C0083/199, Transcript of Proceedings [2002] AIRCTrans 2176 (13 June 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C No 00831 of 1999

PARKING STATIONS ETC. EMPLOYEES
(A.C.T.) AWARD 1983

Review under Section 51, Item 51,
Schedule 5, Transitional, WROLA Act
1996 Re Conditions of Employment

CANBERRA

10.49 AM, THURSDAY, 30 MAY 2002

Continued from 18.10.01

PN28

THE COMMISSIONER: Yes, I will take appearances again, just for the record.

PN29

MR G. ANDERSON: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers' Union.

PN30

THE COMMISSIONER: Thank you, Mr Anderson.

PN31

MR M. RYAN: I appear for CONFACT.

PN32

THE COMMISSIONER: Thank you. All right, the matter has been listed to see if we cannot bring this to some sort of a conclusion, the simplification of the Parking Stations Award. I understand, Mr Anderson, you provided a copy of your proposed draft to CONFACT?

PN33

MR ANDERSON: Yes, Commissioner.

PN34

THE COMMISSIONER: And have you had a response from CONFACT?

PN35

MR ANDERSON: No formal response as such. We have had a brief conversation this morning. Unfortunately, Mr Morphett is not available this morning, but Mr Ryan is here and I think I have brought him up to speed on things. And having a quick look through the document provided by Mr Ridgeway from the Simplification Unit, I do not think there is anything there that we would die in a ditch over, Commissioner. It seems that they have pulled us up where we have needed to be pulled up, and I think we can - I would suggest we might go through the suggestions made by the Simplification Unit and hopefully wrap the matter up this morning.

PN36

THE COMMISSIONER: All right. Well, the first thing, can we perhaps change the name of the award? Does it need to be Parking Stations Etcetera?

PN37

MR ANDERSON: I do not really think so, it is just habit, Commissioner. So, yes, that is agreed.

PN38

THE COMMISSIONER: It does only apply to parking stations, does it not?

PN39

MR ANDERSON: Yes. Yes, it does, Commissioner.

PN40

THE COMMISSIONER: Certainly, the classifications appear to be restricted to parking stations. So, we can drop the "Etcetera"?

PN41

MR ANDERSON: Yes, that is fine with us.

PN42

THE COMMISSIONER: Terrific. All right. So, we will stay on the record but you can sit down, Mr Anderson.

PN43

MR ANDERSON: Yes, thanks.

PN44

THE COMMISSIONER: We will stay on the record so that I have a record of what we agree and do not agree.

PN45

MR ANDERSON: Yes.

PN46

THE COMMISSIONER: All right?

PN47

MR RYAN: Yes, I understand, Commissioner.

PN48

THE COMMISSIONER: All right. Okay, it will be 2002?

PN49

MR ANDERSON: Agreed.

PN50

THE COMMISSIONER: We update the National Training Wage Award reference?

PN51

MR RYAN: Agreed.

PN52

MR ANDERSON: Agreed, yes.

PN53

THE COMMISSIONER: We remove the transmission of business provision to the redundancy provision?

PN54

MR RYAN: Agreed, Commissioner.

PN55

MR ANDERSON: Agreed.

PN56

THE COMMISSIONER: We use the term "Car" or "Motor car" but we do not use both. It can be either "Motor car" where the word "Car" is used, or it can be "Car" where the word "Motor car" is used.

PN57

MR RYAN: Yes, we would just go with "Car".

PN58

THE COMMISSIONER: "Car"?

PN59

MR RYAN: I think that is the common term, Commissioner.

PN60

THE COMMISSIONER: "Car".

PN61

MR ANDERSON: Yes, we would agree with "Car", Commissioner.

PN62

THE COMMISSIONER: Fine.

PN63

MR ANDERSON: Good to see we have got some ticks, Commissioner.

PN64

THE COMMISSIONER: The ticks are only the clauses. Somebody has done a cross-check to make sure the clauses you refer to are actually the appropriate clauses, that is all.

PN65

MR ANDERSON: Right.

PN66

THE COMMISSIONER: Amenities. We cannot have 11.1.

PN67

MR ANDERSON: That is agreed, Commissioner.

PN68

THE COMMISSIONER: So to what do you agree? I mean we can have an employee must be allowed one hour for a meal on each day of the week.

PN69

MR ANDERSON: Yes, thanks.

PN70

THE COMMISSIONER: But we cannot, other than Saturday.

PN71

MR ANDERSON: Yes.

PN72

THE COMMISSIONER: But what we cannot have is "provided that in the establishment there is a clean, well-ventilated room", etcetera.

PN73

MR ANDERSON: We are quite happy to delete "provided that" onwards.

PN74

THE COMMISSIONER: Onwards. So the 45 minutes goes as well?

PN75

MR ANDERSON: I think, on reflection, of course. But include the 45 minutes.

PN76

THE COMMISSIONER: As what? I mean, you cannot just have an hour or 45 minutes. There has got to be some sort of reason.

PN77

MR RYAN: Commissioner, if I might?

PN78

THE COMMISSIONER: Yes.

