C0039/798, Transcript of Proceedings [2002] AIRCTrans 254 (23 January 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C No 00397 of 1998

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE FINANCE SECTOR - AMP
EMPLOYEES' AWARD 1998 RE AWARD SIMPLIFICATION

SYDNEY

3.07 PM, TUESDAY, 15 JANUARY 2002

Continued from 6.11.98

Adjourned sine die

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon, if we could have appearances, please.

PN2

MS D. HANNAN: Your Honour, I appear for the Finance Sector Union of Australia.

PN3

MR M. BRYAN: Your Honour, I appear for AMP Services.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. This matter concerns the simplification of the Finance Sector - AMP Employees' Award 1995. The simplification of this award has been a long process dating back over four years. The matter was initially referred to Senior Deputy President Drake; her Honour first contacted the parties on 11 November 1997 requesting the parties to confer on the application of item 49 to the award.

PN5

Senior Deputy President Drake listed a conference on 1 June 1998 to assess what progress had been made by the parties. A proposed award was provided shortly after with five outstanding issues. The hearing on these issues was held on 16 June 1998. Further drafts were generated and were discussed between the parties.

PN6

By August 1998 the parties advised the Commission that the only remaining issue was the grievance procedure and requested that this matter be arbitrated. A teleconference was held in relation to this course of action on 25 September 1998. A further unresolved issue emerged during that teleconference concerning part-time employment. A hearing was held on 6 November 1998 concerning both issues and her Honour issued her decision on 17 March 1999.

PN7

Following the decision, though, there were difficulties settling the draft award and other issues came to light. On 14 October 1999 Senior Deputy President Drake requested that a current draft be provided for further review by the Commission. This requested was repeated almost a year later on 2 August 2000. In February 2000 this file was allocated to me and my associate contacted the parties to request a written report-back. A draft of the award was sent to my chambers, reviewed by me and sent out to the parties again on 29 May 2001.

PN8

In accordance with my directions the parties provided a written report-back. I circulated a further draft award and listed a conference for 2 August 2001. Further conferences were listed in September and December 2001 and drafts were exchanged. However, with the exception of the matters finally determined by Senior Deputy President Drake the outstanding matters and simplification of this award largely reflect those that were outstanding in June 1998. This is despite over a dozen drafts of the award and seven conferences or hearings in this Commission.

PN9

On 18 December I listed this hearing to finally resolve any outstanding matters with the exception of wage rates. An updated draft order was sent to the parties on Thursday of last week which identified the outstanding issues. My associate informs me that the parties have had various discussions since that time and a further revised draft which I understanding to be a consent position has been provided to my chambers last night. This hearing provides the parties with the opportunity to make submissions on any outstanding issues and proposed amendments to my draft order of last week. I then propose to issue the order simplifying the award. That, I think, brings us up to the present day and Ms Hannan, I understand you want to go first.

PN10

MS HANNAN: Yes, if it pleases your Honour. As your Honour has already noted, the simplification of the AMP Employees' Award 1995 has been an involved process spanning several years. It has involved numerous discussions between the award parties and conferences before the Commission. In August this year at the time I became involved in the process a great deal of work on the award had already taken place to reflect an agreed position between the parties on a number of award matters. Subsequently there remained the following award areas which have been subject to further discussion between the parties and are now agreed.

PN11

Your Honour, they are exemptions for Level 4 employees, to be found at clause 4 of the proposed award, relationship with other awards to be found at clause 5, the fixed pay package definitions at clause 10, although as a result of the existing classification structure being retained in the award the parties have sought to alert the Commission that the whole of that clause will be revisited as the clause itself had a connection with the classification structure that was previously proposed.

PN12

THE SENIOR DEPUTY PRESIDENT: The fixed pay package is at clause 9, isn't it?

PN13

MS HANNAN: I beg your pardon, your Honour, that's correct. I will deal with that a little later in my submissions, if I may. Higher duties allowance at clause 15 and an updating of other allowances to remove outdated provisions, ordinary hours of work - - -

PN14

THE SENIOR DEPUTY PRESIDENT: Higher duties is clause 13.

PN15

MS HANNAN: I am sorry, your Honour, in the process of going through the draft as at June 2000 there has been some significant renumbering and that's probably why I said that but, yes, you are quite right, it is clause 13.

PN16

THE SENIOR DEPUTY PRESIDENT: I'm sorry, you were referring to the outstanding issues at the time you picked up the matter. I understand.

