C2002/4461, Transcript of Proceedings [2002] AIRCTrans 3824 (26 September 2002)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2002/4461

STORAGE SERVICES - GENERAL - AWARD
1999

Application under section 113 of the Act
by National Union of Workers to vary re
increasing minimum payment under Supported
Wage System and variation in accordance
with the Working Hours Case

MELBOURNE

11.38 AM, THURSDAY, 12 SEPTEMBER 2002

PN1

MS S. ALLISON: I appear for the National Union of Workers.

PN2

MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN3

MR R. MARASCO: I appear for the Australian Industry Group.

PN4

MR M. WELDON: I appear for the Australian Retailers Association.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Ms Allison.

PN6

MS ALLISON: Your Honour, if I could just firstly apologise for my lateness. My arrangements to get down here disappeared at the last minute.

PN7

THE SENIOR DEPUTY PRESIDENT: Very well, thank you.

PN8

MS ALLISON: Your Honour, the union seeks a variation of the Storage Services General Award 1999 pursuant to section 113 of the Workplace Relations Act and in accordance with the Supported Wage System Test Case decision of 30 May 2002 and the Working Hours Case of 23 July 2002. The union has prepared draft orders to this effect which I would seek to tender. My friends at the bench have all been sent a draft order.

EXHIBIT #NUW1 DRAFT ORDER

PN9

MS ALLISON: Your Honour, a copy of the application for variation, a notice of listing and the order for substituted service was served on the employer organisations specified in the order for substituted service. An affidavit attesting to this service has been sworn by Mr Greg Sword, the General Secretary of the National Union of Workers.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, I have that.

EXHIBIT #NUW2 AFFIDAVIT OF MR SWORD SWORN 11 SEPTEMBER

PN11

MS ALLISON: Your Honour, provision 1 and 2 in the draft order seek to increase the supported wage to $56 in accordance with the Supported Wage Test Case. Provision 3 seeks to insert the test standard on the right to refuse unreasonable overtime as formulated in the Working Hours Case. Finally, the union seeks that the order would come into force from the first full pay period to commence on or after today's date. Your Honour, my understanding is that the parties in this matter consent to the body of the draft order but there is some contention surrounding the title of the test standard in the draft order at 24.1 where the union has proposed a removal of the current clause heading which is, Requirement to Work Reasonable Overtime, and the replacement of the heading, Right to Refuse Unreasonable Overtime.

PN12

The union submits that the right to refuse unreasonable overtime is an appropriate heading for the new clause. It correctly characterises the content of the new clause and it reflects the ratio of the Working Hours Case. The Full Bench of the Working Hours Case is very clear in saying that they are creating an explicit right to refuse unreasonable overtime as opposed to just adding extra sub-clauses to the current requirement to work overtime provision. In paragraph 279 of the Full Bench's decision - does your Honour have a copy of the case there?

PN13

THE SENIOR DEPUTY PRESIDENT: No. If you could - - -

PN14

MS ALLISON: I can hand that up.

PN15

MR MARASCO: What paragraph is that?

PN16

MS ALLISON: It is 279. At paragraph 279 the Full Bench says:

PN17

An employee's right to refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours is implicit ...(reads)... upon which to refuse to work unreasonable overtime.

PN18

The union submits that the heading, Right to Refuse Unreasonable Overtime, reflects the Full Bench's desire to make this right explicit and indeed reflects the purpose of the Full Bench creating the standard provision. Accordingly, your Honour, the union requests that an order be made giving effect to the draft orders provided. Unless your Honour has any questions that - - -

PN19

THE SENIOR DEPUTY PRESIDENT: Are you able to advise me what, if any, heading attended the variations in relation to the particular awards dealt with in the test case provision? They were matters to be dealt with by Mr Commissioner Gay.

PN20

MS ALLISON: Certainly, your Honour. My understanding is the ACTU in their submissions provided the heading, Reasonable Overtime. The Commission didn't provide a heading and they actually went on to say that - I am sorry, I don't have the page in front of me - but they were making a different provision to that submitted by the ACTU and they emphasised that they thought it was important on the basis of creating the right to refuse unreasonable overtime.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that.

PN22

MS ALLISON: If the Commission pleases.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Eberhard.

PN24

MR EBERHARD: Your Honour, with respect to the variation sought in regards to the Supported Wage VECCI would not be opposing that as that has been the subject of submissions before a Full Bench of this Commission with respect to the Supported Wage System Test Case decision and we would not be opposing the increase from 53 to $56. With respect to the verbiage that is contained in 24.1.3 through to and including 24.1.2(e) again we would not be opposing the application to insert those words into the award itself on the basis that that accurately reflects the test case decision in regards to the Commission's decision.

PN25

With respect to the deletion of the requirement to work reasonable overtime and the insertion of a right to refuse unreasonable overtime we would be opposing those words. We do not believe that or we would submit that the intent of the Full Bench's decision in regards to the Working Hours claim was that they - yes, it is true that they were to make an explicit reference in regards to the right to refuse overtime but in respect to the decision itself at paragraph 278 it starts, and I quote:

PN26

In our opinion it is desirable that the test case provision should provide some guidance to the parties on the matters which should be taken into account in deciding whether the working of overtime would result in an employee working unreasonable hours.

