C0073/699, Transcript of Proceedings [2002] AIRCTrans 2498 (5 July 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT04642
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C 00736 of 1999

AUSTRALIAN CRICKET AWARD 1997

Review under Item 51, Schedule 5,
Transitional WROLA Act 1996 re CTS
Case Description

MELBOURNE

2.20 PM, THURSDAY, 20 JUNE 2002

Continued from 21.12.01

PN128

MR P. O'DONNELL: I represent the Media, Entertainment and Arts Alliance.

PN129

MS K. IRWIN: I am from the Australian Industry Group on behalf of the Australian Cricket Board. Your Honour will have noted that the previous appearances I believe Ms Cleary from our organisation has been appearing, but she is currently on maternity leave.

PN130

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, where have we got to? The award simplification unit made some comment on an award that was prepared by the parties, and I hope you have had a look at it and can tell me you are agreed as to a new award.

PN131

MS IRWIN: Your Honour, I guess if we go through each one and Mr O'Donnell feels free to interrupt me at any point in time if I get it wrong. The first query was in relation to the title of the award which we have agreed should read: Australian Cricket Award 2002. The next query of the unit was in relation to the title of provisions 24, 25 and 26 and then again 31, 32 and 33.

PN132

THE SENIOR DEPUTY PRESIDENT: What about clause 6?

PN133

MS IRWIN: I was looking in the arrangement rings where they have raised the query, your Honour.

PN134

THE SENIOR DEPUTY PRESIDENT: I am sorry.

PN135

MS IRWIN: Are you right?

PN136

THE SENIOR DEPUTY PRESIDENT: Where is that?

PN137

MS IRWIN: At page 2.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes.

PN139

MS IRWIN: Of the draft. They have raised a query that because part 9 and part 11 both have clauses of the same name that just to clarify them further that they should have their respective type of employee next to them, so for 24, 25 and 26 it would read: Employment categories - clerical etcetera, and then for part 11, 31, 32 and 33 would read: Employment categories - coaches etcetera.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes.

PN141

MS IRWIN: Certainly the ACT, I have been instructed, do not have any issues with those changes and I don't believe the MEAA has, either.

PN142

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Yes, they are terribly important changes, those.

PN143

MS IRWIN: Yes, indeed. It is all about user-friendly awards, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: That is right.

PN145

MS IRWIN: The issue at clause 5, we have agreed that it should read: 12 months, as should item B at the end of the award should then also read: 12 months.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN147

MS IRWIN: The parties agree to delete the last sentence in clause 6 as on the basis it is unnecessary.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes.

PN149

MS IRWIN: I guess in relation to clause 7, your Honour, the parties were a little bit I guess unaware of why that particular specification had been made, as we had both been involved in previous awards where that has not been an inclusion. However, we are prepared to be guided by the Commission in this respect, and if you feel that it is necessary then we agree to insert it.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes. I think the concern is a freedom of association concern that - it is made clear that an MEAA employee, a member, can be represented by an MEAA representative, but it is not made clear that another employee can be represented by a person of his or her choice.

PN151

MS IRWIN: I am sorry, your Honour, this is in relation to clause 7.

PN152

THE SENIOR DEPUTY PRESIDENT: I am sorry. I am up to clause 9.2.

PN153

MS IRWIN: No, you are right, my apologies.

PN154

THE SENIOR DEPUTY PRESIDENT: I am jumping ahead.

PN155

MS IRWIN: You will have to forgive me, your Honour. I am suffering from a bit of a cold, so I am probably not speaking as clearly as I should be.

PN156

THE SENIOR DEPUTY PRESIDENT: No, I think it was just me.

PN157

MS IRWIN: At item 7, clause 7, rather, the unit have suggested that at the end of that provision the words "with respect to allowable award matters" be included.

PN158

THE SENIOR DEPUTY PRESIDENT: Well, under item 50, non-allowable award matters cease to have effect.

PN159

MS IRWIN: In any event.

PN160

THE SENIOR DEPUTY PRESIDENT: In any event. Yes. It is somewhat unnecessary, I would have thought. You don't want to put it in?

PN161

MS IRWIN: Well, we are prepared to be guided by your Honour in that respect.

PN162

THE SENIOR DEPUTY PRESIDENT: It perhaps clarifies the legal situation. No, I think we will leave it out. We won't have that in. Now we are up to clause 9.2.

PN163

MS IRWIN: We are now on to 9.2. The parties agree that that is certainly appropriate to include allowance for non-union representation in that provision.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes.

PN165

MS IRWIN: Clause 11.6, the fixing up of a typo.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes.

PN167

MS IRWIN: And similarly at 15.4, the wrong title of the clause I believe is inserted.

PN168

THE SENIOR DEPUTY PRESIDENT: That should read: Sick leave, should it?

PN169

MS IRWIN: Yes. Similarly, at 15.7.2 the correct provision there would be 15.7.1.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes.

