C2002/860, Transcript of Proceedings [2002] AIRCTrans 3659 (19 September 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C2002/860

TRANSPORT WORKERS (ACT AMBULANCE OFFICERS)
AWARD 2001

Application under section 113 of the Act
by the Transport Workers' Union of Australia
to vary the above award re advanced
clinical skills allowance

CANBERRA

2.46 PM, WEDNESDAY, 4 SEPTEMBER 2002

Continued from 28.8.02

PN988

THE COMMISSIONER: Same appearances?

PN989

MR COOK: Yes, Commissioner.

PN990

THE COMMISSIONER: Yes, yes. All right. Well, as you recall, this matter has been listed for hearing of the question of whether the allowance that was the subject of the earlier proceedings should have been paid as an allowance for all purposes or not. The matter was not argued before me, during the last hearing, and the hearing today is to allow the matter to be argued so that a decision can be made as to whether or not there has been an incorrect order made. Yes, go ahead, Mr Cook.

PN991

MR COOK: Thank you, Commissioner. Commissioner, it is the fact that we refer to the Commissioner's order dated 15 August 2002 and also paragraph 52 of the Commissioner's decision, which the Commissioner perhaps not quite an open invitation to indicate that if there was any defect that might be identified within the granting of the order, that the matter could be reopened if the parties had some misunderstanding as to its application. Commissioner, the misunderstanding, so far as the issue has been correctly identified by the Commission in that the respondent's belief was that the application of the order should be covered for a flat rate allowance to cover full time and part time employees.

PN992

Commissioner, the reference to that is that the Commissioner heard fairly extensive argument in relation to the pro rata arrangements for part time employees and it is the position of the respondent that in not covering - should a flat rate be awarded, that a flat rate would be given or should be given to part time employees. But it was only if a flat rate was not to be awarded and a decision on all purposes, would be it be pro rataed.

PN993
Commissioner, the position in relation to the payment of an amount for all purposes was first identified at paragraph 6 of the opening submissions, in the opening written submissions of the applicant in this matter and the matter was not then referred to until PN857 of the transcript. And it is at that point that Mr Jonathan Quiggan, under cross-examination from the applicants, indicated that he understood that the allowance was at a flat rate. And my instructions are that the respondent would also acknowledge that the flat rate allowance would also be for part time employees if a flat rate was the decision of the Commission, based on the information which the Commission has previously been provided with in relation to written submissions and oral evidence put before the Commission in the previous matters on the 3rd and the 4th, and on 27 June.

PN994

Now, Commissioner, the respondent's position is that the allowance be of an amount of $100 as previously indicated at 15.4.1 of the order of the Commission and that for calculating the payments, it is at a flat rate that it have application to both part time and full time employees, as a flat rate to that amount. Unless I can be of any other assistance to the Commission.

PN995

THE COMMISSIONER: All right. Thank you, Mr Cook. Mr Duffin?

PN996

MR DUFFIN: Thank you, Commissioner. Perhaps if Mr Whale could provide the written submissions.

PN997

THE COMMISSIONER: Yes, I have those. I will mark them - it will be TW11.

EXHIBIT #TW11 WRITTEN SUBMISSIONS

PN998

MR DUFFIN: Thank you, Commissioner. They refer to an outline, those submissions. More strictly put, they are the submissions that we will be seeking to rely upon. There are - in relation to those submissions, there are also some awards that we would seek to submit to the Commission that deal with these matters and I am not sure whether Mr Whale has already provided them to the Commission.

PN999

THE COMMISSIONER: Yes, there are three attached to the submissions.

PN1000

MR DUFFIN: Thank you, Commissioner. Perhaps, just by way of background, our position is that the all purposes allowance is an appropriate basis upon which the allowance should be paid. It is a skills-based allowance, an allowance based upon the work value principle and that is found at paragraph 4 of our submissions whereby it is said that in the wage fixing principle, that the significant net addition to work requirements would warrant the creation of a new classification. So we say that this allowance reflects the creation of a new classification and the new classification is the intensive care paramedic.

