C0089/199, Transcript of Proceedings [2002] AIRCTrans 2527 (8 July 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT04599
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00891 of 1999
C2002/493

LINFOOT CLEANING SERVICES
INTERIM AWARD 1995

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

Application under section 113 of the
Act by the Australian Liquor, Hospitality
and Miscellaneous Workers Union to vary
the above award re safety net review -
May 2002

MELBOURNE

2.31 PM, FRIDAY, 21 JUNE 2002

Continued from 17.8.01

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
AND RECORDED IN MELBOURNE

PN229

THE SENIOR DEPUTY PRESIDENT: Yes, Ms McTiernan, you appear for the Union this afternoon?

PN230

MS D. McTIERNAN: Yes, that is correct, sir.

PN231

THE SENIOR DEPUTY PRESIDENT: And are you expecting anybody else to appear today?

PN232

MS McTIERNAN: Sir, on my way down, and I do apologise for being late and as I have explained to your associate, traffic jam and no parking, and on the way Mr Robertson had contacted our office who then contacted me to say that he was unable to make today's proceedings but had agreed to the order that had been forwarded to him on behalf of the employer.

PN233

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. I think we are just about there, are we?

PN234

MS McTIERNAN: I believe so, sir, so I suppose for the record do I - I need to indicate that what we seek to do is to incorporate the terms of the national wage case as delivered on 9 May to incorporate the $18 into the agreed rates of pay arising from the section 51 matter, and that we also further incorporate the clause as required by the Commission in relation to - that such increase shall be absorbed should there be further above award movements. That we also are incorporating movements in various allowances by the agreed percentage movement for work related allowances and that we have also changed the motor vehicle allowance to - in terms of the CPI for the fares and for the transportation rates applicable to Perth.

PN235

THE SENIOR DEPUTY PRESIDENT: Yes, and those rates have been agreed to by the employer, have they?

PN236

MS McTIERNAN: Yes, they have, sir.

PN237

THE SENIOR DEPUTY PRESIDENT: Yes. And I note that in your draft in respect of the safety net increases the clause was to come into effect at the same time as the Contract Cleaners Ministry of Education Award 1990.

PN238

MS McTIERNAN: That is correct. On 1 August 2002, the State Commission here, and this has been a prevailing clause that we have had in relation to the movements of the Linfoot Cleaning Services Award, that it will move at the same time as the award from which it emanated. The Western Australia Industrial Relations Commission has issued a minute of proposed order in relation to the general order to apply to all State awards and it will have the effective date of 1 August 2002.

PN239

THE SENIOR DEPUTY PRESIDENT: I see yes, very well. That clause will be incorporated into the award? Now as I understand the situation, the document that has been forwarded to my associate now contains the rates of pay increased in accordance with the safety net review of May 2002?

PN240

MS McTIERNAN: That is correct, sir.

PN241

THE SENIOR DEPUTY PRESIDENT: Do you have a copy of that as well, do you?

PN242

MS McTIERNAN: Yes.

PN243

THE SENIOR DEPUTY PRESIDENT: And then we find that alterations in clause 12.3 and clause 14.4 and clause 15.1 and 2 and 5 and 6, and - - -

PN244

MS McTIERNAN: Yes.

PN245

THE SENIOR DEPUTY PRESIDENT: - - - and in the wages clause in clause 21. And is it those clauses that are not to come into - well, how do we do we put that?

PN246

MS McTIERNAN: Okay. In terms of our proposed order that we have made the distinction under the final paragraph where we have said:

PN247

The wages of this order shall come into effect on the respective operative dates applicable to the Contract Planning Ministry of Education Award 1990

PN248

And that will be 1 August and however - - -

PN249

THE SENIOR DEPUTY PRESIDENT: The allowances come into operation from 8 January 2002?

PN250

MS McTIERNAN: That is right. So they will actually always be a bit behind, sir, in terms of - because again those allowances will be varied in the State award, even though they won't be varied until 8 January 2003.

