C3045/598, Transcript of Proceedings [2002] AIRCTrans 997 (27 March 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT02967
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 30455 of 1998
C No 00865 of 1998

BUILDING SERVICES (VICTORIA)
AWARD 1994

Application under section 33 of the Act
on the Commission's own motion to vary
re award simplification

BUILDING SERVICES (VICTORIA)
AWARD 1994

Review under, item 51, schedule 5,
Transitional WROLA Act re conditions of
employment

MELBOURNE

3.15 PM, WEDNESDAY, 13 MARCH 2002

Continued from 20.3.01

PN138

THE SENIOR DEPUTY PRESIDENT: Good afternoon. Are there any changes in appearances?

PN139

MS FRENZEL: Ms Ilias has proudly consented to appear with me this afternoon, your Honour, in this matter.

PN140

THE SENIOR DEPUTY PRESIDENT: Thank you. Have we got an agreement?

PN141

MS FRENZEL: Your Honour, it goes a bit like this. We have agreement around everything except for clause 8A, the excess supplementary payments provision, with respect to schools.

PN142

THE SENIOR DEPUTY PRESIDENT: Where do I look to see this? Is that the exhibit LHMU3?

PN143

MS FRENZEL: No, no, it is the Building Services Award as it currently is.

PN144

THE SENIOR DEPUTY PRESIDENT: I am sorry?

PN145

MS FRENZEL: It is the Building Services Award as it currently is.

PN146

THE SENIOR DEPUTY PRESIDENT: Yes, is that the one made by Deputy President Acton as she then was in April 1994?

PN147

MS FRENZEL: That is the one.

PN148

THE SENIOR DEPUTY PRESIDENT: I don't know why I marked that as an exhibit, but I did. Clause 8A, excess supplementary payment.

PN149

MS FRENZEL: Yes, and I think from memory it is (iii) which deals with schools.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MS FRENZEL: And it has got the year 1, year 2, year 3 issue.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes, just remind me what that disagreement is about.

PN153

MS FRENZEL: This agreement goes to two clauses. It goes to that one and it also goes to clause 16K, which is a TAFE allowance which also has yearly increments in it and the disagreement arises, your Honour, because I think you will recall when the parties were in conference previously before you that the LHMU put a proposition that the rate should be struck at the year 2 rate to reflect the fact that there is a difference in the work value between TAFE and school cleaners vis a vis building cleaners. That proposition was taken on board by VECCI, instructions were sought and far be it from me to put VECCIs position to the Commission, but my understanding of it is that the position of the employers with respect to those two clauses is that existing employees should continue to get their excess supplementary payments and/or the allowance, whichever is applicable to the individual employee. However, the clauses should be phased out. Now, obviously the LHMU has a somewhat fundamental problem with that proposition and given that we are unable to reach agreement about these matters, the LHMU would want to put a proper case to the Commission to justify the excess supplementary payments with respect to schools and clause 16K.

PN154

THE SENIOR DEPUTY PRESIDENT: Do you want to change the clauses, Ms Frenzel?

PN155

MS FRENZEL: No, we just want to leave them the way they are, your Honour. Now, there is some support for the proposition that the clauses ought stay the same. There is a simplified award of this Commission which is the TAFE Victoria Miscellaneous Workers Award 1999 which was simplified by Commissioner Lewin on 27 September 1999 and that award deals with directly employed miscellaneous workers of TAFEs in Victoria. The employment categories include cleaning, security and laundry workers and with respect to the wages clause which is clause 18 - I am happy to tender a copy of this. I have only got the one on me, but I am happy to tender it.

PN156

THE SENIOR DEPUTY PRESIDENT: Yes. Can I just interrupt. Ms Whitecross will have to justify a change to the award if she wants it, so perhaps she should address me first.

PN157

MS FRENZEL: Very well, your Honour.

PN158

THE SENIOR DEPUTY PRESIDENT: And if she doesn't persuade me, I won't call on you.

PN159

MS WHITECROSS: If the Commission pleases. Your Honour, as Ms Frenzel has indicated that VECCI, further to the last hearing before you on 5 December, did seek to get its instructions from its members regarding its views on splitting the allowance, if you will, and equating it to the second year rates.

