C0101/698, Transcript of Proceedings [2002] AIRCTrans 5061 (16 December 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N WT5676

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C No 1016 of 1998

HEALTH AND DISABILITY SERVICES -
SUPPORT WORKERS - WESTERN
AUSTRALIAN GOVERNMENT - AWARD 2001

Review under Item 51, Part 2 Schedule 5,
WROLA Act 1996 re CTS case description

PERTH

10.31 AM, TUESDAY, 3 DECEMBER 2002

Continued from 7.11.02 in Adelaide

PN107

MR GLEESON: If I may, Senior Deputy President, with me appearing today is MR R. LINDSAY.

PN108

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Gleeson. Now, I understand with some reservations that we may have an agreement this morning on a proposed position; is that correct?

PN109

MR GLEESON: Yes, sir, we do have a document and an outline of submissions in regards to an agreed proposal which I would like to submit to you which will assist us in going through the proposal with your Honour.

PN110

THE SENIOR DEPUTY PRESIDENT: Certainly.

PN111

MR GLEESON: Thank you. If the Commission pleases, I will just go through - - -

PN112

THE SENIOR DEPUTY PRESIDENT: I probably should mark this but to be perfectly frank I have absolutely no idea as to whether we have marked anything else previously in this matter which, as you would know better than I, has a very long life.

PN113

MR GLEESON: Yes, sir.

PN114

THE SENIOR DEPUTY PRESIDENT: But for the sake of the record I will mark it as E1 noting that it is the employer respondent's submission.

EXHIBIT #E1 EMPLOYER RESPONDENT'S SUBMISSION

PN115

THE SENIOR DEPUTY PRESIDENT: Yes?

PN116

MR GLEESON: Thank you, your Honour. I propose to go through the agreed position and the rationale used in arriving at that proposal and would invite the Commission to ask any questions of me as we progress. Sir, the submission is in relation to C No 01016 of 1998 in relation to the one outstanding matter in regards to the item 51 review of the Health and Disability Services - Support Workers - Western Australian Government Award of 2001. The one remaining outstanding matter, your Honour, is in regards to wages and classifications of that award. For all intents and purposes the remainder of the item 51 review was completed in or about June 2001 save for - - -

PN117

THE SENIOR DEPUTY PRESIDENT: What about the personal leave issue?

PN118

MR GLEESON: Yes, sir. Save for the issue in regards to personal leave which I will also be referring to at the end of these submissions.

PN119

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN120

MR GLEESON: In particular, sir, this submission expresses what we understand to be an agreed position between the respondent employers and the union in relation to classifications and rates of pay. The employer respondent's proposal is in relation to the relativities classification structure and proposed rates of pay to be contained in the award from attachments A to D of the respondent employer's submissions. These submissions, sir, intend to speak to your decision and draft order dated 12 August 2002 published at PR 921233.

PN121

It will outline the parties position on the appropriate key classification for the purposes of a minimum rates adjustment exercise and explain the employer respondent's proposal by going through in some detail attachments A to D. Briefly, sir, without referring you directly to the attachments I would briefly like to just summarise what the attachments show. Attachment A contains rates of pay from a number of awards which are referred to for comparative purposes in these submissions. Attachment B will show where positions within the existing award classification will translate under the parties proposal.

PN122

Attachment C indicates where positions will be placed in the streams contained in the employer respondent's proposed classification structure and attachment D indicates the competency level or the Australian Qualification Framework level attributed to each job title within the existing award and the percentage relativity to the C10 or tradesperson rate for each position under the parties agreed proposal.

PN123

THE SENIOR DEPUTY PRESIDENT: Mr Gleeson, does the proposal that is now agreed differ at all from that which was provided to me on 26 November?

PN124

MR GLEESON: There has been some - it does not differ significantly, Deputy President.

PN125

THE SENIOR DEPUTY PRESIDENT: Right.

PN126

MR GLEESON: Following some further looking - or reviewing by the parties of the proposal as provided to your Honour on that date there has been some slight modifications. I wouldn't - I can certainly undertake to more clearly identify where those changes are but I wouldn't be in a position to track them.

