C2001/4603, Transcript of Proceedings [2002] AIRCTrans 811 (13 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DANGERFIELD

C2001/4603

TRANSPORT WORKERS' UNION OF AUSTRALIA

and

ORIGIN ENERGY ASSET MANAGEMENT PTY LIMITED

Notification pursuant to section 99 of the Act
re reduction in number of Sales Co-ordinators
and associated issues related to wage rates

ADELAIDE

10.39 AM, WEDNESDAY, 27 FEBRUARY 2002

PN1

MR B. DUGGAN: I am from Minter Ellison. I appear on behalf of Origin Energy.

PN2

MR R. WORTLEY: I appear on behalf of the Transport Workers Union.

PN3

THE COMMISSIONER: Thank you. Now as I recall these matters, the Commission issued recommendations on 17 December. I have had a response from the Union dated 21 December. I don't think I've got anything on file from the company. Who is going to bring me up-to-date with this, Mr Wortley?

PN4

MR WORTLEY: Yes, thank you, Mr Commissioner. Yes on 13 December the Commissioner gave a number of recommendations for the consideration of the parties in regards to, hopefully an outcome, for this dispute we are currently in. The recommendations were, and I will just go through the recommendations. That the parties undertake a classification review of the work of the two technical sales co-ordinators. Now to our surprise and to our horror, Mr Commissioner, there was no correspondence with the Union or our member and we understand, we have not been formally notified.

PN5

We understand that the company have actually gone back and done a re-classification without any input from the Union or our member and have down-graded the job and as I said, we still haven't been notified, after 3 months, whether that is the case but verbally that has been put to us. When the Union has actually approached them to discuss other issues in regards to the recommendation, and that is the wage rates between the two technical officers, we have been advised that there is nothing that they will do about that.

PN6

So basically they picked the eyes out of your recommendation, taken all the best parts, without any consideration to our member or the union. They have already any acknowledgment that we are a party to this classification that they have actually done a review, down-graded it and their position was that there was no need to come back to the Commission to go on further with this whole issue. Now the Union has got a position where, why the recommendation that you asked us to consider wasn't 100 per cent what we were looking for, we were prepared to actually accept that recommendation because it provided a whole package by which we could settle this issue.

PN7

Because at the core of it for us is that our member has been asked to increase his workload by 50 per cent. I mean there were three people doing the job within Adelaide. One has been moved on and the other two are being asked now to undertake the workload of that particular employee. And when you consider that there has been considerable savings by the employer, because this job, this technical sales co-ordinator, arrived out of a re-structure which saw many, many people made redundant, so there were considerable savings made to the employer and what we are saying out of all this for the co-operation of the extra workload of Mr Dart, is that we want to equalise the wages between the two sales co-ordinators, regardless of the historical reasons there.

PN8

The fact is that they are both on employment contracts - employment agreements and they are doing the same work but getting substantially different money. So that is where we are up to now, your Honour. The only thing that has happened since then is that the company have actually down-graded the job without any discussion, without any input from our member or the Union and have failed to look at the other - well they probably did look at the other recommendations - but have chosen to basically ignore them.

PN9

This has put us in a position where, unless we get an outcome out of today's meeting, we are prepared to accept a recommendation by the Commission, but failing to - and hopefully the employer are as well - but failing to have a recommendation, will result in our member basically refusing to do the extra work which was not in his contract when he first signed it.

PN10

THE COMMISSIONER: Sure, okay.

PN11

MR DUGGAN: Thank you. Sir, I note that in your recommendation in point number 1 which is dated 17 December 2001, that the recommendation is that the parties undertake a classification review of the work of the two technical sales co-ordinators to determine whether they are in reality, class 5 or class 6 in the award. Prior to that recommendation, it was the company's understanding that your oral recommendation, if you like, was that the company arrange for it to look at the classification issue. We did that prior to 17 December 2001 and arrived at what the company thought was the appropriate classification, bearing in mind the work that the applicant was doing at that point in time.

PN12

The company determined that the actual work that was being done was, in fact, a class 6, so the company has in fact, complied with the recommendation in the sense of undertaking a classification review of the work that was done. I conceded from the outset that we haven't discussed that in detail with the union or the applicant.

PN13

THE COMMISSIONER: Did you say Class 6.

PN14

MR DUGGAN: Class 5.

