C0063/099, Transcript of Proceedings [2003] AIRCTrans 1915 (21 May 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 2626
~~AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C No 00630 of 1999

MANUKAU WORKS - GENERAL - AWARD 1996

Review under, Item 51, Schedule 5,
Transitional WROLA Act 1996 re conditions of
employment

MELBOURNE

10.25 AM, WEDNESDAY, 7 MAY 2003

PN1

MR B. PARKINSON: I appear on behalf of the ASU.

PN2

THE COMMISSIONER: Yes, thank you, Mr Parkinson. It should be noted in relation to this matter that the employer respondent to the award, as I understand it, which is the Excel Corporation, no longer operates in Australia. However, this matter was set down initially for 28 February, and was subsequently adjourned to today's date and the ASU has written to the Excel Corporation in Auckland, New Zealand, regarding this matter. And I will hear from you, Mr Parkinson, what response you have got, but additionally the Commission itself has also notified the corporation. In any event, there has been no response, to my knowledge, from that corporation, but, Mr Parkinson, you might be able to tell me whether there has been any response to your correspondence.

PN3

MR PARKINSON: Yes. Well, you are correct in relation to that we have had contact since February in the form of facsimiles to Excel, and at no point even up until morning, sir, have they responded to anything that we have forwarded to them in relation to this matter.

PN4

THE COMMISSIONER: Yes. Well, even in those circumstances I am satisfied that the parties have been adequately notified. Clearly the union has been adequately notified, it is here represented today. Mr Parkinson?

PN5

MR PARKINSON: Thank you, sir. Well, in relation to this issue of the simplification of the Manukau Works (General) Award, sir, we believe that we have been able to hopefully satisfy the requirements. And if I could, sir, hand up a hard copy of what we would suggest would hopefully satisfy yourself and the Commission. And there are a couple of points I would take you through just for a point of clarification, if that is okay for yourself.

PN6

THE COMMISSIONER: Yes.

PN7

MR PARKINSON: If I take you to clause 17.6.3 on page 10. It is actually 17.6.3 and 17.6.4. When we were going through the processes of trying to - endeavouring to simplify this award, sir, the question was asked as to whether those two subclauses would, in fact, would satisfy and be allowable. I would have to say, sir, that in relation to this award it does very much go very close or similar to the Victorian Local Authorities Award, which is the parent award. And I would say to you, sir, that those two subclauses, identical as they are, actually are in the Victorian Local Authorities Award.

PN8

THE COMMISSIONER: This is clause 17 point?

PN9

MR PARKINSON: 6.3, and 17.6.4. So notwithstanding what I have just put, that there was some confusion as to whether it would be allowable, I just draw that to your attention.

PN10

THE COMMISSIONER: I understand that.

PN11

MR PARKINSON: That it is in the other award. I also draw to your attention clause 18.1.7 on page 11. And, again, this replicates what I have just said, sir, is that the question was asked as to whether that clause, in fact, should be in this document. And I would have to say to you, sir, that the same clause with the same numbering is also in the Victorian Local Authorities Award, so again I would presume that that would be okay by yourself, or with yourself.

PN12

THE COMMISSIONER: Yes.

PN13

MR PARKINSON: The next query - and just for the record, I have shaded those areas off for you just so you can pick them up in the hard copy. The next point I would probably want to just draw to your attention, sir, is something that I have just noticed myself, and I am not sure on, so maybe you could give me some direction. But if I take you to clause 39, which is parental leave, on page 31. Now, at the bottom of page 31 it makes the following comment that:

PN14

An eligible casual employee employed by their current employer on or prior to 1 January 1998 shall be entitled to parental leave under the term of the award as of 14 February 2002.

PN15

And it also then goes on to say that:

PN16

An eligible casual employee employed on or after 14 February 2002 shall be entitled to parental leave under the term of the award as of 14 February 2003.

PN17

Now, the reason I am drawing that to your attention, sir, unfortunately I wasn't able to just get some advice, and my understanding is that that is okay, but I just need to seek - - -

PN18

THE COMMISSIONER: I think it should be to the date of the award coming into force, but I don't have that Full Bench decision with me. But presumably what you are seeking there is what the standard award clause should be.

PN19

MR PARKINSON: Exactly.

PN20

THE COMMISSIONER: Yes. No, I understand.

PN21

MR PARKINSON: And that is why I am drawing it to your attention.

PN22

THE COMMISSIONER: Yes. No, I appreciate that, thank you.

PN23

MR PARKINSON: So by and large with those three to four issues that I have just touched on, we would seek to have the orders for this award made, sir, and we believe that we have conformed with all of the requirements.

PN24

THE COMMISSIONER: Yes. The only matter I want to raise with you is the salaries provision, which is clause 25. Those rates of pay are rates of pay up to the May 2002 safety net review decision, and are identical to those contained in the Victorian Local Governments Award, I presume.