PN127

THE SENIOR DEPUTY PRESIDENT: No, that is fine, thank you.

PN128

MR GLEESON: Finally, your Honour, we seek the inclusion of an agreed amended personal leave clause in the award. The tags on E1 labelled A through D inclusive, form the attachments referred to. Sir, in the paid rates review decision in print Q7661 the Commission determined that item 51(4) of the WROLA Act concluded that an award whose wage rates operated as minimum rates of pay would be one which contained properly fixed minimum rates of pay.

PN129

The Commission was therefore obliged as far as possible, to convert the wage rates in an award affected by Item 51(4) to properly fixed minimum rates bearing a proper relationship to properly fixed minima in other minimum rates award and a quotation of the Full Bench is then stated wherein the Full Bench decided that in principle all awards which provide for rates of pay which are not operating or not intended to operate as minimum rates and which do not bear a proper work value relationship to award rates which are properly fixed should be subject to a conversion process so that they do contain properly fixed minimum rates of pay.

PN130

The concept, sir, of a properly fixed minimum rate of pay is derived from the August 1989 wage case. In that case the Full Bench stated that minimum rates awards would be reviewed to ensure that classification rates and supplementary payments bear a proper relationship to classifications and supplementary payments in other minimum rates awards. The paid rates review decision, Q7661, establishes a number of principles for the conversion of awards that do not contain properly fixed minimum rates.

PN131

These principles were formulated pursuant to item 53 in section 106 of the Workplace Relations Act of 1996. At paragraph 6 of the employer's submissions there is then principle 2, 3 and 4 quoted. Sir, we submit that the proposed classification structure is based on the Australian Qualification Framework or AQF which is a competency-based model. The national competency framework is acknowledged as being a standard tool by which to review awards for the purposes of the minimum rates adjustment process.

PN132

This submissions refers to a number of awards which have been through the minimum rate adjustment in which the classification structures have been based on the AQF framework. Sir, if I could refer you to the appendix A at tag A of E1. It compares a number of awards which have been reviewed for the purposes of arriving at the proposed agreed structure. As you can see on the first page of attachment A it refers to the existing health and disability services award structure.

PN133

The AIRC proposal which was contained in an order and draft decision dated 12 August as well as the union's proposal adopted on 24 October this year, the second page, sir, we have reviewed some standard and key awards which we submit have gone through the properly fixed - or through the minimum rates adjustment process and we will submit, sir, that they do bear a relationship with the award presently before you.

PN134

If I can firstly refer to the Metal Engineering and Associated Industries Award 1998, AW789529, this award has also utilised the competency-based classification structure in arriving at properly-fixed minimum rates. If I could now pass up an extract from that award. the intent - and I would seek to have that submitted into evidence, your Honour.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes. I don't - it is a straight extract from the award, Mr Gleeson, I don't think I need to give it an exhibit number.

PN136

MR GLEESON: Thank you, sir.

PN137

THE SENIOR DEPUTY PRESIDENT: But I will certainly read it.

PN138

MR GLEESON: Yes. The - - -

PN139

THE SENIOR DEPUTY PRESIDENT: Commission members generally like reading awards, we don't often give them decision or exhibit numbers.

PN140

MR GLEESON: Thank you, sir.

PN141

THE SENIOR DEPUTY PRESIDENT: It is a hobby we have.

PN142

MR GLEESON: The purpose for it is just to therefore show where the source of the information contained in attachment A and the comparison or the paragraph 8 of the employer's submissions and the relevant relativities assigned to those. Sir, if we can look at - paragraph 8 tracks through the relativities contained within the Metal Engineering and Associated Industries Award and as you will see, your Honour, the award is from AQF1 or C14 at 78 per cent through to - which is defined as being a certificate 1 comparative qualification through to C3 or AQF6 advanced diploma of 144 per cent.

PN143

Sir, also on attachment A it refers to the rates of pay applicable to Aboriginal and ethnic health workers who are covered by the Health Workers , Community and Child Health Services Award, AW783940, covering Aboriginal and ethnic health workers. This award was reviewed pursuant to item 51 and the decision in regards to that matter can be found at print T1308.

