C3480/200, Transcript of Proceedings [2001] AIRCTrans 82 (26 February 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 5878

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C NO 34802 OF 2000

AIRLINE OPERATIONS - CLERICAL
AND ADMINISTRATIVE AWARD 1999

APPLICATION BY THE AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL AND SERVICES
UNION TO VARY AWARD RE ARBITRATED SAFETY
NET ADJUSTMENT - WAGES AND ALLOWANCES

MELBOURNE

12.48 PM, FRIDAY, 9 FEBRUARY 2001

CONTINUED FROM 14.9.00

PN36

MR NUCIFORA: I appear for the Australian Services Union in place of Ms White who appeared in this matter earlier.

PN37

MR TRINDADE: I appear for Ansett. Your Honour, I might before we continue say last time we appeared not in this matter but in the next matter. There was a question of leave raised as at that time I was a secondee from Clayton Utz to Ansett. That issue happily I think has been resolved in that I am no longer an employee of Clayton Utz I am actually an employee of Ansett Australia Limited and as such don't believe that any leave is necessary.

PN38

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora.

PN39

MR NUCIFORA: Thank you, your Honour. Just before we start on this matter, that is 34802, if I may - by way of confirming service on the award respondents - tender a copy of a declaration of service.

EXHIBIT #ASU1 DECLARATION OF SERVICE

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Nucifora.

PN41

MR NUCIFORA: Thank you, your Honour. ASU1 as required by - and sent out the notice of listing. We have notified the respondent and in particular Mr Trindade was aware of today's hearing on behalf of Ansett. And included in ASU1 is correspondence to - the acronym is SITA - but - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Is that the only other party to the award is it, is it Ansett and SITA?

PN43

MR NUCIFORA: Yes, SITA. they weren't - as I understand it they did not appear when this matter was last before you on 14 September but they certainly were served with the documentation. I think that documentation is on file. I think that was filed by Ms White prior to the hearing on 14 September 2000. Your Honour, at the last hearing you would recall that this was an application to vary the Airline Operations Clerical Administrative Award 1999 to reflect the safety net adjustment pursuant to print S5000, that is the 2000 safety net adjustment.

PN44

There was opposition by Ansett for two reasons as I understand it as they saw it a fundamental opposition because of the no extra claims commitment that exists in the agreement. And the other reason was that there was a practical effect because some of the allowances, in particular transport and meal, were slightly higher. If I may tender as an exhibit correspondence from Ansett which goes to setting out those concerns and their opposition.

PN45

THE SENIOR DEPUTY PRESIDENT: I will mark this correspondence to Ms White from Mr Smith regarding safety net adjustment application that is dated 3 October 2000 as ASU2.

EXHIBIT #ASU2 CORRESPONDENCE RE SAFETY NET ADJUSTMENT

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR NUCIFORA: Your Honour, in ASU2 the - I might just say this correspondence arose out of your directions at the last hearing that in fact Ansett outlined where there were practical concerns particularly where there were rates of pay that were proposed in the draft order that would exceed the enterprise bargaining agreement rates and particularly as mentioned here in item 1 transport and meal allowances. As you can see there, your Honour, there is a difference of 25 cents in relation to transport allowance and 21 cents in the meal allowance. Your Honour, we would say that - - -

PN48

THE SENIOR DEPUTY PRESIDENT: It is $1.25 isn't it?

PN49

MR NUCIFORA: No, sorry, in relation to the meal allowance it is currently 7.25 in the agreement - - -

PN50

THE SENIOR DEPUTY PRESIDENT: Sorry, yes.

PN51

MR NUCIFORA: - - - and the award and it is proposed to go to 7.46.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN53

MR NUCIFORA: Your Honour, you did say that in this particular industry award that you were prepared to approve the variation in relation to the rest of the industry, or if you like in relation to the other award respondent, but that Ansett should have further discussions with us. We would say, your Honour, that the no extra claims commitment that Mr Trindade took you to in the earlier matter although it refers to no extra claims in relation to safety net adjustments I think what is important and we would interpret in that additional claims that arise out of safety net adjustments.

