C0075/499, Transcript of Proceedings [2001] AIRCTrans 817 (9 May 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C No 00754 of 1999

C2001/1553
C2001/2001

APPLICATIONS UNDER THE WROLA ACT 1996

Application under section 54 Item 51 Schedule 5
Transitional WROLA ACT 1996 re conditions of employment
Application to consolidate the Gelatine, Glue and
Adhesives Industry (Roping-in No 1) Award 1990
Application to set aside the Gelatine, Glue and
Adhesives Industry (Roping-in No 1) Award 1990

SYDNEY

2.48 AM, THURSDAY, 19 APRIL 2001

Adjourned Indefinitely

PN1

THE COMMISSIONER: I'll take appearances, please?

PN2

MS J. SCHOFIELD: If the Commission pleases, I appear for the ALHMU.

PN3

MS M. McDONNELL: I appear for the Australian Business Industry.

PN4

THE COMMISSIONER: The matter has been called on to finalise the review of the award that I have under item 51. I've received some material this morning from Ms Schofield in relation to submissions for the formulation of the dispute settling training leave provision which is being sought. Ms McDonnell, could you just advise me, are those submissions and the provision by consent?

PN5

MS McDONNELL: Commissioner, like yourself I've only just received a copy of the submissions from the union and haven't had a great deal of time to peruse them although we do actually consent to the provision as it stands in the current document that's been forwarded to us.

PN6

THE COMMISSIONER: I don't think - on my very quick perusal of the submissions didn't appear to change the clause at all. My impression was that they were submissions in support for the inclusion. So that's one thing I wanted to ask you. What I propose to do at the moment before we go into the full hearing is actually just quickly go into conference with the parties. There's also the issue of the roping-in awards which I think it's agreed that they will be consolidated into the main award and I think we've already discussed that issue and then the roping in awards would be set aside. We've received two pieces of correspondence from employers that we take to be listed as respondent to one or more of the roping-in awards. I'd like to talk to the parties about that, but also we made a consolidated list of all the respondents to the roping-in awards and the main award where we've received our notice of listings returned to us. So I want to talk to the parties about what we do in that case as well. So we'll quickly go off the record for the moment before we continue with the hearing, thank you.

SHORT ADJOURNMENT [2.53pm]

RESUMES [3.42pm]

PN7

THE COMMISSIONER: That was a longer conference than we had anticipated but anyhow we've gone through a lot of issues. So, Ms Schofield, you have the floor.

PN8

MS SCHOFIELD: Thank you, Commissioner. There are just several matters which we would seek to note arising from the draft document that's been developed as well as matters raised in conference this afternoon. We note that the award has been subject to review for several months. It is an award that contains allowable award matters and is presented to the Commissioner as a consent document.

PN9

There are several matters which we do however want to address. The first is that the award will need to be reformatted into format consistent with s.150A. The second is the parties have agreed today to the inclusion of a part-time provision which had been previously agreed in discussions between the parties but has been omitted in the draft.

PN10

We note that the rates are probably fixed minimum rates. There is one matter in regard to the drafting of the rates and classification provision in that historically this award has represented the rates from the highest rate payable which is level 6 through to the lowest rate payable which is level 1, and we would seek to turn that around so that the award is drafted in a way that level 1 is the start of the classification structure and level 6 is the end so that when reading the classification structure and looking at the wage rates we are going from the lowest rate to the highest rate which is generally how these clauses are reflected in other awards of the Commission.

PN11

We can undertake to assist with that redrafting. In terms of one matter outstanding which is the dispute settlement training leave provision, the LHMU did forward to the Commission a written submission in support of the inclusion of a clause on dispute settlement in training. We don't propose to go in detail to that submission and we note that it has been a subject to discussions in conference this afternoon.

PN12

The submission does refer in detail to the principles of the full bench in the leave case and we draw attention to the fact that the cumulative effect of this decision and a number of decisions subsequently is that the Commission has dealt with this issue of dispute settlement in training leave having regard to the matter - the particular case before the Commission and the features of the industry which are under review, including whether or not the award that is being simplified previously included a clause for in training leave and I note that the adhesives industry award did have such a clause contained within it. So the industry having always had access to trade union leave and having regard to the decisions of the full bench and other members of the Commission, we submit that it is an allowable award matter and eligible to be included in the draft of the award.

PN13

THE COMMISSIONER: It's based on a case by case approach, Ms Schofield, isn't it?

PN14

MS SCHOFIELD: Yes, that's correct. Having regard to that, we do note the decision of Munro J on 6 April 2001 and in particular some issues that were raised in that decision having regard to the Metal Engineering and Associated Industries Award and having reviewed that decision the parties have undertaken to redraft the trade union - - -

PN15

THE COMMISSIONER: 11.5.1 I think we were discussing, Ms Schofield.