PN79

MR RYAN: We would like to just strike the whole clause because we think that 11.2 takes care of the meals and we think the rest of it is really not all that relevant to the purpose of the - - -

PN80

THE COMMISSIONER: Yes, but that is only the evening meal.

PN81

MR RYAN: Yes.

PN82

THE COMMISSIONER: I am surprised they have not picked up 11.3, because I do not think that is allowable. I think that is going to have to go.

PN83

MR RYAN: 11.4, Commissioner, might suit us for "no employee may work beyond five hours without a meal break" and if we just added to that "of not less than 30 minutes", would that be acceptable?

PN84

THE COMMISSIONER: Well, it might be to you, Mr Ryan. Whether or not it is to Mr Anderson I do not know. At the moment they are allowed an hour, or 45 minutes if they have got somewhere nice to have it.

PN85

MR ANDERSON: Yes. That is a bit unusual, the 45 minutes, peculiar to this industry, because it is generally a maximum an hour and a minimum of 30 minutes.

PN86

THE COMMISSIONER: Well, can we put that in?

PN87

MR RYAN: I would like that.

PN88

MR ANDERSON: Yes, let us be like everybody else.

PN89

THE COMMISSIONER: Well, all right. So a maximum of one hour, minimum of 30 minutes for a meal break on each day of the week.

PN90

MR ANDERSON: Yes.

PN91

THE COMMISSIONER: And then if they are asked to work later than 6.30, 11.2 stays in.

PN92

MR ANDERSON: Yes.

PN93

THE COMMISSIONER: The other bit has got to go.

PN94

MR RYAN: I agree.

PN95

THE COMMISSIONER: The 11.3. Are you happy for that to go?

PN96

MR ANDERSON: Well, yes, I have got no choice, Commissioner.

PN97

THE COMMISSIONER: Well, I mean, we could possibly do something else about it but the Advisory Union and the rest of it. No? All right. But, of course, it going, Mr Ryan, also takes away the ability to make mutual arrangements. So you lose something too. It is not only Mr Anderson who does not get told you just cannot do it. All right. But at least it is only a 30 minute meal break.

PN98

MR RYAN: Yes. So be it, Commissioner.

PN99

THE COMMISSIONER: All right. Now, the termination of employment provision according to the Awards Simplification Unit varies slightly from the standard.

PN100

MR RYAN: Is the variation 16.1.6, Commissioner?

PN101

THE COMMISSIONER: Well, I think that is part of it. I do not know whether that is one that they have picked up. It is really only the - well, it appears to be the traineeship are exercising their mind.

PN102

MR RYAN: I would probably go with the standard myself, Gil. What do you think?

PN103

MR ANDERSON: Well, certainly we will go for whatever the standard is, if that is not the standard.

PN104

THE COMMISSIONER: The test case one?

PN105

MR ANDERSON: Yes.

PN106

MR RYAN: Yes.

PN107

MR ANDERSON: The test case.

PN108

THE COMMISSIONER: All right. So the standard test case can go in?

PN109

MR ANDERSON: Yes.

PN110

THE COMMISSIONER: All right. And then we put the transmission of business clause in there.

PN111

MR ANDERSON: Yes.

PN112

THE COMMISSIONER: We have to drop the second half of 20.7. It says you are not allowed to work for somebody else when you are on annual leave. It is not allowable.

PN113

MR ANDERSON: Right.

PN114

THE COMMISSIONER: All right.

PN115

MR ANDERSON: Yes. That is fine.

PN116

THE COMMISSIONER: Personal leave. I do not know how much it varies from the standard test case. What I would like you to do is have a look at what you have got there, have a look at the standard test case, and let me know which you want to go with. I am not going to change what is there. If what is there is what is in the award currently, I do not care if it varies from the standard as long as it is allowable, it is allowable, and if that is what they have currently got there is no reason to take it out. It may be that the test case makes it clearer, that is the only thing. So if you could look at the standard test case provision on personal leave, look at what is suggested to go in the award, and just agree between yourselves which is the more appropriate. If there is a disagreement, what is there stays. Okay?

PN117

MR RYAN: All right.

PN118

THE COMMISSIONER: Now. Parental leave. The Award Simplification people are getting a bit ahead of themselves. It says that parental leave provisions do not apply to casuals and they do not, unless there is a variation to the award that says they do.

PN119

MR RYAN: Yes.

PN120

THE COMMISSIONER: So if you want to make a variation to the award to apply to casuals, well you make it.

PN121

MR ANDERSON: All right.

PN122

THE COMMISSIONER: But I am not going to do that as part of the Award Simplification thing. That is for the union to make a variation if they want to. All right?

PN123

MR ANDERSON: Fair enough, Commissioner.

PN124

THE COMMISSIONER: Now, 25.2.1. The Award Simplification people think you are making a reference to the wrong clause. I think you probably are. Since there is no 25.2.1(b), you cannot mean 25.2.1(b).

PN125

MR ANDERSON: That is correct.

PN126

THE COMMISSIONER: So what do you mean?

PN127

MR ANDERSON: 25.3.

PN128

THE COMMISSIONER: It was clause 34.

PN129

MR RYAN: I think it might be referring, Commissioner, to exemptions at 25.7.1. But then again it may not.

