BP2002/4603, Transcript of Proceedings [2002] AIRCTrans 3080 (9 August 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT05087

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BLAIR

BP2002/4603

APPLICATION TO SUSPEND OR TERMINATE
BARGAINING PERIOD

Application under section 170MW of the Act
by Wilson Patient Transport Pty Ltd for orders
to terminate bargaining period in BP2001/4654

MELBOURNE

9.44 AM, FRIDAY, 26 JULY 2002

Continued from 25.7.02

PN72

MR E. QUIGLEY: I appear for Wilson Patient Transport with MR D. RIXON.

PN73

THE COMMISSIONER: Thank you, Mr Quigley.

PN74

MS S. FORBATH: I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN75

THE COMMISSIONER: Thank you, Ms Forbath.

PN76

MR QUIGLEY: Excuse me, Commissioner. I should have said that I seek leave to appear for Wilson but I don't understand that there would be any difficulty with that.

PN77

THE COMMISSIONER: Thank you. Ms Forbath, do you have any objections to Mr Quigley seeking leave?

PN78

MS FORBATH: No objection, no.

PN79

THE COMMISSIONER: Thank you. Leave is granted, Mr Quigley. Who would like to lead off, please?

PN80

MR QUIGLEY: I would like to do that, Commissioner.

PN81

THE COMMISSIONER: Thank you.

PN82

MR QUIGLEY: The parties met yesterday afternoon, as the Commission requested. Mr Rixon and myself met with Ms Forbath, the Secretary of the union, Mr Morris, and another representative from the union for probably a couple of hours, I would say, to see where we were and what the prospect was of getting some resolution of the issues that are between the parties.

PN83

I think it is probably fair to say, Commissioner, and I think Ms Forbath can indicate her position on this but the issues that are between the parties are the question of the underpinning award to any ultimate agreement that the parties might make, the rates of pay to apply - at least in respect of certain of the classifications - on some matters there is an element of agreement; the classification levels for several classifications, the operation of the bonus system that is currently in place at the company and another issue which I don't believe ought to be an issue between the parties and that is a push by the union for a particular classification for which the company currently has no use for, nor does it believe it has any intentions of, but if we could put that one to one side.

PN84

It was clear, at least to the company, Commissioner, that no matter what we might - what progress we might make with some of the issues, the question of the award remained a stumbling block - - -

PN85

THE COMMISSIONER: Yes.

PN86

MR QUIGLEY: - - - and the union put forward a proposal that they thought might be a way around that and in essence, that was a short term agreement pending the outcome of the award exercise that is before Commissioner Holmes. For our part, we were not attracted to that at all and we put a proposal that indicated that if the union were to not push with its desire for an agreement until such time as Commissioner Holmes' exercise is completed, given that the company has just advised the employees of a wage increase, then nobody would be worse off; there would be no prejudice to anybody.

PN87

That position is not acceptable to the union so we ended up not being able to progress the matter beyond that. The only other development since then, Commissioner, is that we naturally enough arranged to come here again this morning. There were some stoppages this morning of Wilson employees and as I understand it, there is still stoppage action taking place.

PN88

THE COMMISSIONER: Stopping action or report back?

PN89

MR QUIGLEY: Stoppage action, as I understand it, Commissioner.

PN90

THE COMMISSIONER: Right.

PN91

MR QUIGLEY: Anyway, we are here and we actually - I think it is probably appropriate that we hear from Ms Forbath, but we do have a proposal that we would like to put this morning, which we believe could provide an opportunity for a resolution of the matter - at least an interim resolution, Commissioner.

PN92

THE COMMISSIONER: Right. Thank you. Yes, Ms Forbath.

PN93

MS FORBATH: Yes, we had quite a lengthy meeting yesterday afternoon and the list of issues that Mr Quigley gave you is a reasonable summary of the outstanding issues, although I guess we still have not confirmed the wording of all of the other parts of the proposed agreement but I understand that we don't have any fundamental difficulties with that. It is certainly true that the question of the underpinning award is a stumbling block, as I understand was reported to you yesterday, having not been in the Commission yesterday when these matters were discussed in front of you.

PN94

The issue in regard to the award is that the private sector are going to put forward an application within the context of award simplification, which is before Commissioner Holmes, for a separate award or a separate part of the award. It is not clear yet exactly what they intend and that award would have different conditions of employment than currently exist under the Ambulance Employees Interim order or even the simplified award that has almost been made and they want the right, under the proposed enterprise agreement, to revert to that.

PN95

There are a number of propositions that we put to try and get around that to preserve their positions. Perhaps the complexities of that are more properly discussed in conciliation, which I am hoping we might have some time with you this morning to deal with that. What we proposed yesterday, we believe preserves both the union's position and the employer's position, pending the outcome of those hearings. It is true that we can't move away from pursuing an enterprise agreement. The company put to us that we just have a memorandum of understanding for a period of time.

PN96

The enforceability of such a memorandum of understanding is questionable. Whether that can be further explored if there is some kind of legal underpinnings to that, that might be worth looking at. Myself and Mr Morris attended this morning at 6 am to the two main depots to report on what had been happening over the last couple of days, to seek directions from our members how they wanted us to pursue the three main outstanding issues; that is the issue of the bonus system being in the enterprise agreement, the rate of pay for the patient transport officer and the question of the award that would be underpinning the enterprise agreement.

