C2001/1627, Transcript of Proceedings [2001] AIRCTrans 642 (18 April 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 6679
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

C2001/1627
AG2001/1787

HEALTH SERVICES UNION OF
AUSTRALIA (GRIBBLES PATHOLOGY
- SOUTH AUSTRALIA) AWARD 1994

Application by Gribbles Pathology (Vic) Pty
Limited to vary the above award re payment
for work on public holidays

GRIBBLES PATHOLOGY - SOUTH
AUSTRALIAN OPERATIONS
ENTERPRISE AGREEMENT 1998

Application under section 170MD application
to vary the above agreement to remove ambiguity

MELBOURNE

10.37 AM, TUESDAY, 3 APRIL 2001

PN1

MS K. ANDREWS: I appear for Gribbles Pathology.

PN2

MS M. CHAMBERS: I appear for the Health Services Union of Australia.

PN3

THE COMMISSIONER: Thank you. Ms Andrews.

PN4

MS ANDREWS: Thank you, Commissioner. There are two applications currently before you this morning. One is an application to set aside or vary an award, and we are seeking a variation of that award to remove an ambiguity. We have also made an application to vary the terms of a certified agreement pursuant to section 170MD of the Act, also to remove an ambiguity. The clauses in the award and the agreement are in fact in identical terms, so if I could perhaps start by giving you some background to the making of the award. This award was made by Commissioner Leary in July 1994.

PN5

It was on the basis of a first principles award of the Commission and if I could just read to the Commission some parts of the transcript in terms of the making of this award. On page 54 of the transcript of the date of Wednesday, 27 July 1994 it was said by myself, representing Gribbles Pathology:

PN6

If I can just make our position particularly clear, the terms of the whole award, this award, is meant to represent the current situation at Gribbles in South Australia now.

PN7

The Commissioner:

PN8

Right.

PN9

Ms Andrews:

PN10

So it is effectively a status quo award?

PN11

The Commissioner:

PN12

So it is translating current conditions into the document?

PN13

Ms Andrews:

PN14

That is correct.

PN15

The union representative for the HSUA - Health Services Union of Australia, Mr Ian Bryant, he said at page 64 of the transcript:

PN16

I suppose my position would be that in light of it being very much an exercise in first award principles, prima facie the document reflects the existing rates and conditions at Gribbles in South Australia, and to the extent that it does not it reflects the test standards or long-held standards of this Commission.

PN17

And finally, Commissioner Leary in making the award said on page 67 of the transcript:

PN18

Well, prima facie it would appear that the application for the new award, to be known as the Health Services of Union Australia (Gribbles Pathology South Australia) Award 1994 satisfies the Commission's principles in respect to first award. Subject to the parties checking the award and also checking that the document does reflect standards and current rates and conditions I shall give approval to the document to take effect from the first pay period on or after today -

PN19

which is 22nd day of September 1994. The two clauses that are the basis for this application are clauses in respect of public holidays and also a provision in respect of overtime. Now, if I could hand the relevant clauses to the Commission.

PN20

THE COMMISSIONER: Thank you.

PN21

MS ANDREWS: If I could take you firstly to clause 17 which is the public holidays provision of that clause, and without going to the clause in detail effectively what that clause does is set out the days which are designated as public holidays, and it provides for payment for public holidays or holidays occurring when someone is ill, immediately preceding and succeeding a public holiday. There is no reference in that clause to what the appropriate payment should be for work performed on a public holiday. If I could take you to clause 27, and there is two provisions there. Clause 27 is actually the overtime clause.

PN22

However, it says at (a)(3):

PN23

All time on a public holiday shall be paid at double time and one half.

PN24

It was actually the intention of the parties that all work would be paid on a public holiday at double time and a half, not specifically overtime. If you look at clause 27(c) it says:

PN25

Any overtime payable under this award must be paid in addition to payment for ordinary hours to which an employee is entitled pursuant to this award.

PN26

The intention of the parties with respect to that is that the normal hours are worked and then overtime is paid for additional hours in respect of the ordinary hours, not that there is an addition of ordinary time, plus, in the case of a public holiday, double time and a half - to give triple time and a half. The intention with public holiday work is that it is paid at double time and a half, which leads to the issue of an ambiguity. Our application today intends to remove that ambiguity and we have prepared a draft order. And what we are proposing with the draft order is that we remove clause 27(a)(3) which is:

PN27

All time on a public holiday shall be paid at double time and a half.

PN28

And we move that to make a new clause 178(d). So it would be a 17(d) under the clause for public holidays, which is where we believe it is more appropriately put. We would then renumber the sub-clauses in sub-clause (a) and we are also proposing that we delete clause 27(c):

PN29

Any overtime payable under this award must be paid in addition to payment for ordinary hours to which an employee is entitled pursuant to this award.

PN30

Our submission is that that sub-clause adds little or no value to the terms of this award and would be best removed. In terms of supporting submissions in respect of the making of this award and such that it is the standard provisions that we are actually proposing, could I hand to the Commission a copy of a letter from Mr Ian Bryant, the representative - the national research officer of the Health Services Union of Australia, and if I could take you - he actually lists in this - it is a letter to Mr Peter Anargyros who at the time was the operations manager for Gribbles Pathology in South Australia, and it sets out the basis for the making of the award and indicates - it sets out a summary of where the various clauses were taken from.

PN31

Now, if I can take you to the third page of that document. It actually sets out the clause 17 public holidays as a South Australian standard.

PN32

THE COMMISSIONER: Right.