PN15

THE COMMISSIONER: Class 5. Yes, sorry.

PN16

MR DUGGAN: So I think that, although it is not specifically stated in your recommendation in point 1, I think that from here it would seem to us to be appropriate for the union to come back to us and indicate as to what there views are about the classification and whether or not the applicant is, in fact, a class 5 or a class 6.

PN17

THE COMMISSIONER: Isn't there a classification committee that looks at these matters?

PN18

MR DUGGAN: Sir, there is an ability under the agreement that should a dispute arise for a classification review panel, if you like, to examine that particular issue.

PN19

THE COMMISSIONER: So this was not - what you did in regard to 1, was not to take it to a classification review panel.

PN20

MR DUGGAN: Well what happened was that the manager sent to the human resources department, if you like, an indication of what duties were currently being done and then someone from the human resources team, who is independent of this process, looked at what the appropriate classification is and came up with the class 5 as being the appropriate classification. So that is the way in which the company dealt with it internally. But that process hasn't involved the union putting in their contribution as to where they think the level is at this particular point in time.

PN21

THE COMMISSIONER: What has taken place then, is an internal management review, really, that is what you are saying.

PN22

MR DUGGAN: Yes, sir.

PN23

THE COMMISSIONER: Whereas there is this possibility of having a formal classification committee review which, as I understand it, has representatives from the union as well. I mean I think - and it is difficult to recall exactly now prior to Christmas what had been intended. But in the back of my mind was this idea that the matter would be considered by a classification review committee. I think that was at the back of my mind because, as I said there in recommendation 1, the parties are to undertake that review and I meant the parties and not just management. And I think the thing that I had in the back of my mind is that parties would conduct that review via the classification review committee process. That is sort of what I had in mind. I didn't have any huge belief that that was necessarily going to sort everything out but I thought that process should be undertaken.

PN24

MR DUGGAN: Well the company certainly considers that it is an appropriate part of trying to resolve the dispute of working out precisely what the classification is of the applicant, and, indeed, Mr Elphick. We haven't, as I say, at this point in time received any information from the union as to their view about the classification issue, so we can't take that issue much further at this particular point in time.

PN25

THE COMMISSIONER: Well what about then in regard to the rest of them? Well 2 applies.

PN26

MR DUGGAN: Well point number 2 is that the classification review itself won't affect the applicant or the other employee, so far as their salary is concerned and we have certainly undertaken to do that as part of the process.

PN27

THE COMMISSIONER: And what about recommendation 3?

PN28

MR DUGGAN: Sir, we have examined recommendation 3. Sir, my instructions are that, in fact, at the time of the initial restructure, you will recall that there was a restructure that took place at the company and that what happened from there was that Mr Elphick and Mr Dart were given positions in a restructured organisation, in that there was an issue in terms of Mr Elphick's pay at that particular point in time and that a decision was made to pay him in accordance with the level that he was currently being paid at that point in time.

PN29

Sir, my instructions are that even at that point in time, the company did take into account the following three factors in its decision to continue paying Mr Elphick the money that he was paid. One being his overall technical expertise; secondly his 40 years of service at the time, which was greater than the applicant and thirdly to demonstrate fairness to Mr Elphick. So they were the three factors that the company took into account at the time. So at that time it was, in fact, taking into account work value grounds as well as historical grounds for making its decision to continue paying Mr Elphick in accordance with what he had previously been paid.

PN30

THE COMMISSIONER: So it wasn't purely on fairness grounds?

PN31

MR DUGGAN: No, it wasn't purely on the fairness grounds, there were three grounds and I have just set out what those grounds are.

PN32

THE COMMISSIONER: And you considered that he had a greater technical experience?

PN33

MR DUGGAN: Correct.

PN34

THE COMMISSIONER: And was exercising, or relying on that greater technical experience in the work that he was doing?

PN35

MR DUGGAN: Correct, sir.

PN36

THE COMMISSIONER: So you are saying in regard to 3.1, I think, well I think this is what you are saying, that in regard to 3.1, you have done that, you did that some time ago at the time of the restructure.

PN37

MR DUGGAN: Correct.

PN38

THE COMMISSIONER: And that you considered that the pay differential was warranted on work value grounds.