PN144

THE SENIOR DEPUTY PRESIDENT: Are there classifications in that award that bear a direct relationship to the classifications in this particular award?

PN145

MR GLEESON: No, there are not, sir. I am using this as an example in regards to how the key classification in that award was arrived at and how that relationship will bear consistent with the proposal now before you for this award. If I can just pass up a source document for the Health Workers, Community and Health Services Award 2000 which includes the award rates as at - including the safety net review decision of May 2002. Similarly, sir, the Engine Drivers Government Award is a minimum rates award which also contains a competency-based career structure relevant to the health system and, sir, we would propose that rather than providing source documentation in this issue - in this example is that the table depicted at paragraph 10 shows what the relevant hospital plant operator classification, the C - or the classification equivalent as compared to the C10 classification which in this purpose is the hospital plant operator level 3. It is classified as the E trades person equal.

PN146

At paragraph 11 of the employer's submission, sir, we have set out the relativities in regard to the Engine Drivers Award. What can be seen is if you look at both the Health Workers, Community and Child Health Services Award and the Engine Drivers Award is that the key classification of the C9 rate has been linked at 104 and 107 per cent - sorry, sir, that should be. It is proposed through these submissions and consistent with the previously outlined approaches to the minimum rates adjustment process to also reduce the existing classification structure from 13 to nine levels as follows.

PN147

The proposed award - and at this time, sir, I would like to refer you to attachment B. Sir, the proposal attachment B shows where positions translate from the existing 13 level career structure into a proposed nine level structure. Sir, the relativities that we have used for level 1 we have linked at 88 per cent or C12, AQF2 or certificate 2 equivalent. Level 2 is linked at 91 per cent of the C12 or AQF2 certificate 2, bearing that there is a - been a comparative program undertaken that compares that there is a higher work value for the positions that are classified in the proposed level 2 as compared with the ones at level 1, and likewise, sir, we go through to where it has been determined that the level 5 should equal the 100 per cent or the C10, AQF3 tradesperson.

PN148

THE SENIOR DEPUTY PRESIDENT: Mr Gleeson, I am looking at the second page of attachment B and at the proposed level 5 which is the trades equivalent proposal.

PN149

MR GLEESON: Yes, sir.

PN150

THE SENIOR DEPUTY PRESIDENT: And I can clearly follow how it is you have arrived at those trades equivalent classifications but I must say I am wrestling with how you have arrived at, for example, the level 1 relativity of 88 per cent. Is that relativity based on the existing award relativities or is it based on an assessment of how other awards have grappled with relativities on the basis of the AQF?

PN151

MR GLEESON: Yes, sir. It is the - - -

PN152

THE SENIOR DEPUTY PRESIDENT: I am sorry if it is a remedial question but - - -

PN153

MR GLEESON: No, sir, it certainly is the latter in relation to what we have determined is where we would see the C10 or trade equivalent fit within the structure using like awards which previously are referred to and where they actually - that there is a relationship borne in - and comparable to where the entrance level and the progression is within this award.

PN154

THE SENIOR DEPUTY PRESIDENT: I see. So, if I could put that in my words and you can tell me whether I have got it right or wrong. Having established the 100 per cent relativity in the proposed level 5 you have then gone through and looked at what classifications ought to be identified as trades or equivalent classifications which is why you have that longer list - sorry, why you have that list of classifications that are now proposed to be categorised in that way.

PN155

MR GLEESON: Yes, sir.

PN156

THE SENIOR DEPUTY PRESIDENT: And you have then arrived at the 88 per cent for level 1 on the basis of the relativities adopted in those other various awards for specific AQF assessments?

PN157

MR GLEESON: Yes, sir.

PN158

THE SENIOR DEPUTY PRESIDENT: I see, thank you.

PN159

MR GLEESON: And if I could - - -

PN160

THE SENIOR DEPUTY PRESIDENT: And have you done the same for the - for example, the level 2, 3 and 4?

