C0072/699, Transcript of Proceedings [2002] AIRCTrans 979 (27 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT02945
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00726 of 1999

COCOS ISLANDS EMPLOYEES
AWARD 1993

Review under Item 51 Schedule 5
Transitional WROLA Act 1996 re
award simplification

MELBOURNE

4.14 PM, TUESDAY, 12 MARCH 2002

Continued from 30.10.01

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN165

MS D. MacTIERNAN: Your Honour, I appear on behalf of the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN166

THE SENIOR DEPUTY PRESIDENT: Mr O'Grady, are you there? Can you hear me, Mr O'Grady?

PN167

MR A. O'GRADY: Hello.

PN168

THE SENIOR DEPUTY PRESIDENT: Can you hear me, Mr O'Grady?

PN169

MR O'GRADY: Faintly.

PN170

THE SENIOR DEPUTY PRESIDENT: Faintly. Just hold on a moment. Can you hear me now?

PN171

MR O'GRADY: I can.

PN172

THE SENIOR DEPUTY PRESIDENT: And can you hear Ms MacTiernan?

PN173

MS MacTIERNAN: Hello Alan.

PN174

MR O'GRADY: No. If I could have the sound up a bit there too, please.

PN175

THE SENIOR DEPUTY PRESIDENT: All right. Just a moment.

PN176

MS MacTIERNAN: Hello Alan.

PN177

MR O'GRADY: Hello. That is better.

PN178

THE SENIOR DEPUTY PRESIDENT: Okay. Perhaps I will start with you, Mr O'Grady. I have called this matter on today for mention and programming, because I intend visiting Cocos Island some time during the course of May, if that is convenient for the parties, to see if we can't finalise the award simplification process. And you have sent some correspondence to my Associate, raising some questions about the rates of pay that are included in the award. And I was wanting to know also whether you have any other issues with the draft simplified award that has been forwarded by the Australian Liquor, Hospitality and Miscellaneous Workers Union on 23 November 2001. So, perhaps if I ask you first of all about the rates of pay issue. What do you say about those?

PN179

MR O'GRADY: You are very - you are breaking up there, and a little bit faint. But from what I gather there, the question was, was I happy with the rates of pay, or what my queries were with the rates of pay. And whether I had any other queries with the award. Is that correct?

PN180

THE SENIOR DEPUTY PRESIDENT: Yes.

PN181

MR O'GRADY: The basic award I am happy with. The changes suggested by the union I can accept. However, I do have grave concerns with the pay rises suggested.

PN182

THE SENIOR DEPUTY PRESIDENT: Yes. And that is the actual rates that have been set out in clause 15, is it?

PN183

MR O'GRADY: Well, the other matter of course was my concern that other companies on the island would be at an advantage over myself, if they are offering the lower rates of pay. I already believe that the Cocos Islands Co-Operative is one of the more expensive awards on the island. And what I was suggesting is that if we are all on a level playing field, that would make it easier for us. However I think all employees would probably struggle with the suggested $80 a week rise that the formula was worked out to be.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, perhaps I will ask Ms MacTiernan where those rates of pay actually come from, in clause 15 of the draft award.

PN185

MS MacTIERNAN: Sir, can I just clarify, in terms of the documentation that I have on file, the rates start with a Level 6 person. And the rates that I have in that is 499.60 for the - on commencement. And then 509.50 - - -

PN186

MR O'GRADY: Yes. The Level 6 - I will just have a look.

PN187

THE SENIOR DEPUTY PRESIDENT: Yes, I have a Level 6 starting at 574.60.

PN188

MS MacTIERNAN: Yes, sir. That is the - I am sorry. I apologise. I am unsure whether my file actually has the most up-to-date simplified award in it. That the rates that you were referring to then are certainly those that we prepared as a draft order for inclusion of arbitrated safety nets.

PN189

THE SENIOR DEPUTY PRESIDENT: Yes.