PN160

THE SENIOR DEPUTY PRESIDENT: Just explain to me how that would work. Is there a draft clause that you have got somewhere?

PN161

MS WHITECROSS: No, we haven't, your Honour, and I suppose basically I wanted to establish whether this would be, or these allowances would be allowable in its current form.

PN162

THE SENIOR DEPUTY PRESIDENT: Well, why do you say they are not?

PN163

MS WHITECROSS: Basically, your Honour, on the basis that we do not believe that these allowances have ever been work valued and thus incrementally based payments and I would refer you to the paid rates review decision which addresses the issue of incremental allowances. In essence, your Honour, the instructions from my members are that their feeling is that if there is no justification in terms of having a work value for why the allowance is paid and the paid rates review decision deems that such payments should be phased out and absorbed in any further increase to the award, that they don't believe that they should be continued on.

PN164

THE SENIOR DEPUTY PRESIDENT: But isn't that a matter for when safety net review applications arise, to seek to have them absorbed or not increased as a result of safety net review increases, rather than as a matter of taking them out of an award that is to be simplified?

PN165

MS WHITECROSS: I am sorry, your Honour, I am not sure that I understand the question.

PN166

THE SENIOR DEPUTY PRESIDENT: Is it appropriate to make that submission in an award simplification matter, or is it more a matter for saying that those allowances should not be increased as a result of any safety net review decisions as and when applications for increases are made by the union?

PN167

MS WHITECROSS: I do understand your point. However, we are not seeking to have those allowances totally taken out of the award and I don't think that in terms of the paid rates review decision in itself recommends that that is the course of action for dealing with payments that don't form part of the minimum rate of pay and certainly we are not seeking to reduce an entitlement that exists for those employees currently employed under the award, but it is the view of the members that it is actually a paid rates component as opposed to a minimum rates component which the award simplification process and part of its objectives seeks to ensure.

PN168

THE SENIOR DEPUTY PRESIDENT: Is there any decision that you can take me to in support of that submission?

PN169

MS WHITECROSS: Well, the only decision that I would be able to take you to, your Honour, would be a copy of the paid rates review decision.

PN170

THE SENIOR DEPUTY PRESIDENT: Do you have that handy?

PN171

MS WHITECROSS: I have copies to tender.

PN172

THE SENIOR DEPUTY PRESIDENT: And what are you seeking to do? I am looking at clause 8A(iii) that deals with schools. That is the one you are seeking to change, as I understand it.

PN173

MS WHITECROSS: Yes, and also with respect to clause 16K.

PN174

THE SENIOR DEPUTY PRESIDENT: Yes, well, let's deal with clause 8 first. It is just in subclause (iii) that you are proposing to make a change, is it?

PN175

MS WHITECROSS: Yes.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes, and what change are you proposing, Ms Whitecross, just so that I know what I am dealing with here?

PN177

MS WHITECROSS: Effectively, your Honour, that those provisions will only continue on with respect to employees that are covered by the current award, that the allowance does not become payable to those employed subsequent to the signing of the order with respect to the simplified award. With respect to the payments of those allowances to the first group of employees, if you will, that - - -

PN178

THE SENIOR DEPUTY PRESIDENT: What do you mean by the first group of employees?

PN179

MS WHITECROSS: Sorry, those currently employed under the current award, so prior to the signing of the order of the new award, that that allowance will be absorbed in any subsequent safety net adjustments that brings the minimum rate for those employees, so that they suffer no disadvantage over the immediate period.

PN180

THE SENIOR DEPUTY PRESIDENT: Now, these are all of the allowances that appear in clause 8A(a)(iii), is that correct, dealing with schools? So you are saying that all of those allowances - - -

PN181

MS WHITECROSS: Those that pertain to schools and it is my understanding that it also relates to those employed within TAFE colleges. I beg your pardon, it is only with respect to (iii).

PN182

THE SENIOR DEPUTY PRESIDENT: There are allowances there that apply to cleaners grade 1 and cleaners grade 2 and head cleaners and they relate to full-time and part-time employees and they are graded from cleaners on commencement to two years experience and then for part-timers there are hourly rates and what do you want done with all of those allowances in respect of new employees?