PN39

MR DUGGAN: Sir, I think I indicated on the last occasion that - - -

PN40

THE COMMISSIONER: Because the union's case simply was that the pay differential I think was purely as a result of - was an anomaly, I think that was the union's position and that it had nothing to do with work value and the company is saying, well it did have something to do with work value.

PN41

MR DUGGAN: Yes, sir. We certainly concede that it did have something to do with historical grounds. I mean, to demonstrate fairness to Mr Elphick was part of the reasoning behind that decision. Now that would seem to be historical grounds and where he was within the organisation at the time of the restructure. So that certainly seems to be part of the reasoning behind that decision that was made but, sir, you will recall on the last occasion that I indicated that the company in fact reversed its decision in relation to the way in which to treat Mr Elphick.

PN42

The initial decision from recollection was that they would peg his salary until the level that he was performing would reach what he was getting paid at that point in time and Mr Elphick disputed that at the time. The company did have some discussions with Mr Elphick about that and, in fact, reversed its decision about how it was going to treat Mr Elphick at that time and these were the three issues as I understand it, that were taken into account in terms of determining what Mr Elphick should be paid going forward.

PN43

THE COMMISSIONER: Right. So in regard to 3.2, you would say that, well the differential was originally struck. You believe that differential is still warranted.

PN44

MR DUGGAN: Correct. My instructions are that Mr Elphick still has that technical expertise as appropriate to justify the differential in pay.

PN45

THE COMMISSIONER: And in regard to 3.3, your view is that the current relationship, the relationship between the two technical sales co-ordinators is appropriate as at the present time.

PN46

MR DUGGAN: Correct, sir.

PN47

THE COMMISSIONER: Now, what do you say to the union's position that they are prepared to accept a recommendation on this? Because obviously as we stand at the moment there is no finality from the union's point of view, there is no finality and the company is going to have some potential dispute on this in the future.

PN48

MR DUGGAN: No. Correct, sir, there is no finality on this issue at this particular point in time. I think the company has done its own review of the issue of classification and we see that as an important part of the process here. We would like the union to undertake its own review of the classification issue and get back to us about its views about the classification issue and if we can discuss that with the union.

PN49

THE COMMISSIONER: Well I mean as I understand it, the union's position is - correct me if I am wrong, Mr Wortley, but your position is that Mr Dart should be paid the same as Mr Elphick.

PN50

MR WORTLEY: That's right, your Honour. But I would just like to - I disagree with the position put by the employer with regards to the reasons there is a differential in pay for Mr Elphick. Mr Elphick is paid a higher level of wage because of his cycle grounds. He was on a higher wage and there would have been an industrial issue many years ago if they tried to freeze Mr Elphick's - he was a member of ours. So if the case was that it is due to certain technical expertise that he might have over Mr Dart, there would have been something in writing at that stage.

PN51

Now nothing has been given to us in regards to verify that. It is very easy to sit up here and give all these reasons, but the reality is, I was there at the time. I was Mr Elphick's official at the time and my recollection was that it was based purely on historical grounds. I would also like to make the point that there comes a point of time where, whether you have got 40 years experience or 25 years or 27 years experience, eventually you are experienced and you have the same expertise.

PN52

Now at the time, 3 or 4 or whatever years ago, Mr Elphick may have had some expertise that Mr Dart didn't have, but Mr Dart, if you look at the two of them in regards to performing their function, perform exactly the same function and both with an exceptional high quality level of expertise. So I would say the actual differentials in their experience is minimal and when you put in the other factor that through a restructure there has been a reduction of the co-ordinators from three to two. And the two remaining co-ordinators have been asked to increase their areas by 50 per cent, I think now was the time to bite the bullet and say: right, on this occasion, as a one off occasion, all new people that come in will - that problem won't be there but on this

PN53

On this occasion we are saving a considerable amount of money by the reduction in numbers there so we will put a little bit back into equalising the wages in recognition of the extra work and responsibilities that these people will have. Now, the reason we are not here with Mr Elphick is because Mr Elphick is satisfied, because of his higher rate of pay, he is satisfied with that and that compensates him - - -

PN54

THE COMMISSIONER: For the additional work-load.

PN55

MR WORTLEY: - - - for doing that extra level but Mr Bill Dart, Mr Dart has been left in a situation where he is doing exactly the same work, has been asked to increase his level of his area by 50 per cent and there is no recognition of that at all and it does worry us and does concern us that the company have embarked upon this sort of re-classification of his level. It is almost like, well, you know, if you want that we are going to make sure you get this and we are going to do this to you.