PN97

Members are not happy with what has been put by the employers and they voted at each of those locations this morning to continue their stop work until 12 midday and then they will be returning to work at 12 and as you will be aware, Commissioner, from the notification of protected industrial action, no further action is proposed until 5 August, which is Monday week, so the parties certainly in that time have a period in which, hopefully, we can thrash out our differences and I am still hopeful that we can overcome some of these difficulties that we currently have in front of us.

PN98

What I would like to propose, obviously subject to the Commission's consideration and determination and the views of Wilsons would be for us to, with your assistance, Commissioner Blair, have some discussions in a conciliation format in regard to these outstanding matters this morning. I should say, Commissioner, that Mr Morris intends to be here as soon as he can, in terms of assisting with any conciliations that we might have but that certainly shouldn't hold up any discussions that we might have, with your assistance. Thank you.

PN99

THE COMMISSIONER: Mr Quigley indicates that he has a proposal to put on the table. I am just a bit confused as to how - as I understand it, Commissioner Holmes is dealing with the issue of which award should be the underpinning award.

PN100

MS FORBATH: No, he is not - - -

PN101

THE COMMISSIONER: He is dealing with the award simplification process?

PN102

MS FORBATH: Yes, and just to clarify for you, he is dealing with the award simplification process but in the course of that exercise, the parties - all of the parties, both the public sector ambulance services, the private operators and ourselves sought to make certain additions, deletions and variations and Commissioner Holmes has undertaken to hear those but there are a couple of major questions, and that is an application yet to be put but foreshadowed by the private operators, for either a separate award for the private sector or a separate part of the existing award and also the question of whether it is a paid rates award or a minimum rates award already and what that then means for the classification structure that is already there and for the classification structure proposed in general terms by the parties.

PN103

The private operators have raised questions about the appropriate pay rates for patient transport officers and ambulance attendants, which are to be two new classifications that will go into the award and they have also foreshadowed a desire to run work value case in regard to those classifications, so there is a number of quite large cases at foot and you may or may not be aware, but Commissioner Holmes has set down directions for the submitting of applications and submissions from all of the parties and he has listed all of those things for hearing in September, from 24 September, 25th and 26th and then again on 1, 2 and 3 October so those, in a sense, have been held over for much more detailed submissions.

PN104

What we have been dealing with earlier this week was a whole lot of other more minor matters. Unions - or there have been submissions on those more minor matters and the union has finished its submissions and reply and we are before the Commission again next Wednesday afternoon for the employers to respond to my submissions and that will be the end of that, and Commissioner Holmes will then make a decision on those elements and make an award but in that award, he will reserve the pay rates for all of the classifications, pending the outcome of these other proceedings. In the meantime, what will apply are just the wage rates that were in the previous interim order.

PN105

THE COMMISSIONER: All right.

PN106

MS FORBATH: So that is the structure of the fairly complicated situation. This has come in in the middle of all of that and it is - I spoke to Mr Friend this morning, who appeared yesterday on our behalf, just to get his availabilities should you want to set the ..... down for hearing. We are hoping that that won't be necessary and that we can, in fact, get over our difficulties but I do have those dates in front of me if that is, in fact, the way that we have to proceed.

PN107

THE COMMISSIONER: The only reason I raise it is because given the complexities of the arguments that either are currently or will be before Commissioner Holmes in terms of the award, I am just wondering how that is dealt with in terms of any EBA, in terms of the appropriateness of the underpinning award when there is still these issues that need to be addressed, in terms of paid rates, minimum rates. I am not quite sure how that can be an ongoing negotiating issue when it is a major issue that is on foot before another member of the Commission, awaiting determination.

PN108

MS FORBATH: Well there is only one award at the moment and that is the Ambulance Employees Interim Order and there is a consent document with the vast majority of terms and conditions agreed, and the parties agree that the patient transport officer and the ambulance attendant, being new classifications, will go into that award and we have agreed on definitions.

PN109

THE COMMISSIONER: It is just where they go.

PN110

MS FORBATH: It is just the rates that he has reserved until this question of paid rates, minimum rates question gets resolved and whether there has to be or should have been a minimum rates adjustment process in regard to that but what is in existence at the moment certainly has classifications for ambulance officers and clinic transport officers. It is just that in this enterprise agreement with Wilsons, we are introducing two new classifications which have existed in the industry for quite a long time but because the award simplification process has taken such a long time to even bring it to this point, and probably ought to have been in the award long before now but it has been incorporated into this process of award simplification just to try and keep it a bit simpler.

PN111

Look, we wouldn't - we say that the underpinning award is still the ambulance employees interim order. In regard to say a classification of PTO - patient transport officer and ambulance attendant, we would have to make the necessary applications, of course, to the Commission in regard to the appropriateness or get the Commission to determine, at least for the purpose of that, enterprise agreement that the appropriate award was the ambulance employees interim order, although the simplified award will have a different title.

PN112

As I say, Commissioner, I am sort of talking about what is currently there but literally we are days away from the actual new document being made and we would say that that applies until such time as the Commission determines Wilson's application in regard to a new award and makes that award. That is the only thing that we can rest our case on at the moment, because we don't know what they are seeking yet and in any event, such an award hasn't been made so we can only go with what we have got in front of us at the moment.

PN113

THE COMMISSIONER: Right. Okay. Thank you. Mr Quigley, do you wish to say anything further before we go into conference?

PN114

MR QUIGLEY: No. I think conference would be appropriate, Commissioner.

PN115

THE COMMISSIONER: Thank you. All right. The Commission will go into conference.

NO FURTHER PROCEEDINGS RECORDED