C2002/2526, Transcript of Proceedings [2002] AIRCTrans 3756 (25 September 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N WT05351

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT McCARTHY

C2002/2526

ABORIGINAL COMMUNITIES AND
ORGANISATIONS (WESTERN AUSTRALIA)
AWARD 1996

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union-National Office,
Melbourne to vary re Safety Net Review Wages
decision of May 2002

PERTH

10.04 AM, TUESDAY, 10 SEPTEMBER 2002

PN1

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

PN2

MR P.G. ROBERTSON: I appear on behalf of members of the Chamber of Commerce and Industry who are named respondents in this award.

PN3

MR B. WALKER: I appear on behalf of Workplace Relations and Management Consultants, the named respondents to the award.

PN4

THE DEPUTY PRESIDENT: Mr Walker. Three very conservative white shirts. This must be a serious matter. Who is going to take me through this?

PN5

MR HARTLEY: Thank you, Deputy President. This is an application to amend the Aboriginal Communities and Organisations (Western Australia) Award of 2001 in accordance with the safety net review decision of 9 May 2002 at print 002002. This application seeks to vary the rates of pay within this award by $18 per week, in accordance with Principle 8 of the 2002 Statement of Principles. It also seeks to vary the removal allowance, availability allowance, bilingual qualification allowance, first aid allowance, travelling allowance, camping allowance and district allowance in accordance with Principle 5 of the 2002 Statement of Principles.

PN6

Mr Deputy President, if it please the Commission I would like to make submissions regarding the methodology for each individual variation and this will hopefully help to clarify the methodology used for future variations due to the simplification process.

PN7

THE DEPUTY PRESIDENT: Yes. That would be good if that gets on the record Mr Hartley.

PN8

MR HARTLEY: Thank you. To make this issue easier I have prepared just some brief notes about how the actual calculations were developed and I have taken some copies for the parties here today.

PN9

THE DEPUTY PRESIDENT: Thank you. If you could tender that.

PN10

MR HARTLEY: Thank you.

EXHIBIT #A1 - NOTES RE CALCULATIONS

PN11

MR HARTLEY: The removal allowance at clause 21.4.4 is an expense related allowance and has been increased in accordance with the Perth CPI index, the general Perth CPI index. This allowance has not been adjusted since September 1997 so we are seeking to amend it from September 1997 to June 2002, resulting in a percentage increase of 14.5. The availability and out of hours contact at clause 21.7.3 is a work related allowance and has been adjusted the formula outlined in Principle 5, which is the formula outlined in the Furnishing and Glass decision which resulted in a net increase of 3.4 per cent. And the base rate used in this level was the 100 per cent rate at Level 2, Step 1.

PN12

The bilingual qualification allowance at clause 21.10.2 is again a work related allowance and has been adjusted in accordance with the same formula, being the Furnishing and Glass. The first aid allowance at clause 21.11.1 is again a work related allowance and has been adjusted in accordance with the Furnishing and Glass formula. The travelling and camping allowance is an expense related allowance, at clause 21.14.2, and has been adjusted in accordance with CPI from March 2001 to March 2002, being the Perth CPI general index. The travelling and camping allowance at clause 21.14.3 has been adjusted in accordance with the Perth CPI. It is an expense related allowance and using the meals and takeaway foods component.

PN13

The adjustment of the district allowance at clause 21.1.3 and 21.1.4 has been adjusted in accordance with the Perth CPI index from June 2000 to June 2002, being an increase of 8.5 per cent. And it has also been adjusted in accordance with clause 21.2 of the award and - - -

PN14

THE DEPUTY PRESIDENT: Just on that district allowance, is that the appropriate manner of adjusting district allowances? The reason I ask is my vague recollection is the district allowances usually take into account a number of factors, not simply costs. And so if this is adjusted purely on CPIs, just a doubt that is all.

PN15

MR HARTLEY: Yes. This district allowance has been a matter of some contention for some time. We had a little confusion in 2001 where the incorrect order was issued and we came to an agreement with Chamber of Commerce to actually vary that in accordance with the Perth CPI. Traditionally a majority of the awards have their rates actually prescribed, which were adjusted by the West Australian Industrial Relations Commission.

PN16

THE DEPUTY PRESIDENT: Yes.

PN17

MR HARTLEY: But we believe that the use of the general formula would actually, due to it being an expense related allowance and mainly designed to actually reimburse expenses for actually living in remote communities, we thought the general CPI component would be the best one to use.

PN18

THE DEPUTY PRESIDENT: Well that is why I am asking because again, my recollection of this is vague and I haven't looked at it for some time. But my recollection is that the district allowances usually take into account three factors, one of which is cost of living. The other factors being community amenity and the third factor being any climatic or related sort of issues of that nature. And that is the way I thought, at least in the WA Industrial Relations Commission, varies those rates. That is why they look at them annually.

PN19

So I would really just have a question mark whether this is the appropriate mechanism to adjust these rates, particularly as a lot of the other awards that I have had some involvement with apply the WA Industrial Relations Commission rate. So will these end up getting out of kilter with district allowances applying to other workers in the same location for which each worker, regardless of award or classification, should be, well, traditionally has anyway, been getting the same district allowance. That is really the issue I raise.