PN251

THE SENIOR DEPUTY PRESIDENT: I think I am getting a little confused here. So the rates that I have referred to in clauses for overtime and motor vehicle allowances and so on that are in the draft that we both have, are not intended to operate until 2003. Is that correct?

PN252

MS McTIERNAN: No. No. Sorry, sir, they are to apply retrospectively basically to 8 January 2002 - - -

PN253

THE SENIOR DEPUTY PRESIDENT: So they have not - - -

PN254

MS McTIERNAN: What I am saying - what that - we are adjusting those to align with the State award as that State award currently stands.

PN255

THE SENIOR DEPUTY PRESIDENT: Yes, so it is not correct to say, that the allowances have been increased in accordance with the safety net review decision of 2002 of this Commission, because they wouldn't appear - - -

PN256

MS McTIERNAN: That is probably - yes that is probably true, sir.

PN257

THE SENIOR DEPUTY PRESIDENT: So those rates, just so that there is no doubt, what do you say as to the rates in clause 12.3, which safety net review decision do they reflect?

PN258

MS McTIERNAN: Sir, 12 - - -

PN259

THE SENIOR DEPUTY PRESIDENT: That is the overtime rates.

PN260

MS McTIERNAN: The meal allowance?

PN261

THE SENIOR DEPUTY PRESIDENT: No, that is the meal allowance, I am sorry.

PN262

MS McTIERNAN: The meal allowance is unrelated to the CPI figures for the period up until the March quarter of 2001.

PN263

THE SENIOR DEPUTY PRESIDENT: So, they are caught by the safety net review of 2001, rather than 2002?

PN264

MS McTIERNAN: Not - well I suppose, sir - my understanding is that we can move expense related allowances at any point. We just use this as an opportune time when we are doing the - - -

PN265

THE SENIOR DEPUTY PRESIDENT: Yes, but what I am trying to understand is, have they been increased in accordance with which safety net review decision, or to that effect the principle hasn't changed, has it?

PN266

MS McTIERNAN: No, sir. I understand it is principle 5.

PN267

THE SENIOR DEPUTY PRESIDENT: Yes.

PN268

MS McTIERNAN: So sir, yes I do apologise. What has happened in our State awards are in a bit of a state of flux at the moment because the wages have moved at one point by general order and then we need to make application to vary the allowances. So there has been a problem now that those movements which used to occur all at the same time, have now been put out of sync and the Contract Cleaning Ministry of Education Award which this is based upon has now got a situation that its wage rates will move on 1 August 2002 but the next opportunity we will have to move the allowances will be 8 January 2003 because our previous application was held over until 8 January 2002.

PN269

THE SENIOR DEPUTY PRESIDENT: Yes.

PN270

MS McTIERNAN: So I appreciate that that creates a fair amount of confusion that is exacerbated by - - -

PN271

THE SENIOR DEPUTY PRESIDENT: Yes. I think I understand. When we look at clause 21.1.2, which points out that the rates of pay have been adjusted according to the safety net review of 2002, that only refers to the rates of pay so that is acceptable and they will operate from 1 August 2002. Where do we find the rates of pay that will operate until then in an award? Do we need to have another column - - - ?

PN272

MS McTIERNAN: Well, the current - - -

PN273

THE SENIOR DEPUTY PRESIDENT: Yes, but don't we need to have that in the award? Shouldn't we have in the wages clause - - - ?

PN274

MS McTIERNAN:

PN275

The minimum weekly pay which is covered by this award shall be -

PN276

well, I think it is covered, sir, because it has:

PN277

The minimum weekly wage payable to the cleaners covered by this award shall be $465.40 and shall increase to 485.40 as at the operative date.

PN278

Which shall be 1 August.

PN279

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Yes, I had not read that properly. Yes, and that really encompasses the proviso in your draft award, in your draft order, so that won't be necessary, will it? Clause 3 of the draft order you sent to my chambers does not need to be incorporated into the award, does it?