PN56

It has not happened before, we have not - this is the first time I've been in this situation where there has been an attack on a classification to decrease it, to lower the value of the classification. So, your Honour, it is an awkward one, I don't believe we are going to get an agreement with the employer. That is why we are prepared to put our faith in the Commission and seek that you make a recommendation based on all the evidence you have and we will accept the final outcome of that, of your recommendation.

PN57

THE COMMISSIONER: The two actual salaries at the moment, what is the difference between the - what Mr Elphick is getting and Mr Dart?

PN58

MR WORTLEY: I believe it is about 8.9 per cent or something.

PN59

THE COMMISSIONER: In actual dollar terms, have we got that figure in dollar terms?

PN60

MR DUGGAN: Sir, perhaps I can indicate that Mr - well, the applicant's remuneration is $49,020 and, sir, Mr Elphick's remuneration is $53,800.

PN61

THE COMMISSIONER: What you are saying is that you are of the view that that difference at the moment is justified on work value grounds.

PN62

MR DUGGAN: Yes, sir. Sir, perhaps I can also indicate to you about the classification amounts, the standard rates under the agreement as well. The standard rate for a class 6 is $44,220.

PN63

THE COMMISSIONER: Say that again.

PN64

MR DUGGAN: $44,220 with an entry rate of $41,136 and the class 5 has an entry rate of $37,411 and a standard rate of $40,203.

PN65

THE COMMISSIONER: When you say that standard rate, that is the - what do you mean by standard rate?

PN66

MR DUGGAN: Sir, that is a rate after 12 months of service.

PN67

THE COMMISSIONER: Rate after 12 months, all right. I probably did have those salaries on file here from the last time, I just can't put my hand on them at the moment. So after 12 months the class 5 is $40,203 after 12 months a class 6 $44,220.

PN68

MR DUGGAN: Yes, sir.

PN69

THE COMMISSIONER: What is the maximum rate in those areas?

PN70

MR DUGGAN: Sir, the maximum rate is the standard rate.

PN71

THE COMMISSIONER: Is the standard rate. So they are being paid over award in any event.

PN72

MR DUGGAN: Correct. So they are over-agreement payments.

PN73

MR WORTLEY: This Commission, I mean, that is the most misleading statement that has been put to this Commission up to date. These people are on an employment agreement and when they went on that employment agreement they traded off a certain amount - a number of issues: now you want a 40 hour week, right. They went from 38 to 40 hours which was calculated at 4-point-something per cent. They also agreed not to be paid overtime in penalty rates.

PN74

So it was all calculated at that time. So I mean I am staggered that you now try to say they are well above the award and if you look at the award itself in the agreement they have actually foregone some very significant conditions in that agreement and it has all been factored into their rate of pay.

PN75

THE COMMISSIONER: So they are currently under the agreement here?

PN76

MR WORTLEY: So what point they are trying to make is beyond me, but I would like the Commission to understand that this was all done and was all negotiated and the only differential between - the only reason for the differential between Mr Elphick and Mr Dart was historical, purely historical.

PN77

THE COMMISSIONER: Mr Duggan, what do you say about the idea of the Commission making a recommendation to resolve this issue.

PN78

MR DUGGAN: Sir, I would be happy for the Commission to make further recommendations about how the parties might attempt to resolve the dispute that is in existence. We would however have a difficulty with the Commission making a final decision in relation to whether or not for instance the applicants numeration should be increased to the level of Mr Elphick's. Sir, so far as the issue of - - -

PN79

THE COMMISSIONER: I'm talking in terms of me making a recommendation as opposed to an order.

PN80

MR DUGGAN: Yes. No, we don't have any difficulty with a recommendation being made about how the process - - -

PN81

THE COMMISSIONER: You are saying a recommendation on the process. I'm talking about a recommendation on the outcome.

PN82

MR DUGGAN: Yes. No, we would support a recommendation on the outcome as such. Sir, before that was to be reached it would be necessary in our submission that the union actually indicate what its views are in relation to the classification issue. Sir, I think that is an important issue here because it needs to be established at what classification these employees are actually performing. Sir, the other issue that I think it is pertinent to raise at this stage is the issue of whether or not there is in fact an industrial dispute as that is defined under the Act that is before you.