PN27

And it continues on later:

PN28

The provision is only intended to be included in awards that specify ordinary time and provide for overtime. It will include a reference to the well-established right of an employer to require an employee to work reasonable overtime.

PN29

We would actually say that the NUW submission with respect to making statements in regards to saying that the actual decision confers a right to refuse unreasonable overtime, whilst correct in one sense is incorrect in the sense of it is not a provision that would prevail with respect to the award provisions. The primary motivation with respect to this provision is that an employer may require an employee to work reasonable overtime at overtime rates. There are then sub-clauses which are sought to be inserted to determine whether or not the working of that overtime would be seen to be unreasonable.

PN30

But the explicit nature of the clause is that an employer may require an employee to work reasonable overtime at overtime rates. It then has pre-conditions set upon it as to how an employee may refuse to work that. So certainly the intent of the Full Bench decision, in our submission, is that the requirement to work reasonable overtime needs to remain and it needs to remain primarily because that is an explicit reference referred to in the decision, it is an explicit provision that exists in respect to industrial relations as a whole and the ACTUs claim, whilst referring to reasonable overtime in point 2, whilst that was the claim it was not the subject of the decision of the Bench itself. The Bench itself said, and I quote again, that:

PN31

It is only intended to be included in awards that specify ordinary time and provide for overtime.

PN32

So on that basis we would submit that the reference to the requirement to work reasonable overtime should not be deleted. The verbiage contained in 24.1.3 through to and including 24.1.2(e) can certainly be inserted as a result of the Full Bench's decision but the reference to the requirement to work reasonable overtime should remain therein. If the Commission pleases.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Ms Allison, I wonder if you could clarify - the numbering is wrong in the draft order, is it, 24.1, then goes directly to 24.1.3, 4 and then back to 2?

PN34

MS ALLISON: Your Honour, I am sorry about that. That looks like a - - -

PN35

THE SENIOR DEPUTY PRESIDENT: It should be 24.1.1, 24.1.2 and then 21.1.2(a). Is that what is intended?

PN36

MS ALLISON: Yes. So 24.1.1, 24.1.2 and then, that is right, your Honour. Sorry, that is a mistake from the computer formatting. I am sorry about that.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Marasco.

PN38

MR MARASCO: If the Commission pleases, the position of AIG is the same as VECCIs in that matter, namely that AIG would support the adjustment of a supported wage system, the amendment to the award in that regard. However, the AIG would oppose a change of title of the clause dealing with working overtime. We would oppose the deletion of the heading, Requirement to Work Reasonable Overtime. I won't need to repeat the arguments that Mr Eberhard used; the AI Group would support those.

PN39

The only further issue that we draw your Honour's attention to is that of the awards that we use as a test case vehicle in that Full Bench decision, such as the Space Tracking Industry Award, that award at clause 24.2 did retain that title of requirement to work reasonable overtime, and we think that it would be inappropriate, therefore, to change the title. Unless the Commission has any further questions, that would be my submission.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you. Mr Weldon.

PN41

MR WELDON: Yes, thank you, your Honour. I don't propose to go into any great detail as that has already been done by my two colleagues at this end of the bar table. But, yes, we agree to the issue in respect to the supported wage and we agree to the contents of the clause relating to overtime. However, we seek that it would be in accordance with the award as it currently stands which refers to requirement to work reasonable overtime. If the Commission pleases.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Allison.

PN43

MS ALLISON: Thank you, your Honour. We rely on our submissions put earlier that the right to refuse unreasonable overtime reflects the actual ratio of the Working Hours Case. In respect to the argument put by my friend from VECCI that 24.1.2 onwards in the decision of the Commission to insert the new test provision is almost merely an addition to the existing clause requiring employees to work reasonable overtime. The union submits that this interpretation clearly goes against the Full Bench's reasons surrounding the creation of the test standard and their desire to create an explicit right for employees to refuse unreasonable overtime.

PN44

THE SENIOR DEPUTY PRESIDENT: But isn't that created - that explicit right is reflected in the award by the addition of 24.1.2?

PN45

MS ALLISON: Sorry, your Honour?

PN46

THE SENIOR DEPUTY PRESIDENT: The addition of 24.1.2 in your draft order setting out that an employee may refuse to work overtime which is unreasonable having regard to a various range of factors then set out, does that not meet the Full Bench's intention of making explicit that right?

PN47

MS ALLISON: Well, your Honour, I would - just referring again to that paragraph 278 which was referred to by my friend from VECCI, there the Full Bench discusses what they will include in the test case provision to provide guidelines for the matters which should be taken into account in deciding whether the working of overtime would result in employees working unreasonable hours. So that, to me, seems to be the purpose of the clause. And then they state in the test standard they will include, and they list reference to circumstances of the employee and the employer, reference to the amount of notice given to work overtime and the notice given to refuse overtime, and then finally in that paragraph they state they will also include, and I quote here:

PN48

...reference to the well established right of an employer to require an employee to work reasonable overtime.