PN20

MR HARTLEY: Yes. This award was originally generated in 1996 and the rates which were actually agreed upon during the creation of the award were actually similar rates to those used in the Public Service Award, and which is actually a state award.

PN21

THE DEPUTY PRESIDENT: Yes.

PN22

MR HARTLEY: The district allowance has been specifically designed for individual areas of Australia.

PN23

THE DEPUTY PRESIDENT: Yes.

PN24

MR HARTLEY: And even though there is no actual nexus to the award, that award is actually increased in accordance with the Perth CPI as well.

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR HARTLEY: Which is the state award which actually give effect to them. So during the simplification process Mr Trotter from the AACU and Mr Robertson actually came to an agreement to actually vary these rates in accordance with the general CPI and that is how it had been done in previous variations.

PN27

THE DEPUTY PRESIDENT: I see. Well it might well be that the original establishment of the rates was based on those three factors, but the mechanism for maintaining the rates is a different mechanism. I just have a - it is not a major issue but a very slight concern that you might end up at some stage with quite different district allowance rates for workers covered by different awards at the same location. I don't think they would get majorly out of kilter, but then you may well have an issue if the state Commission has a major review of district allowances and increases them, or maybe decreases them significantly. If the basis of your rate is this, I guess you would look at that at the time. Just an issue I raised that the parties might need to think about.

PN28

MR HARTLEY: Sure. Yes. Obviously in accordance with Principle 5(a) of the 2002 Statement of Principles we are just basically adjusting it in accordance with appropriate reflection of relevant changes. So the actual initial methodology for the creation of those rates is probably not the question.

PN29

THE DEPUTY PRESIDENT: Yes. I don't think there is any doubt that it would fall, which ever way it falls, within the scope of the current principles.

PN30

MR HARTLEY: Sure.

PN31

THE DEPUTY PRESIDENT: I just make the comment, that is all.

PN32

MR HARTLEY: Yes. Okay. That completes the submissions regarding the methodology. The ASU gives specific commitment to this Commission and parties to these proceedings that the provision for absorption of the safety net adjustments, in accordance with clause 8(d) of the 2002 Statement of Principles where above award rates are enjoyed, is accepted. In regards to service the ASU notified all respondents to the award of the notice of hearing proposed after an application on 13 August 2002.

PN33

THE DEPUTY PRESIDENT: Yes. There wasn't a substituted service on this, so do you comply with the requirement to notify all the respondents did you Mr Hartley?

PN34

MR HARTLEY: That is right. We did notify, I believe it was 101 respondents to the award, so the - - -

PN35

THE DEPUTY PRESIDENT: I suspect it will be different next time.

PN36

MR HARTLEY: Well we assume it to remain as the same. A lot of the smaller Aboriginal community organisations are not members of the employee representatives, so we probably thought it was more appropriate for this award to actually serve everyone to notify the parties.

PN37

THE DEPUTY PRESIDENT: Okay.

PN38

MR HARTLEY: We also notified the four employee representative groups, including Chamber of Commerce. From previous discussions with Mr Robertson from Chamber of Commerce it is our understanding that today's variation sought is a matter by consent of both parties and respectfully that this matter be ratified in the terms sought. We ask that the variations apply from the first pay period commencing on or after 5 October 2002, which is 12 months from last year's order. If it please the Commission, I have nothing further.

PN39

THE DEPUTY PRESIDENT: Thank you very much Mr Hartley.

PN40

MR HARTLEY: Thank you.

PN41

THE DEPUTY PRESIDENT: Mr Robertson, have you anything further to add?

PN42

MR ROBERTSON: Nothing, sir, to add Deputy President, except to say that, as Mr Hartley has pointed out, this application has been the subject of numerous interactions between ourselves and the union. And this matter comes before you today, as the application stands, by consent. May it please the Commission.

PN43

THE DEPUTY PRESIDENT: And you have had communication with the majority of respondents bound by this award, have you?

PN44

MR ROBERTSON: We have had communication, Deputy President, with those named respondents in the award who are members of the Chamber, yes.

PN45

THE DEPUTY PRESIDENT: Yes. Would that be a significant number?

PN46

MR ROBERTSON: I wouldn't call it significant, Deputy President, but a reasonable number.

PN47

THE DEPUTY PRESIDENT: Thank you. Mr Walker.

PN48

MR WALKER: Yes. Thank you, Deputy President. We have no objection to the orders sought. If it assists, our involvement by way of members who are respondent is very limited. But I haven't had any objection raised with me by those particular members.

PN49

THE DEPUTY PRESIDENT: Thank you, Mr Walker.

PN50

MR WALKER: Thank you.

PN51

THE DEPUTY PRESIDENT: Well I thank the parties and you in particular Mr Hartley, for your presentation of the detail of the mechanism that has been adopted and is intended to be adopted for future variations to this award. Also for your preparation of the draft order. The award variation sought complies with the requirements of the legislation and the principles and it will be issued to take effect from the beginning of the first pay period commencing on or after 5 October and the paper work will flow in due course. This matter is now adjourned. Thank you gentlemen.

ADJOURNED INDEFINITELY [10.16am]


INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 - NOTES RE CALCULATIONS PN11