C0003/899, Transcript of Proceedings [2003] AIRCTrans 2225 (12 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 2808

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C No 00038 of 1999

CLERKS (VEHICLE INDUSTRY - REPAIR
SERVICES AND RETAIL) AWARD 1985

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

MELBOURNE

10.55 AM, FRIDAY, 23 MAY 2003

Continued from 12.5.03

PN42

THE COMMISSIONER: Good morning. Now, subsequent to the directions I gave on the last occasion that we were here, I note that there has been a exchange of letters and that the parties have significantly narrowed the areas of disagreement between them such that I now understand that there are six matters that require attention - I am sorry, five. They include the wage rates and the classification structure prescribed by the award at clauses 14, 21.5 and 28.1.

PN43

MS E. HAYES: That is correct, your Honour.

PN44

THE COMMISSIONER: Now, that is the scope of the issues to be resolved for the purpose of the simplification of the award, am I right?

PN45

MR J. NUCIFORA: Yes, Commissioner.

PN46

THE COMMISSIONER: Yes. Well, I note that the parties both concur with that. Could we just deal with the question of the wages and the classification structure. What is it that needs to be done in relation to those matters?

PN47

MR NUCIFORA: Commissioner, we - - -

PN48

THE COMMISSIONER: I think you probably need to stand, Mr Nucifora. We are still in the formal hearing.

PN49

MR NUCIFORA: Sorry, Commissioner.

PN50

THE COMMISSIONER: That is all right.

PN51

MR NUCIFORA: Commissioner, in terms of the classification structure that is in the award and descriptors, they pre-date the 1989 structural efficiency principle. This award was never restructured, although of course the various safety net adjustments had been included over the years, and it is well below even the - it is an award that applies to Queensland only. It is well below the State Clerks Common Rule Award, and would be now probably amongst the lowest clerical rates in the country. As we have simplified the various clerical awards in the Federal jurisdiction, rather than reinvent the wheel and have a full work value, what we have done is gone to the generic clerical structure that has been adopted in a number of awards, and I have outlined that in a proposition that I have put together for the employees today, if I may hand that up.

PN52

THE COMMISSIONER: Well, just a moment. You can hand it up in a moment.

PN53

MR NUCIFORA: It really is the Victorian clerical structure, the six-level structure goes through all the descriptors, and I refer to various decisions of the Commission reconfirming the generic structure as being properly set minimum rates. Now, in some of those industries we may have been able to argue in fact higher rates and in some others such as the Clerks Breweries Award they were in fact higher rates and they were pared back, even though it wasn't strictly a paid rates award, but they didn't meet the generic structure.

PN54

THE COMMISSIONER: So what you are suggesting is basically a new appropriately-fixed minimum rates set of classifications and rates of pay.

PN55

MR NUCIFORA: Yes, Commissioner, and one that is consistent with a number of other decisions before the Commission.

PN56

THE COMMISSIONER: All right. I might just ask my associate to take that now.

PN57

MR NUCIFORA: Commissioner, I have to say that we don't need to table that as an exhibit. I have only just given that to Ms Hayes earlier this morning, although I have referred to the rates of pay in the structure. I understand Ms Hayes needs to talk to other employer representatives in the industry. What I would say of the rates of pay, they are significantly higher than the existing rates in the award, and what we have proposed elsewhere right up front is that as a result of simplification we are not seeking of course any direct wage increase and any labour costs should be offset by the phasing in of these new rates of pay.

PN58

We have done that with other awards such as the Clerical Administrative Employees Health Insurance Industry Award, the Clerks ACT Award, and various awards where the rates of pay had not been restructured pursuant to the 1989 structural efficiency principle, and the rates that are there are not identical to the Vic rates, particularly grades 1 and 2. There are increments, lower increments of 1 and 2 in the Victorian rates, but they are - we have in a number of awards sought to remove those increments and got back to one minimum rate at each level.

PN59

Otherwise the descriptors ought to be identical to the Victorian Clerical Administrative Employees Award. And of course that award is an award we rely on for the national wage case and various test cases before the Commission as being consistent with the 1989 structural efficiency principle.