PN17

MS HANNAN: Yes. The ordinary hours of work concerning flexible hours, I believe that is now clause 19, which is to be dealt with in clause 7.2, proposed facilitative provisions clause. Similarly, shift workers at clause 22 and 20.2 to be dealt with in accordance with clause 7.1, enterprise flexibility. Clause 24, casual employees, with respect to the inclusion of the 20 per cent loading for casuals to include the long service leave, we need to note for the purposes of the simplification process that FSU has agreed to that inclusion on the basis that it is simplifying an existing award provision and that is obviously open to the FSU at an appropriate time to make application concerning consistent application of the loading and what applies having regard to existing relevant state long service leave legislation.

PN18

Your Honour, at clause 28, family leave, recognition of the existing accrual provisions that apply in the AMP Employees' Award 1995. As a matter of confirmation, AMP has confirmed at clause 3 that AMP Services Limited is the correct employer entity and indeed reflects the same employer coverage as existed for the former AMP Employees' Award 1995 at clause 3.1.

PN19

I mentioned earlier, your Honour, that the parties note that the existing rates of pay have been retained as an appendix in the simplified award and the parties are aware that this will be need to given attention in accordance with the paid rates review decision but as a consequence of that, some of the earlier clauses which I identified concerning fixed pay package may need to be revisited because that was connected to a proposed classification structure that we had thought could be inserted but is not able to be at this time.

PN20

Your Honour, clause 13.4, qualification allowance, has been agreed, workers compensation amendment at 14.11.2 to reflect the previous award provision concerning termination and I should also note concerning allowances that there was some discussion on 13.2, location allowance, at AMP's request and the FSU has agreed to that on the basis of the existing award provision, although there has been some dispute concerning the application of that clause and it is a matter for further discussion between the parties.

PN21

Your Honour, matters which may be following discussions with the Commission subject to a section 113 application and this list is subject to checking, as it would appear that some clauses have been drafted with a review to reflect current practice rather than simplifying the current award provisions and those clauses are clause 4, exemption of Level 4 employees, clause 10, fixed pay package, depending upon whether that clause is retained, clause 15, higher duties allowance, clause 13 as existed in the old award, deletion of other certain allowances, clause 24, casual employees, and clause 13.4, qualification allowance.

PN22

THE SENIOR DEPUTY PRESIDENT: What is the point you are making about all those clauses?

PN23

MS HANNAN: In previous conversations we have had with the Commission it has been brought to our attention that some of the contents of the award reflect what was negotiated between the parties to reflect current practice rather than simplifying the award. As a result of that I have sought to go through and identify those clauses and in terms of revisiting the rates of pay it would probably be appropriate at that time, subject to further discussions with AMP, that a proper variation is put to the Commission so that they are alerted on how these changes came about.

PN24

Your Honour, we should also say that we flag that as part of the revisiting clause 10, the rates of pay, the parties are to give further consideration as part of the review process to making application to insert a classification structure which is more relevant to the industry and employees. It should be noted also as part of the simplification process participated in by the parties that the previous AMP Employees' Award 1995 does not contain a sick leave provision and that the parties are to further discuss that issue together with reviewing that matter in context with the current family leave accrual provisions.

PN25

The FSU submits that the proposed simplified Finance Sector - AMP Employees' Award 2002 complies with the relevant provisions of the Workplace Relations Act 1996 at section 89A and Item 51 of the Workplace Relations and Other Legislation Amendment Act. Save for any questions the Commission may have, those are the submissions of the FSU, if it pleases.

PN26

THE SENIOR DEPUTY PRESIDENT: I understood you to say that when you took responsibility for this matter in August, that was the list of things still outstanding. Are you saying that all of those have now been resolved with AMP, as reflected in the draft supplied to my chambers last night?

PN27

MS HANNAN: Yes, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: So that so far as you are concerned, the latest draft deals with all of the issues except those that are related to wage rates which have been transferred to Appendix A and which we are going to visit at stage 2, finalising this.

PN29

MS HANNAN: Yes, your Honour, and also the fact as I have mentioned that the reference to the fixed pay package may also have to form part of those discussions and obviously updating the Commission in terms of those matters that are agreed but were reflecting the current practice rather than revising the award.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Now, do you want to make any submission on where there are proposed amendments from the draft order last week and the reason for those amendments, how do you want to deal with that?

PN31

MS HANNAN: Your Honour, might it be appropriate just for a moment to go off the record?

PN32

THE SENIOR DEPUTY PRESIDENT: Well, why don't I take the opportunity to hear from Mr Bryan in relation to the whole award and then come back to see where we are up to and how we should proceed.

PN33

MS HANNAN: Yes, your Honour.