PN280

MS McTIERNAN: No, sir, I suppose it is a bit of reiteration of the same point.

PN281

THE SENIOR DEPUTY PRESIDENT: Yes. So we won't put - - -

PN282

MS McTIERNAN: The only thing is the allowances pertaining to this award.

PN283

THE SENIOR DEPUTY PRESIDENT: Yes, and that is the point that I am still not clear about. When we are talking about the allowances, again just so that we are clear, which clause are you referring to in the award?

PN284

MS McTIERNAN: Okay, in terms of the allowances we are talking about - - -

PN285

THE SENIOR DEPUTY PRESIDENT: Clause 12.3?

PN286

MS McTIERNAN: - - - which is the - - -

PN287

THE SENIOR DEPUTY PRESIDENT: Meal allowance, for overtime? Is that one of them?

PN288

MS McTIERNAN: Yes, sir. I must have my numbering in my orders a bit - probably me. I have got "Delete sub-clause (3)(a) of clause 8" in my order but is that not matching now with proposed draft order?

PN289

THE SENIOR DEPUTY PRESIDENT: I may have missed - let me have a look at clause - this might be better - - -

PN290

MS McTIERNAN: The overtime is clause 12.

PN291

THE SENIOR DEPUTY PRESIDENT: Yes.

PN292

MS McTIERNAN: Yes, so my draft orders - - -

PN293

THE SENIOR DEPUTY PRESIDENT: Ms McTiernan, I am just thinking that this might be better off the transcript because the transcript won't make much sense as we are going to and fro. We will just go off the record for a little while, I think.

OFF THE RECORD [2.43pm]

PN294

THE SENIOR DEPUTY PRESIDENT: Yes, Ms McTiernan, thank you for assisting me in conference to understand the manner in which the allowances and wage increases have been brought into this award that is about to be made so that it is current as at the present, and just for the record would you please indicate what the position is in relation to the allowances in clause 12.3 and in clauses 14 and 15, and then what the position is in relation to the wages that appear in clause 21?

PN295

MS McTIERNAN: Thank you, sir. Sir, the application seeks to make movements in clause 12, subclause (3)(a), the overtime rates, the meal allowances that are applicable. Further, the - - -

PN296

THE SENIOR DEPUTY PRESIDENT: There is no 3(a) anymore, just 12.3.

PN297

MS McTIERNAN: Sorry, sir. Our clause 3(a). It also seeks to amend the clause 14 fares and travelling time, the rates contained therein, and clause 15 and the subclauses in terms of the various allowances that are payable. We seek that these rates will become effective from, or backdated to 8 January 2002 to be consistent with its State award and having movements allowed for under the 2001 national wage case.

PN298

In relation to clause 21, the wages clause, we seek that the pay rates be - note the current rate of $465.40 and that this rate shall be increased to $483.40, to be operative from 1 August 2002, and that this increase is in line with the national wage case decision of May 2002.

PN299

THE SENIOR DEPUTY PRESIDENT: Yes, and the reason is spelled out in clause 21.1? Yes, thank you, Ms McTiernan.

PN300

MS McTIERNAN: That is correct, sir. That is to continue the nexus with the State based award.

PN301

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms McTiernan, thank you for your assistance, and the work that the parties have put into this matter. I think we have got there. The award will be made in the terms of the latest draft which I should mark as an exhibit.

EXHIBIT #LHMU2 DRAFT AWARD

PN302

THE SENIOR DEPUTY PRESIDENT: And the operative date of the award will be today's date, noting of course the matters to which you have just referred as to when those clauses come into effect. Unless there is anything else, Ms McTiernan, I will adjourn the Commission.

PN303

MS McTIERNAN: Thank you, Senior Deputy President.

ADJOURNED INDEFINITELY [2.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHMU2 DRAFT AWARD PN302