C2002/2517, Transcript of Proceedings [2002] AIRCTrans 2305 (24 June 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2002/2517

ABORIGINAL LEGAL RIGHTS MOVEMENT
INCORPORATED (SA) AWARD 1999

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union, National Office,
Melbourne to vary the above award re Safety
Net Review Wages decision of May 2001

ADELAIDE

9.26 AM, FRIDAY, 7 JUNE 2002

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearance in this matter?

PN2

MR J. FLEETWOOD: I appear on behalf of the Australian Services Union, and with me, MR J. HACKETT.

PN3

MR R. GILLESPIE: I appear on behalf of Aboriginal Legal Rights.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Fleetwood.

PN5

MR FLEETWOOD: Yes, thank you, Senior Deputy President.

PN6

THE SENIOR DEPUTY PRESIDENT: Sorry to interrupt you before you commence. I have received a letter from the CPSU. I think a copy of which has been forwarded to you, Mr Fleetwood, but I don't know if it has to you, Mr Gillespie. We could give you a copy if you would like. It is dated today's date, indicating it had a direct interest in the matter. It is support for the application lodged by the ASU and the draft orders prepared by the ASU and that they would not be able to be represented in this morning's hearing. Mr Fleetwood.

PN7

MR FLEETWOOD: Yes, thank you, Senior Deputy President. This is an application to vary the Aboriginal Legal Rights Movement Inc Award 1996 to incorporate in that award increases arising from the 2001 Safety Net Adjustment of the Australian Industrial Relations Commission and at the same time, as the award rates increase allowances accordingly and at the same time to incorporate parental leave provisions. Now, I need, if I could to begin with, Senior Deputy President, by indicating that the application that was made in respect of this matter needs to be amended in that the application sought along with the increases arising from the safety net decision of May 2001 in print 002001 also to include in the award provisions for parental leave for casuals consistent with the Full Bench decision in print PR904631.

PN8

Now, Senior Deputy President, it turns out that this award, the Aboriginal Legal Rights Movement Award of 1996 does not yet contain parental leave provisions at all and so the insertion of the Full Bench test case decision arising from print 904631 obviously is a difficulty if the award itself is short of - and deficient of the parental leave provisions. So Senior Deputy President, I seek leave to verbally amend the application to in fact vary it to include parental leave provisions which will also include at the same time the provisions arising from that Federal test case decision in print 904631.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes. I take it though you haven't had an opportunity to prepare a draft order reflecting that.

PN10

MR FLEETWOOD: Yes, I have.

PN11

THE SENIOR DEPUTY PRESIDENT: Very good, all right.

PN12

MR FLEETWOOD: We have, Senior Deputy President and I will be handing up - I am happy to hand up draft orders now, but as is the nature of these things, it's not quite that simple. I will be seeking to amend those draft orders but I will explain why in a second, but not relating to that parental leave pursued.

PN13

THE SENIOR DEPUTY PRESIDENT: Now, is this the first time that Mr Gillespie has seen these orders?

PN14

MR FLEETWOOD: No, Mr Gillespie has seen the orders. There was a meeting held with him the other day. As I understand it, Mr Gillespie can no doubt speak for himself, but I think you will be advised that the employer has no problems with those draft orders. There isn't an issue about them but perhaps I might go to the matter now. Earlier this morning we stumbled across an allowance in the award which is not the subject of variation in those draft orders and Mr Gillespie and myself discussed the matter literally 5 minutes ago for the first time. Again, Mr Gillespie can speak for himself, but based on that conversation I don't think we will have any difficulty in adjusting that allowance in accordance with the process to be followed in respect of the furnishing and glass industry's allowances decision in print M9675.

PN15

I also understand from a comment Mr Gillespie made that the allowance in question, people are in fact paid in advance of in respect to the monetary amount. So that made us feel a little bit better that we weren't doing something, or hadn't left out something that might be affecting people. Senior Deputy President, can I indicate, as I said before, that this is an increase in line with the May 2001 Safety Net decision? My understanding of the history of the award - and I wasn't involved personally directly in the simplification process - but it's my understanding that arising from that process presumably at that time the relevant rates and allowances were updated in respect of safety net adjustments applicable at that time.

PN16

We now find ourselves in the situation where we're pretty much exactly one year behind in respect to the application of rates to this award and perhaps, Senior Deputy President, I might take the opportunity to ask you here this morning whether or not in your assessment if the rules stay as the rules stay, that is the principles in relation to safety net adjustments, that if the rules stay as the rules stay will we technically always be a year behind? Will we never be able to catch up? The situation at the moment is that there is no enterprise agreement applying with the employer. The parties are hopeful but I think they've been hopeful for a while and I am hoping that that can happen so that we don't have this problem impacting directly on us as it does at the moment.

PN17

Perhaps Senior Deputy President, just for my benefit, if you could advise me in a minute perhaps as to what the situation would be in respect to any potential catch-up. I understand from the principles that it would require consent of the employer and if it didn't actually impose a cost - and I'm not sure if it was with consent of the employer and imposed a cost whether or not the Commission would still be able to vary it.

PN18

THE SENIOR DEPUTY PRESIDENT: I think you might have identified the necessity for there to be a referral to the President. The variation that was made in last year's safety net adjustment really was to accommodate those awards that fell a bit behind but in the majority of circumstances were topped up by EBAs. So if there was consent and no cost in those situations they were brought up to date but if there's no EBA here one assumes it would follow there would be a cost.

PN19

MR FLEETWOOD: That would be my understanding.

