C2002/4531, Transcript of Proceedings [2002] AIRCTrans 4188 (24 October 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2002/4531

QUEENSLAND LOCAL GOVERNMENT OFFICERS' AWARD 1998

Application under section 113 of the Act
by the Australian Municipal, Administrative, Clerical
and Services Union to vary the above award re
variations to employment conditions clauses in award

BRISBANE

9.40 AM, WEDNESDAY, 9 OCTOBER 2002

PN1

THE COMMISSIONER: Can I take the appearances, please.

PN2

MS M. ROBERTSON: I appear on behalf of the Australian Services Union, and with me is MS K. NELSON, also of the Australian Services Union.

PN3

MS P.J. TOVEY: From the Association of Professional Engineers, Scientists, and Managers Australia, may it please the Commission.

PN4

MR K.F. WATSON: I seek leave to appear on behalf of the Local Government Association of Queensland Incorporated, and I have with me MR R. BEER from that association.

PN5

THE COMMISSIONER: Ms Robertson.

PN6

MS ROBERTSON: Thank you, Commissioner. This matter is an application - - -

PN7

THE COMMISSIONER: I'm sorry, Ms Robertson, just before you go on, you have no objection to the application for leave?

PN8

MS ROBERTSON: No, Commissioner.

PN9

THE COMMISSIONER: Leave is granted, Mr Watson.

PN10

MR WATSON: Thank you.

PN11

THE COMMISSIONER: Ms Robertson.

PN12

MS ROBERTSON: Thanks, Commissioner. This is an application to vary the Local Government Officers Award 1998, Commissioner, in relation to six issues within that award. We made that application to this Commission on 4 September, and forwarded a copy of that to the Local Government Association of Queensland on 20 September. That was accompanied by a letter in which we sought discussions with them to address any preliminary issues and to find areas of agreement or disagreement before we came before you.

PN13

On 24 September, we also made an application for substituted service in this regard, and that was issued by this Commission on 2 October. Now on 8 October, Commissioner, we had some discussions with the Local Government Association, and that was attended by Mr Beer and myself, and we identified a number of issues at that stage, one of which probably should be raised as a threshold matter, and that is that Mr Beer identified to us the existence of a number of local government owned corporations, which respondent to Local Government Officers Award, but which have not been captured by the order for substituted service, and they include, amongst other things, Commissioner, a number of water boards throughout the state, some theatre operations, at least one library board that is known to us, and I believe sale yards as well in Western Queensland. So, Commissioner, it is certainly at the stage - they will have to say to you that those parties are not aware of the existence of this application.

PN14

THE COMMISSIONER: Do they employ labour in their own right?

PN15

MS ROBERTSON: I beg your pardon, Commissioner?

PN16

THE COMMISSIONER: Do they employ labour in their own right?

PN17

MS ROBERTSON: I am informed that they do, Commissioner, yes.

PN18

THE COMMISSIONER: Do you know anything about it, Mr Watson?

PN19

MR WATSON: Well, I would have thought that the library would have, in terms of those persons that would be covered by this award. I can get instructions on that, may it please the Commission, but that was certainly a matter which I was going to raise this morning. Can I just say one thing now in relation to the order for substituted service - and I don't obviously know the basis upon which the application was made, in what was motivating the Australian Services Union in doing this - in this sense: that he talks about respondents to the award.

PN20

Now, it is not definitive as to what is meant by "respondent." Does it mean named respondents, or does it mean successor respondents, or whatever, so that - now, some of these persons, like, for example, if their organisation is set up by already named respondents to the award to do things which were previously done by them, then, obviously, there may be an argument that they are caught by the order, because they are respondents in the sense that they are successors. I only put that forward. But things like, for example, saleyards, I would have thought that was difficult to say that they were somehow successors.

PN21

I would have thought they were probably independent bodies. But in terms of whether they are caught by the substituted service, and do they employ labour covered by the award. As I said, without getting instructions, it seems to me that it may be somewhat difficult to conceive of an organisation that didn't have some sort of administrative staff that wouldn't otherwise be covered by this award. I mean, it is a clerical award. Does that - is that of assistance to the Commission?

PN22

THE COMMISSIONER: Yes, thank you. Ms Robertson.

PN23

MS ROBERTSON: Commissioner, as I said before, this was made known to me at a later stage in our discussions with Mr Beer, and I haven't been able to investigate the matter fully. It would appear that, at least in the case of the library boards, that they are employers in their own right, and that they are respondents to the Local Government Officers Award through virtue of transmission of business. Whatever the situation is, Commissioner, it is certainly the case that certainly the ASU hasn't notified those parties directly of the existence of this application, and whether it is captured by the order for substituted service, I would certainly need to investigate that further, Commissioner.