PN54

Now we would say the practical concern here is that there is an additional 25 cents for transport, an addition 21 cents for meal. Mow, we cannot - of course we would not have sought to enforce that increase. That would be in excess of the agreement. On the other hand all other - everything else has been checked - all other allowances and all the rates of pay and they are significantly lower generally than the enterprise bargaining agreement. And we say that the award variation should proceed. If I may, your Honour, just tender as a copy an amended draft order. I believe there is a draft order on file. This is an amended one and I will go to the amendment.

EXHIBIT #ASU3 AMENDED DRAFT ORDER

PN55

THE SENIOR DEPUTY PRESIDENT: Yes.

PN56

MR NUCIFORA: Your Honour, the only change in this particular draft order is the operative date which should be - it was originally 11 November it should now read - well it now reads 31 November in ASU3. We would say that the only practical concern, and this has come up in other awards where there are enterprise agreements that are still alive, but the practical concerns in terms of item 5, the transport allowance, and item 10, the meal allowance. Now, we would say the company has a legitimate argument if the union was pursuing the extra increase as over and above the agreement.

PN57

What we put to you, your Honour, is certainly there should be no problem with anything else in the draft order because it is well below - and the company agrees it is well below - the agreement rates in terms of wages and in terms of allowances. There are otherwise no other - there is no other opposition to the calculation of any of the rates here. We believe consistent with the National Wage principles that the award should be varied to ensure that the safety net is kept up to date. What we would put, your Honour, in relation to the two allowances where there is this difference where they are going to be higher than the agreement that in fact that we give an undertaking that they not be - that the extra - well, the margin not be pursued as an extra claim.

PN58

Your Honour, we would be prepared to make that undertaking as formal as it needs to be to ensure that the award could not override the agreement. Your Honour, the other thing we would say is that - - -

PN59

THE SENIOR DEPUTY PRESIDENT: What does that mean, that I increase the award but you won't pursue the breach of it?

PN60

MR NUCIFORA: In terms of the - well, we would say, your Honour, that the agreement overrides the award in any case for the life of the agreement. Any pursuance of an extra claim would be a breach of the agreement.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes.

PN62

MR NUCIFORA: The problem that we have is that if we left out those two allowances and said - and this could be as an alternative - if that was going to create too many problems an alternative position is actually leave out those two allowances until the - and vary the rest of the award until the agreement has expired.

PN63

THE SENIOR DEPUTY PRESIDENT: When does the agreement expire?

PN64

MR NUCIFORA: I believe it is 31 December 2001 this year. Your Honour, the only problem with that is those allowances being out of sync. It does not mean we can't catch up at that later stage. All I am saying is that I believe that if the agreement overrides the award - and I might add, your Honour, this is the simplified award. When the agreement was certified the award that was reserved and incorporated into the agreement was the Domestic Airlines Award. I know that award has been replaced by this award but we would say that we - even if the no extra claims commitment had been an ordinary no extra claims commitment and didn't refer to the safety net increase that might arise out of a safety net principle that this would have still been a problem.

PN65

And this has come up in other awards that we have where in fact the award surpasses or is likely to surpass the agreement. Your Honour, we would say that under no circumstances could we pursue the difference here and certainly the transport and meal allowance and that the order as it stands, the amended draft order, should be approved as it is there. Your Honour, the other thing we mention is that it is - we mentioned that it was operative from 31 November. The last hearing we had before you you had mentioned that the variation be approved except for Ansett and we would say that we would do anything we need to do certainly legally as well as practically and ensure that the variations in particularly transport and meal cannot be pursued as an extra claim certainly in the life of the agreement.

PN66

But our grave concern is that the company seemed to be saying there is an argument that in fact the parties might have agreed to override the principles and I don't believe we can do that. And I don't believe - that certainly was not the intention of the ASU. We had intended to accommodate the principles. The principles certainly allowed for a further safety net adjustment after the agreement was certified. That relates to the stream of safety net awards. In this case it the Airline Operations Award and we believe that award should be kept up to date. We don't believe that it can, under no circumstances, be used as an argument by our union to pursue an extra claim. We can't. Whether it was - whether the extra claim provision was drafted as it is or even if it was a normal extra claim.