PN171

MS IRWIN: A further typo at 17.1.1(b).

PN172

THE SENIOR DEPUTY PRESIDENT: That should - the word is "care", yes.

PN173

MS IRWIN: Carer.

PN174

THE SENIOR DEPUTY PRESIDENT: And it should be "care", yes.

PN175

MS IRWIN: And at clause 19, the parties have agreed basically in order to spare yet another application to insert the provisions in relation to eligible casual employees in relation to parental leave.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes.

PN177

MS IRWIN: There is a typo in clause 20.5.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes.

PN179

MS IRWIN: Which should read "on" rather than "of".

PN180

THE SENIOR DEPUTY PRESIDENT: Yes.

PN181

MS IRWIN: In relation to clause 21, your Honour, the parties agree that yes, it should be the National Training Wage Award 2000 rather than the old 1994 award. Also the parties have agreed that clause 21.2 would be more appropriately relocated to clause 30 where it is dealing with matters in relation to coaches.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes. And I suggest you rename the clause: Training.

PN183

MS IRWIN: My understanding of that comment, your Honour, was that if we were to rename the clause: Training, then 21.2 could stay, but if we removed 21.2 then we could leave the title as it is.

PN184

THE SENIOR DEPUTY PRESIDENT: I follow, yes, thank you.

PN185

MS IRWIN: Clause 24.3.1, the unit has suggested that the clause be reworded as it is difficult to understand. Again, I guess the parties knew what they were talking about.

PN186

THE SENIOR DEPUTY PRESIDENT: Well, let me just have a look at it. Yes. It seems to make sense to me.

PN187

MS IRWIN: Again we would be guided by your Honour if you feel that it is appropriate to reword the provision and were prepared to sit down and look at some alternative words to try and make it a little easier to understand, I guess it - part of making the award more user-friendly.

PN188

THE SENIOR DEPUTY PRESIDENT: It means, does it not, that a part-time employee earns an amount that equates to the ratio of hours that part-timer works to a full-time - - -

PN189

MS IRWIN: For the - the same classification.

PN190

THE SENIOR DEPUTY PRESIDENT: Yes. I didn't find it particularly hard to understand. I think we will leave it as it is.

PN191

MS IRWIN: Okay then.

PN192

THE SENIOR DEPUTY PRESIDENT: Unless you have a form of words?

PN193

MR O'DONNELL: No.

PN194

MS IRWIN: No.

PN195

THE SENIOR DEPUTY PRESIDENT: Maybe we had better not tinker with something that has been there for a while that seems to be reasonably well-understood. Yes.

PN196

MS IRWIN: In relation to the rates in clause 26, your Honour, it is my understanding that the MEAA will be making a separate application to address the issue of rates, I guess particularly on the basis that it has been some time since those rates have been adjusted, but Mr O'Donnell may wish to add something to that.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes. Mr O'Donnell.

PN198

MR O'DONNELL: Your Honour, it is just my advice from Mr Ryan who I must apologise can't be here today that we will be making that application.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes. So we can simplify the award without - save and except for that clause, can we?

PN200

MR O'DONNELL: Yes.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes. Provided the other matters are agreed, yes. Yes, thank you.

PN202

MS IRWIN: Thank you, your Honour. At 26.9, your Honour, the unit has indicated that the provisions for supported wage are generally a separate provision. I guess that is a formatting issue. And certainly the parties don't oppose it being included as a separate issue and then renumber the following clauses - I am sorry, a separate clause and then renumbering the following clauses.

PN203

THE SENIOR DEPUTY PRESIDENT: Yes. Just going back to the wages clause, what should be left out of this exercise, clause 26.4 through to 26.8.4?

PN204

MS IRWIN: Yes, your Honour, I believe so.

PN205

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, thank you. Sorry. You were saying about 26.9?

PN206

MS IRWIN: Yes, your Honour. That is the - there it basically contains the provisions in relation to the supported wage. The unit has indicated that generally it is a separate clause altogether.

PN207

THE SENIOR DEPUTY PRESIDENT: Yes.

PN208

MS IRWIN: And the parties don't have a problem with turning it into a separate clause and then renumbering the subsequent clauses.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN210

MS IRWIN: The unit has also picked up that the supported wage has been increased to $53.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes.

PN212

MS IRWIN: Which again is not in dispute. In clause 27.2, your Honour, again the unit has indicated that in establishing minimum hours it needs to be on a consecutive basis, otherwise it is in contravention of the legislation, and so I have suggested the insertion in the final sentence of the word "consecutive" between "four" and "hours", so that it reads:

PN213

Provided the minimum employment in any one day shall be four consecutive hours.

PN214

THE SENIOR DEPUTY PRESIDENT: Yes.

PN215

MS IRWIN: The parties have discussed this and agree it is appropriate.

PN216

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Yes.