PN161

MR GLEESON: Yes, sir. A little bit later in my submissions I will be referring to another spreadsheet which actually goes through each and every classification and allocates an AQF equivalent. I might actually seek to do so now.

PN162

THE SENIOR DEPUTY PRESIDENT: No, I will be patient, I don't want to interrupt the flow of your address to me. If you can put up with me asking questions as I work through I am happy to do it in whatever sequence you want to follow it.

PN163

MR GLEESON: Thank you, sir. Sir, we submit, sir, that the proposed classification structure of level 6, which has a relativity of 105 per cent a the C9 or AQF4 certificate 4, is comparable and consistent with award AW783940, being the Health and Community Services Award - sorry, the Child and Health Services Award, and is consistent also with the Engine Drivers Award. Sir, if I could also use another example in regards to there is a number of grade storeperson positions contained in the existing Health and Disability Services Award.

PN164

I would like to provide an extract from the National Skin, Hide and Wool Stores Award, AW817242, which is a properly fixed minimum rates award. I have then listed the relativities which are provided at each level with the store worker 4 being the 100 per cent equivalent. Sir, we submit that the Health and Disability Services Award contains a number of storeperson classifications ranging from a grade 1, which is classified hospital worker level 5 in the existing structure and under our proposal, sir, that would be classified level 2 and assigned relativity of 91 per cent which we - - -

PN165

THE SENIOR DEPUTY PRESIDENT: Does your proposal actually define or provide for classification definitions?

PN166

MR GLEESON: Sir, it doesn't propose at this time to amend or provide any additional classifications to that - or sorry, definitions to that provided in the existing award.

PN167

THE SENIOR DEPUTY PRESIDENT: You see the reason that I am raising that question is if I looked at attachment B, if I just took, for example, the storeperson grade 1 in comparison with storeperson grade 2, someone, somewhere must have had a clear set of distinguishing characteristics in mind so as to arrive at the difference in the AQF assessment but without some definitions that attach to those different grades of storeperson then I am a little stuck as to how it is that a person in a hospital, for example, would actually go about properly classifying someone as a grade 1, 2 or 3 storeperson.

PN168

MR GLEESON: Yes, sir. I am just seeking to find my copy of the existing award.

PN169

THE SENIOR DEPUTY PRESIDENT: Yes, I was wrestling with the same problem, I have now found one.

PN170

MR GLEESON: Yes, sir, I certainly accept that within the award itself under the definition store person is merely defined as an employee who is employed in a store handling, weighing and preparing stores for delivery and performing any other store duties. I would just accept that in the larger organisations is that there is probably a number of those positions which would be defined and differentiated through job description forms and the like.

PN171

THE SENIOR DEPUTY PRESIDENT: So is it conceivable then that as part of this proposal you would actually be able to provide me with a revised definition of a store person which distinguished between the different grades of store person?

PN172

MR GLEESON: Yes, sir, we would - if that was a condition placed on the acceptance of the proposal, for example, sir, we would give - - -

PN173

THE SENIOR DEPUTY PRESIDENT: Well, you see, if we don't have that surely we have a recipe for a future argument when storeman Fred believes that in his case he ought to be a grade 2 person whereas someone else who might happen to be the person in charge of the payroll believes that storeman Fred is best categorised as a grade 1 person.

PN174

MR GLEESON: Yes.

PN175

THE SENIOR DEPUTY PRESIDENT: It is that sort of problem that I would be fairly anxious to avoid creating.

PN176

MR GLEESON: Yes, sir. The - I think that that problem or that potential exists as the award is currently specified also. I am unaware of any issues having arisen but I am unaware of how such issues have been avoided.

PN177

THE SENIOR DEPUTY PRESIDENT: Yes. I would suggest it might become a potentially more real problem once we start changing relativities. If the relativities have been long established then it might not surface as a problem but if we start changing them that might well be the catalyst for a question and while I am at it, it occurs to me that there are a couple of other classifications that are not clearly defined too. In that category I have the laboratory attendants; the distinction between the different types of gardener and - no, they would be the major ones, I think.