PN183

MS WHITECROSS: It is to the extent, your Honour, that there is an incremental component of it, in that there is one rate for the employee at commencement, then there is another rate for the employee after the first year of service and then after their second year of service and the concern of our members is that fact that such increases in those allowances are awarded on the basis - solely on service, rather than any demonstrated work value component.

PN184

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. Now, is there an award simplification principle and I should know it, but I don't offhand - I haven't had need to look at it recently - that says that if there is an incremental payment such as this, that that should be removed during the award simplification process?

PN185

MS WHITECROSS: It will be VECCIs submission that that is provided for in the paid rates review decision.

PN186

THE SENIOR DEPUTY PRESIDENT: Now, you have handed that up. Where do you want me to look in that decision, Ms Whitecross?

PN187

MS WHITECROSS: I would refer you respectfully to point 13B of the Full Bench's decision and in terms of the document that I have handed you, that is contained - - -

PN188

THE SENIOR DEPUTY PRESIDENT: 14, I think.

PN189

MS WHITECROSS: Page 14, to the last line, or, indeed, the last word and says increments and if we turn the page to page 15 -

PN190

...which are not based on work value should not appear in minimum rates awards ...(reads)... increased flexibility and the encouragement of agreement making.

PN191

I would also refer you, your Honour, at the beginning of the second paragraph:

PN192

Additional payments which are geared primarily to length of employment are not consistent with properly fixed minimum rates because they are not based on work value.

PN193

At the beginning of the fourth paragraph:

PN194

Where the relevant award does not make progression through the increments scale ...(reads)... incremental payments cannot be treated as part of the minimum rate.

PN195

And finally the fifth paragraph:

PN196

Where the Commission determined that increments are in excess of a properly fixed minimum rate ...(reads)... absorption against increases to the rates of the award.

PN197

THE SENIOR DEPUTY PRESIDENT: Yes, so your submission is that I should identify what is the properly fixed minimum rate and have two columns, as it were, as one does with salaries when one is simplifying awards?

PN198

MS WHITECROSS: Indeed, your Honour.

PN199

THE SENIOR DEPUTY PRESIDENT: Have you identified what you say is the properly fixed minimum for these allowances?

PN200

MS WHITECROSS: Well, it would be our submission, your Honour, that the residual component or, indeed, the excess supplementary payments and, indeed, that are provided for in clause 8A and also the TAFE allowance that is provided for in 16K for the purposes of this decision constitute residual payments and - - -

PN201

THE SENIOR DEPUTY PRESIDENT: I see, in their entirety.

PN202

MS WHITECROSS: In their entirety.

PN203

THE SENIOR DEPUTY PRESIDENT: I see. Now I understand it.

PN204

MS WHITECROSS: And I apologise that I have been somewhat confusing in getting that message across.

PN205

THE SENIOR DEPUTY PRESIDENT: I may have been a bit slow this afternoon, Ms Whitecross.

PN206

MS WHITECROSS: If there's no further questions, your Honour - - -

PN207

THE SENIOR DEPUTY PRESIDENT: Do you have any history for these payments? Why are they in the award?

PN208

MS WHITECROSS: With respect, your Honour, I suppose that is the difficulty that I have and I haven't received instructions from my members on that. I believe Ms Frenzel prior to our hearing before you today has had some discussions on that and I believe that Ms Frenzel may be in a better position than I to talk to that.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes. They are identified already as excess supplementary payments. That has a connotation about it that they are to be preserved until the properly fixed minima catch up with them, as it were. I just don't understand the way in which the award has been structured. Perhaps Ms Frenzel can assist.

PN210

MS WHITECROSS: If the Commission pleases.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Frenzel.

PN212

MS FRENZEL: Your Honour, can I start by saying this? If the employers are going to put a case to the Commission to say that the rates of pay contained in clause 8A(a)(iii) and clause 16K of the award with respect to the incremental structure that is contained within those two clauses is not based on work value, then the onus rests on them to establish that. It doesn't rest on the union to establish that. We are not seeking an increase.

PN213

THE SENIOR DEPUTY PRESIDENT: No.

PN214

MS FRENZEL: They are, in fact, seeking a decrease or an abolition of certain of the conditions of the award.