PN24

THE COMMISSIONER: Very well, thank you.

PN25

MS ROBERTSON: Thank you. Commissioner, we have also notified APESMA of our application to vary the award as well, and are continuing discussions with them in relation to this matter. They were not present at the discussions with Mr Beer from the LGAQ yesterday.

PN26

THE COMMISSIONER: Thank you.

PN27

MS ROBERTSON: Thank you. So having raised that matter, and certainly, Commissioner, we will seek to investigate that and to address it, and remedy any faults that there might be. I might now turn to the content of the application. Would it be time to do that, Commissioner?

PN28

THE COMMISSIONER: Yes.

PN29

MS ROBERTSON: Okay. Commissioner, the application contains six variations that have been proposed to the Local Government Officers Award. Some of those, Commissioner, could probably rightly be classified as corrections to the award, rather than variations to the intent of the award. We had discussions with the LGAQ as I said, and, on some of those matters, we did reach some preliminary agreement.

PN30

Of course, I understand that Mr Beer would have to consult his members about that as well, and it would be fair to say, Commissioner, that on some areas there is not yet agreement with the LGAQ. I thought that it probably would be - if I could demonstrate or illustrate to the Commission the areas where we do have some preliminary agreement and explain to the Commission why we believe that is the case. It might be useful to do that before we went to the areas where there is disagreement. So if I could take the Commission to the application and the second variation that we are seeking is one where it says to delete clause 18.1.1 regular part-time employment, and to insert a new clause, which states that:

PN31

A regular part-time officer is an officer who:

PN32

. works less than full time hours of 36 and 1/4 per week.

PN33

That is the only variation that we are seeking to the award, Commissioner. The current Local Government Officers Award states that the regular part-time officer is somebody who works less than 38 hours a week, and that is clearly at odds with the full-time hours of work in that award which are 36 1/4 hours a week. It has been recognised that that is probably a mistake that needs to be corrected, and we make the application on that basis.

PN34

Secondly, Commissioner, the next provision is to delete clause 19.2, hours of duty. Clause 19 refers to the hours of casual employment, and the provision states that hours worked Monday to Friday, both days inclusive, shall not exceed seven and a quarter hours per day. Commissioner, in the 1992 award, it is clearly stated that casual employees ordinary hours of work would not exceed seven and a quarter hours per day on Monday to Friday inclusive. And again, that has been recognised that it is probably something that was inadvertently admitted - omitted, sorry - from the 1998 award. And in our preliminary discussions with the LGAQ there appears to be little disagreement that that is probably the case.

PN35

The next area, Commissioner, where it appears that we have reached some preliminary agreement with the LGAQ, is on page 2 of the application, at the third provision there, which requests the variation to delete clause 24.3.1, and insert a new clause 24.3.1. Commissioner, we would submit that the current provision in the 1998 award is both misleading and ambiguous. And if I can explain that; Local Government officers receive 15 days per year sick-leave, and in their first year of employment, that sick-leave entitlement accrues at the rate of one day per month, and at the end of that 12-month period, any credits are made cumulative into the second and subsequent years of service.

PN36

As the award reads at the moment, Commissioner, it could be interpreted that an officer receives only one day per month of sick-leave in their first year of employment, and that the 15 days per year has been abandoned. That was clearly not the intention in the making of the '98 award, and if we refer back to the 1992 award - which I certainly have here, Commissioner, if we need to go to it - it is clear that there are 15 days per year sick-leave, but the rate of accrual is at one day per month, and any accumulation to any entitlement at the end is credited towards the next year's service.

PN37

Again, there was certainly in the discussions a view with the LGAQ that that also was probably a mistake that needed some correction to make it clearer. So three of the six items, Commissioner, appear to have some degree of agreement, although I am aware that Mr Beer has got some concerns about the drafting of some of those clauses. That leaves three proposed variations which there is not yet agreement on, Commissioner. And they would be the changes that we are seeking to clause 17 of the probationary employment provision. And what we are seeking to do there, Commissioner, is to make it very clear in the award, and very unambiguous in the award, that once somebody completes their probationary employment, that that position is a continuing position.

PN38

THE COMMISSIONER: Is continuing position defined somewhere in the award?