PN60

THE COMMISSIONER: So the rates are the Victorian Clerical and Administrative Employee rates?

PN61

MR NUCIFORA: In effect.

PN62

THE COMMISSIONER: And the classification structure.

PN63

MR NUCIFORA: With the inclusion of the 2003 safety net adjustment, I might add, and this hasn't been approved in this award yet, but for completeness this year we have included the latest rates.

PN64

THE COMMISSIONER: What is the anniversary of that SNA?

PN65

MR NUCIFORA: I believe it is - I don't know, around mid to late June, so normally - and it is normally done in Queensland being a Queensland-based award, and we do the paper work from down this way, but - - -

PN66

THE COMMISSIONER: Has an application been lodged?

PN67

MR NUCIFORA: It has been lodged, Commissioner. We don't have a hearing date yet, though.

PN68

THE COMMISSIONER: Right. What would be the difference, if any, in the rates of pay and classification structure prescribed if this proposal were adopted and the Queensland State Award provisions?

PN69

MR NUCIFORA: Sorry, sir?

PN70

THE COMMISSIONER: What would be the difference - - -

PN71

MR NUCIFORA: Yes.

PN72

THE COMMISSIONER: - - - if this set of rates of pay and this classification structure were adopted between the Federal award operating in Queensland and the State Clerical and Administrative Employees Award?

PN73

MR NUCIFORA: There are some slight differences. The Queensland State Clerks Award as the New South Wales and most states have restructured rates of pay and descriptors that are very similar to the Vic Clerk, but not identical. The difference I haven't yet - - -

PN74

THE COMMISSIONER: Well, what about the rates of pay?

PN75

MR NUCIFORA: The rates of pay would be slightly different but wouldn't be significant. There are slight differences.

PN76

THE COMMISSIONER: What would the differences be, positive, negative?

PN77

MR NUCIFORA: They may be positive at some levels and negative in other.

PN78

THE COMMISSIONER: Could you provide me with a table of comparison, please.

PN79

MR NUCIFORA: Yes, Commissioner. I might add, Commissioner, that is our preferred structure nationally. If there were some argument that the Queensland State Clerks rates ought to be included, then we would certainly be open to that. It is something that we did with the ACT Clerks Award; we were preferring this structure but in fact we ended up adopting the New South Wales structure, being a territory that is landlocked by New South Wales, and we reached a consent position there, and there was a phasing in period - - -

PN80

THE COMMISSIONER: Yes. I am not overly concerned about differences if they are marginal. If they were substantial it might be a matter to take into consideration that one was interposing into Queensland a Federal award with significant variance.

PN81

MR NUCIFORA: Yes.

PN82

THE COMMISSIONER: Now, that may or may not be appropriate, but it is a matter that one should be alert to, that is all.

PN83

MR NUCIFORA: Yes. Thank you, Commissioner.

PN84

THE COMMISSIONER: Now, just before you finish, Mr Nucifora, we might from your perspective hear your views in relation to the other clauses.

PN85

MR NUCIFORA: Yes, Commissioner. In relation to the other - well, wages and of course the classification structure we see as the big ticket item, there has been a number of awards, clerical awards, that have been simplified. The other big ticket item is exemption, and the exemption clause in the existing award, I refer you there to clause - - -

PN86

THE COMMISSIONER: 14, is it?

PN87

MR NUCIFORA: 14. And in our response to the list of issues put together by Ms Hayes on behalf of the employers we mention there that that exemption rate should be removed as per - - -

PN88

THE COMMISSIONER: Sorry, is that right? Is clause 14 right? In the Clerks Award as shiftwork and rates there for is what I am - - -

PN89

MR NUCIFORA: In the re-drafted - sorry, in the re-drafted existing award.

PN90

THE COMMISSIONER: I see. You are referring not to the existing award. You are referring to the draft simplified award.

PN91

MR NUCIFORA: That is right, Commissioner. It is clause 10, I think, in the existing award.

PN92

THE COMMISSIONER: All right. Well, let me look at clause 14. Clause 14 simply reproduces the existing clause 10.