PN20

THE SENIOR DEPUTY PRESIDENT: As I read it I think the only avenue you would have is to seek a referral to the President as to whether or not we no longer have special cases. It's just a referral to him as to whether he believes a single member can consider whether this is an appropriate case to vary the award in a way at odds with the principles or whether a Full Bench would. Your fate on that, I must say, would be significantly affected by the view of the employer.

PN21

MR FLEETWOOD: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: Mr Gillespie could tell us about that.

PN23

MR FLEETWOOD: I have no instructions or advice as to what Mr Gillespie's view on that matter would be. I just simply was taking this opportunity to, for my own benefit, for the benefit of the ASU, to get a picture of it.

PN24

THE SENIOR DEPUTY PRESIDENT: No, will I think you've guessed probably what your limited avenues might be to try and pick up some of the lag.

PN25

MR FLEETWOOD: Yes, okay, thank you. Can I just indicate - - -

PN26

THE SENIOR DEPUTY PRESIDENT: All right. Well then what do I do today - - -

PN27

MR FLEETWOOD: Sorry, Senior Deputy President, can I just indicate that where we're at at the moment is that the employer has the draft orders, has previously had them, should be okay with them. However, and if I refer to the award, Part 8 of the award is titled: Transfers, Travelling and Working Away from the Usual Place of Work; and in Part 8 there are travelling, transport and fares expenses and they are the ones that we have forgotten to include in the draft orders. So what I was going to ask of you, Senior Deputy President, is that if we could be allowed to further amend those draft orders to undertake to get them to your office electronically within Monday or so of next week - sorry, Monday's a public holiday. It will be Tuesday or Wednesday of next week, but we would ask notwithstanding that if you are able to, to vary the award accordingly and do so the first available date allowable to you to do that. Thank you.

PN28

THE SENIOR DEPUTY PRESIDENT: I think it's probably today, Mr Fleetwood. Do you want to put something contrary to that?

PN29

MR FLEETWOOD: I would ask for it to be from the first available date meaning today, if today is available to you.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it won't be later than today, subject to what Mr Gillespie has to say, but I see in your draft you're proposing back to March. There might be some constraint on me in relation to that. I don't have the 2001 Safety Net decision with me here unfortunately. I will just refresh my memory but I think it says that the award will come into operation from a date no earlier than the order.

PN31

MR FLEETWOOD: Sorry, Senior Deputy President, I was just seeking clarification of what date we are in fact seeking.

PN32

THE SENIOR DEPUTY PRESIDENT: Right. What date are you after?

PN33

MR FLEETWOOD: Well, certainly 28 March 2002 presumably is a year on from the last adjustment.

PN34

THE SENIOR DEPUTY PRESIDENT: That might be right. I'll look at the file.

PN35

MR FLEETWOOD: I think that's where that would come from.

PN36

THE SENIOR DEPUTY PRESIDENT: I'll look at the file there. I'm pretty sure I dealt with this matter last year, didn't I, Mr Gillespie? I think I did. So we will have a look at that. Mr Gillespie, subject to you looking at a further variation that needs to be made to this draft and subject to hearing you on the question of operative date, what's the Aboriginal Legal Rights' attitude to this?

PN37

MR GILLESPIE: Well, for a start on the parental leave, we support that with one proviso. We're hoping that it would be extended to same sex parents. That was at our suggestion rather than the union, because that has been currently reflected in our enterprise bargaining agreement which will be going for a vote to our staff after about 7 years to vote on in the next couple of weeks.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MR GILLESPIE: We do support the safety net adjustments and we do support the adjustments to the allowances but I will mention that our allowances that we currently pay are inconsistent with Government guidelines which are above what's included in the awards and what is expected to be included in the awards.

PN40

THE SENIOR DEPUTY PRESIDENT: Mr Gillespie, if Mr Fleetwood is right and the year 2000 safety net adjustments were operative from 28 March 2001, would you oppose these new adjustments being operative from the 12 month anniversary after that, namely, 28 March of this year?

PN41

MR GILLESPIE: We are not opposed but bearing in mind that we are a community governed organisation - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR GILLESPIE: - - - that is funded from ATSIC, our budget at the moment is fairly tight. I suggest that to be fair to my work colleagues, I would have no reservations. We would have to somehow access those funds internally - - -

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR GILLESPIE: - - - but, on principle, we would have no objections at all.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, I will have a look at my earlier file, consider what constraints the wage fixation principles might put on me on accommodating that date, let you know the outcome of that. Then, Mr Fleetwood, if I think I can accommodate the 12 month anniversary, well, so be it. If I can't, and I could not accommodate a day earlier than today, well, the order should issue anyway so, at least, that much has been finalised and you can give consideration to whether you want to refer up the retrospectivity. I think it can all be done. It just might have to be done in two steps.

PN47

Well, then, is that as far as we go today? Can we look forward to getting something from you early next week?

PN48

MR FLEETWOOD: Yes, we will commit to do that. We will need to run it past - just thinking about the logistics of this. We will, obviously, need to run the amendment past Mr Gillespie - - -

PN49

THE SENIOR DEPUTY PRESIDENT: Indeed.

PN50

MR FLEETWOOD: - - - depending on his availability to deal with it on the spot. It may take us a day or two longer than I suggested.

PN51

THE SENIOR DEPUTY PRESIDENT: Right. Let us make sure we finish the exercise by no later than next week.

PN52

MR FLEETWOOD: Absolutely. We will commit to do everything we can to do that, thank you.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, all right. We will then adjourn without fixing another day.

ADJOURNED INDEFINITELY [9.43am]