PN215

THE SENIOR DEPUTY PRESIDENT: But I have to be satisfied that the rates of pay in clause 8 in general, in the classifications clause, are properly fixed minima and there is no disagreement between you, I understand, as to that. You both say the wage rates are properly fixed minima. Is that correct?

PN216

MS FRENZEL: The base rates contained in clause 8 were the subject of a minimum rates process before the former Victorian Industrial Relations Commission.

PN217

THE SENIOR DEPUTY PRESIDENT: Yes, so you say that they are properly fixed minimum rates.

PN218

MS FRENZEL: That is right.

PN219

THE SENIOR DEPUTY PRESIDENT: And you agree with that, Ms Whitecross?

PN220

MS WHITECROSS: And I understand that to be the case also.

PN221

THE SENIOR DEPUTY PRESIDENT: Yes.

PN222

MS FRENZEL: Now, with respect to the excess supplementary payments that are in clause 8A generally - - -

PN223

THE SENIOR DEPUTY PRESIDENT: Yes, what are they?

PN224

MS FRENZEL: There were formerly four State awards covering cleaning under the Victorian system. They were your Cleaners Award, TAFE Cleaners Award, State Government Department Cleaners Award and Schools Cleaners Award. The latter three were paid rates awards, reflecting the public sector nature of the employment. They were common rule awards and they also covered not only direct employees of the Crown, but also covered employees of contractors as well. In other words, if you were a cleaning contractor and you were tendering into a school, then you had to apply the schools rates, so there were four former awards.

PN225

Now, in 1993, I think it was a decision of 11 August of her Honour, Deputy President Acton, upon application by the LHMU to have those four former State awards brought to the Federal jurisdiction, she rejected the applications. Arising out of that, there was further negotiation between the LHMU and the industry about what was to be done next and what you see in front of you, your Honour, is in actual fact the culmination of a consent arrangement put to her Honour in around May 1994.

PN226

There is a very convenient history of the award contained in a Federal Court judgment which I will tender to the Commission and it is a Federal Court judgment of Ryan J of 18 August 1999 and this matter, your Honour, actually went to the issues of clause 8A and also clause 16K and the background to this case was that the RMIT had formerly been both a university - sorry, RMIT had previously been a TAFE college and then became a university, but they had a TAFE division, so the LHMU says to the cleaning contractors who are working in the TAFE division, not the university itself, that they must pay the rates under clause 8A and 16K.

PN227

RMIT says, well, no, that is not right because we are a university, so this matter was an interpretation of the award about whether or not the TAFE division which is formed in legislation of the RMIT Act actually fell within the scope of clause 8A and 16K and the Federal Court found that it did, but in any event, you will find that at page 2 of the judgment it starts setting out the relevant clause 8A. I might indicate the amounts contained within 8A have not moved in accordance with safety net adjustments since they were inserted.

PN228

The amounts have always been frozen, which is a little bit different to clause 16K, because that is a work related allowance and that has moved in accordance with safety net adjustments. In any event, page 3 and 4 and 5, the clause is set out and then the relevant history commences at paragraph 17 on page 6 and that arose out of a case that I ran in front of Commissioner Deegan with respect to universities, but having said that, there was a very clear history put in that matter as well and if I can quote from paragraph 17, where the italics start:

PN229

It was claimed that in early 1994 an agreement was reached between the LHMU and the Australian Building Services Association ...(reads)... under the former awards and the minimum wage rate set by the Building Services Award.

PN230

And that gives a convenient snapshot of the history of the insertion of the supplementary payments. The case in front of Commissioner Deegan went to a slightly different matter in that universities previously had an agreement with the LHMU to pass on what was commonly known as the State incremental payments scheme, i.e. SIPS, but the agreement had a limited life attached to it and at the expiration of the agreement, they stopped paying the allowance and that led to a couple - I might just tender these for the sake of completeness more than anything else, although they are not directly relevant to the current proceedings.