PN83

Sir, we take the view that there is not in fact an industrial dispute before you as such and that the matter is more appropriately dealt with under the agreement. Sir, there is an ability for disputes of this nature to be dealt with by a board of reference and we would say that if the parties are unable to resolve the matter that is before you that it be appropriate for a board of reference to deal with this particular dispute.

PN84

THE COMMISSIONER: It is a board of reference set up under the agreement, is it?

PN85

MR DUGGAN: Yes, there is sir.

PN86

THE COMMISSIONER: What is the composition of that board of reference.

PN87

MR DUGGAN: The composition is a member of the union, a member of the employer and a member nominated by the Commission.

PN88

THE COMMISSIONER: A Commission member.

PN89

MR DUGGAN: Sir, I think in the past what has happened is that the Registrar has been appointed to that particular role.

PN90

THE COMMISSIONER: That is someone to be nominated by the Commission.

PN91

MR DUGGAN: Correct, sir.

PN92

THE COMMISSIONER: That is to resolve issues regarding - again I don't have the agreement in front of me, but classification issues.

PN93

MR DUGGAN: Sir, it is to resolve settlement of disputes arising out of the agreement and any matter directed by this agreement to be dealt with by a board of reference. Sir, I have got a copy of the agreement if that will assist the Commission.

PN94

THE COMMISSIONER: Yes, it would actually, thanks. Which clause are we looking at?

PN95

MR DUGGAN: Sir, if I can direct you to page 39 of the agreement.

PN96

THE COMMISSIONER: Yes.

PN97

MR DUGGAN: 39 deals initially F1 with the dispute resolution procedure and F2 with the board of reference.

PN98

THE COMMISSIONER: Yes.

PN99

MR DUGGAN: We say that F2 makes it clear that disputes that arise out of this agreement, which is what this is, are to be dealt with by the board of reference. Subsection (d) deals with the composition of the board of reference.

PN100

THE COMMISSIONER: So:

PN101

Such board will consist of at least one representative of the appropriate union, one representative of the company with the addition as chairperson of such person as the Commission may nominate or of such persons as the chairperson may nominate.

PN102

Under (c):

PN103

A board of reference is empowered to deal with the following matters, the settlement of disputes on matters arising out of these disagreements, we say this is a dispute arising out of the agreement.

PN104

MR DUGGAN: Yes, sir.

PN105

THE COMMISSIONER: So let me get this right, if the - you still haven't been to a classification review committee on this though, have you?

PN106

MR DUGGAN: No, we haven't been to a formal classification review and I think there is a separate provision that actually deals with disputes that arise out of a classification which I think we discussed on the last occasion. So we haven't had any indication from the union at this point in time that they necessarily disagree with the classification. We understand the union has a difficulty with procedure that we adopted in reaching the conclusion that it was classification level 5. There has been no indication that they disagree with the classification.

PN107

THE COMMISSIONER: Let me get this right, if there is a problem in regard to classification an employee has the right to take it to a classification review committee. Now, if the employee is still unhappy with the result of the classification review committee does the board of reference then come into play?

PN108

MR DUGGAN: Yes, sir.

PN109

THE COMMISSIONER: So the board of reference in effect, in effect appeals against the decision of the classification review committee.

PN110

MR WORTLEY: Or it could go to the Commission. Yes, there is provision for Commission.

PN111

THE COMMISSIONER: Under the disputes resolution - see it seems to me, I mean a board of reference comprises union, employer and someone nominated by the Commission, it could be the Registrar, it could be the Commissioner himself or herself. Isn't it six of one and half a dozen of the other whether you go to a board of reference or whether you have the Commission make a recommendation on this matter?

PN112

MR DUGGAN: Well, sir, as I've said, we are happy that a recommendation be made so far as that relates to the procedure for the parties to try and resolve the matter before you. Should it be necessary to make a final determination we consider it is appropriate for the matter to be referred to a board of reference, such that formal evidence can be taken and an important aspect of that also is that a representative of the company will be on that board of reference and will be able to put forward the company's views in relation to this issue.

PN113

THE COMMISSIONER: So you are just saying that is the appropriate procedure?

PN114

MR DUGGAN: Yes, sir.

