored to the list on application of either party, but I direct the parties to confer about it. I think it's desirable that at least you know where you are going in relation to that matter, and the parties might in that context note that, at least the Victorian Hospitals, I'm not sure how much they are affected by this award, but they appear to have no objection to that particular variation, perhaps flowing on from metals may be the reason. At least the parties can get back if they have resolved that matter. If you haven't resolved it, then perhaps you had better let me know so as the file at least does get opened indefinitely unless you're going to go somewhere with it.

PN42

On that basis, I indicate that I have determined provisionally to vary the award to give effect to the parental leave for casual employees test case decision. That decision is recorded in Print 904631. Mr Bodkin has alluded to the variation of the Metal Engineering and Associated Industries Award in Print 909399 as effectively the precedent award with which there has been some relatively well established nexus to this award for such purposes.

PN43

Having regard to the nature of the test case decision, it appears to me to be a relatively straight forward matter. I don't vary the award by consent. There are reservations from consent. In any event the consent is inchoate for all of the parties to the award. However, I am satisfied that there has been sufficient service of the notice to vary, and the course I have adopted which will allow a cause to be shown why that particular variation should not be made within effectively five working days from the date of lodgement of a draft order should allow any difficulties the parties might have to be brought to attention. That decision in transcript may be referred to generally for the purposes of the order if it is ultimately made.

PN44

The Commission will adjourn.

ADJOURNED INDEFINITELY [11.13am]