PN93

MR NUCIFORA: Yes, Commissioner. And we say that that exemption rate is the type of exemption rate that was referred to in the full bench decision in the Clerks Breweries Award 1985. When that award was simplified the last outstanding issue to be determined was the exemption rate. Now, that was a $25 flat rate. That is in print S6443. But in fact in paragraph 5 of that decision they refer to this particular award as having an exemption rate. They refer to this particular award as having an exemption rate. Now, we are not arguing that that type of provision is not allowable, because there are exclusionary clauses in a number of awards, but we argue that as per that decision that it is contrary to the safety net principle and it ought to be removed under item 51.

PN94

A number of decisions since then have referred to this decision, and I refer you to paragraph 40 of the full bench - - -

PN95

THE COMMISSIONER: So you are saying that there is a line of authority or a line of principle in decisions concerning exemption rates.

PN96

MR NUCIFORA: Yes, Commissioner.

PN97

THE COMMISSIONER: That they are incompatible with the safety net concept.

PN98

MR NUCIFORA: Yes, Commissioner. And therefore they should be removed.

PN99

THE COMMISSIONER: Right.

PN100

MR NUCIFORA: And there are a number of Federal awards that traditionally had exemption clauses.

PN101

THE COMMISSIONER: All right. And clause 21.5?

PN102

MR NUCIFORA: And clause 21.5, Commissioner, transport of employees, we don't see that that is not allowable as it is. There are similar provisions in other awards. I must admit I have not had a chance to discuss it at length.

PN103

THE COMMISSIONER: Is that right? Was that the subject of - was that the subject touched upon in the section 109 review decision? I have a feeling it was.

PN104

MR NUCIFORA: It may have been a provision that was re-drafted, but I haven't had a chance to check - - -

PN105

THE COMMISSIONER: Yes. Well, you just said that it is allowable as it is. I doubt that that is right.

PN106

MR NUCIFORA: As it is, but it may have been re-drafted.

PN107

THE COMMISSIONER: Yes.

PN108

MR NUCIFORA: Commissioner, I haven't had a chance - - -

PN109

THE COMMISSIONER: I mean, it could easily be changed so that an allowance would be provided in those circumstances.

PN110

MR NUCIFORA: Yes. We think it is that, and it could be that - - -

PN111

THE COMMISSIONER: And I should indicate that I think that has been a common practice.

PN112

MR NUCIFORA: Yes.

PN113

THE COMMISSIONER: That some sort of transportation allowance has been substituted.

PN114

MR NUCIFORA: Yes. That was one that, Commissioner, we were going to seek to check up on in terms of - I knew that it existed in other awards; I hadn't had a chance to check that, but - - -

PN115

THE COMMISSIONER: Well, you may achieve your objectives by looking at a re-draft of the idea that - towards the idea that an employee will be reimbursed the reasonable cost of transportation by taxi or whatever that is.

PN116

MR NUCIFORA: Commissioner, the next matter - I am just going through the list of issues - - -

PN117

THE COMMISSIONER: Yes. It is 28.1.

PN118

MR NUCIFORA: 28.1. And we would say the same about that, that there may be a travelling allowance or there may be a reimbursement-type provision provided there. And so I would put that in the same category as 21.5.

PN119

THE COMMISSIONER: 28.1.1 are you referring to?

PN120

MR NUCIFORA: Yes.

PN121

THE COMMISSIONER: 28. - the whole of 28.1 is said to be non-allowable, is it?

PN122

MR NUCIFORA: Yes, the whole; it seems to be the 28.1, the whole of - yes, it should reflect the parent award. Now, if that has been varied in the parent award, and we would say that about the previous provision, we would follow the parent award, clause.

PN123

THE COMMISSIONER: Well, that is not - well, then, there is agreement on that, is there?

PN124

MR NUCIFORA: They have always been there. If that has been - - -

PN125

THE COMMISSIONER: So we can take - we can take that as a disagreed matter off the agenda. Is that right?

PN126

MR NUCIFORA: Yes, Commissioner. The other matters that we raise, we mention the employer response, and I think we just had a discussion for the first time this morning with Ms Hayes about updating who the employers are; I don't think there is going to be any major controversy over that, just a matter of checking who the - whether names have changed and - apart from potential controversy over whether there is dispute-finding with employer names that - employers that may be trading under different names, but apart from that I don't think in principle there is any problem with that.