PN130

THE COMMISSIONER: I see. This must have come from somewhere, Mr Anderson. So which one do you think?

PN131

MR RYAN: I just thought it might refer to the exemptions - - -

PN132

THE COMMISSIONER: Where?

PN133

MR RYAN: - - - at 25.7.1, which is where you can - - -

PN134

MR ANDERSON: That would be logical, I suppose, but I am not sure - - -

PN135

THE COMMISSIONER: Yes. 25.7, I think it should mean.

PN136

MR RYAN: It might make sense.

PN137

MR ANDERSON: Yes.

PN138

THE COMMISSIONER: All right?

PN139

MR ANDERSON: You could do that at 25.7.

PN140

THE COMMISSIONER: 25.7. Okay. And the two exemptions for Lend Lease and for the net property management stay.

PN141

MR RYAN: Yes, Commissioner, I am willing to pay that.

PN142

THE COMMISSIONER: Now, there is a reason, I imagine, why the superannuation clause that is in the current award has been left in there. I suppose so we could compare it to what is there.

PN143

MR RYAN: Yes.

PN144

THE COMMISSIONER: Perhaps you could have a very good look at the super clause to make sure it picks up everything that is in the current super clause.

PN145

MR ANDERSON: Yes, if you recall, Commissioner, the last time this was before you, you said that the union should prepare another document and check for any typos.

PN146

THE COMMISSIONER: Yes.

PN147

MR ANDERSON: And also include the present superannuation clause, of course, and the union's version of what we believe the superannuation clause should be. That is why in italics is the superannuation in present form.

PN148

THE COMMISSIONER: I see.

PN149

MR ANDERSON: In the normal type face it is what we believe it should be. The issue was, from our point of view the issue was that the contributions for casual employees, - - -

PN150

THE COMMISSIONER: Yes.

PN151

MR ANDERSON: - - - you would recall, that was also an issue where a couple of the aged care - - -

PN152

THE COMMISSIONER: They were the - yes, that is - well, it was, but then Mr Morphett dropped the objection about the casuals, and what he was annoyed about or was pushing, was that 25.5.2 should not be in there.

PN153

MR ANDERSON: Yes. That is - - -

PN154

MR RYAN: Which I was about to address you on, Commissioner.

PN155

THE COMMISSIONER: You were, were you?

PN156

MR RYAN: We continue that objection. We think that is superfluous.

PN157

THE COMMISSIONER: It is superfluous.

PN158

MR RYAN: And 25.5.3 - - -

PN159

THE COMMISSIONER: Yes.

PN160

MR RYAN: - - - the one that Mr Anderson's provided, we think that there is a bit of stuff in here which is new, and we would - the first sentence is fine and the last sentence is fine, but we do not agree to the intervening bit. So 25.5.3 as we feel it should read:

PN161

Contributions for casual employees must be made at the end of each calendar month by employers.

PN162

We are happy with that. And then the next sentence should be:

PN163

For casual employees earning $450 or more in any month the contribution is calculated at the rate set out in 25.5.1.

PN164

Rather than actually talking, because 5.2 will disappear.

PN165

THE COMMISSIONER: So there is nothing currently covering casual employees, anyway, in the award?

PN166

MR ANDERSON: In the current clause, no. But our view, Commissioner, was that the legislation does not pick up the casuals earning between 250 and 449.

PN167

THE COMMISSIONER: Well, what do they do currently?

PN168

MR ANDERSON: Well, who knows what happens currently?

PN169

THE COMMISSIONER: Well, it is not there currently. I mean, the argument in the other award was that it was already there, and what you were doing was making it a bit more realistic, and Mr Morphett agreed to that. In this one, there is nothing in the award currently.

PN170

MR ANDERSON: Yes.

PN171

THE COMMISSIONER: I cannot actually insert something.

PN172

MR RYAN: Yes.

PN173

MR ANDERSON: Okay, then.

PN174

THE COMMISSIONER: All right? But if you and Mr Ryan can agree a clause that goes in there which just makes it clear that casuals do get it in accordance with the legislation, that is fine.

PN175

MR RYAN: Yes, we will try and do that.

PN176

MR ANDERSON: Yes. We will have a word on that at the same time as we are talking about personal leave. So that is super, 25.5.3.

PN177

THE COMMISSIONER: Okay. So we do not have to worry about what is in the old super award, except to make sure that everything is picked up. The anti-discrimination clause has to go to the front of the award and the junior rates of pay provision included in that can be dropped because it is no longer relevant. All right, so if you two can sort that out between yourselves we will make all the other changes. I only need to hear back from you on the personal leave clause.

PN178

MR RYAN: Yes, Commissioner.

PN179

THE COMMISSIONER: Whether you want to go with the standard test case or what you have got there, all right, and the agreed words for casuals in superannuation. Otherwise we will bring it up to date and hopefully make it within the month, okay?

PN180

MR RYAN: Yes.

PN181

MR ANDERSON: Yes, Commissioner.

PN182

THE COMMISSIONER: I will, adjourn.

ADJOURNED INDEFINITELY [11.05am]