PN34

MR BRYAN: Thank you, your Honour, I only have a couple of short points to make. We are very happy to have reached agreement with the FSU on all outstanding matters and I understand that Ms Hannan has forwarded to you a copy of her redrafting of the award which includes our agreed consent position on all outstanding matters. We are in agreement on all of those matters subject to your agreement that they are within the principles of award simplification.

PN35

The only other point I would like to make, your Honour, is in relation to comments by the FSU in relation to the clause 9 fixed pay package. It is my understanding that those clauses have been agreed and would not need to be reviewed when we do go through the process of establishing the paid rates in the new structures. I do not see a need for reviewing those clauses subject to any great changes in the classification structure that we would be proposing as a part of the process for establishing paid rates.

PN36

THE SENIOR DEPUTY PRESIDENT: While I don't have all of the drafts with me, it is my recollection that that section has been agreed for some time.

PN37

MR BRYAN: That is my understanding, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: You are referring to clause 9?

PN39

MR BRYAN: Clause 9, fixed pay package.

PN40

THE SENIOR DEPUTY PRESIDENT: Are you saying in effect that that stands on its own feet regardless?

PN41

MR BRYAN: I think without the actual classification structure parts of it may be meaningless but I think it is an agreed position between the AMP and the FSU and we would not see a need for any review of those clauses in the future. I understanding, as communicated by the FSU, that they would be seeking to review those in the future but it is our position that they are agreed at the moment.

PN42

THE SENIOR DEPUTY PRESIDENT: So it is your understanding that with the exception of clause 10 and wage rates contained in them and related matters, everything else in the draft submitted to my chambers last night is now an agreed position and in going through that draft, where there is a departure from the draft order which I issued last week that is indicated in bold type, so that in finalising the document in one respect this afternoon we need only focus on the areas in bold type.

PN43

MR BRYAN: Yes, that is my understanding, your Honour.

PN44

THE SENIOR DEPUTY PRESIDENT: Ms Hannan, that is your understanding as well?

PN45

MS HANNAN: Yes, it is, your Honour. Perhaps I might assist my friend. Concerning this definition of the fixed pay package it was as part of conferences as I understand it an agreed position; however, the point that I merely raise, and Mr Bryan has already referred to it, is that some of it may not make sense as a result of reinserting the current classification structure that existed in the old award and the definitions that go along with that, so purely from the point of view of making it a sensible arrangement, because we have now had to change that, that's where the FSU is coming from.

PN46

THE SENIOR DEPUTY PRESIDENT: You might help me on this. Looking at clause 9, I don't see any reference to classifications. It appears to stand on its own without reference to classifications, does it not?

PN47

MS HANNAN: It wasn't in the existing award, your Honour. The fixed pay package provision wasn't in the existing award.

PN48

THE SENIOR DEPUTY PRESIDENT: That's a separate issue, but I understood you to say it was interdependent with the classification structure. Just looking at it, I don't see any reference at all in clause 9.

PN49

MR BRYAN: My apologies, your Honour, I would like to withdraw my earlier remarks. Just reviewing those clauses now, I believe it does on its own and does not require the classification structure to be inserted for any additional meaning inferred from those clauses.

PN50

THE SENIOR DEPUTY PRESIDENT: Unless I miss something reading it now on the Bench, I don't pick up any reference to classifications that mean it is interdependent with clause 10, which is still to be decided, and therefore if it is an agreed position in the context of minimising the number of things still to be dealt with it would be reasonable to include it, would it not?

PN51

MR BRYAN: I agree, your Honour.

PN52

THE SENIOR DEPUTY PRESIDENT: Well, it's really a question addressed to Ms Hannan, I'm sorry, I mean I understand the point you make about there needing to be some amendments to the classification structure to keep that up to date, but it would seem to me that there is an advantage in doing as much as we can as quickly as we can given it's taken us four years to get to this point.

PN53

MS HANNAN: Indeed, your Honour. I indicated earlier, your Honour, that there were some issues that you raised that perhaps might be advantageously dealt with off the record in the first instance, so I would appreciate some further discussion on those issues, your Honour.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, given that we have two paths before us, the draft order which I sent out last night and the updated one which you provided last night, and the only outstanding issues are those that are indicated in bold type - - -

PN55

MR BRYAN: Excuse me, your Honour, you said you sent out the draft order last night.

PN56

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I meant last week. One went out last week and then you provided one last night, which is the update, and it looks like we really only need to deal with the items of yours in last night which are indicated in bold type. The sensible way of doing that would be to go into conference and if as a result of conference we want to go back on the record and make any submissions to finalise it, that would be probably the most productive way of dealing with it. We will adjourn into conference and deal with those issues.