PN178

MR GLEESON: Yes, sir. With a view to I suppose providing an agreed draft order in regards to the proposal, there is a number of job titles and so on that can probably be consolidated or reviewed by the parties as either being obsolete or - and being replaced, which that could be - might well - particularly in the gardener field, there may be some questions in regards to whether or not all of the callings of gardener contained in the existing award are in fact necessary.

PN179

Sir, the employer proposal also contemplates changes to the existing classification structure based on four occupational streams. This aspect of the proposal deals with a small number of contentious past issues concerning appropriate classification and relativity of positions and probably alludes to the concerns just previously raised by the Commission and represents an agreed position as to the appropriate classification and relativity of positions nominated with each stream.

PN180

It is broken into four areas being the technical and general services which would include the gardening and like services, cleaning and laundry services, food services and orderly and patient services. We submit, sir, that this is an appropriate way to express the classification and jobs within the structure and presents demonstratable career path for employees covered by the award. We say that the proposal is consistent with the structural efficiency principle and the minimum rates adjustment principles and meets the requirements of the Western Australian public health system and is consistent with industry requirements.

PN181

Moreover we submit, sir, that it is consistent with existing awards within the government health system which have undergone the MRA process as well as other test case standard awards, such as the Metal Trades Award and the Woolstores Award which have also been used for comparative purposes in these submissions and we put it to the Commission as the most appropriate and credible approach to conclude the review process. The submission does reflect an agreed position of the parties and should the Commission accept the proposed approach and structure a draft order agreed between the parties will be provided no later than close of business on Friday, 6 December 2002 which we say, sir, is consistent with the undertaking of the parties to ensure that this matter is finalised by the end of the first week in December.

PN182

Sir, before I conclude my submission there is a couple of other attachments which before I answer any further queries that the Commission might have. Can I refer you to attachment C, sir. That - and I do apologise if some of the attachments do contain a little bit of duplication but it appeared to us to be the best way of presenting the information.

PN183

THE SENIOR DEPUTY PRESIDENT: They have also got very small print.

PN184

MR GLEESON: Yes, sir. That was something else that has been - - -

PN185

THE SENIOR DEPUTY PRESIDENT: For ageing eyes.

PN186

MR GLEESON: Yes. It has been quite an interesting process, I must admit, these tables. Sir, attachment C breaks down the proposed classification structures with the competency level assessed at for each job title. Sir, if I could pre-empt a query in regards to - on a competency level there is a - you will see throughout that where we say low certificate 2, high certificate 2, etcetera, that is differentiating between the classification levels and the C10-type classification structure.

PN187

Sir, the highlighted bits which is on the second page identifies where positions it is proposed, move upwards or downwards in regards to the proposed structure and on that page also is depicted the residual and/or negative residual amount at both the entry level and the top level. It is important to note that the award also contains a minimum increment in its present form for the purposes of the submissions that the middle increment hasn't been depicted but in the draft order which would accompany - or be made in relation to that matter would certainly have those rates.

PN188

THE SENIOR DEPUTY PRESIDENT: I am not sure I follow that, sorry. Can you run that past me again?

PN189

MR GLEESON: Sorry, sir. The existing award structure contains - at each level contains three increments.

PN190

THE SENIOR DEPUTY PRESIDENT: Yes.

PN191

MR GLEESON: The year one increment, year two increment, year three increment. For the purposes of expressing what residual amount would be contained in the award adopting the agreed proposal, for the illustration purposes of these submissions I have tabled what would be at the top increment and at the entry level increment at each level.

PN192

THE SENIOR DEPUTY PRESIDENT: Oh, I see, right. But you are not proposing the retention of those increments?

PN193

MR GLEESON: Certainly not, sir.

PN194

THE SENIOR DEPUTY PRESIDENT: No, thank you.

PN195

MR GLEESON: And finally, sir, if I can refer to attachment D which is quite similar to the information contained in attachment C excepting it has included an additional column in regards to applying each relevant safety net adjustment to the base rate which then becomes the new award. You will also note, sir that in red in the left-hand - sort of under the job titles are some jobs that are agreed between the parties are obsolete or referred to hospitals, etcetera, no longer in operation.

