C2002/2413, Transcript of Proceedings [2002] AIRCTrans 2238 (17 June 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH

C2002/2413

FAMILY DAY CARE SERVICES AWARD 1999

Application under section 113 of the Act
by Australian Municipal, Administrative,
Clerical and Services Union to vary re
safety new review - wages May 2002

SYDNEY

10.04 AM, TUESDAY, 4 JUNE 2002

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, we'll take appearances, please.

PN2

MS J. THOMPSON: If it please the Commission, I appear for the Australian Services Union.

PN3

MS K. HEATH: If the Commission pleases, I am from Employers First on behalf of respondent members and also appearing today on behalf of the Queensland Chamber of Commerce and Industry.

PN4

THE SENIOR DEPUTY PRESIDENT: Ms Thompson?

PN5

MS THOMPSON: This is an application by the Australian Services Union to vary the wages and allowances in the Family Day Care Services Award 1999 in accordance with the safety net review wages decision 2002, print PR002002. the application also seeks to vary the award in respect of the parental leave application to casual employees in accordance with print 904631 which is a test case decision.

PN6

The Commission has signed an order of substituted service in this matter and all of the parties have been notified by facsimile both of the application and the notice of hearing. I'd like to tender the documents containing the notices faxed out to all of the parties, the faxed confirmation sheet, the draft order and the calculations work sheet. These documents indicate all of the parties received the documents and the notices.

PN7

THE SENIOR DEPUTY PRESIDENT: I'll mark the draft order as an exhibit and the other documents. I'll mark that T1 just for completeness, thank you.

EXHIBIT #T1 DRAFT ORDER AND ACCOMPANYING DOCUMENTS

PN8

MS THOMPSON: In response to the draft order, Ms Heath from Employers First contacted Mr O'Brien from our national office in Melbourne who actually has carriage of this matter. They have some issues with three of the points. Item 2 of the draft order, Ms Heath raised the issue of whether or not the absorption clauses in relation to past safety net increases should be deleted from the award and only the current absorption clause should remain.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, that's the normal practice.

PN10

MS THOMPSON: With item 4 of the draft order, clause 42 in relation to first aid allowance, Ms Heath was querying how the key classification was determined for the first aid allowance and there have been discussions between Mr O'Brien which Ms Heath will address. Item 5 of the draft order, Ms Heath is querying whether there is a better way of drafting the parental leave for casuals clause by spreading the various paragraphs throughout the existing clause rather than the way it appears in the current draft order and Ms Heath has a document to put forward for that.

PN11

With regard to the other calculations and the operative date, Ms Heath and Mr O'Brien have agreed with the calculations to the rates of pay and allowances and the operative dates for items 1, 3 and 4 should be 27 June 2002 and for item 5, parental leave for casuals, from today's date, 4 June. Thank you, your Honour.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Ms Heath?

PN13

MS HEATH: Your Honour, as Ms Thompson said, we have had an opportunity to review the draft order and I have spoken to Mr O'Brien. We do consent to the rates as they do comply with the safety net decision of May 2002. The award rates have been increased by $18 in a per annum version of $18. With regards to the allowances, we consent to the meal allowance being increased appropriately in relation to the CPI. The first aid allowance, as Ms Thompson alluded to, I have had some discussions about that with Mr O'Brien just specifically with relation to the Furnishing and Glass Industries decision and the key rate to be used.

PN14

We were questioning why in fact in fact C1, year one was the users care rate and how that had been decided. Out of that, I did some calculations historically and it appears at least that in 1999 and 2000, that was the rate used. There seemed to be no other reason for that so, so as to not hold up the increase though, we will consent to that today. However, we'd reserve our right perhaps to have some more discussions between the parties in the future as to whether that really is the most appropriate one.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you're saying, Ms Heath.

PN16

MS HEATH: Thank you, your Honour. In terms of the operative dates, we are satisfied that principle 8A and 8B have been met in relation that 12 months will have elapsed on 27 June 2002 for the increases to rates and that it's not operative earlier than the date of variation. We have received the union's commitment to absorption and would note as Ms Thompson mentioned that the absorption clause should probably replace the old rather than just be tacked onto the end.

PN17

Finally, with regards to the casuals parental leave, the discussions I've had with Mr O'Brien were in relation to the fact that perhaps the clause would read better if say, for example, the definition section of what an eligible casual is, is actually put in the definition section of the clause and the re-engaging section is put in the re-engaging section rather than just putting it all in the preamble. Mr O'Brien's view on that was that we might see what the Commission thought, if the Commission had an opinion on that. Either way, we would probably consent to either. However, it was our preference to probably do that. I have prepared a document, if it pleases, that I can hand up that would show how it would look if it was to be put throughout the clause.

PN18

THE SENIOR DEPUTY PRESIDENT: Well, tender that and I'll mark that. I'll mark that exhibit H1.

EXHIBIT #H1 DOCUMENT PREPARED BY MS HEATH

PN19

MS HEATH: Other than that, your Honour, we consent.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you for those submissions. The Australian Municipal, Administrative, Clerical and Services Union has applied pursuant to section 113 of the Workplace Relations Act 1996 to vary the Family Day Care Services Award 1999 to give effect to the safety net review wages Full Bench decision 9 May 2002 by varying wages and allowances in accordance with the principles set out in that decision.

PN21

The application also seeks to vary the parental leave clause insofar as it relates to casuals in accordance with the test case provision set out in the Full Bench decision, print 904631. I am satisfied on the basis of the submissions that exhibit T1, the terms of exhibit T1, subject to qualifications I make, meet the proper application of the safety net review and the test case provision for parental leave decisions.

PN22

The qualification I make is in respect to making it clear that the absorption clause in paragraph 21.3.1 A2 will be replacing rather than adding to the existing absorption clause. With respect to the terms of H1, which is a different format for the parental leave provisions, I wish to peruse that exhibit and the order will reflect my decision on that matter, noting that the terms and provisions of that provision don't vary between the two orders, that is the draft in H1 and the draft in T1. It's a matter of formatting.

PN23

In respect of items 1, 3 and 4 set out in exhibit T1, the order will have effect from the first pay period to commence on or after 27 June 2002 and remain in force for a period of six months. With respect to item 5 which is the parental leave provision, the order will come into force from today's date, 4 June 2002 and remain in force until further order of the Commission. That requires a life so I'll also give that a life of six months.

PN24

The Commission stands adjourned. Thank you for your submissions.

ADJOURNED INDEFINITELY [10.12am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #T1 DRAFT ORDER AND ACCOMPANYING DOCUMENTS PN8
EXHIBIT #H1 DOCUMENT PREPARED BY MS HEATH PN19