PN39

MS ROBERTSON: It is not, Commissioner; to my knowledge, Commissioner. I think it is fair to say that within the award there is an inference of continuing employment; sometimes it is referred to permanent employment, sometimes it is referred to as weekly employment. What we were seeking to do is to - by use of the word continuing - to make it clear that that would be a continuing position.

PN40

THE COMMISSIONER: Very well, thank you.

PN41

MS ROBERTSON: The next - as I said, Commissioner, that is not something that we yet have agreement on. The next one is contained on page 2 of the application, and it is to delete the clause 20 on job-sharing, and to insert a new clause about job-sharing. And this has arisen because of a number of concerns that members have raised who are in job-sharing provisions about their rate of incremental progression. And in the second paragraph of that proposed new variation, Commissioner, at the third sentence, there is a - the variation there is that incremental progression would be on a 12-monthly basis as at clause 8. Clause 8 of the award contains the salary increment provisions.

PN42

This has caused some concern amongst the membership, and appears to be being applied - the current provision appears to be being applied differently at different councils, and so we are seeking to get some certainty into that provision. The final variation, Commissioner, is the next one on page 2 which is to insert in clause 22, a new - that should read new sub-clause - that temporary employment is not to be used to replace permanent positions.

PN43

There has been concerns, Commission, through it, from members at a number of councils that councils are starting to implement temporary positions and fixed-term positions to replace permanent positions, and there is some concerns that councils are seeking to spill positions and refill them, possibly with the same people, but on a fixed-term basis. That again is causing a considerable amount of concern in a number of councils throughout the state. Commissioner, there is no agreement on that at this stage, either.

PN44

THE COMMISSIONER: Can I ask a question about that?

PN45

MS ROBERTSON: Yes, Commissioner.

PN46

THE COMMISSIONER: What is a permanent position?

PN47

MS ROBERTSON: Permanent position would be a continuing position, one that is not filled.

PN48

THE COMMISSIONER: So an undefined position is defined by another undefined - - -

PN49

MS ROBERTSON: Yes. Commissioner, there - it is certainly our submission that there is an assumption within the award that positions are continuing, unless they are specified to be a project position or a replacement employee who is replacing somebody on leave, or so on, or - and certainly, casual position. But what we are seeking to do is to make that very clear, because of issues that are arising in different councils throughout the state.

PN50

Certainly last year there was a variation made to the award to the extent that certain senior positions such as the CEO, could opt out of the permanent or continuing provisions of the award, and be appointed on fixed-term contracts. And that was certainly contained to chief executive officers at that stage. Our concern is that some councils are seeking to use that practice for other positions as well.

PN51

THE COMMISSIONER: They had better not be, because my recollection was that there was an undertaken given that it wouldn't be.

PN52

MR WATSON: A matter that I was going to address the Commission on.

PN53

THE COMMISSIONER: Very well.

PN54

MS ROBERTSON: Well, Commissioner, it would certainly be our submission that that is occurring in different - probably more middle-level positions in different councils, and that that is being resisted, and it is not always successful, but that some positions are being advertised on that basis. So thank you for that, Commissioner. So Commissioner, they are the variations as we seek them. As I say, they are - they fit within the grounds on which we have made the application in that there is some ambiguity in the application of some of the clauses, and we are seeking to redress that.

PN55

We are certainly aware that some councils are employing people differently than other councils, and we are seeking to address that through these variations as well, Commissioner. Commissioner, that is an outline of the basis on which the variation is made. We have been - this has been discussed at length by our members in our Local Government division, and certainly that is a highly-regionalised division with people from local authorities throughout the state, and it is certainly something that is of a concern to them, and they would like to see it clarified and remedied through the variation. Thank you.

PN56

THE COMMISSIONER: All right. We might hear from Ms Tovey.

PN57

MS TOVEY: If the Commission pleases, unfortunately I have only seen this application about half an hour ago, but I have had discussions with my colleague from the ASU. On first reading of the variations sought by the ASU, we have no problems with that; I still need to discuss further with our membership. I can definitely confirm in regards to the fixed-term employment we are seeing quite a number of our members being offered fixed-term agreements now outside of the Government Offices Award. So there is definitely - there is a concern there that we would like to see addressed, and we look forward to having further discussions on this application. If it please the Commission. Thank you.

PN58

THE COMMISSIONER: Mr Watson?

PN59

MR WATSON: May it please the Commission. Can I address you, first, on that question of the undertaking which was given to the Commission? I should do so because, as the Commission would appreciate, that was a matter which is somewhat close to my heart and I was the one who actually gave voice to the undertaking. The undertaking was specific. It was in relation to not making to the Commission to vary the award in a similar way so as to widen the scope to those who weren't Chief Executive Officers in relation to those whom I might call Senior Executive Officers, whether it be deputies or directors in charge of departments.