PN231

That led to a decision of Commissioner Leary on 30 January 1996 which deals specifically with universities and the concept of the industry rate. Sorry, the 30 January 1996 decision was in fact the appeal decision when the union failed in its application before Commissioner Leary on jurisdictional grounds. The union then attempted to create a new interim award dealing with the issue of the industry rates in universities and that was the decision of Commissioner Deegan which is referred to in the Federal Court judgment and I tender that as well and the history of clause 8A and 16K came under some scrutiny in the Deegan decision because it was the only way, in actual fact, the union could run its case and that goes to the issue of whether or not the allowance should be applied in universities and the Commission found that there wasn't sufficiently special circumstances in this matter to warrant the making of an interim award, particularly given that there were no consistencies in the rates or the existence of the extra allowance sought by the union across different universities.

PN232

That decision is referred to in the Federal Court judgment. Now, subject to what my friend says, I think it is a matter of agreed fact that the four former State awards all contained properly fixed rates, but the process before her Honour, Deputy President Acton, was to insert clause 8A and also to insert clause 16K, so those provisions reflected the fact that the work in schools, State Government departments and instrumentalities and TAFEs was different to normal building cleaning, if you like, and that leads me back to the paid rates review decision which my friend has referred to and, look, our view about it is this, that we are quite happy if the employers want to run a case to say there is no work value differentiation between TAFEs, schools, State Government departments and ordinary building services, we are quite happy to rebut that case.

PN233

There is already contained within the award different provisions for different sorts of cleaning. There is, for example, the Queen Victoria Market allowance which clearly reflects that there is a work value allowance because it reflects the different nature of the work. There is cleaning windows allowance, there is toilet cleaning allowance. All those allowances move in accordance with safety net adjustments as I say and clause 8A does not.

PN234

THE SENIOR DEPUTY PRESIDENT: And why not?

PN235

MS FRENZEL: Because it is an excess supplementary payment.

PN236

THE SENIOR DEPUTY PRESIDENT: Under the system that pertained at the time that it was put in.

PN237

MS FRENZEL: That is exactly right, your Honour, yes.

PN238

THE SENIOR DEPUTY PRESIDENT: The principles, I should say.

PN239

MS FRENZEL: We say in a situation like this it is up to the employers to have the onus upon them to put the case.

PN240

THE SENIOR DEPUTY PRESIDENT: What Ms Whitecross is seeking to do, it seems to me, is to only deal with the clauses insofar as they have incremental increases.

PN241

MS FRENZEL: That is right.

PN242

THE SENIOR DEPUTY PRESIDENT: And I am not quite sure what she wants done with it. You can no doubt explain to me, Ms Whitecross, but do you want the rate on commencement to be the rate of the allowance?

[3.45pm]

PN243

MS WHITECROSS: Your Honour, I would need to seek further instructions on it.

PN244

THE SENIOR DEPUTY PRESIDENT: Ms Whitecross, I need to understand what you are putting.

PN245

MS WHITECROSS: Well, in light of what Ms Frenzel has said this afternoon and, indeed, I was unaware of these cases that she has submitted this afternoon, so I would need to read that to form a decision based in the context of those decisions that I wasn't aware of and I understand that one of my members has, indeed, been involved in.

PN246

THE SENIOR DEPUTY PRESIDENT: Well, should I give you time to put in some written submissions and Ms Frenzel can reply to them? Is it appropriate when you are considering this, both of you, to retain a clause that deals with an excess supplementary payment or should that be provided for in a different manner with a column next to the wage rates or something of that nature, to be absorbed over time?

PN247

MS FRENZEL: I will tender this. I have only got the one copy, but that is okay. This is the TAFE Victoria Miscellaneous Workers Award 1999 that was simplified by Commissioner Lewin in 1999.

PN248

THE SENIOR DEPUTY PRESIDENT: Yes.

PN249

MS FRENZEL: And this award, as I say, covers cleaners, security officers and laundry attendants from memory. That is right. Now, what this award does is it reflects the way the clause should probably be drafted, but it also contains first year, second year and third year, so it doesn't assist an employer's case at all and I will leave it at the page that I have marked it at.

PN250

THE SENIOR DEPUTY PRESIDENT: Does it have an excess supplementary clause in it?

PN251

MS FRENZEL: It has got a supplementary payment provision in it.

PN252

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN253

MS FRENZEL: And you can see there, I think it is clause 18, your Honour, where you have got a base rate, a supplementary payment, the safety net decisions and then the total rate. Now, if the supplementary payments - well, there's two things to be said. Firstly, there is no reason why supplementary payments on their own have to be removed during an award simplification process. Secondly, that TAFE Award clearly demonstrates with respect to cleaning in Victoria in TAFEs, direct employees have the benefit of an incremental structure based on skill and responsibility and conditions under which the work is performed.