PN217

MS IRWIN: At clause 32.4, your Honour, it appears that there is more than one dispute-settlement procedure in the agreement which again is not an ideal situation. The parties have agreed to remove clause 32.4 as it currently stands and change it to something that basically will refer employees who have difficulties with their classification structure to raise those issues through the dispute-settlement procedure at clause whatever it happens to be, clause 9.

PN218

THE SENIOR DEPUTY PRESIDENT: Let me just have a look at it for a moment. Yes. What are you proposing then, Ms Irwin?

PN219

MS IRWIN: Your Honour, we are proposing that to satisfy the concerns of the unit a clause be inserted saying that if employee - or words to the effect that if an employee has an issue with the manner in which they have been classified they raise that issue through the dispute-settlement procedure at clause 9 rather than establishing an alternative structure.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes. And you have discussed that with the Australian Cricket Board and the State Boards, have you?

PN221

MS IRWIN: I have received instructions from the ACB and they also feel that it is not appropriate to have more than one dispute-settlement procedure in the award.

PN222

THE SENIOR DEPUTY PRESIDENT: Yes. And they are content not to have the appeal committee that is envisaged in 32.4 established.

PN223

MS IRWIN: That has been my instructions from Mr Thwaites from the board, your Honour.

PN224

THE SENIOR DEPUTY PRESIDENT: Yes. And the association concurs with that, does it, Mr O'Donnell?

PN225

MR O'DONNELL: Yes, your Honour, we do.

PN226

THE SENIOR DEPUTY PRESIDENT: Well, in that case I am content to go along with what the unit and the parties suggest. Yes.

PN227

MS IRWIN: Thank you, your Honour. Clause 33 also deals with wages which will be the subject of a separate application by the MEAA. Your Honour, the unit has indicated that clause 33.5 is repetitive of clause 26.3.4. The parties are a little confused by this, as there is no 26.3.4 that we could find. However it does appear to reflect the terms of clause 26.7.

PN228

THE SENIOR DEPUTY PRESIDENT: Well, 33.5 refers to coaches and 26.7 refers to other employees.

PN229

MS IRWIN: Exactly. That was going to be - the point there, your Honour, is that we don't feel it is necessary to change it or to remove one or the other of those provisions, because one applies to coaches and one applies to the clerical section.

PN230

THE SENIOR DEPUTY PRESIDENT: Yes. That may have been missed by the unit. I think we should leave that clause in. Yes. Thank you, Ms Irwin.

PN231

MS IRWIN: Thank you, your Honour. I think that is it, that item (b) relates back to clause 5, the issue at clause 5.

PN232

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Just on the wage rates in clause 33, it is clause 33.3 and 33.4 that are at issue there, aren't they, not the actual salary. Is that correct?

PN233

MS IRWIN: Your Honour, obviously the salary would be amended as part of the secondary application as the rates haven't been adjusted since 1994, by all accounts.

PN234

THE SENIOR DEPUTY PRESIDENT: I see. Very well.

PN235

MS IRWIN: It has been indicated in the draft that the clause has not been reviewed.

PN236

THE SENIOR DEPUTY PRESIDENT: Has not been reviewed. Yes.

PN237

MS IRWIN: So I am not sure whether or not you feel that it needs to be made more specific in relation to the particular provisions it is related to.

PN238

THE SENIOR DEPUTY PRESIDENT: Well, an application will be made in respect of that.

PN239

MR O'DONNELL: It would, your Honour, yes.

PN240

THE SENIOR DEPUTY PRESIDENT: Mr O'Donnell, there is nothing else you want to say?

PN241

MR O'DONNELL: No, thank you.

PN242

THE SENIOR DEPUTY PRESIDENT: Well, I thank the parties for their efforts and I will ask that a draft along the lines that have been discussed today be provided as soon as is practicable and I will make an award in those terms. It will be noted that clauses 26.4 through to 26.8.4 have not been reviewed under item 51 of the Act, and nor has clause 33.2 through to 33.4 been reviewed in accordance with item 51 of the Workplace Relations and Other Legislation Act, I should have said in the first instance, and I say it in this instance. Is that correct?

PN243

MS IRWIN: Yes, your Honour.

PN244

MR O'DONNELL: Yes, sir.

PN245

THE SENIOR DEPUTY PRESIDENT: And, Mr O'Donnell, when do you anticipate making an application in respect of the wages clauses?

PN246

MR O'DONNELL: My advice on this is fairly sketchy. I was trying to track down Mr Ryan, but unfortunately he is in Queensland somewhere. But I simply go on the advice that it would be done as soon as he could get to it.

PN247

THE SENIOR DEPUTY PRESIDENT: Yes. Well, it is very much in the interests of your members that it be done. So, once I receive the draft and my staff checks it, an award will issue in those terms. I thank the parties.

ADJOURNED INDEFINITELY [2.42pm]