C2002/119, Transcript of Proceedings [2002] AIRCTrans 3063 (8 August 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS


O/N WT05161
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2002/119

LOCAL GOVERNMENT OFFICERS (WESTERN
AUSTRALIA) AWARD 1999

Application under section 113 of the Act
by The Association of Professional Engineers,
Scientists and Managers, Australia,
Western Australian Branch to vary

PERTH

10.35 AM, THURSDAY, 25 JULY 2002

PN1

MR. P. HARTLEY: I appear on behalf of the Australian Municipal Administrative Clerical and Services Union.

PN2

MR D. MOSS: I appear on behalf of the Association of Professional Engineers Scientists and Managers of Australia.

PN3

MR S. WHITE: I am from the WA Local Government Association on behalf of respondent members.

PN4

MR L. JOYCE: I appear on behalf of Local Government Members of the Chamber of Commerce and Industry of Western Australia.

PN5

THE DEPUTY PRESIDENT: Thank you. I think, Mr Moss, you are the one who applied for this, weren't you?

PN6

MR MOSS: Yes thank you sir. This is an application following past procedures when the WA Industrial Relations Commission granted a general order in relation to the local allowance. It has been past practice of the parties to come and flow that into the, into the Local Government Officers Award. Clause 17.2.9 of the LGO Award says:

PN7

Subject to the making of a general order by the WA Industrial Relations Commission and subject to any further proceedings within the Australian Industrial Relations Commission, allowances in this clause -

PN8

and that includes the location allowance -

PN9

shall be varied by the amount determined by the said Commission with effect from the date an application is filed in the Australian Industrial Relations Commission provided the effective date shall not be prior to the effective date of the general order.

PN10

So it is in accordance with that clause, sir. I realise our application was made on 3 July and the date of the draft order is 1 July. That was to reflect the general order and made by the Commission in Court Session in the State Commission. Perhaps, sir, I can pass - - -

PN11

THE DEPUTY PRESIDENT: Well it is the first pay period on or after that date so it is probably effectively the same date anyway is it?

PN12

MR MOSS: Probably sir - - -

PN13

THE DEPUTY PRESIDENT: For most people. Yes.

PN14

MR MOSS: Can I pass the general order for your records sir?

PN15

THE DEPUTY PRESIDENT: Yes please. Mark that exhibit A1.

EXHIBIT #A1 GENERAL ORDER

PN16

MR MOSS: This is an application - it is a consent application, sir. Unless I can be of further assistance.

PN17

THE DEPUTY PRESIDENT: The only slight question I have is the limitation on offer of date as I see it under the principles is for safety net adjustments only. What you are saying is, this is not a safety net adjustment and therefore the offer of date can be from that time, are you?

PN18

MR MOSS: That is correct sir, yes. And it is - - -

PN19

THE DEPUTY PRESIDENT: Given that the previous amendment was August last year, I think.

PN20

MR MOSS: I think all the - the amendment to the Award last year, I think, operated from 1 July also, 2001. That was my recollection. I stand corrected.

PN21

THE DEPUTY PRESIDENT: No it actually operated from the 10 August, the date that it was made.

PN22

MR MOSS: Oh, well, then I do stand corrected.

PN23

THE DEPUTY PRESIDENT: So is there - do we have a problem there?

PN24

MR MOSS: I don't think so, sir. The only issue is that whether it should be 1 July or 3 July. You have got the power under section 146 to go back to the 3 July, the date of application, or 1 July because the date of the Award is prior to the 1 July this year.

PN25

THE DEPUTY PRESIDENT: Yes I don't have any issue there. The only issue I have is whether the principles - safety net adjustment principles, in particular 8(a) and (b), prevent me from doing that. But they are - that is confined to - what I am saying is, that is confined to arbitrated safety or safety net adjustments. This isn't a safety net adjustment, is it?

PN26

MR MOSS: No sir and the Act allows you to do it - - -

PN27

THE DEPUTY PRESIDENT: Yes.

PN28

MR MOSS: And the Award specifically provides for it.

PN29

THE DEPUTY PRESIDENT: It is just that the - I think the last time - yes, see, last time it was a safety new review adjustment. This occasion it isn't.

PN30

MR MOSS: Referring to the location allowance last year, I thought that operated from 1 July.

PN31

THE DEPUTY PRESIDENT: Yes but it was headed, Further to the safety net review decision, the order .. that is what it says. This is quite different. Okay. Thank you Mr Moss.

PN32

MR MOSS: A copy of the draft order I did e-mail through to you but I have got a hard copy if you desire a hard copy.

PN33

THE DEPUTY PRESIDENT: No I have a copy of it, thank you.

PN34

MR MOSS: Thank you sir.

PN35

THE DEPUTY PRESIDENT: Mr Hartley?

PN36

MR HARTLEY: Thank you Mr Deputy President. I concur with the point suggested by Mr Moss. The ASU consent to this variation it sought. I wish to seek an amendment to the proposed draft order submitted by Mr Moss in these proceedings. I wish to request the Australian Municipal Administrative & Clerical Services Union name appears on the top of the proposed order. I understand that we are not an applicant in this matter but are party to these proceedings and didn't believe it necessary to submit joint applications on this matter, and request that the Commission allow this variation.

PN37

THE DEPUTY PRESIDENT: Yes I will vary the order to include you as a party to the variation.

PN38

MR HARTLEY: Thank you Mr Deputy President. I believe Mr Moss agrees with this variation as well.

PN39

THE DEPUTY PRESIDENT: Thank you.

PN40

MR HARTLEY: Thank you.

PN41

THE DEPUTY PRESIDENT: Who goes first on it, I suppose?

PN42

MR MOSS: Oh, well, obviously, sir, the applicant will go first.

PN43

THE DEPUTY PRESIDENT: Thank you. Mr White?

PN44

MR WHITE: Deputy President, the WA Local Government Association consents to the amended order.

PN45

THE DEPUTY PRESIDENT: Do you have any comments about that offer of date?

PN46

MR WHITE: I don't have the information of what was the date last year but we have no dispute over it being effective from the 3 or from 1 July, depending the power and discretion available to yourself.

PN47

THE DEPUTY PRESIDENT: Thank you. Mr Joyce?

PN48

MR JOYCE: Thanks your Honour. Your Honour we do consent to the application. In respect to operative dates, we would certainly distinguish the location allowance increase from the safety net increases. I think historically the matters have proceeded separately, albeit that from time to time the orders might portray as a safety net adjustment but historically we would believe that the matters have always proceeded separately.

PN49

THE DEPUTY PRESIDENT: Thank you. Well I think that is correct and subject to me just reviewing that single issue which I formed a tentative view on with respect to operative date, the Award will vary in accordance with the request made - with the application made with the alteration of inclusion of the ASU and it will be my intention that it takes effect in accordance with the date on the draft order subject to me just reviewing that that is available and I have no - I have a view that it is available. I just want to double-check that. Subject to that, the order will issue in the terms sought with that one variation and take effect according to the application in that order. This matter is now adjourned.

ADJOURNED INDEFINITELY [10.44pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 GENERAL ORDER PN16