PN60

So it certainly wasn't an undertaking that Councils would not seek to introduce fixed term or term contracts in relation to various classes of employees. Commissioner, there is a misunderstanding, with respect, in relation to that matter anyway, on what has fallen from the other end of the bar table. There is nothing in that clause which was introduced by the Commission as presently constituted in relation to Chief Executive Officers which says that those contracts are to be temporary contracts, fixed term contracts or whatever. It simply says: if these certain conditions apply, then these things. I mean, it could be a - well, it could be an indefinite term contract. There is no reason why it has to be a fixed term contract.

PN61

Now, it may well be that fixed term contracts are the ones which are normally applied but there is no reason why they should be fixed term contracts. There are certain things that need - - -

PN62

THE COMMISSIONER: This is a fixed term contract that doesn't vary any of the terms of the award? Is that what we're talking about? There are two things that arise here, as I understand it.

PN63

MR WATSON: Yes.

PN64

THE COMMISSIONER: One is, for CEOs, a variation to the award which allows the employer and the employees, provided certain minima are obtained, circumstances met - which allow certain award conditions to be not applied or reduced, but not on a global approach. That arrangement can be for ongoing or can be for a fixed period, but there is no power in that variation that would allow those circumstances to apply to anybody other than the CEO, nor does the Council - and I'm happy to be corrected on this - but nor does the Council need to rely on that provision to offer an officer of Council a fixed-term contract of employment - - -

PN65

MR CONROY: That's right.

PN66

THE COMMISSIONER: - - - and can rely on the award as it currently stands to do that, providing it meets the award minimum in all respects.

PN67

MR WATSON: Quite.

PN68

THE COMMISSIONER: Yes.

PN69

MR WATSON: Sorry, if I might just correct - I hesitate, and I do so with great respect, but I understand that the provision in relation to the CEO is actually - doesn't bind the Council who enters into such an arrangement in compliance with that clause. The award no longer binds the Council in respect of - - -

PN70

THE COMMISSIONER: That person.

PN71

MR WATSON: - - - the CEOs position and - - -

PN72

THE COMMISSIONER: Yes, that's correct. Yes. But to get there, you've got to go through a gate. The gate is that it can't be worse off.

PN73

MR WATSON: On balance.

PN74

THE COMMISSIONER: Yes.

PN75

MR WATSON: I think it says "on balance." It's a similar test to the no-disadvantage test. Yes. Now, putting that to one side, the Commission is quite right. There is no reason why - and my understanding is that it's something which is being done - why fixed term contracts cannot be offered to any level of staff at a local authority so long as the award conditions are being met. I mean, there's no difficulty about that. What this application seeks to do is to stop that. I mean, that's, I understand, the thrust of the application. The Local Government Association of Queensland, in relation to those provisions - and they are what I might call the serious provisions in relation to this application.

PN76

It has the potential to have a significant impact upon the business of local government in Queensland. This is a very serious application and I'm sure it has been thought about seriously by the Australian Services Union. I understand, from what has fallen, that they're responding to matters raised by their members and they're doing what a union should do. They should be responding to concerns raised. That doesn't mean that the application is correct and whether or not the implications of it are nonetheless serious - because they are.

PN77

However, in this instance, of course - and I don't want to go too long into this - we have serious reservations about some jurisdictional aspects of the application in those concerns and we will raise those at length with the Commission when this matter is finally arbitrated, as indeed it will be because it won't be - unless, of course, this part of the application is withdrawn - it will not be a matter of a consent variation, which then brings me to what has happened to date in relation to Councils constituent members of my client.

PN78

The difficulty is this: that there is an order for substituted service. However, that only, of course, brings it to the notice of the Local Government Association of Queensland. It doesn't bring it to the notice of those persons who are respondents to the award and, of course, their views need to be found out and need to be canvassed; and, of course, that hasn't happened to date and it needs to happen. We would seek to do that and we would seek some time in which to do that. We understand there is to be a - has been - as has been said - had discussions with Ms Robertson yesterday and, with great respect to her, I rather suspect she puts the matter a little bit too highly in which she says that there's preliminary agreement.

PN79

We understand what the ASU is saying in respect of those matters, such as the hours, the 36 and a quarter. We understand but we want to look at what happened there as to how that position was reached and we'll need to do a little bit of research in relation to that. It may well be, at the end of the day, there may be no opposition to that but this is a preliminary stage and we can't say that, at this stage. I can tell you about the others in relation to the temporary employment, what our position is in relation to that. So to summarise our position, we don't know, at this stage, what our constituent members' attitudes are.