PN254

Those cleaners in those TAFEs are exactly the same as cleaners employed by contractors in other TAFEs, because what can happen is TAFEs can take work in-house and contract it out and so forth, so what will happen is you might have cleaner A covered by that award for part of his time at a TAFE, or her time, and then covered by the Building Services Award, so that does two things to support the union's argument we say.

PN255

Firstly, it clearly shows that supplementary payments can be found in simplified awards and, secondly, it shows that incremental structures can be found in simplified awards with respect to cleaning in Victoria and with respect to the very area that the employers' wish to go down the rabbit burrow about in this particular case.

PN256

THE SENIOR DEPUTY PRESIDENT: What is the arbitrated safety net of $75?

PN257

MS FRENZEL: That is the sum total - it is a consolidated award, but it was only consolidated to last year off OSIRIS this morning, but that is the sum total of the safety net adjustments since the award was made.

PN258

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN259

MS FRENZEL: Because that award is a simplified award and it was formerly made from memory in 1994 as well.

PN260

THE SENIOR DEPUTY PRESIDENT: And that was the safety net from '94 until the time it was made?

PN261

MS FRENZEL: So it is just reflected in different columns.

PN262

THE SENIOR DEPUTY PRESIDENT: Was this award made as a result of the decision the Commissioner gave?

PN263

MS FRENZEL: Yes, it was. I am just sorry that I didn't get a chance to actually get the print.

PN264

THE SENIOR DEPUTY PRESIDENT: Yes, I can see it there.

PN265

MS FRENZEL: Yes, the print number is there.

PN266

THE SENIOR DEPUTY PRESIDENT: Well, what do you say about my suggestion that Ms Whitecross puts in some written submissions as to what she wants and you can reply to them and then I can make a decision on the papers? I actually prefer to have hearings so that people can talk to submissions. I know it is dragging this out further than I wanted it to be dragged out, but it seems that Ms Whitecross, with respect to you, you are not in a position to properly put your case today and I am not being critical of you for that, given the way these things go.

PN267

MS FRENZEL: Can I say also if we are going to embark down - well, put it this way. If the employers are going to argue that there is no difference in work value terms between a TAFE cleaner and a school cleaner and an office cleaner, then the union will want to take the Commission on inspections to demonstrate there is a work value difference for that very reason, with a view to maintaining clause 8A(a)(iii) and clause 16K in its entirety.

PN268

MS WHITECROSS: If I may, your Honour.

PN269

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Whitecross.

PN270

MS WHITECROSS: Your Honour, I just would like to clarify it and I do appreciate your comments in that I may not have got my point across as clearly as I obviously would have liked. I have had, I suppose, a great deal of difficulty coming to grips and trying to sort of understand all this myself, but I would stress that the difficulty that my members have is in terms of determining any difference - whilst I take Ms Frenzel's point in that there may be differences in work value in terms of doing work in TAFEs and in schools, but the difficulty that I or, indeed, my members have is what is the differential that necessitates an increase on an annual basis for two years, two successive years.

PN271

THE SENIOR DEPUTY PRESIDENT: Yes, you say that is inconsistent with - - -

PN272

MS WHITECROSS: With the paid rates review decision.

PN273

THE SENIOR DEPUTY PRESIDENT: Yes.

PN274

MS WHITECROSS: And I take also Ms Frenzel's point that the onus becomes on the employer to show otherwise, that there is no work value, but, indeed, I would draw your attention to paragraph 101 and 102 of the transcript and, I am sorry, I only have one copy with me and it is marked, of this matter, where Ms Frenzel indeed did note that changes in work value couldn't be demonstrated and I guess that that is the basis of our members' concern.

PN275

MS FRENZEL: Your Honour, it has got to be put in context. The context of that discussion before the Commission was with respect to a proposition the union put up which is still available to the employers, even though they seem to be hell bent on opposing the concept of effectively saying there is a difference in work value between a school and a TAFE and an SGDI cleaner versus a, for want of a better expression, normal cleaner. We accept that the incremental issue - it is very difficult for any organisation to establish changed work value on yearly service alone.