PN190

MS MacTIERNAN: And our position, I would say at the very least would have to be those, because they are the minimum wages that would be applicable to these workers. I hear what Mr O'Grady is saying, and obviously that goes to the issue about why the award probably needs to be converted to a common law award in the Territory.

PN191

THE SENIOR DEPUTY PRESIDENT: But, are those rates that are set out in clause 15.3.1 the rates that have been subject to a minimum rates adjustment?

PN192

MS MacTIERNAN: Historically, sir, I am not able to tell you that. I doubt it. Because there seems to be no reference to a tradesperson rate, or - but in any event, I suppose we would say that you would have to be mindful still of the internal relativities in relation to the award, and the arbitrated safety net. I mean, this award has suffered from not having arbitrated safety nets applied to it for some time.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes. But the minimum rates adjustment process involves paring the award back to the base rate, and then applying the arbitrated safety net reviews from time to time.

PN194

MS MacTIERNAN: Yes. Again, sir, I don't know. And I know this is very frustrating for all the other parties, including yourself, that this file has been picked up via a series of officers of our union, and there is - the continuity hasn't been there. I have just spoken to Mr Ridley, and he has left the file notes in relation to this on the general issue of the simplification and the application for common rule, but I can't actually answer that specific question about the minimum rates adjustment process.

PN195

THE SENIOR DEPUTY PRESIDENT: Right.

PN196

MS MacTIERNAN: But my understanding - well, my intuition on that is that I don't think it has.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes. It doesn't appear to me that it has, but I might be wrong about that. Could you, after the adjournment perhaps, make some inquiries and ascertain how those rates were struck, Ms MacTiernan?

PN198

MS MacTIERNAN: Yes, certainly.

PN199

THE SENIOR DEPUTY PRESIDENT: Yes. And perhaps notify or advise my Associate and Mr O'Grady of that process if you wouldn't mind.

PN200

MS MacTIERNAN: Yes, certainly. Other than that, in terms of our understanding about where the award simplification matters are, as Mr O'Grady indicates, that my understanding is that discussions or the correspondence between he and Mr Ridley is that fairly much the award is settled in other respects.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes. There is a note in the draft that I have, Mr O'Grady, that says the following provisions will need to be reviewed pursuant to the paid rates review decision and then it gives the print number for that; have you got that in your draft?

PN202

MR O'GRADY: Sorry, you broke up a bit there. I am catching the union representative very clearly, but your voice I can understand and then it breaks up and seems to be dropping out and then comes back in again. I can hear the union representative very clearly, but not yourself.

PN203

THE SENIOR DEPUTY PRESIDENT: All right.

PN204

MR O'GRADY: I am sorry, you will have to repeat that.

PN205

THE SENIOR DEPUTY PRESIDENT: Yes, certainly. The draft that I have of the proposed simplified award includes a note on page 21 just above the rates of pay that says that those provisions will need to be reviewed pursuant to the paid rates review decision. Do you have that note on your draft?

PN206

MR O'GRADY: Yes, I do:

PN207

The following provisions will need to be reviewed pursuant to the paid rates review decision, print Q7661.

PN208

THE SENIOR DEPUTY PRESIDENT: Yes. So it appear that the rates may not be properly fixed anyway at this stage.

PN209

MR O'GRADY: I see. Right. My understanding of the way the union and the - now, I have forgotten the name - Department of Employment or whatever it was that re-did the rates was that they start from a base rate, which was the award rate, whatever, and then they work through the increases that have happened, but have been missed on Cocos, to arrive at this final figure.

PN210

THE SENIOR DEPUTY PRESIDENT: When you say the base rate, do you mean the base rate that was in the old award?

PN211

MR O'GRADY: That is correct.

PN212

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I don't know, and perhaps Ms MacTiernan can help us by some further inquiry as to whether or not those rates were properly fixed minima.

PN213

MR O'GRADY: Right, yes. I can't answer that either.

PN214

THE SENIOR DEPUTY PRESIDENT: No.