PN127

THE COMMISSIONER: Well, let me just understand your position in relation to what is contentious, that there are only four matters which are contentious. They are comprised of the proposition that the exemption clause be deleted, that clause 21.5 is not allowable and that the wage rates and the classification structure should be recast in accordance with your proposal. They are the contentious matters from your perspective.

PN128

MR NUCIFORA: Yes, Commissioner.

PN129

THE COMMISSIONER: And otherwise you are happy with the draft and the other proposals made on behalf of the employers by Ms Hayes?

PN130

MR NUCIFORA: Yes, Commissioner. There is only one proviso that we have been putting all through this and still haven't had a chance to double-check this; I am sure it is okay, but in terms of entitlements that are otherwise allowable there is an implementation of the 38-hour week and there is a - changed the divisor on a number of things, some of which we have raised, others we haven't. What we would say though is we would reserve our rights on anything that is otherwise allowable but hasn't been checked, but everything else - - -

PN131

THE COMMISSIONER: All right. Well, I won't hold you to this. I am just - this is just a sort of - - -

PN132

MR NUCIFORA: Yes. Otherwise, Commissioner, we are fine.

PN133

THE COMMISSIONER: - - - an overview, all right?

PN134

MR NUCIFORA: Thank you, Commissioner.

PN135

THE COMMISSIONER: Good. Thank you. Yes, Ms Hayes. You might go through the same order if you would, starting with the wages and classification structure.

PN136

MS HAYES: Commissioner, as Mr Nucifora said, we have only received this proposal this morning, although it has been discussed generically I guess before that time. We would like the opportunity to talk to the MTA Queensland, MTA New South Wales with respect to the proposal in its detail. However, our position at this stage is that we would say that it does involve a general review of the level of award entitlements, and in that case it would be contrary to the award simplification principles. However, we are certainly happy to look at it and discuss it with our colleagues in New South Wales and Queensland.

PN137

THE COMMISSIONER: What do you say to the proposition that the award may require updating if it is to be an appropriate minimum rates award, given that there has been no structural efficiency adjustment?

PN138

MS HAYES: It may be a situation that would require - - -

PN139

MR NUCIFORA: Sorry, Commissioner, I may have misheard you then, but there have been safety net adjustments made - - -

PN140

THE COMMISSIONER: Yes.

PN141

MR NUCIFORA: - - - but it had - - -

PN142

THE COMMISSIONER: But there has been no structural efficiency - - -

PN143

MR NUCIFORA: Sorry, yes, Commissioner.

PN144

THE COMMISSIONER: - - - adjustment to the classification levels and to the wage rates.

PN145

MS HAYES: I would say that it may be a situation where we might need to obtain evidence from Queensland about - - -

PN146

THE COMMISSIONER: We also might need to do a little bit of research on whether the Commission has actually decided this issue in the award simplification stream.

PN147

MS HAYES: I haven't come across any yet.

PN148

THE COMMISSIONER: Yes. No, I am not aware of any. That is why I say that it may be appropriate to do - I will do that, and I will find out whether or not this matter has been dealt with. All right? So your view is that really the best approach is to use the existing rates of pay and to deal with any classification and wage rate issues along the lines of Mr Nucifora of the ASU's proposal on application?

PN149

MS HAYES: That is correct, Commissioner, yes.

PN150

THE COMMISSIONER: Is there any reason why that couldn't be done, Mr Nucifora?

PN151

MR NUCIFORA: Sorry, that - - -?

PN152

THE COMMISSIONER: Is there any reason why that couldn't be done, why you couldn't - I mean, without prejudice to the proposition that it may be available under the award simplification principles.

PN153

MR NUCIFORA: Yes. What has happened with most clerical awards that have been simplified and more than half have been now, where the structure clearly - where the classification structure hasn't been restructured as per the '89 decision then it has been dealt with most often by consent.

PN154

THE COMMISSIONER: Well, when you say "most", I mean, has the issue been arbitrated?

PN155

MR NUCIFORA: It actually - - -

PN156

THE COMMISSIONER: Because we don't have consent here.