PN25

MR PARKINSON: No, sir, they are not identical, but they are very similar.

PN26

THE COMMISSIONER: So what is the basis of them, because they should be properly fixed minimum rates?

PN27

MR PARKINSON: Well, when this award was made, sir, what happened was, notwithstanding the same tables and all that were used, at that time when the award was made it was my understanding that the industry allowance was included into the base, and I am sure that it actually states that somewhere. It says it in 25.1.1, that:

PN28

The following minimum weekly rates of pay will be paid to employees as set out in 25.2. Rates are inclusive of the industry allowance, all incident based disabilities allowances up to a level including level 4 of first aid allowances.

PN29

So at that time when the award was made, sir, that the minimum base, or the minimum rates were - - -

PN30

THE COMMISSIONER: But, see, we have to adjust these to take account of that matter. They have got to be properly fixed minimum rates with the other matters fixed. Can we just go off the record for a minute.

OFF THE RECORD

PN31

THE COMMISSIONER: Yes, as I understand the history of this award, it was that it was to accord to what was then the Victorian Local Authorities Interim Award. The Victorian Local Authorities Award now has got properly fixed minimum rates, and I think the only way in which we can proceed is to put similar rates into this award, and then put the allowances that have been included in the award rate back into the appropriate clauses, Mr Parkinson, otherwise we will not have properly fixed minimum rates. But subject to that, I don't see any other difficulties.

PN32

MR PARKINSON: Well, in relation to that then, sir, what I will do is, we will do what you have requested obviously and adjust those rates, and obviously adjust the allowances in the document, and we will forward a hard copy.

PN33

THE COMMISSIONER: Well, I can fix that in the decision here today.

PN34

MR PARKINSON: Okay.

PN35

THE COMMISSIONER: And I think we might be able to fix the other matter as well. Is there anything else you wish to put, Mr Parkinson?

PN36

MR PARKINSON: No, sir, there is nothing I would wish to raise.

PN37

THE COMMISSIONER: Well, I am in a position to give a decision in relation to this matter, but before I do I also indicate that on 1 April this year my associate wrote to the company in the following terms, that is, to the Human Resources Manager, Excel Corporation, that:

PN38

Pursuant to section 51, item 51, schedule 5 of the Transitional Workplace Relations and Other Legislation Amendment Act 1996, the above mentioned award is required to be simplified. There will be a hearing to this end on Wednesday, 7 May 2003, at Nauru House, 80 Collins Street, Melbourne. A copy of the notice of listing is attached. As your company is the only employer respondent to the award you are entitled to be represented and heard in relation to the simplification process. Could you please send your e-mail address to the undersigned, [e-mail], so that I may send you an electronic version of the proposed award.

PN39

And there has been no response to that. That just further clarifies that situation. There is one other matter that I should deal with, and that is to mark as an exhibit the proposed award submitted by you, Mr Parkinson.

EXHIBIT #P1 PROPOSED AWARD

PN40

THE COMMISSIONER: I am in a position to give a decision in relation to this matter. The Commission of its own motion brought on a file in respect of this award on 9 December 1999, and it has been the subject of a series of conferences commencing - I think initially the decision was not to proceed with it until the Victorian Local Government Award was finalised, as it was, in relevant respects, a child of that award.

PN41

The matter was initially called on, on 28 April 2000 for conference. There were conferences subsequently in December 2001, in February 2002, and then a hearing was held on 5 February this year, at which the Commission proposed to set aside the award. At that proceeding Mr Parkinson appeared and sought to keep the award, opposed the setting aside of the award on the basis that it still had application, although not to the Excel Corporation, but by transmission of business, it had potential application to other areas.

PN42

There were then conferences in March and April 2003, and the matter has been listed for today for finalisation. The exhibit P1 before me, I am satisfied, subject to what I have to say about two matters, is consistent with the requirements of the legislation for simplification. The two matters about which I wish to qualify is, firstly, clause 25.2, the rates of pay.

PN43

In the course of the proceedings I have identified the fact that I don't consider that those rates of pay are properly fixed minimum rates, and subject to those rates being similar to the rates prescribed in the Victorian Local Authorities Award 2001, together with the additional of the allowances for industry allowance and the appropriate industry based disability allowances, and first aid allowances, then I would be satisfied that they would be properly fixed minimum rates.

PN44

And the other matter relates to parental leave, which is contained in clause 39, and specifically the operative date of the application of parental leave to casual employees, subject to that being consistent with the requirements of the parental leave decision that extended it to casual leave employees, then I would be prepared to vary the award consistent with the terms of exhibit P1.

PN45

The ASU is to provide a final form of draft order consistent with this decision to my associate within 14 days. The award will come into force with effect from today's date and remain in force for a period of one month. And if there is nothing further, the proceedings in this matter are adjourned. Thank you.

PN46

MR PARKINSON: Thank you.

ADJOURNED INDEFINITELY [10.44am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #P1 PROPOSED AWARD PN40