PN215

MR O'GRADY: I can't answer where the award came from in the very first place.

PN216

THE SENIOR DEPUTY PRESIDENT: All right. Well, Ms MacTiernan will notify us of the outcome of her inquiries and I will make some independent inquiries in any event about those rates.

PN217

MS MacTIERNAN: Sir, can I just make one observation. Sir, Mr Ridley has left another file note here and made comments against proposed new clauses. He says the - the comment is the implications of the paid rate review decision on the rates in the clause 15:

PN218

It is clear from the history files, that all six classifications are based on the Metals case benchmark levels. Therefore it is unlikely that the rates are - as proposed will fall foul of that decision and more particularly item 51.4.

PN219

THE SENIOR DEPUTY PRESIDENT: Yes. And that goes to whether or not they are properly fixed minima.

PN220

MS MacTIERNAN: Yes.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, would you and Mr O'Grady have further discussions about that, and in the interim I will forward to you - or my Associate will forward to you some of the processes related to the adjustments that need to be done.

PN222

MS MacTIERNAN: Yes.

PN223

THE SENIOR DEPUTY PRESIDENT: Have you previously been involved in the process of minimum rates adjustment, Ms MacTiernan, in any other award?

PN224

MS MacTIERNAN: Yes.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes.

PN226

MS MacTIERNAN: Yes, I have.

PN227

THE SENIOR DEPUTY PRESIDENT: Well, you are familiar with the process then?

PN228

MS MacTIERNAN: Yes, sir, a matter before SDP Ross in relation to one of the awards over here - that was a couple of years ago - and also in some state awards.

PN229

THE SENIOR DEPUTY PRESIDENT: All right. Well, you probably don't need any assistance from me in those circumstances.

PN230

MS MacTIERNAN: It always helps.

PN231

THE SENIOR DEPUTY PRESIDENT: All right. Now, the other problem that you have raised, Mr O'Grady, about the rates that are paid by other employers on the island, I think we have discussed previously the prospect of having a common rule for the island, given that it is a territory of Australia. Have you made any more inquiries about that?

PN232

MR O'GRADY: No. On the island we have what we call a community information forum where all the senior managers on the island meet once a month to discuss issues applicable to Cocos. I did bring up the issue that you may be coming up in May and I also raised it with the Deputy Administrator who works for the Department of Territories and Transport, and they understand that if you have the time to come up, you know, the work that you would be doing to cover the awards on the island.

PN233

THE SENIOR DEPUTY PRESIDENT: Ms MacTiernan, do you have any position on common rule award?

PN234

MS MacTIERNAN: In terms of a common rule, sir, we think that that is a good and an appropriate mechanism for coverage up on the island for part of the reasons that Mr O'Grady spoke about earlier. Mr Ridley actually did do a fair amount of work in preparing an application along those lines. He sought advice from our national office in respect to that. The reason why that hasn't actually been lodged is that there was an internal question about just some of the areas of coverage because our federal rules have specific rules in relation to Cocos, and I suppose we were seeing whether - that some of our more general areas of application should also come into what this award would ultimately cover.

PN235

So that is why that has been held up at this time. The secretary of our branch just wanted to give that a bit more consideration before it was lodged, so that is why that hasn't happened. So I don't know whether that would - I mean, while that might be able to be lodged in a few weeks, I don't know how that sits in terms of your proposed timetabling.

PN236

THE SENIOR DEPUTY PRESIDENT: Yes. I had in mind going to Cocos in the week beginning, I think, 13 May.

PN237

MS MacTIERNAN: That is correct.

PN238

THE SENIOR DEPUTY PRESIDENT: Yes. Well, do you think it is possible that the application could be lodged before then?

PN239

MS MacTIERNAN: It would probably be lodged before then. I don't know how that would sit in terms of what other processes need to happen. If, sir, on that I can - our secretary is going to be away next week, so if I can get some specific advice from her this week regarding that and to let you definitely know by the end of this week where we sit in terms of lodging that application.

