C2002/4731, Transcript of Proceedings [2002] AIRCTrans 4422 (11 November 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT516

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/4731

VETERINARY SURGEONS AWARD 2001

Application under section 113 of the Act
by the Association of Professional Engineers,
Scientists and Managers, Australia, The
Victoria Branch to vary the above award
re Safety Net Review - May 2002 [PR002002]
and Working Hours Case [PR072002]

MELBOURNE

2.12 PM, WEDNESDAY, 23 OCTOBER 2002

PN1

MR M. BALL: I appear on behalf of the Association of Professional Engineers, Scientists and Managers, Australia.

PN2

MR B. PARSONS: I appear for a number of respondent employers, including Camira Veterinary Practice and I would like to hand up an authorisation, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you.

EXHIBIT #SIAG1 AUTHORISATION

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ball?

PN5

MR BALL: Thank you, your Honour. This is an application to vary the Veterinary Surgeons Award 2001 to give effect to the Safety Net Review Wages May 2002 decision of the Full Bench, print PR002002 and the working hours case decision of the Full Bench, print PR072002. The application was lodged on 19 September 2002 together with an application for substituted service. The notice of listing was issued on 14 October 2002. On 15 October 2002 all parties listed on the order for substituted service were notified of this hearing by registered post.

PN6

It had sent an order for our application to vary the award and a copy of the draft order. A sworn statement of that effect and providing evidence, the mailing with lodged with the Commission on 18 October 2002. I would like to hand up a new draft order and I will go through the contents, if it pleases the Commission.

EXHIBIT #APESMA1 DRAFT ORDER

PN7

MR BALL: Thank you, your Honour. The amended order was circulated to the parties but is different from the one lodged with the application and it is in relation to wording in reference to 14A.1. If I could go through the draft order. Clause 10, classification and wage rates were varied as per the Safety Net decision. All classifications in sub-section 10.1.1 have been increased by $18 per week. Their rates are expressed as annual rates and the increase is $936. The required absorption clauses have been inserted into the award in Clause 10.2.

PN8

As this award has only professional rates, there is no Federal minimum wage clause in the award to amend. In regards to allowances, consistent with the Full Bench decision, we seek to adjust the allowances consistent with the Furnishing and Glass Industries Allowances decision, print M9675. Clause 11.3, clothing and laundry allowance, it increases from $5.37 to $5.53. Clause 11.4.2, vehicle allowance increases from 53.7, 45.6 and 40.8 cents per kilometre to the figures of 55.3, 46.9 and 42.0 cents per kilometre respectively.

PN9

THE SENIOR DEPUTY PRESIDENT: You said vehicle allowances. Is it vehicle allowance or travel allowance? The draft order says travel allowance.

PN10

MR BALL: I could only assume that the draft order is correct and the information that I have been provided with is incorrect. I don't actually have a copy of the award with me.

PN11

THE SENIOR DEPUTY PRESIDENT: All right.

PN12

MR BALL: Clause 15.1, on-call duty allowance increases from $26.82 to $27.60. If I could then take you to the new clause which regards reasonable overtime or reasonable hours.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR BALL: The wording of the new clause 14A we propose is taken directly from the Full Bench decision at paragraph 278 with one amendment. Following the publication of the decision, APESMA received advice from the ACTU that we may need to amend the first sub-clause of the test case wording if a particular award provided for time off in lieu of overtime payments. In the draft order lodged with our application to vary the award, we chose to delete the final three words of the first sub-clause, namely "at overtime rates", however in a matter before Commissioner Gay on Tuesday, the 8th of this month the Commissioner referred that rather than delete the three words, we should add words covering time in lieu.

PN15

We agreed that this is a better way to deal with the matter and therefore reinstated the three words and added the additional words. The original draft order was not circulated to employees. There has been no change to the intent of the clause, or indeed to the entitlements conferred. The new clause 14.1, that was distributed then read and subject to clause 14A.2, an employer may require an employee to work reasonable overtime at overtime rates or have time of in lieu of payment for overtime as per clause 14 extra hours of work.

PN16

That clause we believe is consistent with the Full Bench provision and we seek the variation of the award from 8 November, but since we originally lodged that, we have had discussions with Mr Parsons and he has asked for a variation and that variation is in the documentation that we have provided to you today and that has some additional words and it is in 14A.1 on the second line, after the words "overtime rates", some additional words as specified in clause 14.1, extra hours of work have been added and the clause 14 became clause 14.1.

PN17

Again we believe that that is consistent with the original intent of the documentation that was circulated and we have no problems in - and that is why we varied it to accommodate Mr Parsons. As I said the application is consistent with a decision of the Full Bench and we seek variation of the award effective from 8 November 2002, which is 12 months since the last increase in wage rates and we ask that it remain in force for 6 months. If the Commission pleases.

PN18

THE SENIOR DEPUTY PRESIDENT: Sorry, that was 8 November 2002, was it?

PN19

MR BALL: That is correct.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Mr Parsons?

PN21

MR PARSONS: Thank you, your Honour. Your Honour, there is no objection from the respondent employers that I represent to the application made by Mr Ball and APESMA. The Safety Net adjustments have been checked by my organisation and in our view are correct. In relation to the insertion of the reasonable overtime clause, as Mr Ball has explained, there has been discussions between the parties in relation to this and I guess, your Honour, that what I asked for was a belts and braces approach to it in that the award that we are talking about has no time and a half, no penalty rates for overtime.

PN22

Overtime is paid at ordinary rates, so what I was concerned to make sure was that there would be no ambiguity, no opportunity for debate, discussion, argument, claims for additional payment for overtime, and we believe that we have reached that, as I said I think really a belts and braces approach where we have referred to the reasonable overtime clause going in as specified in clause 14.1 of the award where it is titled, "Extra hours of work".

PN23

THE SENIOR DEPUTY PRESIDENT: All right.

PN24

MR PARSONS: So that, your Honour, essentially is all I have to submit. The - I can say, your Honour, that there have been quite - there has been quite widespread discussions within the organisations I represent about this. They are satisfied with the advice I have given them in relation to this and accordingly we do not object to the application made by Mr Ball.

PN25

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Parsons.

PN26

MR PARSONS: Thank you, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: Mr Ball, could I just clarify? I have in fact a document here which is a statement of Chas Collins, application to vary the Community Pharmacy Award 1998. I presume that is the statement of service, if you like, in relation to this matter. Is that right?

PN28

MR BALL: What date was the statement, your Honour?

PN29

THE SENIOR DEPUTY PRESIDENT: It was received in the Commission on 18 October and it is dated 18 October.

PN30

MR BALL: Yes. No, I do have that here. Yes, that is the document that I referred to earlier that indicated that the organisations had been contacted by registered post.

EXHIBIT #APESMA2 STATEMENT OF CHAS COLLINS DATED 18/10/2002

PN31

MR BALL: Thank you, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: Very well. I am satisfied as to the prerequisites to making the order for variation and an order will be made accordingly. The parties will be provided with a copy of the order in due course. It will be made operative from 18 October - sorry, 8 November 2002. Is that right? Yes. Anything else?

PN33

MR BALL: No. Thank you.

PN34

MR PARSONS: Thank you.

PN35

THE SENIOR DEPUTY PRESIDENT: No? Thank you.

ADJOURNED INDEFINITELY [2.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SIAG1 AUTHORISATION PN4
EXHIBIT #APESMA1 DRAFT ORDER PN7
EXHIBIT #APESMA2 STATEMENT OF CHAS COLLINS DATED 18/10/2002 PN31