PN49

So with that paragraph prefacing the test standard, I would submit that the Full Bench is merely saying the test standard - the central provision of the test standard isn't about the requirement to work reasonable overtime, it is, in fact, about the right of employees to refuse unreasonable overtime, but they will also include the already well established principle that employees can be required to work reasonable overtime.

PN50

Your Honour, just one other point in relation to the AIGs submission about the - was it the Space Tracking Award? The fact that another award is being varied and has kept the same heading has had no impact on our submissions that the Storage Services Award should be varied to include the new heading that the union submits is appropriate, and indeed other awards were varied on that same day and did not maintain that same title. They, in fact, went for the Reasonable Overtime title. So, your Honour, the case that I have in front has notes just at the front on what those awards were.

PN51

THE SENIOR DEPUTY PRESIDENT: Sorry, do you need that back for the purpose of your submission?

PN52

MS ALLISON: Yes. Is that all right? Thank you. So other awards, the Retail Wholesale Industry Award, Australia Post General Conditions of Employment Award and the Railways Professional Officers Award which were also varied on the same day by Commissioner Gay as the Space Tracking Industry Award had the heading Reasonable Overtime. Thank you, your Honour.

PN53

THE SENIOR DEPUTY PRESIDENT: Do you know whether that was a maintenance of a previous heading or - - -

PN54

MS ALLISON: Your Honour, I am sorry, I am not sure.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Just bear with me one moment.

PN56

MS ALLISON: Your Honour, did you want that case up there?

PN57

THE SENIOR DEPUTY PRESIDENT: I was looking for the actual award, but that will be with me shortly. Yes, very well.

PN58

This is an application by the National Union of Workers pursuant to section 113 of the Workplace Relations Act 1996 to vary the Storage Services General Award 1999 to give effect to the increase in the level of supported wage arising out of the test case decision in print PR918422, and secondly, to insert within the overtime provisions the test case provision set out in paragraph 278 of print PR072002.

PN59

I am satisfied on the basis of exhibit NUW2 that the union has served notice of the hearing on each of those employer organisations required to be served by an order for substituted service. The supported wage variation is not opposed by any of the three employer organisations represented and is consistent with the Full Bench decision in print PR918422 and in my view should be awarded.

PN60

In respect to reasonable hours test case decision, there is no dispute between the parties as to the appropriateness of inserting into the award the provision in respect to reasonable overtime reflected in paragraph 278. There is, however, a disagreement between the parties as to whether the heading within the award should read "Requirement to Work Reasonable Overtime" as contended by the employer organisations or "Right to Refuse Unreasonable Overtime" as contended by the NUW.

PN61

The present provision in clause 24.1 has the heading of "Requirement to Work Reasonable Overtime" and the provision deals only with the requirement of an employee to work reasonable overtime at overtime rates. The provision set out in exhibit NUW1, which is consistent with the test case provision and not opposed by the employers, deals with the requirement, subject to clause 24.1.2, proposed upon an employee to work reasonable overtime at overtime rates in subclause 24.1.1, and in subclause 24.1.2 the right of an employee to refuse to work overtime in circumstances where that requirement is unreasonable having regard to a number of factors set out in sub-subparagraphs (a) to (e).

PN62

In my view, the substantive provision is found in subclauses 24.1.1 and 24.1.2 and not in the heading. The obligations and responsibilities within the clause arise from the clause proper and not from the heading, and it appears to me that the appropriate description of the clause in the heading should reflect the operative terms of the clause as a whole. As I have noted, the operative provisions of the clause reflect both the Full Bench intention that it include both a reference to the well established right of an employer to require an employee to work reasonable overtime in 24.1.1, and in 24.1.2 setting out in an explicit way the right of an employee to refuse overtime in circumstances where it would result in an employee working hours which are unreasonable having regard to the factors there set out. Thus the operative provisions reflect each of those matters intended to be incorporated into the clause by the Full Bench.

PN63

It is my view that neither of the headings proposed, "Requirement to Work Reasonable Overtime" or "Right to Refuse Unreasonable Overtime" properly reflect the totality of that provision. The provision as now structured deals with reasonable overtime, both the requirement of employees to work it and the right of an employee to refuse it in circumstances where the working of it would result in working hours which are unreasonable.

PN64

Accordingly, it is my view that the heading, "Reasonable Overtime", should appear in the award in clause 24.1 because it properly comprehends the various operative provisions within the clause itself. Accordingly, I determine that I will vary the award in the terms of exhibit NUW1 save that the heading, "Right to Refuse Unreasonable Overtime", will be replaced by the heading, "Reasonable Overtime". Otherwise the order will be in the terms proposed by the NUW in exhibit NUW1 dealing both with the supported wage level and the outcome of the Reasonable Hours Test Case. The order shall come into force from the first full pay period to commence on or after 12 September 2002 and shall remain in force for a period of six months. I will now adjourn this matter.

ADJOURNED INDEFINITELY [12.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 DRAFT ORDER PN9
EXHIBIT #NUW2 AFFIDAVIT OF MR SWORD SWORN 11 SEPTEMBER PN11