PN115

MR WORTLEY: Mr Commissioner, we would see that as basically going over old ground but we have run our positions before the Commission. We will be doing the same thing before a Registrar or whoever. The reality is that the Commission gave a recommendation for consideration, the employer went away with that and basically went their own merry way and did what they wanted to do and to then now handball this on to another forum, another Tribunal is just a delay in tactic or a stalling tactic and in the beginning our member - when this first arose where Mr Dart was asked to increase his workload by 50 per cent, there was talk about putting on - we were going to put on a ban then but we agreed in good faith that we wouldn't do that, Mr Dart would continue to do that work, leading up to resolution into the Commission.

PN116

Now, the employer agreed to go into the Commission and argue our case there. Now, for some reason they are saying: no, it is not appropriate, we should be in another forum. Now, I just think that is unacceptable and to say that this Commission doesn't have jurisdiction, we gave the undertaking not to take industrial action, arising for an outcome out of this Commission. Now, they are saying there is no dispute, it should be now under the hands of a dispute procedures. They are swapping and changing from here to there and we think it is - we have run our case, we've put our position.

PN117

Mr Dart has been through a lot of stress under all this. This has dragged on for quite a few months and to stall this now, to go on another 2 or 3 months we think is totally inappropriate.

PN118

THE COMMISSIONER: How long would a classification review committee take in terms of being set up and then being able to give a decision? What is the shortest time frame? Because that is really what I had intended I must say, and perhaps I didn't make it clear enough in recommendation one, it is going back some time, it was prior to Christmas and whatever, but I had expected that there would be a classification review committee convened and there would be some formal answer coming out of that and I think as I recall it that - at that time, before Christmas, the view was that it could be set up fairly quickly, could it not?

PN119

MR DUGGAN: Sir, I - - -

PN120

MR WORTLEY: It could be, yes, your Honour.

PN121

THE COMMISSIONER: And the union's position is clearly that that the correct classification is class 6, not just the fair, but the correct classification.

PN122

MR WORTLEY: We believe the correct classification would be a class 6 but in saying that that is only one part of the whole story. The fact is though is that regardless of what classification comes out - because - - -

PN123

THE COMMISSIONER: Yes, I understand that, regardless - - -

PN124

MR WORTLEY: - - - what the issue of the actual - - -

PN125

THE COMMISSIONER: Even if it should be a class 5 you say it should be - - -

PN126

MR WORTLEY: - - - differential wages - - -

PN127

THE COMMISSIONER: Yes, and isn't that where a board of reference would come into it, would a board of reference deal with that - deal with the fairness aspect, you know what I mean.

PN128

MR DUGGAN: We believe that - - -

PN129

THE COMMISSIONER: Because it is a dispute, the board of reference - what was the clause again, sorry? It was page - - -

PN130

MR DUGGAN: F2, page 39 and 40 of the agreement.

PN131

THE COMMISSIONER: The board of reference deals with disputes arising out of this agreement. So if the classification committee - classification review committee meets and it reaches a decision, one party or the other isn't happy with that, it seems to me that you then have a dispute arising out of the agreement and the dispute can go to a board of reference and the board of which can then, if you like, override the classification review committee.

PN132

MR DUGGAN: Correct.

PN133

THE COMMISSIONER: And that board of reference would comprise one member of management, one from the union, someone nominated by the Commission.

PN134

MR DUGGAN: Correct, sir.

PN135

THE COMMISSIONER: And I would suggest would probably be myself and then we could review the classification review.

PN136

MR DUGGAN: Yes.

PN137

THE COMMISSIONER: So isn't the proper procedure have your classification review committee, get that set up as soon as possible, have it make a decision as soon as possible. Depending on the outcome of that we will convene a board of reference. I'm happy to chair a board of reference.

PN138

MR DUGGAN: Sir, yes.

PN139

THE COMMISSIONER: The board of reference would deal not just with the technical aspect of is it class 5 or is it class 6 but if necessary would deal with the aspect: well what is the fair thing anyway.

PN140

MR DUGGAN: Correct. Well, sir, we may well be able to resolve the issue of classification.

PN141

THE COMMISSIONER: And that would overcome your jurisdictional problems wouldn't it?

