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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT04365
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WATSON
C2002/2419
CLERICAL AND ADMINISTRATIVE EMPLOYEES
(HEALTH INSURANCE INDUSTRY) AWARD 2001
Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary re
safety net review - wages May 2002
MELBOURNE
10.45 AM, FRIDAY, 7 JUNE 2002
PN1
MR J. NUCIFORA: I appear for the Australian Services Union.
PN2
MR M. SERONG: I seek leave to appear for each of the respondents names in the notification.
PN3
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Serong. There is no objection to leave, Mr Nucifora?
PN4
MR NUCIFORA: No, your Honour.
PN5
THE SENIOR DEPUTY PRESIDENT: Leave is granted. Yes, Mr Nucifora.
PN6
MR NUCIFORA: Your Honour, this is an application to vary the Clerical and Administrative Employees (Health Insurance Industry) Award 2001 to reflect the May 2002 safety net review adjustment. If I may firstly by way of service tender a copy of notification to the various award respondents.
PN7
PN8
MR NUCIFORA: Your Honour, ASU1 is the most recent correspondence that we sent to the award respondents in relation to and including - and proper notification in relation to the supportive wage system - wage increase from $53 to $56 pursuant to the full bench test case decision, PR918422, and attached to that is correspondence that you would be aware of, your Honour, to your office in relation to - including this award, and the union is seeking to make an amendment to the application to include the support of wage increase.
PN9
The draft order attached is the draft order we would rely on today and it is the same one that was e-mailed to your associate, and attached to that, of course, includes the $18 safety net adjustment. It also includes allowances, and I will tender another copy of a covering letter that explains those allowances.
PN10
THE SENIOR DEPUTY PRESIDENT: Yes.
PN11
MR NUCIFORA: Sorry, that is out of chronological order. This is an earlier letter to - - -
PN12
PN13
MR NUCIFORA: Sorry, that was ASU2?
PN14
THE SENIOR DEPUTY PRESIDENT: Two.
PN15
MR NUCIFORA: ASU2 was the original letter sent out, notification to all of the employers and of course Mr Serong and Mr McLaughlin would normally appear for the employer respondents. Attached to ASU2 is a copy of the original draft order. That has been amended by ASU1, and includes of course the transmission report of the employer respondents that was faxed. This letter, the covering letter in ASU2 explains the variation to the meal allowance by 3.7 per cent and the uniform allowance by 2.05 per cent, so that has been explained to the employer respondents here.
PN16
THE SENIOR DEPUTY PRESIDENT: You may need to take some care in future in the initial application with the reference to the Furnishing and Glass Industry Award which is appropriate in relation to work-related allowances but also to include reference to principle 5A where relevant.
PN17
MR NUCIFORA: I will take that back to our office. It is a standard application that we lodge.
PN18
THE SENIOR DEPUTY PRESIDENT: Yes.
PN19
MR NUCIFORA: For all our applications. And if I can take you back to ASU1.
PN20
THE SENIOR DEPUTY PRESIDENT: Yes.
PN21
MR NUCIFORA: ASU1 has made some amendments that we agree to with Mr McLaughlin and Mr Serong on behalf of the employers. This includes an amendment particularly with respect to the supportive wage system in item B, and it reflects an increase from $53 to $56 as a result of the foreshadowed amendment application that we made in the letter to yourself on 6 June.
PN22
THE SENIOR DEPUTY PRESIDENT: And there has been deletion of the labour hire provision in - - -
PN23
MR NUCIFORA: Yes, in this here. In this particular one that I was directly involved with, the reference to the early operative dates has been removed, and the reference to the labour hire companies in what was 28.9.3 has been removed. What I would like to do, your Honour, is actually tender a further amended draft order, because the one that is before you is slightly incorrect. There is still a reference in ASU - in the draft order in ASU1 to 28.9.3 that was removed.
PN24
THE SENIOR DEPUTY PRESIDENT: Yes.
PN25
MR NUCIFORA: If I may tender this draft as the final consent draft order.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes. I am sorry, I missed your reference to the change in operative date. Where is that?
PN27
MR NUCIFORA: I am sorry, there is no - the operative date reference has come out, two paragraphs that relate to 12 July.
PN28
THE SENIOR DEPUTY PRESIDENT: I see, yes.
PN29
MR NUCIFORA: Yes.