PN276

THE SENIOR DEPUTY PRESIDENT: Yes.

PN277

MS FRENZEL: It is a well known fact. Now, the proposition that we put was let's split the difference, recognise there is a difference in work value fundamentally, put in the year 2 rates, leave the existing employees who are all on my instructions still on year 3 and do it that way and that proposition is not acceptable to the employers. What they want to do is something completely different and it is far more insidious than what it appears at first blush.

PN278

What they want to do is say, okay, all the existing employees can stay with their excess supplementary payments and their allowance and if, for argument's sake, there might be a new starter who started today, who knows, they start on year 1, they go to year 2, they go to year 3, but if I was to start as a cleaner after this award is simplified, if they succeeded in doing what they want to do, the clause won't be there, so there will be no reflection of the fact there was a work value differential between cleaner A and cleaner B working in a building or working in a TAFE college. Now, that is not acceptable.

PN279

Either they say, yes, we accept there is a work value differential for all cleaners covered by clause 8A or they don't. If they don't, then they run the negative work value case and we run the positive one. I accept what I said on that day with respect to increments, they are very difficult to establish. Having said that, we have the right to have the opportunity to establish the work value change on two respects, firstly with respect to the difference between the cleaning and, secondly, with respect to the increments and the Commission will determine the incremental issue as it sees fit at the time. If the Commission pleases.

PN280

THE SENIOR DEPUTY PRESIDENT: Ms Whitecross, your position is as Ms Frenzel states it, isn't it, that in respect of cleaners in schools, in the premises of Government schools, people employed after the date of the simplified award would no longer get any excess supplementary payment?

PN281

MS WHITECROSS: Ms Frenzel's submission accurately reflects my instructions.

PN282

THE SENIOR DEPUTY PRESIDENT: Yes, whereas the people employed in TAFE colleges would still get a $21.10 payment and in other areas, State Government departments and instrumentalities ranging up to $28 a week. Well, you would have to do a bit of persuading to persuade me that cleaners in schools should get no allowance if the others are entitled to retain their allowance, I would have thought. What Ms Frenzel is proposing seems to me to be dealing with your paid rates objection, that you can't justify increments on an annual basis by reference to work value and she is seeking to accommodate that by saying take the middle rate and make that the allowance. Now, I don't know if there is any science in that, but it is certainly a way forward, although I note that it would be a significantly larger allowance for cleaners in schools than it is for cleaners in TAFE colleges or State Government departments and instrumentalities. You would be looking at $40 compared with $21 in TAFE colleges and a maximum of $28.40 in State Government departments and instrumentalities, so there is a fair differential there. I will refer you back into conference, I think, to see if you can come to some agreement as to whether a differential of that magnitude is warranted. Ms Frenzel says cleaners in Government schools are entitled to a greater allowance because of the difference in work value as between them and other cleaners. Is that right, Ms Frenzel? That is the way you put it?

PN283

MS FRENZEL: That is entirely correct, your Honour.

PN284

THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps that is a matter that can be discussed between you to see if you can come to an agreed rate without the incremental structure which is what you seem to be complaining of, but as presently advised, I can't see how you could justify completely eliminating that allowance for cleaners in Government schools. Now, we will just go off the record for a moment and try to work out some directions here, I think.

OFF THE RECORD

PN285

THE SENIOR DEPUTY PRESIDENT: I have had a discussion with the parties and I am directing them into conference because I think that this issue can still be potentially resolved and I am told that in answer to the question of whether an agreement can be reached or not, should be able to be attained within about two weeks. Accordingly, I direct the parties to confer with a view to resolving the issues between them and failing a resolution, I direct Ms Whitecross to file and serve written submissions in support of the position for which she contends by close of business 17 April 2002 and Ms Frenzel to put in her written submissions by close of business on 8 May 2002 and I will list this matter for further hearing at 10.15 on Wednesday, 22 May 2002, at which time I will hear the parties as to their respective positions or as to their agreed position. Is that satisfactory, or is there something else that you want to say? No. Very well, the Commission will adjourn on that basis. Thank you.

ADJOURNED UNTIL WEDNESDAY, 22 MAY 2002 [4.09pm]