C0079/798, Transcript of Proceedings [2002] AIRCTrans 3959 (3 October 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 00797 of 1998
C No 33900 of 1998
C No 36715 of 1998

COLONIAL GROUP ENTERPRISE AWARD 1996

Review under section 51, item 51,
schedule 5, Transitional WROLA Act
1996 re award simplification

Application under section 33 of the Act
for review of above award on the Commission's
own motion

Application under section 113 of the Act by the
Finance Sector Union for the Commission to vary
the Colonial Group Enterprise Award 1996

SYDNEY

9.35 AM, FRIDAY, 20 SEPTEMBER 2002

PN1

THE SENIOR DEPUTY PRESIDENT: I had better take appearances, I think.

PN2

MR D. PEDDIE: If it please the Commission, I appear for Finance Sector Union of Australia.

PN3

MR N. ELVIN: If it please the Commission, I appear for Colonial Services Proprietary Limited.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you. The purpose of having the matters listed this morning is just to get, as far as I am concerned, the parties may have other views, is to simply get on the record where it is I find the files which I have, in effect, inherited. A little confusing, particularly as it appeared at one stage there was virtual agreement on what was to happen then, of course, the Colonial Group was taken over by the Commonwealth and, as far as I am concerned, I need to know what the position is. So, Mr Peddie, you have probably had some longer connection with it than anybody else in the room, I invite you to tell me what you think the position is.

PN5

MR PEDDIE: Thank you, your Honour. I suspect my attachment to this is probably not much longer than anyone else's in the room, but I have done a bit of homework since the last hearing on 12 July and your Honour's summary is basically correct. The Award was looked at and was subject to some Commission action just prior to the Colonial CBA merger and it was then left alone to, I guess, see what the merger brought in terms of coverage of other instruments to employees of Colonial and at this stage, I guess, we are still a little uncertain as to exactly how many employees of the bank remain covered by this and in what areas and we and the bank might try to explore that issue a little further in coming weeks. But, plainly, it still does cover a group of employees, or maybe several groups of employees.

PN6

THE SENIOR DEPUTY PRESIDENT: It could be called a live Award.

PN7

MR PEDDIE: Yes, your Honour, we are happy that that would be an accurate description at this stage, yes. Given that, we see the need to, I guess, simplification in terms of the current requirements of the Act and the Commission and we have started discussion with the bank on that. The first item that we think we need to address is that of the properly fixed minimum rates. The wage rates, as they now appear, certainly have not been properly fixed in terms of Commission principles.

PN8

We have put an initial proposal to the bank on how we think that could be done, and the bank has undertaken to come back to us soon with a response on that. As well as that issue, your Honour, it appears as though there are some other details in the Award that perhaps don't strictly accord with the allowable matters details now in the Act and some of the decisions of the Commission on that issue in recent times. So it appears as though we and the bank would need to discuss some further changes to some other clauses other than the wage rates clauses in the Award. If it please the Commission.

PN9

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Peddie. Mr Elvin?

PN10

MR ELVIN: Your Honour, I wouldn't disagree with anything that Mr Peddie has just put to you. My understanding where the Award was left back in 1998, I do understand there was effectively agreement on the shape of the Award, but the finalisation of that through an order of the Commission was stymied through, I think, the emergence of the paid rates review decision and some other test case decisions of the Commission.

PN11

THE SENIOR DEPUTY PRESIDENT: That's right. It was noted, I think, in transcript in those proceedings that paid rates had become a problem that the parties would have to address.

PN12

MR ELVIN: Yes, your Honour. My understanding, whether they are properly called paid rates, it was effectively - it can perhaps be said that the Award itself, and Mr Peddie has just put this, is not an Award that contains properly fixed minimum rates.

PN13

THE SENIOR DEPUTY PRESIDENT: That's right, which is the correct way of putting it.

PN14

MR ELVIN: Yes, your Honour. My understanding of where that draft got to was that the union and the employer were intending to maintain two separate regimes. One for Colonial and various of the companies that were within the Colonial Group, and a separate regime for the State Bank. Now, following the 1999 EBA agreement under section 170LJ of the Workplace Relations Act, the employees of those particular employers, as I understand it, were effectively transferred through operation of the EBA to Colonial Services Pty Limited. So, to the extent to which the draft order which the Commission now has, and which was put to it as an agreed order for which the parties sought an Award being made, that would now effectively be rendered redundant. We would probably need to start from scratch at looking at how we might frame the Award properly consistent with the legislation for both the WROLA Act and the Workplace Relations Act.

PN15

My friend has mentioned that we are currently looking at the issue of properly fixed minimum rates and I have certainly undertaken to get back fairly soon to the union as to what our position is. There's the additional issue which my friend has also mentioned. It is pretty clear that there are provisions in the Award as it currently sits which were, by virtue of the WROLA Act, now rendered ineffective or no longer operable. As your Honour would be aware there are other provisions of the WROLA Act requiring issues such as efficiencies at the workplace, and that sort of stuff, to be looked at.

PN16

So what we intend to do to assist the Commission in its review, and subject to the Commission being satisfied with this, is first of all look at the issue of properly fixed minimum rates because we think it's a distinct issue. Bound up within that there are a few technical issues which we want to address and we will do over the next few weeks. That, we see as phase 1 of the consultations. Phase 2 would be the broader aspects of the WROLA Act and removing no longer operable provisions, etcetera.

PN17

In line with that sort of two phased approach I suggested to the union early this week that perhaps a period of about two months might be appropriate and at which point we would come back to the Commission to indicate where we see the simplification process going. So that was, I think, something my friend didn't indicate. That at the moment we are in agreement, I think, that perhaps two months might be the appropriate period for us to look over things and get back to the Commission to indicate how far we have come.

PN18

THE SENIOR DEPUTY PRESIDENT: I see. Do you agree with that, Mr Peddie?

PN19

MR PEDDIE: Yes, your Honour, that sounds reasonable to us.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes, it certainly is appropriate, as far as the Commission is concerned. There are a couple of things which I note for the future. There will be a report back, we will go off record in due course to arrange a suitable time. The parties appear to be, and I am saying this for the record, the parties appear to be in agreement that it is appropriate and necessary that the Award be simplified.

PN21

Other circumstances have not altered that fact. Third, and this is probably quite unnecessary, I regard the simplification process as quite independent and distinct of the other matter that is exercising all of us at the present time. In other words, the simplification process is not held up by anything else that is currently before the Commission involving this Award. That said, I will go off record while we work out a suitable date.

OFF THE RECORD

PN22

THE SENIOR DEPUTY PRESIDENT: On the basis of what has been put to the Commission this morning, this matter is adjourned until Tuesday, 19 November at 9.00 am for further report.

ADJOURNED UNTIL TUESDAY, 19 NOVEMBER 2002 [9.48am]