PN67

THE SENIOR DEPUTY PRESIDENT: Are you suggesting this has been a problem in other areas?

PN68

MR NUCIFORA: Not - this is fairly unique. I must say where it has arisen for me is for expired agreements and that is probably less of a problem. I haven't actually addressed the - I haven't had an award where the rates actually surpass the award rates - the proposed award rates which surpass EBA rates in the life of an EBA.

PN69

THE SENIOR DEPUTY PRESIDENT: Yes.

PN70

MR NUCIFORA: And that is a practical concern.

PN71

THE SENIOR DEPUTY PRESIDENT: In the other awards where it has presented as a problem what has happened?

PN72

MR NUCIFORA: We have been - I can't say that there really is a parallel with this. I think this has been a cautious response from - and including from the union that in fact a safety net award is not surpassing an agreement in the life of the agreement particularly in relation to rates of pay and allowances. And we would still argue if they did there is no - - -

PN73

THE SENIOR DEPUTY PRESIDENT: Has any employer said to you or to the Commission you should not grant the safety net adjustment having regard to the no extra claims clause of the agreement in another area?

PN74

MR NUCIFORA: I am aware that that has come up but it has not stopped the safety net adjustment going through per se. I mean there are - - -

PN75

THE SENIOR DEPUTY PRESIDENT: And what areas has it come up in?

PN76

MR NUCIFORA: I have - in this case it was an enterprise award, Australian Wheat Board Limited. I am aware of that. I am aware of the Records Management and Clerical Administrative Employees Award.

PN77

THE SENIOR DEPUTY PRESIDENT: Did the employer oppose the increase?

PN78

MR NUCIFORA: They were - they would have had we surpassed the actual rates and it didn't but in other cases where there was - - -

PN79

THE SENIOR DEPUTY PRESIDENT: So they didn't actually - the Commission didn't actually have to decide the issue?

PN80

MR NUCIFORA: No, not in the end. No, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN82

MR NUCIFORA: That is - and I have sought to - there are some decisions that go to award variations with a no extra claims commitment. There is one of Commissioner Raffaele in - I did have it here.

PN83

THE SENIOR DEPUTY PRESIDENT: While you are looking for that - Mr Trindade am I to assume that Ansett's position remains the same as previously?

PN84

MR TRINDADE: It does, your Honour. I mean I don't propose that I rehash the submissions that were previously made. I think your Honour is well aware. I would say that on the last occasion your Honour suggested that perhaps the appropriate course was to make the variation in respect of everyone else apart from Ansett and simply that this - the safety net matter can be dealt with at the expiration of the certified agreement and we would commend that course to your Honour in respect of this matter.

PN85

THE SENIOR DEPUTY PRESIDENT: What about a prospective variation date of 1 January 2002? Perhaps you would think about that while I deal with Mr Nucifora's continuing submissions.

PN86

MR NUCIFORA: One that I have found it was a decision of Commissioner Raffaele in print P0330. It relates to Foxtel Award 1995. Now that did refer to a no extra claims commitment in that case in an award. Well, we don't have awards with no extra claims commitment but he did exercise his discretion to say that the public holidays test case provision could be inserted although there was no extra claims commitment in the award.

PN87

THE SENIOR DEPUTY PRESIDENT: But won't the no extra claims provision in the award say excepting something like test case provisions or minimum wage adjustments or whatever. There is no such exception in your clause is there?

PN88

MR NUCIFORA: No.

PN89

THE SENIOR DEPUTY PRESIDENT: What did you think you were agreeing to when you put that clause in the agreement?

PN90

MR NUCIFORA: I am sorry I wasn't involved with that going into the agreement but we - my understanding - - -

PN91

THE SENIOR DEPUTY PRESIDENT: When I said you I meant the union.