PN196

Sir, in relation to submissions in regards to personal leave I would like to refer to the Commission's decision and draft order dated 12 August and employer respondent's submissions dated 30 August which contained a proposed amended personal leave clause so the issue in regard to personal leave relates to an administrative quirk, if you like, where the payroll system adopted within the health system finds it impossible to deduct hours of leave already credited, if you like, and therefore to overcome that difficulty we are seeking to adopt the proposed clause as provided in the draft order presented as part of or submissions on 30 August. Subsequent hearings before your Honour have referred to those changes and the position continues to be an agreed matter.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes, I think the issue there really is just a question of hearing categorically from Mr Tyrrell that he is happy with that specific proposal. We will do that a little later, thank you.

PN198

MR GLEESON: So, sir, on that point we would just seek that the award be varied in accordance with the terms of that draft order and issue with the final award variation.

PN199

THE SENIOR DEPUTY PRESIDENT: Mr Gleeson, the decision that I handed down on 12 August noted at paragraph 16 that the rates that I proposed be adopted at that point reflected or included the May 2001 safety net adjustment but there was the capacity to incorporate the May 2002 safety net adjustment. Can you tell me what the status of the award is in relation to the safety net adjustments at the present time?

PN200

MR GLEESON: Yes, sir. On 18 June - and if I could - the award was - and if you could just bear with me, sir, I do have a copy of - - -

PN201

THE SENIOR DEPUTY PRESIDENT: So it is incorporated - the award now incorporates the May 2002 safety net, does it?

PN202

MR GLEESON: Yes, it does, sir.

PN203

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN204

MR GLEESON: There was some correspondence - sorry, the draft order presented by the employers backdated 30 August proposed the inclusion in - the finalisation of that matter or brought that matter to the Commission's attention.

PN205

THE SENIOR DEPUTY PRESIDENT: Then one last question which picks up on the earlier discussion we had relative to the job titles or definitions. To what extent do you consider it possible and/or desirable that the current proposal be simplified to the extent that a number of jobs could be (a) defined and (b) defined in such a way that they could be characterised as a group of jobs, rather than a particular quite specific job? Perhaps I should make my question clearer. If I looked, for example, at the level 2 proposal I can see a cafeteria assistant for the Repat General Hospital, is it - no, the Royal Perth Hospital, cafeteria assistant, and then I can see a canteen attendant - what does PHM stand for?

PN206

MR GLEESON: Princess Margaret Hospital.

PN207

THE SENIOR DEPUTY PRESIDENT: It occurs to me that is an example where there may be some scope to merge those two functions in a fashion which is then defined in a definition. Is that an example of something that is possible because I can give you numerous others too.

PN208

MR GLEESON: Yes, sir. I think as part of the - that is one reason, I suppose, sir, why we don't have an order that we would be seeking to issue if our proposed position was approved on the basis that we haven't - I suppose the discussions between the parties haven't gone to that level in regards to those types of changes but I think if you look at - particularly in regards to attachment B where the position - I think that clearly identifies or highlights a lot of the similarities between positions within the same structure. I think some of the different types of butcher, for example, is now within the same level, it has two different jobs, for example, so that I am certainly sure, sir, that - one thing I suppose I am unsure of is what level of - would be need giving thought as to what degree of review is required and that would be something I would need to discuss with my friend, Mr Tyrrell.

PN209

THE SENIOR DEPUTY PRESIDENT: And I am sorry, I do have one other question of you. To what extent do the various agreements that sit above this award provide for wage increases that are founded upon the existing award structure? That is, to put my question a different way, if the award were to be varied along the lines that have been proposed what impact would that have in terms of the operation of the certified agreements?

PN210

MR GLEESON: Yes, sir. That is another issue, as you probably are aware, sir, that there is - the awards of the enterprise agreement refers to the existing classification and wage rates clause as part of the implementation of the order we would be seeking - as part of the draft order that we would seek to draft up is some sort of savings clause or the like which would say that for the - at least until the nominal expiry date of the existing certified agreement that the existing wage rates and classifications remain.