PN142

MR DUGGAN: Yes, sir. Well, I think our view would be that there's not an industrial dispute as such that is actually before the Commission. There's been a notification of alleged industrial dispute. At this stage there has not been a finding that there's an industrial dispute and we would submit that in the circumstances it would be inappropriate for there to be a finding that there is an industrial dispute. So the union needs to rely upon the agreement in order to deal with the actual dispute itself and we say that the appropriate provision is F2 which deals with the establishment of a board of reference. I think it would be jumping the gun to be referring the matter to a board of reference before the issue of the classification had been sorted out.

PN143

THE COMMISSIONER: Without that intermediate step.

PN144

MR DUGGAN: Now, the company has put forward what its views are in relation to the classification issue. Now, at this stage I understand from my friend now that there's a suggestion that the appropriate classification is level 6 but we really need to sit down between us and do it in a formal way of establishing what the classification is before we go forward.

PN145

THE COMMISSIONER: Can I just ask, and I understand where you are coming from, can I just ask in regard to the F2 of the board of reference clause in the agreement is there a definition of dispute in the agreement? There does not seem to be.

PN146

MR DUGGAN: Sir, I don't believe there is a definition of dispute in the agreement.

PN147

THE COMMISSIONER: And it is not an industrial dispute as such. Therefore it is a dispute at large is it?

PN148

MR DUGGAN: Well, it could be any dispute between the parties.

PN149

THE COMMISSIONER: Any dispute or any disagreement. Any dispute between the parties.

PN150

MR DUGGAN: Correct.

PN151

THE COMMISSIONER: So again let me work this through. If you got a classification review committee together as soon as possible and that at least reached some decision on the matter then if one party or the other was unhappy with that the issue, not just of class 5 or class 6 but the issue of what is the appropriate salary could be, the dispute if you like could be referred to a board of reference that could give it finality, could make a decision.

PN152

MR DUGGAN: Yes.

PN153

THE COMMISSIONER: There's no appeal from a board of reference is there?

PN154

MR WORTLEY: I think there is.

PN155

THE COMMISSIONER: No.

PN156

MR WORTLEY: There is in that one.

PN157

THE COMMISSIONER: Well, unless the board of reference, you know, unless there's some jurisdictional board you know but it would seem to me that you don't have those jurisdictional problems with the board of reference because dispute is not defined under the agreement. You know, you don't have to have an interstate dispute. Look perhaps I'm making this more technical than I need to but - - -

PN158

MR WORTLEY: No, I don't think you are making it more difficult than needs to be. I think my friend here is making it more difficult than it needs to be. We made an agreement to come into this Commission months ago to get an outcome. Now, at the final stage where you are putting that you make a recommendation we are now saying well maybe it is not the jurisdiction. So I mean we just think we've gone through such a long period of time that this is only going to exacerbate the problem and I don't understand why you say there's not a dispute on. There is a dispute on. How do you say there's no dispute? There is industrial action.

PN159

MR DUGGAN: Well, I think with respect the company has always maintained the position that it did not want the Commission to make a final decision in relation to this matter that was before the Commission. We indicated that we were happy to come along and try and conciliate what was before the Commission. There's been no finding that there is in fact an industrial dispute and so far as the issue of the classification is concerned Mr Wortley's letter to yourself, sir, dated 21 December 2001 indicates the union's knowledge that Origin had undertaken its review and that it was its view that the classification class should be level 5 and not level 6. It goes on to say in bold and upper case that this was done without any input from the union or the employees involved.

PN160

Well, since that time my understanding is that the company has not received any written submission or indication from the union as to its views about the appropriate level of classification. So we need to know what the appropriate level of classification and upon what basis that has been reached from the union's perspective. We are not delaying this matter.

PN161

THE COMMISSIONER: Well, perhaps those recommendations should have been clear at the time I think. See the trouble, Mr Wortley is this, it seems to me. If the Commission does what you are suggesting and I go and make some recommendations now to try and finalise this matter the company may well say: well thanks for the recommendation but we're not going to abide by it, you know, it's only a recommendation anyway. Whereas if we go through and if I made an order then the company would say: well there's no jurisdiction because there a question as to whether this is an industrial dispute anyway under the act.

PN162

Whereas it seems to me the proper process is deal with it first under a classification review committee and that might sort it out, might. If it does not well there's still a dispute. That dispute can go to the board of reference and the board of reference can determine it with finality it seems to me. I suppose there's always legal arguments as to what a board of reference can or cannot do but it seems to me that there's more hope of the board of reference dealing with this with some finality than there is with the Commission frankly. If I made a recommendation here it is up to either party to say: well no, thanks but no thanks.