PN157

MR NUCIFORA: - - - it has, it has in the oil industry, I think, the Shell Award. But I would - - -

PN158

THE COMMISSIONER: Do you know which member of the Commission did that?

PN159

MR NUCIFORA: That was Senior Deputy President Cartwright. Now, we almost went to arbitration, a full bench, in fact, the ACT Clerks Award, those rates of pay are similar to the Victorian - the award - were quite low.

PN160

THE COMMISSIONER: Yes. Well, almost is not arbitration, is it?

PN161

MR NUCIFORA: No, it isn't, and I guess what we would say, that there are conflicting principles. There is the paid rates principle that says there ought to be properly set minimum rates, and then there is the principle that there ought not be variations above the - whatever the - - -

PN162

THE COMMISSIONER: Yes, but the paid rates principles only apply to awards that are fixed on market considerations, and this award surely doesn't fall into that consideration.

PN163

MR NUCIFORA: But a number of the awards, like the Clerks Breweries Award, was not a paid rate award - - -

PN164

THE COMMISSIONER: Yes.

PN165

MR NUCIFORA: And it was pared back, and we had residuals, pared back to the appropriate minimum. But there are other awards that - what we would say is that - - -

PN166

THE COMMISSIONER: What? Sorry, sorry. Just before you move on, you are moving pretty quickly through the ideas - - -

PN167

MR NUCIFORA: Yes.

PN168

THE COMMISSIONER: Are you suggesting that in the Breweries Award it was the paid rates principle that was used in order to pare back the award?

PN169

MR NUCIFORA: Yes, yes, minimum rates, yes. The paid rates principle, because there had to be properly set minimum rates. Now, the problem is the conflict of principles, because where is the safety net, and you are not meant to be - - -

PN170

THE COMMISSIONER: I understand.

PN171

MR NUCIFORA: But the Commissioner - - -

PN172

THE COMMISSIONER: Who dealt with that?

PN173

MR NUCIFORA: Vice President Ross. But, Commissioner, what I would say just to finish that point is that we would say that it is all consistent with the principle because an outstanding principle hadn't yet been applied, and that is the '89 structural efficiency - - -

PN174

THE COMMISSIONER: Yes, so it is not properly fixed minimum rates.

PN175

MR NUCIFORA: Yes. That is what we say to that, Commissioner, and we say it is all consistent.

PN176

THE COMMISSIONER: All right. Thank you. Yes, sorry, to interrupt you, Ms Hayes. Look, if I was to find the outcome that the ASU seeks was potentially available as part of the award simplification process, subject to any detailed instructions you might get, do you have any sort of view as to what would be involved in your opposition to an award in the terms sought?

PN177

MS HAYES: I think in the motor vehicle industry we perhaps need to have evidence about the levels that might be appropriate, what might be in the Vic Clerks Award with - the six level classification may not be appropriate in the motor vehicle industry.

PN178

THE COMMISSIONER: All right. So essentially what you are envisaging is some sort of a hearing on this subject involving the calling of evidence.

PN179

MS HAYES: If agreement can't be reached, yes.

PN180

THE COMMISSIONER: Yes. All right. Thanks.

PN181

MS HAYES: The next matter I think was the exemption. The two main issues are the classification and wages and the exemption issue. We would say that the decision that Mr Nucifora is referring to, particularly the Clerks Breweries decision, related to a case that - I am sorry, related to an award that had a $25 amount over the maximum award level, whereas the award level in this particular award is 33-1/3 per cent over the highest rate in the award and we would say that that makes it a different situation. And certainly whilst the Clerks Breweries did refer to this award, they merely referred to it as an example of an award that has an exemption rate.

PN182

THE COMMISSIONER: Of an award that had an exemption rate, yes. Yes, so you say there is no direction in that decision in relation to this award except that the value of it as some relevant decision of a Full Bench concerning the principle of exemptions as opposed?

PN183

MS HAYES: That is our position, Commissioner, yes.

PN184

THE COMMISSIONER: Yes. All right. If you were to oppose the deletion of the exemption, as I understand you do, and you settle on that, what would that involve do you think in terms of proceedings?