PN30
THE SENIOR DEPUTY PRESIDENT: I understand that.
PN31
MR NUCIFORA: Yes, that was an - I was directly involved with the drafting of this particular draft order, and that did come out, and it is now updated.
PN32
PN33
THE SENIOR DEPUTY PRESIDENT: I am sorry, how does that vary from ASU1?
PN34
MR NUCIFORA: ASU3 is varied from ASU1 on the last page. We have taken out in 28.9.2 a reference to 28.9.3 as it was, and we have now - for some reason the numbering has slipped out of the next paragraph in earlier drafts. We have now made 28.9.3 the original provision.
PN35
THE SENIOR DEPUTY PRESIDENT: I see. Thank you.
PN36
MR NUCIFORA: That is in the award. So, that should reflect the test case clause as per the parental leave test case decision in PR904631. Now, this award was last varied in its unsimplified form on 24 June 2001, and we would seek that with the 12-month rule.
PN37
THE SENIOR DEPUTY PRESIDENT: Yes, in print - - -
PN38
MR NUCIFORA: Sorry, in print - your Honour, in print PR905867.
PN39
THE SENIOR DEPUTY PRESIDENT: 905867, thank you.
PN40
MR NUCIFORA: And that was just prior to the issuing of the simplified award, and that was 24 June 2001, and we say that the operative date in the draft order before you reflects the 12-month requirement under the national wage principles, and we refer in the national wage principles to principle 8E which goes to the appropriate absorption clause that is included with the safety net adjustment and also that the ASU seeks to make the commitment pursuant to principle 8D in relation to the absorption provision applying.
PN41
THE SENIOR DEPUTY PRESIDENT: And there is no minimum wage in this award?
PN42
MR NUCIFORA: There is no minimum wage. I don't think there is in any of the clerical awards, apart from the last one before your Honour, thankfully.
PN43
THE SENIOR DEPUTY PRESIDENT: It is terrible what these law firms do.
PN44
MR NUCIFORA: Your Honour, as I say, I had direct involvement with the drafting of all this, and I think at the end that last ASU3, exhibit ASU3, should reflect the consent position. I know there is one other matter that Mr Serong - and I will let him take you to that - in relation to the drafting of the test case provision. All we would say is that consistent with paragraph 43.45 in the parental leave for casuals test case decision in PR904631 that if there is to be any change to the test case provision apart from the ones that we have already referred to, that is the operative date, and particularly in the decision referred to, the labour hire employees, apart from those, then there would need to be pursuant to paragraph 45 of the decision an application to a full bench, section 107 application to a full bench.
PN45
We say that the draft before you is consistent with the test case provision with those other changes that we referred to, the labour hire employees and the operative date. So, we are seeking that the final draft order in ASU3 before you be operative from 24 June and that it be approved today. I would just want to add, your Honour that an electronic version that I e-mailed through to your associate wouldn't have included that last amendment to 28.9.3.
PN46
THE SENIOR DEPUTY PRESIDENT: Which is totally on the last page of the draft.
PN47
MR NUCIFORA: Yes, totally on the last. Everything else would be as per the electronic version that you have, if your Honour pleases.
PN48
THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. Yes, Mr Serong.
PN49
MR SERONG: Your Honour, thank you. I agree with most of what Mr Nucifora has said. There is one issue as he foreshadowed that causes a number of the respondents concern, and with some trepidation I raise it because as Mr Nucifora says it may well require a section 107 reference. A number of the respondents are concerned at the introductory words to the parental leave provision which is adopted as a standard. The very first words which are in the draft order and which are indeed in the test case standard are - it commences:
PN50
Subject to the terms of this clause employees are entitled to maternity, paternity and adoption leave and to work part-time in connection with the birth.
PN51
A number of the respondents have raised the issue, your Honour, that this appears to state that an employee is entitled regardless to work part-time upon return to work after a period of parental leave. The history of the standard provision is obviously to the contrary, your Honour. Right back as far as the parental leave test case decision in 1990 there was talk about agreement between the employer and the employee. That was repeated in the supplementary award simplification decision. Again, there is a reference to agreement about returning to part-time work.
PN52
It appears what has happened, your Honour, is that the old parental leave provision which had part (d), part-time work, contained also all the conditions upon which it would be available and also included the very important condition that it would be by agreement. When that paragraph with those conditions was deleted only the introductory words remained, and that does not clearly indicate at all that it is a conditional entitlement.