PN211

How that is actually constituted that is, I think, still something that I am not sure of how it is best to stipulate that but that would be the intent of the employers in any case, is that we are certainly of the understanding and be seeking a commitment that there wouldn't be any claim to re-align relativities existing within the enterprise bargaining agreement, at least during the life of the present agreement, on the basis that we believe that the existing operating enterprise agreement was in full and final settlement of all claims.

PN212

THE SENIOR DEPUTY PRESIDENT: And in ball-park terms, what is the anticipated duration of that certified agreement?

PN213

MR GLEESON: May 2004.

PN214

THE SENIOR DEPUTY PRESIDENT: Thank you. Thank you, Mr Gleeson. Mr Tyrrell?

PN215

MR TYRRELL: Sir, the ALHMWU supports the Health Department of Western Australia's proposal and accompanying submissions on this issue. Do you want me to speak directly to the issue that Mr Gleeson was just speaking or go through - - -

PN216

THE SENIOR DEPUTY PRESIDENT: I am in your hands.

PN217

MR TYRRELL: Certainly, sir.

PN218

THE SENIOR DEPUTY PRESIDENT: You can talk to me about the weather, if you wish.

PN219

MR TYRRELL: I will go through the submissions as I have them down here then, sir, thank you.

PN220

THE SENIOR DEPUTY PRESIDENT: Yes.

PN221

MR TYRRELL: Sir, the submissions outline a proposal which is based on the principles established in the paid rates review decision, specifically principle 2 which suggests that the rates in an award under review should be examined to ascertain whether they equate to rates in other awards. It also goes on to say that with particular reference to the current rates for the relevant classifications in the Metal, Engineering and Associated Industries Award and that seems to be precisely what Mr Gleeson has done in drafting his proposal, the one which we do agree to.

PN222

Sir, the ALHMWU would like to add that on the issue of any flow on of this process to agreements presently covering the employees concerned with this award we believe that neither parties have the intentions of directly flowing on any relativities between the award and the agreement during the life of the current agreements. Additionally we would consider that any such flow on would need to be agreed by the parties in negotiations pursuant to part 6B of the Workplace Relations Act in any case.

PN223

The current agreements to my knowledge all have their own independent wage schedules and classification schedules so I would think that where there is any inconsistency they would prevail as the Act would indicate. I would think that that would cover that aspect of it. That is on the issue of the flow on. In summing up probably the ALHMWU would like to propose that if on consideration of this proposal the Commission is, for whatever reason, not of the opinion that the principles of the award simplification have been met, the parties would like the submissions as put forward by the ALHMWU at the hearing of 24 October 2002 to be duly considered as a consented alternative proposal to the Senior Deputy President and the Commission.

PN224

Finally, sir, just on the issue of the personal leave Mr Gleeson is correct in saying that that is an agreed position. Our understanding is that the entitlements are not reduced through that clause proposed and certainly it is understood that it is not the intent of the clause proposed to change those conditions. Senior Deputy President, I wouldn't have anything else to add unless the Commission had any questions of me in regards to that.

PN225

THE SENIOR DEPUTY PRESIDENT: No, thank you, Mr Tyrrell. Mr Gleeson, deal first of all with the issue of personal leave. On the basis that Mr Tyrrell has indicated his agreement to 30 August proposal I am quite happy to issue an order that will give effect to a variation of the award in those terms. The question of the wages and classifications, I can indicate to the parties now that in principle I am happy to endorse the approach that is being proposed.

PN226

It is an approach that I would probably characterise as saying that after a very, very long period of time the parties have undertaken a review of the existing positions covered by the award and on the basis of the application of the Australian Quality Framework - sorry, the Australians Skills Framework they have arrived at a key classification and proposed readjusted relativities. I do have two areas of concern. One I will address straightaway and one I will invite you to consider and that is that I take it that on the basis of the submissions made by both yourself and Mr Tyrrell, that there is absolute agreement between the parties that were the award to be revised in the terms proposed this revision would not be applied or sought to be applied to the operation of the existing certified agreement.