OFF THE RECORD [3.32pm]

RESUMES [4.45pm]

PN57

THE SENIOR DEPUTY PRESIDENT: As a result of productive discussions in conference we now have an agreed position that will be the basis of an order simplifying the award with the exception of rates and pay and classification structure. Three matters, though, warrant comment on the record. Firstly, the agreed clause 9 will not be incorporated into the order at this stage but rather the old clause 5.5 from the unsimplified award will be included in the appendix of things still to be reviewed.

PN58

Secondly, the parties have the opportunity to propose by Friday wording on the current draft clause 13.1.3 and the current draft clause 11 to take care of the concern that was discussed in conference. Thirdly, Ms Hannan, you wanted the opportunity to clarify on the record the operation of clause 7.2 in the draft.

PN59

MS HANNAN: Yes, thank you, your Honour. Before I do, perhaps it would be appropriate just to deal with the fact that we had an agreement concerning the relationships with other awards clauses.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, sorry, my comments were meant to indicate that we had agreements on all aspects of the draft with the exception of those three matters that are dealt with, one where the clause 9 is not being dealt with at this stage but rather left as the existing clause 5.5 still to be reviewed, the second where 13.1.3 and 11, you still have the opportunity to make written submissions on that and with your clarification on the operation of 7.3 I think that means that all of the things that have been discussed are boiled down to an agreed position, including clause 5.

PN61

MS HANNAN: Yes, thank you, your Honour. I understand that clause 5 will read: This award supersedes and replaces the Finance Sector - AMP Employees' Award 1995, and then the print number, concerning employment covered by this award; however, no right, obligation or liability accrued or incurred under that award in existence will be affected in respect of allowable matters as at 1 July 1998.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, I didn't have that particular version. The substance was right but I think the order was a little bit different. The clause that I recorded from our discussion was: This award supersedes and replaces the Finance Sector - AMP Employees' Award 1995, then the print number, concerning employment covered by this award, but no right, obligation or liability accrued or incurred under that award prior to 1 July 1998 will be affected.

PN63

MS HANNAN: Yes, thank you, your Honour, there was that later version. We spoke about a number of options and I acknowledge that that was the last one that was put.

PN64

THE SENIOR DEPUTY PRESIDENT: It was a very productive drafting session.

PN65

MS HANNAN: Your Honour asked me to address you on the operation of clause 7.2, facilitative provisions. I would like to make two points in relation to that clause. One is that it is recognised by the union that a number of options present in terms of departing from the award provision that may be agreed upon between the employer and the union and/or employee, the majority of employees in the enterprise or workplace concerned, and secondly, that in adopting that provision which was inserted into the Hospitality Award at clause 40, index of facilitative provisions, print 7500, the Full Bench award simplification decision in connection with the making of that award at page 39 noted a number of safeguards including provisions concerning the implementation of facilitative arrangements in time and wages records, notification of unions with reasonable opportunity to participate in negotiations regarding its use, the union involvement to not mean the consent of the union is required for a monitoring process.

PN66

We understand that those matters were identified in the decision of the Full Bench prior to the making of the Hospitality award. Those are the submissions of the FSU, if it pleases.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you. I have just found the wording that we were both looking for. The Full Bench decision recorded:

PN68

Union involvement in this process does not mean the consent of the union is required prior to the introduction of agreed facilitative arrangements at the enterprise.

PN69

As we discussed in conference, that was the context in which that award provision was included at clause 40 of the Hospitality award, so we all acknowledge that in picking up the wording in our clause 7.2 from the Hospitality case we are picking it up with the context that you have alluded to.

PN70

MS HANNAN: Yes, in the context, your Honour, that the clause we have adopted in the AMP award recognises that number of options present in terms of reaching agreement.

PN71

THE SENIOR DEPUTY PRESIDENT: Exactly, yes. Thank you, I think that's helpful. Mr Bryan, is there anything you wanted to add?

PN72

MR BRYAN: No further submissions, thank you, your Honour.

PN73

THE SENIOR DEPUTY PRESIDENT: In that case, thank you very much for your patience and working constructively in conference. With the exception of the two areas where you had the opportunity to make submissions by Friday, I think that now puts us in a position where I can move ahead and make the order, leaving us with the question of rates and classification structure unreviewed to be addressed as part 2 of our award simplification process. Thank you very much for your co-operation and patience through this process. We will adjourn.

ADJOURNED INDEFINITELY [4.58pm]