C0026/099, Transcript of Proceedings [2003] AIRCTrans 2122 (4 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10393
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 00260 of 1999

ROYAL AUSTRALIAN COLLEGE
OF GENERAL PRACTITIONERS
EMPLOYEES (INTERIM) AWARD 1996

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

MELBOURNE

11.34 AM, MONDAY, 19 MAY 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Any change in appearances?

PN2

MR R. SOLOMON: No, your Honour.

PN3

THE SENIOR DEPUTY PRESIDENT: Very well. I listed this matter this morning in the hope that we might be able to finalise the simplification process. Are my hopes in vain?

PN4

MR SOLOMON: No, I don't think so, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. Well, what do you say about it, Mr Solomon?

PN6

MR SOLOMON: Your Honour, I have had the opportunity - I have a draft order to submit as well this morning, which hopefully takes account of the concerns that have been expressed by the Commission and also I have had an opportunity to discuss with the College the matters. The two matters are - there is a few other minor changes but I think they have already been approved by the College but I will mention those perhaps later. But the two matters, clause 18.3, it is the last sentence of 18.3, redundancy, alternative employment, the transfer to another position. This relates to the provision of income maintenance in a circumstance of redundancy where a person had elected.

PN7

It appeared in the previous interim award in paragraph 19.7.1(c)(ii). We believe we have authority for the kind of provision provided here that if the argument is that it is not allowable, we would say that it is as an incidental matter to redundancy.

PN8

THE SENIOR DEPUTY PRESIDENT: No, I don't say it is not allowable. My difficulty was actually in understanding what it means. I guess what it means is for the period in which the person would have received some severance pay, whatever that might be, calculated on the number of weeks per year of service or whatever, they will be entitled to salary maintenance; is that right?

PN9

MR SOLOMON: That is correct, sir. At the expiry of the notice or upon payment in lieu of that notice they are also entitled to, if you like, an income provision that takes them up to the position that they were at.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes. I just wonder if it can be expressed a little more clearly, that is all.

PN11

DR J. WILLIAMS: If I may just make a comment there in terms of there is a discretionary element to the first part of that in terms of for the actual period of notice the College may, in fact, pay for that income maintenance there. It does not need to. But the other one, yes, it would follow the form, say, if an employee had been at the College for 10 years and two weeks per year of service would be 20 weeks. So there would be income maintenance stretched over a period of 20 weeks would be the prescribed period and it could be plus the notice period as well or what would have been the notice period. Is that your understanding of it?

PN12

MR SOLOMON: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, all right.

PN14

DR WILLIAMS: May I say we are not going to strenuously say it should now be taken out in terms of all the other - but if your Honour is suggesting it should be out, well, we would agree with you.

PN15

THE SENIOR DEPUTY PRESIDENT: No, the salary maintenance is not unusual. It is just, as I say, the way it is expressed that I find I have some difficulty with. All right. What was the other thing?

PN16

MR SOLOMON: Yes, I can come back to that, your Honour. The other matter is in relation to 19.1.1 and the draft order that has been submitted does change that notice period to accord with the Act. That is an incorrect translation that had occurred from the previous interim award and, of course, that had related to a resignation in the previous award. So I think that the provision now in total accords with the Act.

PN17

THE SENIOR DEPUTY PRESIDENT: So that is all of the outstanding matters, is it?

PN18

MR SOLOMON: Yes, your Honour. The other minor matters that I have also spoken to the College about I think have already been approved and they related to the provision of a continuous service definition or explanation in clause 11, removal of a reference to performance review at the beginning of schedule 1, the deletion of "a period of six months" - I will slow down.

PN19

THE SENIOR DEPUTY PRESIDENT: No, that is all right.

PN20

MR SOLOMON: In section 5.2, deletion of "a period of six months", which was, of course, a carry on from when it was an interim award, and 17.2.2(a) - - -

PN21

THE SENIOR DEPUTY PRESIDENT: That would still have to have some defined period, will remain in force for six months, but the Act actually carries it over, notwithstanding that it is just expressed to be - I mean, we can put one year or whatever, but the reality is because of the provisions of the Act it continues in force after the expiration date unless it is set aside.

PN22

MR SOLOMON: Yes, yes, I understand, your Honour. If you so desire, I mean, we have no objection to having that period put back in. We both understand - both parties understand it will continue on. But that period should remain in, all right. I can reinsert that. The final one was just simply in clause 7 we have made deletion of the reference to the Act and that just seemed as though it was redundant to have that.

PN23

THE SENIOR DEPUTY PRESIDENT: Now, what about the - just going back to the redundancy provision if I may, that in 18.2 - I think we have had this debate on one other occasion about the length of time allowed for redundancy being in excess of the test case standard.

PN24

MR SOLOMON: Yes, your Honour, we have.

PN25

THE SENIOR DEPUTY PRESIDENT: What happened in the universities case? Did they have just the standard test case, standard provision in it, did they?

PN26

MR SOLOMON: You are talking about the post compulsory award?

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR SOLOMON: Correct - it was beyond the test case, as I recall. I can't find the reference to it, your Honour. I think when I submitted earlier to you that that was the position, that it was - this is back in 1998. I can't find the table looking at a quick reference here.

