C2001/6164, Transcript of Proceedings [2002] AIRCTrans 3035 (8 August 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT05057

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2001/6164

VICTORIAN LOCAL AUTHORITIES
AWARD 2001

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award re casual employment

MELBOURNE

10.33 AM, WEDNESDAY, 24 JULY 2002

Continued from 15.1.02

PN64

MR HENDERSON: I appear for the Australian Services Union and the Association of Professional Engineers, Scientists and Managers Australia.

PN65

MR S. WILSON: I am from VECCI.

PN66

MS D. HOLLINGWORTH: I represent the Municipal Association of Victoria.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Henderson.

PN68

MR HENDERSON: Your Honour, I am pleased to announce that the parties have been able to reach an agreement about this matter and have this morning finalised the terms of a draft order which I will hand up.

EXHIBIT #1 TERMS OF A DRAFT ORDER

PN69

MR HENDERSON: Thank you, your Honour. Your Honour might recall this is an application to vary the Victorian Local Authorities Award 2001 to include provisions relating to casual employees in two aspects. One aspect to increase the amount of loading paid to casual employees who are engaged as Physical and Community Services employees under the award from 20 per cent to 25 per cent which would bring them into line with the rates paid to casual employees employed as other than community service physical type employees, notably in the administrative and clerical grades and also to include provisions which enable casual employees who have been engaged for periods, regularly engaged for a period of employment greater than six months to have the opportunity to elect to become a permanent employee.

PN70

The application was made following a decision of a Full Bench of the Commission in print T4991 in the Metal Engineering and Associated Industries Award in late December 2000. Following the application to vary this award, the application was referred to his Honour, the President for consideration as to whether a Full Bench should have been assembled to hear this application and his Honour did determine that the matter was capable of being dealt with by a single member of the Commission.

PN71

On that basis, we would submit that the order, when I come to it, is the sort of order that is within the power of the Commission to make, even on a consent basis. Certainly the matters which are the subject of the order are allowable matters under section 89A of the Act and in our submission are matters which would not offend any of the current wage fixing principles. In reaching agreement, your Honour, and I don't propose to go into the issues relating to the increase from 20 per cent to 25 per cent in any great degree, other than to say that it means that there is now consistency in this industry.

PN72

This industry is different in that respect from the Metal Industry in that the 25 per cent loading has been appropriate for a large number of employees for quite a long period of time and over that period of time, any differences which may have existed in the employment of what used to be considered to be officer employees and the employment of employees has disappeared and in all other respects, in relation to conditions of employment, the conditions are the same now although obviously wages continue to differ. So in that respect, in our submission, there is no reason why the Commission shouldn't approve an order to increase that 20 per cent.

PN73

In relation to the issue of casual employees having the opportunity to elect to become permanent the parties have, in reaching agreement, seen fit to vary slightly from the approach taken in the Metal Industry Award and have also agreed to put in place a reasonable period of transition so that employers and employees aren't confronted by the changes in the situation too quickly, and in particular what we have done, your Honour, is that in the transitional provisions at the back of page 3 of the order, we put in place a regime which effectively means that no existing employee will have the opportunity to elect to become permanent until 1 February 2003, which is six months from the proposed date of the order.

PN74

But in relation to those existing employees who already have six months employment at the date of the order, they will have the opportunity to elect or not elect, as they see fit whereas other employees, that is employees with less than six months as at today, and new employees may be asked by their employer to agree to extend their period of casual employment by a further six months. Now that provision is in line - the opportunity to extend the trigger period is in line with the decision and the order in the Metal Industry and where such an agreement is made, we have agreed that that should be recorded in the - in writing and held somewhere where it is going to be accessible.

PN75

Your Honour will also note on page 3 that we have deleted, by agreement, the minimum engagement provision. Now the minimum engagement provision occupied a fairly significant part of the matter in the Metal Industry. In the Local Government Industry, the parties have agreed, at least at this point, that that minimum requirement is not necessary, particularly, among other reasons, because we had already agreed when simplifying the award to not stipulate - I think we have stipulated a minimum engagement period of one hour for part-time employees and, so if nothing else, we agree that that would be incongruous to have a four hour minimum engagement then for casual employees. But of course, if matters change, then that is something the parties can address in due course.

PN76

So your Honour, I don't really have many more to say, other than that in our submission this is the sort of consent provision which the Commission ought to approve. There is no reason why it shouldn't be approved. It ensures that the award continues to provide an appropriate safety net. It is a reasonable outcome for the Local Government Industry and the employers are to be commended for being able to come to this agreement and we request the Commission make the order sought.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Henderson. Mr Wilson?

PN78

MR WILSON: Thank you, your Honour. I will be very brief. Simply to say that I would support the comments and submissions made by Mr Henderson and similarly would support the award being varied in the term sought, if the Commission pleases.

PN79

THE SENIOR DEPUTY PRESIDENT: Ms Hollingworth?

PN80

MS HOLLINGWORTH: Your Honour, I also will concur with the comments made by Mr Henderson and also Mr Wilson. I might indicate, in addition to what has already been put to you, that this matter has obviously - well, perhaps not obviously - it has in fact been the subject of some considerable discussion between the parties, but also throughout the Local Government sector and, to the extent that there have been variations from the Metals order, those variations reflect the outcome of the consultation that has taken place and I think it is the view of the parties that those variations are appropriate to the nature of the Local Government sector. If your Honour pleases, I have nothing further to state.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Henderson, you have pointed out to me, have you, where this draft varies from the Metal Industry position?

PN82

MR HENDERSON: The main, I think I pointed out the main areas, your Honour. Perhaps the only other area would be in the proviso in paragraph 15.2A, which allows for the employer and the casual employee concerned to make an agreement. In the Metal Industry that can also be an agreement between the employer and the majority of employees employed in the area. We didn't see that that was necessary or appropriate for local government. Other than those - with that - I think the only variations are the ones that we have pointed out and also the transitional provisions that we have agreed on for this industry. But save that the order is in the terms which are directly lifted from the Metal Industry order.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I am satisfied that the variation is an appropriate variation in the circumstances of this industry. The variations from the Metal Industry clause are not such that would cause me to refuse to vary the award in accordance with the parties wishes. The bringing into line of the Physical and Community Service Casual Employees in respect of the quantum of the casual loading seems to me to be an appropriate matter to be inserted into a Safety Net award. Accordingly, I will make an order in terms of the draft order. The order will be by the consent of the parties. I would ask the unions to e-mail to my associate a copy of exhibit 1 and the order will be made operative from today's date.

ADJOURNED INDEFINITELY [10.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 TERMS OF A DRAFT ORDER PN69