PN92

MR NUCIFORA: No, I understand that. My understanding is that when that went in, and I think it was a common provision with all the other functional agreements in the airline - with Ansett, my understanding is that the agreement was going to be the main focus but it wasn't. Well, I certainly don't believe it was intended to override the National Wage principles. Now, I do not believe there is anything in the National Wage principles that exclude us making a variation under these circumstances.

PN93

THE SENIOR DEPUTY PRESIDENT: Well, I think that is right but the problem is you have got an agreement - - -

PN94

MR NUCIFORA: Yes.

PN95

THE SENIOR DEPUTY PRESIDENT: - - - which you have given a commitment which says you will make no extra claims including those arising out of safety net adjustments. It would seem you have made an agreement separate to the wage fixing principles.

PN96

MR NUCIFORA: Yes. But not to override them, to accommodate them.

PN97

THE SENIOR DEPUTY PRESIDENT: Well, that would be an easier argument for you, would it not, if you had not made specific reference to the wage fixing principles in the clause?

PN98

MR NUCIFORA: Yes, your Honour. Your Honour, we would say that the extra claim that we are referring to would be if we pursued the extra 21 cents in meal and the extra 25 cents - - -

PN99

THE SENIOR DEPUTY PRESIDENT: It is a pretty narrow definition of claim isn't it?

PN100

MR NUCIFORA: Well, I think it has got to be read in conjunction with what we mean by claim. Claim in terms of the enterprise bargaining agreement, that is what applies in terms of actual conditions. There is then the award safety net and that has to be kept up to date as per the safety net principles.

PN101

THE SENIOR DEPUTY PRESIDENT: Mr Nucifora, you say that you would give an undertaking you would not pursue - - -

PN102

MR NUCIFORA: Yes.

PN103

THE SENIOR DEPUTY PRESIDENT: - - - the money - extra money in respect of the allowances - - -

PN104

MR NUCIFORA: Yes.

PN105

THE SENIOR DEPUTY PRESIDENT: - - - which you say is the only area in which the safety net adjustment has practical effect.

PN106

MR NUCIFORA: Yes.

PN107

THE SENIOR DEPUTY PRESIDENT: What is the loss then to the union and its members from not adjusting the award until the life of the agreement expires?

PN108

MR NUCIFORA: Well, we would say that the award should be kept up to date as per the safety net principles and the award should be - should remain relevant. If the two offending allowances if you like were left out at this point then there is no practical effect on the company at all or even any potential breach of the award by not paying those allowances. We would say that the agreement overrides the award and that we had made a commitment of a no extra claims commitment. It is my instructions that consistent with the principles we do not believe that there is anything in the principle that excludes us from doing this. We should keep the award pure in that sense.

PN109

And that is one of the problems of leaving out those two offending allowances. They would be out of sync. We can catch up in time but what I am saying is that there have been a number of occasions where employers have sought to hold up the safety net adjustments for differing reasons we haven't simplified the award or whatever. At the end of the day there is nothing in the principles that says that because the award hadn't been simplified or because certain rates may exceed an enterprise bargaining agreement that it should be applied.

PN110

I would say, your Honour, that a way through this may be if the real concern - and I am trying to get to the real concern - is not about some - possibly some advantage that the company may be seeking to get for the no disadvantage rule at the next negotiations, or if you like the no disadvantage benchmark, but is really this concern about breaching the award in relation to the extra amount of money that would be involved in those two allowances. And maybe those allowances could be - maybe we could hold off on those until the agreement has expired because certainly there is no argument.

PN111

Nothing else in the draft order comes, I believe, anywhere near the actual rates of pay. I say that reservedly but I might say it is significantly lower than the actual rates of pay. Your Honour, their argument in this matter would be the same in the other matter although that is an enterprise based - what I mentioned before there have been enterprise based awards where this sort of issue has come up, not exactly the same though but where there has been this vigilance, if you like, of the parties and the Commission has reminded us that these rates of pay are getting closer to the actual rates of pay. If your Honour pleases.

PN112

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Trindade.