PN163

MR WORTLEY: In the past, Mr Commissioner, when we've come into the Commission we always go in with an undertaking that we will accept the recommendation. The company has always done the same. We wouldn't have come in here to begin with if the company had informed us they weren't going to accept the recommendation. We were under the impression that was the arrangement. The problem is they seem to swap and change just depending on how it is going for them. So we don't have - - -

PN164

MR DUGGAN: Well, sir, we - - -

PN165

MR WORTLEY: Please let me finish what I'm saying.

PN166

MR DUGGAN: Sorry.

PN167

MR WORTLEY: We don't have a problem with what you are suggesting and the process. We are just annoyed at the length of time.

PN168

THE COMMISSIONER: It has taken 2 months.

PN169

MR WORTLEY: And how positions have been swapped and changed and it is causing a certain amount of frustration for our member Mr Dart. So at the end of the day if your recommendation is that we go along with that process well once again we will accept that but as I say the end result they still increase Mr Dart's area by 50 per cent and that is the crux of our problem. Regardless of what classification it is the people have got an employment agreement. It does not relate to the actual base rate which you see there. There have been all sorts of buy-outs of their conditions and all sorts and there is nothing to stop any employment agreement being increased in regards to the amount of work that has been given to them.

PN170

So I mean we will always have that issue. So whether it is sorted out here or in - we are still going to have that disagreement. So someone eventually is going to have to make a decision and why they want to postpone and wait for you to have to make a decision on the board of reference or do it here, I don't understand.

PN171

THE COMMISSIONER: Yes, although the classification review committee may agree with the union's position that it should be a class 6 in which case that disposes of it at that level. That could happen.

PN172

MR WORTLEY: Could happen, yes.

PN173

THE COMMISSIONER: If it does not, if the classification committee says: no, it's a class 5, well then you have still got the dispute which can then be resolved. Look how quickly can you get a - I mean what sort of time frame are we looking at here?

PN174

MR DUGGAN: Sir, within 2 weeks.

PN175

THE COMMISSIONER: Within two and is that a decision from the review committee?

PN176

MR DUGGAN: Yes.

PN177

THE COMMISSIONER: Look I would suggest, and I understand where Mr Wortley is coming from and Mr Dart because - and I think maybe the Commission has to take some part of the blame for this too in regard to prior to Christmas and perhaps those recommendations should have been clearer but - - -

PN178

MR WORTLEY: I think they will both blame this Commission.

PN179

THE COMMISSIONER: When I said the parties undertake a classification review, as my recollection is I had at the back of my mind that that would go to a classification committee. Now, I should have clearly specified that and then of course there was the union letter on 21 December which quite frankly went to the file and I must admit didn't come into my consciousness, if I can put it that way. So I think there has been an unfortunate delay in the matter but look I think in view of everything the proper way of dealing with it, get your classification review committee up, have a full hearing of that matter before that committee and report back to the Commission in 2 weeks.

PN180

Then what I will say at that point is we - I mean if there is still an issue that we need to convene a board of reference then we will do so. I think that could be done as a matter of some urgency and unless either party wants to argue to the contrary I'm quite happy to chair that board of reference. It would seem as though it is up to the Commission to nominate a person or persons and the only reason one would nominate a registrar is presumably if the Commission was too busy, or I don't know, whatever reason but I'm quite happy to chair that. So look I'm sorry, Mr Wortley, about the time delay and I think that has sort of slipped the Commission's attention on this as well but I think that might be the best way to bring this through to finality and I think we can do it within a matter of a few short weeks hopefully.

PN181

So can I suggest that to the parties, get that classification review committee up and report back to the Commission say in a fortnight's time? What sort of - 14 March at 9 am, how does that sound and then we determine how we go from there.

PN182

MR DUGGAN: Sir, if I may can we make that the next day if that is possible?

PN183

MR WORTLEY: What about the Monday?

PN184

THE COMMISSIONER: Monday the 18th at 9 o'clock. I will actually confirm this with some written or statement of outcome from today's meeting I think and deal with it that way. I think if that is the case we will adjourn till then.

ADJOURNED UNTIL MONDAY, 18 MARCH 2002 [11.22am]