PN1001

If one goes to paragraphs 15 - well, paragraphs 14 through to 17 of our submissions, those awards that we have handed up to the Commission and refer to, the first one is not something that has been provided to the Commissioner on this occasion, but the Commission is well aware of, which is the decision is the MICA case which is print A1255. That has not been handed up to the Commissioner and in that decision by Senior Deputy President MacBean, the allowance was paid for all purposes.

PN1002

If one goes next to the New South Wales award, which is the Operational Ambulance Officer Award State, which is the one which is marked New South Wales Department of Industrial Relations, if one turns to the - it is actually on what would be the sixth page, which is headed "Provided that such an employee" - - -

PN1003

THE COMMISSIONER: Yes.

PN1004

MR DUFFIN: There are references there to Advanced Life Support Officer. That is about one-third of the way down the page, and there is an allowance there that should be regarded as part of the salary for all purposes for the award - the following sentence. And then:

PN1005

Provided that such an employee shall be required to undertake and successfully complete their further instruction.

PN1006

And then immediately following that, there is the reference to the paramedic officer, and then to the employee who has successfully completed those requirements, and again, "The allowance shall be payable for all purposes of that award". There is a similar situation with the South Australian Ambulance Service Award, which is the next document that I would refer the Commission to, which is found at paragraph 16.7, which is the Advanced Life Support Allowance in that award, which goes on to describe why the allowance at 16.7.3:

PN1007

That the allowance shall be for all purposes of the award.

PN1008

The final document that I provide to the Commission also is the Queensland Ambulance Employees' Award. In that instance, on the first page immediately following the front cover, there is a reference to a paramedic ambulance officer who has achieved all the requirements. And that is a classification rather than an allowance per se. So, that is the first thing we say.

PN1009

And the second thing we say is that in our view the nature of the Commission's decision is that - and this is found at paragraphs 12 and 13 of our submissions - is that the payment of the allowance for all purposes is consistent with the idea that the allowance shall be paid on a pro rata basis to part-time employees. In our view and in our submissions we would say that the nature of the allowance and all purposes of allowance should be such that it reflects all the skills that are being used at all hours. In the alternative, as friend Mr Cook has suggested that there should have been a flat allowance, it would be our submission that a flat allowance should apply equally to all employees irrespective of the number of hours they work. It is the existence of the skills and that classification level which determines the payment of a flat allowance.

PN1010

However our primary submission is that the allowance should be paid for all purposes and clearly should be done so on the basis that the skills acquired. It is a skills based allowance rather than a allowance determined by anything else. And those skills are expected to be applied at all hours that a person would be rostered on for work. And as I said, it is consistent with the operation of allowances, both in Victoria, Queensland, South Australia and New South Wales. It is also consistent with the classification structure in those four States. Apart from that, we would rely upon those written submissions that we have provided to the Commission.

PN1011

THE COMMISSIONER: All right, thank you, Mr Duffin. Mr Cook, anything in reply?

PN1012

MR COOK: Commissioner, only one aspect in reply and that is in picking up paragraph 13 of the written submissions which I have only just seen. It is in effect - our agreement would be as put by Mr Duffin that it is the existence of the skills at a flat rate to which it should be recognised. It does not matter what hour it is to be performed and what time of day it is being performed, as you are reading. The requirement of the - or payment of a flat rate for the existence of a skill which in fact must be applied. So it is the exercising of the skill that has been obtained by the individual to which a flat rate would probably recognise as both part time and full time employees, Commissioner.

PN1013

THE COMMISSIONER: Thank you. Thank you, Mr Cook. All right, I will reserve my decision. I will adjourn.

ADJOURNED INDEFINITELY [2.58pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TW11 WRITTEN SUBMISSIONS PN998