PN113

MR TRINDADE: Your Honour, I don't have much to add simply that Ansett's position is a simple one. We understand the principles and we understand and agree with the principles of safety net adjustment. Those are fundamentals of our system. What we do say is that where there is a no extra claims clause the union should honour the no extra claims clause. It has no practical effect on the union this application in which case it would be appropriate to deal with it at the end of the period. Your Honour's suggestion that perhaps the order could be made prospective with effect from after the expiration of the certified agreement does have some appeal to it.

PN114

What we would say in respect of it is that again it does fundamentally trespass upon what we see as the no extra claim. The very bringing of the application to have the safety net adjusted is, we would say, a breach of the certified agreement. It is not one that we have taken action in respect of but the fundamental principle is we make an agreement and we would like simply to have the status quo preserved until the life of it. And that is important for both the company and for its employees so that they can say here is my copy of the award, here is my copy of the agreement.

PN115

I know what my terms and conditions are, the industrial instruments they are governed by and they are not being told every six months or a year or whatever well, this thing has changed. It is a very simple submission, your Honour. I don't think, unless your Honour has any points you would like me to address, that I can assist you particularly further.

PN116

THE SENIOR DEPUTY PRESIDENT: There is one thing you can assist me on, Mr Trindade, is the clause in the - with respect - in the agreement which is relevant to the Airline Operations Clerical and Administrative Award '99 and I presume also relevant to the next matter is - talks about not pursuing any extra claims against the company for the life of the appendix. What do you say is the life of the appendix

PN117

MR TRINDADE: The life of the appendix is the life of the certified agreement to the nominal expiry date.

PN118

THE SENIOR DEPUTY PRESIDENT: So 31 December 2001?

PN119

MR TRINDADE: 31 December 2001.

PN120

THE SENIOR DEPUTY PRESIDENT: So am I to understand from that that the company would see that clause - the effect of that clause expiring on 31 December 2001?

PN121

MR TRINDADE: At the end of 31 December I suppose that the agreement will have reached its nominal expiry date.

PN122

THE SENIOR DEPUTY PRESIDENT: Yes.

PN123

MR TRINDADE: It will continue on in effect.

PN124

THE SENIOR DEPUTY PRESIDENT: That is why I asked the question.

PN125

MR TRINDADE: I see your point. I am sorry, your Honour, I was slow on the uptake there. The agreement will continue on but we will then be in a position where a new agreement will be negotiated. I see the point your Honour raises in that if the agreement continues on until we have a new agreement in place then there will be - it appears that there may not be a window of opportunity for the award to be updated.

PN126

THE SENIOR DEPUTY PRESIDENT: Well, you may have just changed your position on what the life of the agreement is.

PN127

MR TRINDADE: I think that is right, your Honour. Certainly the agreement does continue and I think that is probably the right position is that the agreement continues past its nominal expiry date until such time as we have a new one in which case the clause - - -

PN128

THE SENIOR DEPUTY PRESIDENT: That is assuming that the Commission adopts your view of what the life of the agreement is.

PN129

MR TRINDADE: Well, that is certainly I think the position we would be putting, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: It may be an interesting argument for you to pursue given your initial submission that the life was the expiry date.

PN131

MR TRINDADE: It is a - - -

PN132

THE SENIOR DEPUTY PRESIDENT: And what was the intent of the clause.

PN133

MR TRINDADE: I must say I had not turned my mind to that, your Honour, until your Honour alerted me to the fact that it did appear that it could be resolved by having the matter - by having the safety net adjustment pursued after 31 December. It is certainly not our intention that a safety net adjustment never happens and if your Honour can perhaps suggest a way that might be resolved without trespassing upon what we see as a no extra claims clause and to the satisfaction of my friend we would be grateful for your Honour's assistance.

PN134

THE SENIOR DEPUTY PRESIDENT: Very well. I intend to adjourn into conference.

NO FURTHER PROCEEDINGS RECORDED [1.13pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 DECLARATION OF SERVICE PN40
EXHIBIT #ASU2 CORRESPONDENCE RE SAFETY NET ADJUSTMENT PN46
EXHIBIT #ASU3 AMENDED DRAFT ORDER PN55