PN227

The second issue is a little more complex, it will require, I think, that you do develop a draft order for me and it occurs to me that given the possibility that when you next negotiate a certified agreement there is likely to be an issue associated with how you translate the classification structure from the existing certified agreement to the proposed new certified agreement and if ever there was a time when the question of the definition of the various classifications became relevant then I would suggest that would be it and in that regard I think it probably would be worth putting some effort into reviewing the classification definitions and ensuring not just that those definitions are robust but that they minimise the possibility of future argument and debate.

PN228

That is, for example, the potential argument over whether or not a head orderly at one hospital can be properly characterised as being a more demanding job than a head orderly at another hospital or as a second example, the extent to which the proposed classification structure does, on occasion, appear to recognise experience as a factor warranting a change in level whereas in terms of other jobs it doesn't do so. I think it is only obvious that those sorts of issues had the potential to be problems in the future so that if the parties were able to present me with a draft order I can indicate to you that I am happy with the principle of what is being proposed but I would be anxious to see the form of that draft order because one of the intentions underpinning the process of award simplification is that we do in fact make awards easier to use and to read and if we come up with a structure here that is a recipe for future argument then we have probably defeated the purpose of the exercise.

PN229

Now, you indicated that that should be possible some time this week. I am not necessarily going to hold you to some time this week, I think I would rather the job be done as efficiently as possible and properly rather than it be a job that is unduly rushed and completed in a fashion which then causes problems so if I were to suggest to you that it is a task that I would hope could be done within the next two weeks, but then put a qualification on that to say I am in Perth for the rest of this week and if you were to start the process this week and if you ran into problems I am very happy to arrange a discussion to see whether we can work through any issues. Alternatively I can do it by video conference some time over the next week. Does that approach appear to you to be a logical one?

PN230

MR GLEESON: It certainly does, sir. In regards to the translation as presently proposed is that we would look at being able to arrive at something in regards to that, the terms of the proposed order, quite quickly. In regards to creating the definitions for as many of the jobs as - I think as the parties identify as potential issue areas and I suppose, rationalising the positions, that is going to require liaison and consultation with the hospitals and health services so therefore, sir, we would gratefully accept the extended time frame.

PN231

THE SENIOR DEPUTY PRESIDENT: Well, what I am suggesting is that I would only look at the thing as a total package rather than looking at one particular component.

PN232

MR GLEESON: Yes, sir.

PN233

THE SENIOR DEPUTY PRESIDENT: And I think it probably is worth doing it properly at this stage, it may appear to be some extra work but I suspect it might pay dividends in a couple of years time.

PN234

MR GLEESON: Certainly, sir, and that is one reason I think why it was proposed not to rush a draft order before you today on the basis that there was issues identified in regards to how it would actually work on the ground for - across the entire structure, sir.

PN235

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Mr Tyrrell, are you happy with that approach?

PN236

MR TYRRELL: Sir, yes, I think we can work within the processes that you have outlined to get that outcome. The one thing I might say, your Honour, is just in regards to the time frame. If it wasn't possible to get that done by the end of this week I will be on annual leave for a week in that following week. I just wonder if it is possible to make that the end of the week after that, which I think would be 20 December?

PN237

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the only - I can live with that. The only advantage, as I said with the earlier period was that I was hoping to do you folks a favour by getting you out a decision on the matter before Christmas but look, I am happy to make it the 20th provided the parties understand they may well not get a decision then until some time later in January.

PN238

MR TYRELL: Certainly, sir, and I will make every endeavour to still have it in with the original time frame but I am wary of the problems that we may have because of that break.

PN239

THE SENIOR DEPUTY PRESIDENT: Very well. Can I indicate to you that I can quite clearly see from the material presented to me in E1 and the submissions this morning that a substantial amount of work has gone into this exercise and I congratulate the parties on reaching agreement. I acknowledge the work that has been undertaken so as to underpin that agreement. If we can manage to come up with a draft order that I am happy with then we will be putting to rest an award simplification exercise that is probably about four or five years old now and you have done well. I adjourn the matter on that basis.

ADJOURNED INDEFINITELY [2.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E1 EMPLOYER RESPONDENT'S SUBMISSION PN115