PN53
THE SENIOR DEPUTY PRESIDENT: There is nothing in the rest of the provision that refers to - - -
PN54
MR SERONG: No, there isn't, your Honour. And indeed, your Honour, the health funds that I represent have been alert to this for some time, and in fact the current award parental leave provision very carefully does not have what we would call the offending words, your Honour. It clearly indicates that part - it does not make reference to part-time work at all, because as the full bench decision said in the award simplification case, part-time work is available elsewhere in the award. So, I have been asked to raise that one issue, your Honour, and perhaps seek guidance from your Honour as to how the matter should be progressed.
PN55
One way would be to simply allow the introductory words that are presently in the award to remain and that certainly was an arrangement that we reached with the union when the award was being simplified. The other perhaps less attractive option is to use section 107.
PN56
THE SENIOR DEPUTY PRESIDENT: Yes.
PN57
MR SERONG: So, if I could go on, your Honour, there is one other aspect.
PN58
THE SENIOR DEPUTY PRESIDENT: Yes.
PN59
MR SERONG: And that is there has been very, very short notice of all of these applications. In the time available I have had a chance to speak to each of the funds that is named as a respondent. There has been a fair bit of movement during the week as to what the application looks like. Generally I believe there is no difficulty with what the ASU is proposing. However, I do ask your Honour that we be given perhaps a week within which to come back to the union and your Honour if we have any difficulties with either the calculation, or - I don't imagine there will be any other difficulties, but it really is just procedurally satisfying each respondent that everything is in order. If the Commission pleases.
PN60
THE SENIOR DEPUTY PRESIDENT: Very well. And the point in respect of parental leave is that you say the test case provision has removed some other provisions which would then qualify the current introduction as a result of the subject of the terms of this clause.
PN61
MR SERONG: That is the way we read it, your Honour, and we would say that we addressed that in the award when it was simplified and we are very comfortable with the words that only recently went into the award upon simplification. It is just this change would introduce a new what we believe ambiguity.
PN62
THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Thank you. Mr Nucifora, have you anything in relation to any of those points?
PN63
MR NUCIFORA: Your Honour, with respect to the extra time required for Mr Serong to go through with his clients and the employer respondents' if you like, final acceptance of the draft order as drafted, we don't have a problem with that extra time given that the operative date is 24 June. In relation to the concern that Mr Serong has raised with parental leave, our position would be that that is the test case clause and that that ought to stay. I don't see that it is as much of a problem.
PN64
It may need clarification, but we pick up the test case clause as it is apart from those other qualifications that have been made in the decision in relation to labour hire and of course more recently in relation to those operative dates, but otherwise we believe the test case provision should stay as it is.
PN65
THE SENIOR DEPUTY PRESIDENT: Yes, very well. Yes. What I intend to do is to vary the award in respect of the safety net adjustment. There is consent to that proposition. That will be subject to providing a period of seven days for the respondent employers to check the order in respect of wage rates and allowances and to advise the Commission of any difficulties or indeed the absence of any difficulties if that is the result of the order in the terms proposed. The operative date will be 24 June 2002, or the first pay period commencing on or after that date.
PN66
In respect of parental leave I don't propose to vary the award presently. There is an issue raised between the parties. The union is relying on the test case provision. The employer believes that requires some qualification by reference or inclusion of provisions presently within the award. That would seem to me to involve a variation of the test case standard. I will refer the matter to the President. In the event that that matter is referred to a full bench, then obviously it will be dealt with by a full bench.
PN67
In the event that the President leaves the matter with myself it would be my intention to then have some further proceedings first by way of conciliation and then by way of more substantive submissions if that became necessary. Obviously, it would require further and fuller submissions. If the issue between the parties needs to be determined by arbitration, the first step having regard to paragraph 45 of print PR904361 would be to refer the matter to the President to allow him to determine whether or not the matter would remain with myself or be referred to a full bench, but certainly the variation will occur in respect of safety net adjustment in the form sought subject to the opportunity for the employers to check the draft order.
PN68
I will advise the parties of in the first instance the position of the President. In the event the matter remains with myself, I will then set down a further hearing in relation to that matter. In the event that it doesn't remain with me someone else will no doubt contact the parties in due course. I will adjourn the matter on that basis.
ADJOURNED INDEFINITELY [11.04am]
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