PN185

MS HAYES: We would say that that is an allowable award matter and if Mr Nucifora wanted to take that further there would perhaps need to be a reference, as we have discussed under section 107 perhaps I think to have it determined.

PN186

THE COMMISSIONER: All right.

PN187

MS HAYES: But, Commissioner, if I might suggest we were discussing previous to this - or prior to this conference that a further conference might be appropriate after further discussions with our colleagues in Queensland and New South Wales perhaps to look at those two outstanding issues.

PN188

THE COMMISSIONER: So do you accept that clause 21.5 can be reasonably redrafted?

PN189

MS HAYES: I think it can, Commissioner, yes.

PN190

THE COMMISSIONER: All right. Why don't I attempt to have that redrafted, save you the trouble, then you can have a look at it and see whether you are interested in it or not?

PN191

MS HAYES: That might be appropriate, sir.

PN192

THE COMMISSIONER: How do you feel about that? Are you happy with that. Well, I think that brings us down to effectively three issues, doesn't it? That is what I understand you say, Ms Hayes, there are three issues here that potentially need to be decided?

PN193

MS HAYES: That is correct, sir.

PN194

THE COMMISSIONER: Depending upon further discussions between the parties; is that right.

PN195

MS HAYES: That is correct, sir.

PN196

THE COMMISSIONER: All right. I notice that Mr Nucifora is nodding. Well, look, what I want to do is to set aside a date which would be available for the hearing of any evidence - any witness evidence that was to be called in relation to those issues. I suggest 12 June.

[11.19am]

PN197

MS HAYES: Commissioner, I have a conciliation conference that day for an unfair dismissal matter.

PN198

THE COMMISSIONER: What time is that?

PN199

MS HAYES: At 1 o'clock pm.

PN200

THE COMMISSIONER: We can fit it around that.

PN201

MS HAYES: That we could probably fit around, yes.

PN202

THE COMMISSIONER: Yes, all right. What I will do is arrange for some directions in relation to the filing of outlines of argument and witness statements if necessary. So they will be in two stages. There is the filing of outlines of argument. I will give you a chance to confer before you do that; see if you can reach agreement. So what I am thinking is that - are you going to confer next week?

PN203

MS HAYES: Commissioner, unfortunately, as I mentioned at the last conference, I am on study leave next week.

PN204

THE COMMISSIONER: All right.

PN205

MS HAYES: Whilst I will try to speak with Mr Nucifora - - -

PN206

THE COMMISSIONER: So you will be conferring in the week beginning the 2nd; is that right?

PN207

MS HAYES: Beginning 2 June, yes, sir.

PN208

THE COMMISSIONER: Then if we are on on the 12th - what I would suggest is that we have - the outline of arguments will be filed by the close of business on the 5th and your witness statements on the 10th. Now, that may be unnecessary but everybody knows what the sequence of events is now and we will proceed on the 12th. Can I just make that clear?

PN209

MR NUCIFORA: Yes.

PN210

THE COMMISSIONER: If it is not agreed we will definitely be proceeding on the 12th. I won't adjourn the proceedings any longer after that date. I will actually proceed, give the parties an opportunity to be heard and if there are issues outstanding I will determine them.

PN211

MS HAYES: Yes, Commissioner.

PN212

THE COMMISSIONER: So I recommend to the parties that they confer in the week beginning 2 June with a view to reaching agreement on the outstanding matters for the purposes of the simplification of the award; that if they have not reached agreement by 5 June that outlines of argument in relation to the subject of the appropriate wage rates, classification structure and the exemption clause be filed by the close of business on that day, and if a hearing for the purpose of taking evidence is necessary on the 12th, that witness statements by those persons who will give evidence be filed by the close of business on 10 June.

PN213

I will have those directions reduced to writing and forwarded to the parties in due course. Thank you. What I suggest is it also might be profitable if we now adjourn the proceedings and have a conference in relation to the matter.

PN214

MS HAYES: Thanks, Commissioner.

PN215

THE COMMISSIONER: Very well. Thank you. Well, I will adjourn these proceedings to a time and date to be fixed. If necessary that will be on 12 June at 10 am. Thank you.

ADJOURNED ACCORDINGLY [11.24am]