C0035/299, Transcript of Proceedings [2002] AIRCTrans 1342 (22 April 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VTO3497

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00352 of 1999
C No 00346 of 1999
C No 00075 of 1999

UCIW/CIR CONSTRUCTION
(DOMICILED EMPLOYEES)
AWARD 1992

CHRISTMAS ISLAND RESORT
AWARD 1993

CHRISTMAS ISLAND RESORT
PTY LTD (FLEXIBLE
WORKING HOURS) ENTERPRISE
BASED (INTERIM) AWARD 1994

Reviews under Item 51, Schedule 5,
Transitional WROLA Act 1996 re conditions
of employment

CHRISTMAS ISLAND

2.59 PM, FRIDAY, 5 APRIL 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Arsim, do you appear in each of those matters for the Christmas Island Resort?

PN2

MR ARSIM: Yes, I do, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes. Is it actually the Christmas Island Resort now or is it some other name?

PN4

MR ARSIM: It is Christmas Island Resort. The company is Soft Star Proprietary Limited trading as Christmas Island Resort.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Arsim. Mr Thomson, you appear for the union?

PN6

MR THOMSON: Yes, sir. Yes, again.

PN7

THE SENIOR DEPUTY PRESIDENT: Still?

PN8

MR THOMSON: Yes, still.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Arsim, is there anything you wish to say, first of all, in relation to the Construction (Domiciled Employees) Award 1992?

PN10

MR ARSIM: No, your Honour, I believe we have discussed the issues in previous meetings. We are quite happy with the outcome.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Thomson, do you wish to say anything in relation to that matter?

PN12

MR THOMSON: Yes. The union also accepts the outcome of those discussions which is that that award be set aside.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you very much, Mr Thomson. Is there nothing else you wish to add?

PN14

MR THOMSON: About other matters?

PN15

THE SENIOR DEPUTY PRESIDENT: No, about this matter first of all.

PN16

MR THOMSON: About the construction award?

PN17

THE SENIOR DEPUTY PRESIDENT: Yes.

PN18

MR THOMSON: Would indicate that the union would be taking steps to provide award coverage for construction workers on Christmas Island including the Christmas Island Resort. Should construction work occur at the resort we would foreshadow that provision will be made.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Well, in this matter I was required - - -

PN20

MR THOMSON: Sorry. I would add that the union acknowledges the undertakings of the employer during the discussions that the Christmas Island Resort Award, the substantive award, has provisions which cover those workers who may be periodically engaged in what could be said to be construction work of a maintenance character. So there will be ongoing award protection for workers at the resort engaged in minor construction and maintenance work.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Arsim, do you want to say something about that?

PN22

MR ARSIM: Yes, that is quite correct, your Honour. We agree with Mr Thomson's comments on this issue.

PN23

THE SENIOR DEPUTY PRESIDENT: Very well, thank you. In this matter I was required to conduct a review of the UCIW/CIR Construction (Domiciled Employees) Award 1992, print K4813, U0021, pursuant to item 51 of Part II of schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996. Initially, this matter was allocated to Commissioner Laing who notified the parties of an intention to conduct a review of the award and has at various times consulted with the parties about that matter.

PN24

Since the matter was allocated to me I have conducted preliminary conferences and ascertained from the parties that there is an agreement that this particular award no longer has any operative effect and has not in fact had any operative effect since about 1996. The parties have agreed in the circumstances that it will be appropriate to set the award aside rather than go through the process of an item 51 review. In the circumstances I am satisfied that the award has no operative effect and that no parties or employees would be affected detrimentally by me making an order to set aside the award. Accordingly, an order will be made in those terms. Thank you.

PN25

Now, if I could deal then with the Christmas Island Resort Award and the Christmas Island (Flexible Working Hours) Enterprise Based (Interim) Award in conjunction. Am I right in understanding from our conferences that the parties are desirous of having the Flexible Working Hours Enterprise Based (Interim) Award incorporated into the Christmas Island Resort Award 1993?

PN26

MR ARSIM: That is quite correct, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, Mr - - -

PN28

MR THOMSON: Yes, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Very well. Well, in the course of the conferences I have indicated to the parties if that was the agreed position of the parties I would approve the incorporation of the provisions of that award by way of variation of the Christmas Island Resort Award 1993 and I will do so in the exercise of my power under sections 111 and 113 of the Workplace Relations Act. Are there any other matters then in relation to the Christmas Island Resort Award 1993, Mr Arsim, as far as far as you are concerned?

PN30

MR ARSIM: No, not from our side, your Honour, we are very happy with the outcome of this award as well.

PN31

THE SENIOR DEPUTY PRESIDENT: Yes. Mr - - -

PN32

MR THOMSON: Thank you, your Honour. Just keeping with your need to thank those who have assisted us. I would like to put on the record appreciation of the union for the co-operation of the employer parties, particularly the AHA representative who has assisted us in this process, thank you.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Thomson. I am indebted to you for that. I am sure Mr Arsim will join with us in conveying our thanks to the AHA representative, Ms Bergman-Hanna, and I am indebted to my associate for reminding me of the name. There is one matter though. Mr Arsim, as I understand it, there is an issue between the parties and that is - well, first of all, let me say it this way. Everything is agreed on the changes to be made to the award to bring it into conformity with the requirements of item 51 and section 89A of the Act other than the district allowance and as I understand it there is an issue between the parties about the allowance being applicable, that is the district allowance being applicable to casual employees.