PN33

MS ANDREWS: And at clause 27 it also refers to overtime as being a standard provision. I have for the Commission a copy of the public holidays provision from the Nurses ANF South Australian Private Sector Award and perhaps if I just read that on to transcript, the relevant part, actually rather than hand it up. It says in respect to public holidays:

PN34

Employees other than casual employees shall be paid an additional 150 per cent of the appropriate rate based on the ordinary hourly rate as defined for actual hours worked on the various public holidays.

PN35

And it goes on to list the public holidays. So that award, which is in our submission representative of the standard in South Australia, makes it very clear that payment for work on a public holiday is at a total of double time and a half. We would also say in respect of a further overtime provision, which comes from the Health Services Union of Australia Private Pathology Victoria Award 1993, at clause 21 says:

PN36

If an employee works on a public holiday they should be paid double time and a half for the time worked.

PN37

And that clause we would also say is representative of the overtime - sorry, the provisions for work on a public holiday.

PN38

THE COMMISSIONER: Right.

PN39

MS ANDREWS: So we would put to the Commission that by making the order in the terms that we have put in the draft order it does remove an ambiguity and make it clear that the intention of the parties is reflected in the award and that is for double time and a half to be paid for work on a public holiday.

PN40

THE COMMISSIONER: Right. What date does the variation come into effect?

PN41

MS ANDREWS: We would be seeking today's date. Actually given that this matter was - it was the intention of the parties on the making of the award, perhaps it would be more appropriate for the variation to take effect from the date that the award was actually made, which would be 22 September 1994. It is certainly our submission that no-one has been paid any more than double time and a half for work on a public holiday, so back dating it in terms of monetary payment would have no effect.

PN42

THE COMMISSIONER: Right. Thank you.

PN43

MS ANDREWS: Would you like me to deal with the agreement now because it is in the same terms and I am not going to go through all of - - -

PN44

THE COMMISSIONER: So the argument that you have run in terms of the award is the argument that would flow to the agreement?

PN45

MS ANDREWS: Yes, it is, and I have prepared a draft order for the agreement as well.

PN46

THE COMMISSIONER: Yes, that is fine.

PN47

MS ANDREWS: So the only difference is the clause numbers.

PN48

THE COMMISSIONER: Okay, thank you. Ms Chambers.

PN49

MS CHAMBERS: If the Commission pleases, there is a brief background to this application before the Commission. There is a member of the HSUA in South Australia who has agitated in respect of payment for a public holiday that he should be paid triple time and a half. That is not - it is not a position that is supported by the union. It is clear from all the material Ms Andrews has put before you, and it is the HSUAs position, that payment for public holidays is paid at an appropriate rate of double time and a half. So it would appear that there is an ambiguity that flows from the penalty appearing in clause 27, which is the overtime clauses, where it seems to pick up by providing at clause 27:

PN50

Only authorised overtime should be paid for and the following rates of overtime shall apply.

PN51

And then mysteriously clause 3 then sets out the penalty for public holidays and it would seem that that is inappropriately placed in an overtime clause. So the HSUA supports movement of that penalty into the appropriate public holiday clause, clause 17(d) as proposed. The only issue I have then is in removing the public holiday penalty from clause 27 and putting clause 17. And then sub-clause (c) in clause 27 which provides:

PN52

Any overtime payable under this award must be in addition to payment for ordinary hours to which an employee is entitled pursuant to that award.

PN53

That would then sit quite comfortably because it is clearly referrable to overtime that would then exclude the public holiday clause. Am I making myself clear? The reason the employee has been agitate this issue is because he has pointed to public holidays falling within the definition of overtime.

PN54

THE COMMISSIONER: Yes.

PN55

MS CHAMBERS: Which was clearly never intended by the parties. So in the HSUA submission it is appropriate that sub-clause (iii) be removed and placed in clause 17(d), but in our submission that then obviates the need to remove sub-clause 17(c). If I could just say on the record that it is not the parties' intention that clause (c) means that for instance ordinary hours - an excess of ordinary hours on one day, time and a half for the first three hours, is anything other than once the ordinary hours have been exceeded.

PN56

THE COMMISSIONER: Yes.

PN57

MS CHAMBERS: I think that is pretty clear. If the Commission pleases.

PN58

THE COMMISSIONER: What date was the agreement certified?

PN59

MS CHAMBERS: 25 March 1999 and remains in force until 25 March 2002.

PN60

THE COMMISSIONER: And in terms of the agreement, any variation to remove ambiguity would be from 25 March?

PN61

MS CHAMBERS: Yes, Commissioner.

PN62

THE COMMISSIONER: Yes. Thanks. It reminds me of an argument some years ago where a particular employee said a pair of overalls meant two, two pair of overalls.

PN63

MS CHAMBERS: Yes.

PN64

THE COMMISSIONER: All right. In regards to C No 2001/1627, which is an application under section 113, which is an application to set aside an award, the draft order has been provided in regards to varying clauses 17 and 27 to reflect what was the intention of the parties and to remove any ambiguity that is in place which does not accurately reflect the intention of the parties in the making of the award. The Commission is satisfied that it is in the interests of the parties that the draft order that has been provided reflects accurately the intentions of the parties, and accordingly the Commission is prepared to vary the terms of the award as determined in the draft order. The order shall come into force from 22 September 1994 and shall remain in force for a period of 12 months.

PN65

In C No AG2001/1787, this is a similar argument to remove ambiguity from the certified agreement by varying clauses 24 and 37. The ambiguity that exists in the certified agreement is the same ambiguity that exists in the Health Services Union of Australia (Gribbles Pathology South Australia) Award 1994. The Commission is satisfied that it is in the parties' interest to vary the certified agreement in the terms sought in the draft order and the variation shall take effect from 25 March 1999 and shall remain in place for a period of three years. Is that all? No further business. The Commission wishes you a good morning and stands adjourned.

ADJOURNED INDEFINITELY [10.54am]