PN29

THE SENIOR DEPUTY PRESIDENT: My primary concern was initially - - -

PN30

MR SOLOMON: I am sorry, your Honour. I have found the relevant provision in that particular decision and the AOTIA in that decision said that the provision should not be retained, that is, provisions in excess of the test case standard - this on page 97 of the decision - because they exceed the minimum test case standards derived from the termination, change or redundancy decisions. In fact, in that decision of Commissioner Lewin -

PN31

...is no such authority that such a course of action is required when conducting a review under item 51 of the WROLA Act was relied upon -

PN32

that is relied upon by the AHEIA and, indeed, the award simplification decision they said does not support this approach, the approach of it being reduced to the test case standard. That is, I think - - -

PN33

THE SENIOR DEPUTY PRESIDENT: So it wasn't reduced in that case or it was?

PN34

MR SOLOMON: No authority was produced by the AHEIA in asserting that it should be reduced to the minimum test case standard. I can submit that up. It is just - - -

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, thanks. But did Commissioner Lewin allow the additional - something greater than the test case standard?

PN36

MR SOLOMON: Yes, it did, because that was the original position that was allowed in that decision.

PN37

DR WILLIAMS: May I ask, your Honour, is that some sense lack of knowledge on what is the test case standard to which you are referring? What does it stipulate?

PN38

THE SENIOR DEPUTY PRESIDENT: I will come back to that, if you like. I will just finish talking to Mr Solomon and we will come back to that. Yes, thank you, Mr Solomon. All right. Is there anything else you want to say?

PN39

MR SOLOMON: I suppose, your Honour, we are still looking at the last sentence of 18.3.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Well, could we say shall also be entitled on a weekly basis to an amount equal to the difference between the former salary and the lower salary for a period equivalent to the number of weeks of severance pay - - -

PN41

MR SOLOMON: Your Honour, the previous provision, 19.7.1(c)(ii), the previous interim award, I don't know whether those words are used for - it says:

PN42

Where the staff member obtains employment, the amount of salary maintenance -

PN43

I suppose we can't really have reference to salary maintenance - will be that, if any, necessary to bring the salary from that employment to the salary level at the date of termination, whether that could be more easily amended than the words we have.

PN44

THE SENIOR DEPUTY PRESIDENT: Do you see anything wrong with what I said: shall also be entitled on a weekly basis to an amount equal to the difference between the former salary and the lower salary for a period equivalent to the number of weeks of severance pay that would have been paid to the employee?

PN45

MR SOLOMON: Yes, that would give effect to the intention.

PN46

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Dr Williams?

PN47

DR WILLIAMS: No, it was just a clarification. I thought if there was - in other words, in terms of what the AHEIA - AHEIA was involved, I gather, before. They didn't contest that there could well have been a lower provision for the amount of severance pay that - was that the issue that was being addressed then?

PN48

THE SENIOR DEPUTY PRESIDENT: No, it was really just - sorry, in the redundancy provision, you mean?

PN49

DR WILLIAMS: Yes.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. The test case standard is a stepped amount similar to the termination of employment provisions but as has been demonstrated by the decision of Commissioner Lewin and I think I have seen some other decisions that say that the test case standard - the test cases says that - sorry, let me go back a step. The award simplification test case in the Liquor Trades says that the award simplification is not about reducing existing entitlements. So that could stay as it is. Ultimately, there is another test case on redundancy to be heard, I think, in June this year. I don't know what is going to become of that anyway.

PN51

DR WILLIAMS: Thank you.

PN52

THE SENIOR DEPUTY PRESIDENT: Is there anything else you wanted to say, Dr - - -

PN53

DR WILLIAMS: In what we were just looking at and maybe in terms of where the College is at, as it is under new management as well, there are a couple of terms of particular office designations, such as there is the manager, human resources referred to on several occasions in the draft award that has been put forward to you and Mr O'Callaghan here on my left is the new director of human resources, so there has been that change but also, we believe, is in a state of flux as well. So maybe in terms of arguing for change in nomenclature is really - might be a movable feast over the next days, apparently. There are decisions still to be made. So I am not sure whether we should persist with that or just run with the old terminology.

PN54

THE SENIOR DEPUTY PRESIDENT: Is this in the classifications in the award, is it?

PN55

DR WILLIAMS: Well, in definitions it just refers to manager but, for instance, in clause 9, 9.1.1 for instance, and 9.1.2, 9.1.3 it refers to the manager of human resources, just as an example there. And that currently is director, human resources and that probably is really the only title who will be a significant office bearer that would be named through the award to be changed in that sense. In terms of the timing, if this is all going to happen and be agreed today, well, maybe - - -

PN56

THE SENIOR DEPUTY PRESIDENT: The problem is, I suppose, they are likely to change again at some other time.

PN57

DR WILLIAMS: Exactly.

PN58

THE SENIOR DEPUTY PRESIDENT: The manager, human resources - - -

PN59

DR WILLIAMS: A common enough term, isn't it?

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, and I think whatever title they went under, everyone would have an understanding of what they mean. I think we will leave it as manager.

PN61

DR WILLIAMS: We will leave it.

PN62

THE SENIOR DEPUTY PRESIDENT: All right. Are there any other matters?

PN63

DR WILLIAMS: No, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Very well. I will just go through it one more time myself and if everything is in order, then I will issue the order accordingly and it will be operative from the first pay period on or after today's date. Okay?

PN65

MR SOLOMON: Yes, thank you, your Honour.

PN66

THE SENIOR DEPUTY PRESIDENT: Thank you all for your time.

ADJOURNED INDEFINITELY [11.50am]