PN16

MS SCHOFIELD: That's right, yes, to redraft some aspects of 11.5.1 to bring it in line with matters raised by Munro J in his decision. I think we can undertake to get that draft to you early next week. Other matters that I do wish to address is that we note that the Commission has prepared a consolidated respondency list which includes on it a notation of a number of companies which could be removed from the respondency list and we have asked for seven days to take that list back to our branches to confirm that these companies are no longer in existence in the industry and can be deleted from award respondency, so we will undertake to do that.

PN17

The Commission has also provided copies of correspondence from two companies, Consolidated Protective Coatings Pty Limited and Jambro and we will seek advice from our branch about whether those companies operate in the adhesives industry and advise the Commission accordingly. Finally we do consent to the setting aside of the roping in awards and note that the companies covered by those awards are now contained in the general respondency of the award.

PN18

THE COMMISSIONER: Did we address the rates having reviewed the parties - looked at the rates in the award as being properly fixed minimum rates?

PN19

MS SCHOFIELD: I'm not sure. If I didn't, I omitted it and yes, we do submit that they are properly fixed minimum rates.

PN20

THE COMMISSIONER: I think when the award was made they were actually set as properly fixed minimum rates, if memory of the conferences serves me correct.

PN21

MS SCHOFIELD: Yes, that's right. The award is to remain in operation for 12 months.

PN22

THE COMMISSIONER: Thank you, Ms Schofield, for those submissions. Ms McDonnell?

PN23

MS McDONNELL: Thank you, Commissioner. We concur with the submissions made by the union in relation to the simplification of this award and also seek the 7 days opportunity to check the respondency list as well and will report back to the Commission. If it please the Commissioner.

PN24

THE COMMISSIONER: I'm just looking at the original award actually in regard to establishment of rates. If there nothing further at all, Ms Schofield, Ms McDonnell?

PN25

MS SCHOFIELD: No.

PN26

THE COMMISSIONER: Thank you for those submissions. The matter that I have before me relates to a review of the Adhesives Industry and Gelatine Manufacturing Award 1991 pursuant to item 51 of Part 2 of schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996.

PN27

Having reviewed the award consistent with the award simplification principles and having heard the submissions of Ms Schofield on behalf of the ALHMWU and Ms McDonnell on behalf of the ADL, the award will be varied so as to remove 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 are necessary for the effective operation of the award.

PN28

I accept the parties' submissions in relation to clause 11.5.1, the training for employees involved in disputes settlement is incidental and necessary to the effective operation of the procedure having regard to existing award provisions and the nature of the industry. The parties will forward me a redrafted clause along the lines as we've already discussed in conference. I'm satisfied that the wage rates having been reviewed by the parties are properly fixed minimum rates of pay, therefore item 51.4 and 5 have no application.

PN29

The respondency list is to be updated. I propose to delete respondents where we've been advised that they're no longer at that address or they're not known at that address, or they're no longer in operation in the industry, however I will afford the parties 7 days to advise me, If there is any respondent on the consolidated list that I've handed to the parties that should not be removed from the respondency to the award then they are to advise me. In particular as Ms Schofield has mentioned correspondence was received into the Commission from Consolidated Protective Coatings stating that they do not operate in the adhesive industry and also a telephone conversation from Mr Alec Jankowski from Pasload Australia in relation to Jambro, so in particular those two respondency parties will advise me if they are to be removed from the list of respondents to the award, that advice should be forwarded within 7 days.

PN30

Once varied the award will satisfy the criteria set out in sub-items (6) and (7) of item 51 of Part 2 of schedule 5 of the WROLA, in particular the parties have advised me that the inclusion of the model course from the award simplification decision in relation to part time should be inserted into the award at clause 12.3.

PN31

This decision also concerns the Adhesives Industry and Gelatine Manufacturing Roping-In Award number 1 in 1990 and number 2 in 1990, and also the Adhesive Gelatine Manufacturing Award Roping-In Number 1 Award of 1991. I have decided to consolidate the roping-in awards into this award and set aside those three roping-in awards.

PN32

Pending receipt of advice from the parties in regards to the issues that I have highlighted and acceptance of the parties disputes settlement clause at 11.5.1 the award which is to be known as the Adhesives Industry and Gelatine Manufacturing Award 2001 will operate from the beginning of the first pay period to commence on or after today's date and it will remain in force for a period of 12 months. The issuing of the order will be after the relevant material is forwarded into the Commission.

PN33

I think they are the only issues that I have to address. Is there nothing further that is required? If not, on that basis I thank you very much for your attendance. I also thank you very much for the hard work in relation to the simplification process of the award, it's not easy, it's very time consuming. It is appreciated by the Commission when the parties put in work in that regard. So on that basis the Commission is adjourned.

ADJOURNED INDEFINITELY [3.55pm]