PN240

THE SENIOR DEPUTY PRESIDENT: All right.

PN241

MS MacTIERNAN: I mean, most of the work, as I said, has been done.

PN242

THE SENIOR DEPUTY PRESIDENT: Okay. Can you access the web page that has been set up to deal with Cocos Island?

PN243

MS MacTIERNAN: I haven't actually done that yet. I have read again your Associate's e-mail about that this morning and I will be able to do that, I assume.

PN244

THE SENIOR DEPUTY PRESIDENT: Well, perhaps you can communicate via that process in any event to both myself and to Mr O'Grady.

PN245

MS MacTIERNAN: Okay.

PN246

THE SENIOR DEPUTY PRESIDENT: Mr O'Grady, have you had access to that web site?

PN247

MR O'GRADY: Yes, I have.

PN248

THE SENIOR DEPUTY PRESIDENT: And do you have any difficulties with it?

PN249

MR O'GRADY: No. I have been away on holidays for five weeks and I have come back to a fairly big workload. I have just had a quick look at it, but I was hoping later on this week when I was a bit more free I was going to go and have a good look around. Mr Cook explained the workings to me. We have no problems with Internet access on the island.

PN250

THE SENIOR DEPUTY PRESIDENT: Do you, Mr O'Grady, have any objection to your contact details being put on that web page?

PN251

MR O'GRADY: Sorry, could you repeat that?

PN252

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to your contact details being included in the web page?

PN253

MR O'GRADY: No, none at all.

PN254

THE SENIOR DEPUTY PRESIDENT: No. Mr MacTiernan, do you have any objection to that process?

PN255

MS MacTIERNAN: No, sir.

PN256

THE SENIOR DEPUTY PRESIDENT: No. Well, we will include each of your contact details on the web page so that you can communicate with each other via the web page or by e-mail or such other means as you think appropriate. Then what I will do now is adjourn this matter for a fortnight and re-list it for a further conference to ascertain what progress has been made in relation to the rates of pay and in relation to the proposed application for a common rule, and perhaps some further conference about the detail of the rates of pay at that particular time if that is convenient for the parties.

PN257

MS MacTIERNAN: The only thing, sir, I foreshadow is that I will actually not be available on the week immediately before Easter, which is a fortnight, but I am around the following week.

PN258

THE SENIOR DEPUTY PRESIDENT: Yes. I am not available the following week. What about the week beginning 8 April?

PN259

MS MacTIERNAN: Yes.

PN260

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will arrange for a conference to be listed for that week. Is that convenient for you, Mr O'Grady?

PN261

MR O'GRADY: Could you repeat the date, please?

PN262

THE SENIOR DEPUTY PRESIDENT: Yes. The week beginning 8 April. I don't have a date at this stage.

PN263

MR O'GRADY: Right. I will be on island.

PN264

THE SENIOR DEPUTY PRESIDENT: Right. Do you have video facilities there?

PN265

MR O'GRADY: No.

PN266

THE SENIOR DEPUTY PRESIDENT: No. All right.

PN267

MR O'GRADY: There is some talk of - no, not at the present time.

PN268

THE SENIOR DEPUTY PRESIDENT: Very well. Well, my Associate will notify the parties of a time and date for further conference some time in the week beginning 8 April and in the interim I will examine those rates and perhaps have some further communication with the parties via the web page about that, and it may well be that by then the application for common rule could be finalised and lodged. Is there anything else you want to say, Mr O'Grady, at this stage?

PN269

MR O'GRADY: No, thank you.

PN270

THE SENIOR DEPUTY PRESIDENT: Ms MacTiernan?

PN271

MS MacTIERNAN: No, sir.

PN272

THE SENIOR DEPUTY PRESIDENT: Very well. We will adjourn the matter to a date to be fixed in the week beginning 8 April.

ADJOURNED ACCORDINGLY [4.36pm]