PN34

Mr Arsim, as I understand it, does submit that the allowance has no application to casual employees whereas Mr Thomson says that it should be paid in its entirety to casual employees and at the very least on a proportionate basis. What do you say, Mr Arsim?

PN35

MR ARSIM: Your Honour, essentially, that is the only major difference between Soft Star Proprietary Limited and UCIW, the issue of the district allowance for casuals. We maintain that casuals are not entitled to this provision and we understand that the matter could be open to interpretation as it is written and we leave ourselves in your hands regarding the decision of this issue.

PN36

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Arsim. Mr Thomson.

PN37

MR THOMSON: Yes, thank you, your Honour. With regard to the district allowance I think that needs to be looked at in view of decisions of the Commission in 1997 but I do reiterate the position that you identified that at the very least the casual employee should be paid the district allowance as a proportionate payment. The other matter that is outside the scope of the order to be issued today, as I understand it, is that the gaming classifications and rates of pay will issue as a separate order after the review - the minimum rates structure has been reviewed by DP Leary.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Thomson. I had omitted to mention that. Sorry, I didn't mean to cut you off.

PN39

MR THOMSON: No, no, that is it. As I understand it, your Honour intends to look at the decisions of the Commission in relation to the district allowance matter.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR THOMSON: And of course we await your direction in terms of how that is to be settled.

PN42

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you, Mr Thomson. In this matter I was required to - sorry, Mr Arsim, did you want to say anything about the issue of the matter being subject to further, or finalisation if you like, after the classifications and minimum rates of pay have been fixed?

PN43

MR ARSIM: No, your Honour, not at all.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes. In this matter I was required to conduct a review of the Christmas Island Resort Award 1993 pursuant to item 51 of Part II of schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996. The matter was initially dealt with by Commissioner Laing who notified the parties of the intention to conduct a review and who subsequently had consultations with the parties. Since the matter was allocated to me I have, on a number of occasions, consulted with the parties either in preliminary hearings or by way of conferences from Melbourne and - or lately on Christmas Island on 2 April and 5 April and also 4 April.

PN45

The parties to the award are the Union of Christmas Island Workers and previously the Christmas Island Resort Proprietary Limited but it was agreed in the course of the proceedings before me that the proper name of the employer to be incorporated in the award is Soft Star Proprietary Limited. In the proceedings before me Mr Arsim appeared on behalf of the Christmas Island Resort and Mr Thomson appeared on behalf of the union. I have indicated to the parties my intention to make an interim order subject only to a determination by me of an issue that has been raised by the parties about the application of the district allowance to the employment of casuals as the resort.

PN46

Mr Arsim has submitted that the district allowance has no application to casual employment at the resort. Mr Thomson, on the other hand, submits that the district allowance does have application to casual employment either in its entirety or at least on a proportional basis. I am indebted to the parties for the assistance they provided to me in referring me to a decision of Commissioner Gay and I have been provided with print numbered P5113 and also L7155 and I will have recourse to those decisions or that decision if it be one decision as well as any other decisions of the Commission reflecting on the issue of district allowances for casual employees in remote locations.

PN47

There remains to be considered also the question of the properly fixed minimum rates of pay and the classifications. The classifications in the award as it presently stands are not applicable to the operation of the resort in its current form and may well not be applicable to the operation of the resort in any subsequent operations and it is proposed that the classifications and the rates of pay be reviewed upon the issuance of a decision of Deputy President Leary in relation to the hospitality industry. There are some formatting issues to be resolved. The parties have indicated and the classifications.

PN48

The classifications in the award as it presently stands are not applicable to the operation of the resort in its current form and may well not be applicable to the operation of the resort in any subsequent operations. And it is proposed that the classifications and the rates of pay will be reviewed upon the issuance of a decision of Deputy President Leary in relation to the hospitality industry. There are some formatting issues to be resolved. The parties have indicated their acceptance of my determination of those matters. They will not change in substance any of the formal parts of the award.

PN49

At the request of the parties I have exercised my powers under section 111 and section 113 of the Act to vary the Christmas Island Resort Award 1993 by incorporation of the terms insofar as they are current and relevant of the Christmas Island Resort Pty Ltd Flexible Working Hours Enterprise-Based Interim Award 1994. That is C No 0075 of 1999, an award itself that was subject to review under Item 51 of Schedule 5 of the WROLA Act 1966. I have exercised my powers accordingly and varied the Christmas Island Resort Award 1993.

PN50

It is also agreed between the parties that the Christmas Island Resort Pty Ltd Flexible Working Hours Enterprise-Based Interim Award 1994 no longer has any operational or operative effect once it has been incorporated into the Christmas Island Resort Award 1993 and, accordingly, it has been agreed that I should set aside that award and I do make an order, accordingly, setting aside the Christmas Island Resort Award Flexible Working Hours Enterprise-Based Interim Award 1994, C No 0075 of 1999.

PN51

In due course I will publish full reasons for my decision in the matter of the Christmas Island Resort Award 1993 in which I will detail the necessary changes that have to be made to the award to bring it into conformity with the requirements of Item 51 of Schedule 5 of the WROLA Act and a requirement for section 89A of the Workplace Relations Act. The parties in the course of consultations and in the course of the proceedings before me generally have been entirely co-operative and very helpful and I thank them for that co-operation and their support.

PN52

The award will be varied to take effect from the date of the order on an interim basis, subject to further review of the classifications process. In the course of the order I will set out my reasons for decision for any order that I make in relation to the issue of the application and district allowance to casuals. Unless there are any other matters the matter is adjourned.

ADJOURNED INDEFINITELY [3.17pm]