PN80

We suspect that there will be strong opposition to those matters that I've already brought to the attention of the Commission in relation to the question of temporary employment, etcetera. We don't know what their attitudes in relation to incremental change that Ms Robertson spoke about - although we suspect there would be opposition in relation to that too. So that's probably another matter which will be going to arbitration. In respect of, however, as I said, the other matter, we don't know what their attitudes are although it may be that that won't be a problem.

PN81

So in terms of where this matter goes, we understand that there was some suggestion that conciliation may happen today. I know Ms Robertson hasn't actually sought that yet. My client doesn't know how far that matter could go in conciliation any further than what has been outlined at the bar table today in that, no matter how much conciliation is indulged in, the position, as I said, on my instructions, in relation to temporary employment, will need to go to arbitration. That won't be a matter that can be conciliated. As to the others, well, if they are in fact clerical matters which don't have any significant impact one way or the other, we don't see why those matters can't be sorted out between the parties in a convenient timetable.

PN82

So I don't know that I can be of any further assistance to the Commission as to what our attitude is in relation to this application. I think I've been fairly fulsome as to saying what it is and to say that, when this matter does go to arbitration, as indeed it seems it will, it will take a little time, I would have thought, in terms of evidence and submissions and perhaps today is not the appropriate time to seek time-tabling but, at some stage, probably a directions hearing in relation to that would be advantageous to the parties.

PN83

THE COMMISSIONER: Ms Robertson?

PN84

MS ROBERTSON: Thank you, Commissioner. Mr Watson has made a number of comments and certainly I accept that the LGAQ needs to consult with its members about the six variations, and certainly it's the case that we would anticipate that the LGAQ doesn't agree with all of the variations which we've proposed. And having said that, the chances of conciliation today would be something that we would be in favour of, but if the LGAQ is not in a position to make any commitment about the outcome - about that conciliation and its effects on their members, then, Commissioner, it's probably the situation that we would be seeking that we do get some directions for further report backs to you about this variation.

PN85

I'm aware that there will be consultations; both the LGAQ and certainly our colleagues at APESMA need to consult their members as well and we certainly accept that. However, we would like to keep this matter moving and so we would seek that there was a timetable proposed by you today that the parties could comply with so that we can progress this matter. Thank you.

PN86

THE COMMISSIONER: Very well, thank you. You have nothing further, Mr Watson?

PN87

MR WATSON: No, Commissioner.

PN88

THE COMMISSIONER: Thank you. Obviously where we find ourselves with this matter is at a very preliminary stage. I intend to provide to the LGAQ the opportunity to do its research and consult its membership and form a view about an application to vary the award in six different respects. Obviously, Ms Tovey, your organisation needs to think about all of that as well.

PN89

The only direction I'm going to give, and it's one that won't surprise the parties, is that I would expect that in the near future they would reconvene and LGAQ can share its research in relation to the claims and express the attitude that it has towards the claims, and I would expect some further discussions to take place between the parties to try and, if not reach agreement on every point, nevertheless narrow those matters that might end up proceeding to arbitration. To that end, and to meet my obligation under the Act, I intend to conciliate with the parties those matters that aren't agreed. I was wondering if I could get some sort of idea how long LGAQ might need, Mr Watson?

PN90

MR WATSON: I'm told three weeks, may it please the Commission.

PN91

THE COMMISSIONER: So if I scheduled something for 30 October - a conciliation on 30 October, does anyone have a problem with that date?

PN92

MS ROBERTSON: No, Commissioner.

PN93

THE COMMISSIONER: Well, that's what I'll do. As I say, I'd expect the parties to try and reach an agreement in relation to the issues prior to that date. I don't need to say much more about that other than that we'll reconvene on that date at 9.30 here in Brisbane in an informal way to allow the Commission to try and conciliate some resolution on some of the points, if not all of them. I guess I need say no more about that other than to deal with whatever arises on that date in an appropriate way if we need to - other than to set the days for the consent variations, Mr Watson.

PN94

The only thing I do say is that in relation to the 30th, if agreement is reached prior to that date, I'd appreciate it if the parties could advise me and I'll vacate the date. There is no point in bringing you all here to tell me that you've reached an agreement. You can do that over the telephone. I adjourn the Commission.

ADJOURNED UNTIL WEDNESDAY, 30 OCTOBER 2002 [10.15am]