C2003/2332, Transcript of Proceedings [2003] AIRCTrans 2598 (25 June 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10415

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2003/2332

FRONTLINE DEFENCE SERVICES
CLERICAL OFFICERS AWARD 2002

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award

MELBOURNE

9.01 AM, WEDNESDAY, 11 JUNE 2003

PN1

MR J. NUCIFORA: I appear for the Australian Services Union.

PN2

MR R. BAXTER: I appear on behalf of Army and Air Force Canteen Services.

PN3

THE COMMISSIONER: Thank you, Mr Baxter. Mr Nucifora.

PN4

MR NUCIFORA: Thank you, Commissioner. Commissioner, this is an application to vary the Frontline Defence Services Clerical Officers Award 2002 to insert the 2003 safety net adjustment pursuant to PR002003. Also we have taken the opportunity to make an application to vary the award in relation to the working hours, the full bench decision, in particular the overtime test case clause. Commissioner, you would be award this was originally listed for hearing on 19 May. If I may by way of service table a copy of correspondence that was sent to Frontline Defence Services in relation to the notification, if I may tender that as an exhibit.

EXHIBIT #ASU1 COPY CORRESPONDENCE TO FRONTLINE DEFENCE SERVICES

PN5

MR NUCIFORA: Commissioner, ASU1 is a letter dated 16 May. It is a covering letter and includes a bundle of documentation which goes to certainly the copy of the application that was lodged, the notification for the original hearing date of 19 May. There is a draft order attached, but there were some minor amendments to that and I won't rely on that today as a final draft order. Attached to that are transmission reports that go to confirming that the employer, indeed, Mr Hume and Mr Baxter, acting for Frontline Defence Services today was duly notified.

PN6

What is important about the covering letter too, Commissioner, is the explanation of the various variations to the meal allowance and the first aid allowance, one being expense-related of course, and the other being work-related. Arising from the re-listing of this matter to today's date, if I may table a further exhibit which goes to notification to the employer in relation to today's hearing.

EXHIBIT #ASU2 NOTIFICATION TO EMPLOYER IN RELATION TO HEARING

PN7

MR NUCIFORA: Commissioner, ASU2 is correspondence from our union dated 6 June to Mr Hume. It was meant to have been faxed to Mr Baxter, but I wasn't able to get it through, but certainly got through to Mr Hume, and that is confirmed by the transmission report attached. Of course, Mr Baxter is here today. He was aware from Mr Hume and also from an e-mail from my office that in fact today's hearing was to proceed. Commissioner, if I finally may table a - what we believe to be a consent order except for one aspect, if I may table that as an exhibit, if you like, as getting close to the final order.

EXHIBIT #ASU3 CONSENT DRAFT ORDER

PN8

MR NUCIFORA: Thank you, Commissioner. Exhibit ASU3 is a draft order which includes the varied table of rates, and all of those would have been for $17, given that the rates of pay were below the threshold. We include in item A2 the most recent safety net adjustment absorption provision, and we take the opportunity, Commissioner, to on behalf of the union make the commitment required under principle 8(d) in relation to absorption, and the union commits to of course - as per the new clause there.

PN9

Of course, the rest of (a) goes to the various allowances that have been consented to, work and expense-related allowances as per traditional variations to this award around this time of year. In (b) we have of course the reasonable overtime - the test case clause that we have taken the opportunity to include. Now, this award was simplified before Deputy President Ives on 15 October 2002. At that point we were not too sure about including the reasonable overtime provision as we know it, but we are now taking the opportunity to vary all of our awards - most, if not all of our awards in relation to that provision.

PN10

We have included it there, and we think it logically fits in at 22.7 as reasonable overtime. Commissioner, I understand there were some variations that went to - the original draft order had mistakenly put in - there was confusion in terms of the clause there, but that has now been rectified. What remains outstanding, Commissioner, is the operative date. The operative date, and I think there was some e-mail or correspondence to the Commission in relation to that. Frontline as Mr Baxter has indicated relies on 15 October, which is the date the award was simplified, and of course in conjunction with the simplification Deputy President Ives had approved the 2002 safety net adjustment, and I refer you there to PR921025, and in that - - -

PN11

THE COMMISSIONER: PR921?

PN12

MR NUCIFORA: 1025.

PN13

THE COMMISSIONER: Thank you.

PN14

MR NUCIFORA: And, Commissioner, that is the decision of his Honour, Deputy President Ives, which goes to simplifying this award and also the safety net review application, it being included in that award. Now, Mr Baxter is relying on that date, 15 October, as the operative date when in fact we would say the operative date ought to be no later than 7 August, which would have otherwise been the 12-month period, and in previous years the award had been varied around that same date. And I might add that the application to vary this award was lodged for - the 2002 safety net adjustment - was lodged on 3 July 2002 before what would have been the normal operate date.

PN15

Commissioner, in terms of - I can refer you to a further print number, if you like, for the 2001 safety net adjustment in PR907370, and the operative date for the 2001 safety net adjustment was 7 August 2001. Now, we say that that ought to be the latest date, 7 August 2003 ought to be the latest operative date for the operation of the draft order before you. Of course, under principle - our primary position would be if the criteria meet, if you like, principle 8C, the 12-month can be waived if employees are paid above the award, that is, there is no actual increase, and we do have an enterprise-based award, here we know it is a known quantity.

PN16

We know that there - and we are not sure if that criteria can actually be met right across the board with Frontline. There may be employees who will get an actual increase whenever the operative date ends up being, but of course the third aspect - the criteria needs to be, as I recall, although it is not in that principle there, but in the past, there ought to be consent from the employer which would probably confirm criterion 2, that is, employees would not get an actual increase.

PN17

We would say today that if all employees, and we are not certain about this and we will wait to hear from Mr Baxter, but if all employees are paid above the award and would not get an actual increase as a result of this variation, then in fact it would be unreasonable for the employer to withhold today actually being the operative date. On the other hand, if employees are actually going to - and there may be a couple of employees, and we are not certain about this, that would be affected by an increase, the operative date ought to be no later than 7 August 2003, and we would say definitely should not be as late as 15 October 2003 just because of the convenience of issuing the simplified award on that same date last year.

PN18

I hope I have made myself clear on that, Commissioner.

PN19

THE COMMISSIONER: No, no. I understand.

PN20

MR NUCIFORA: But otherwise I don't think there is any - there is consent on the variation, the allowance calculations and also the reasonable overtime clause as it is drafted in exhibit ASU3. If the Commission pleases.

PN21

THE COMMISSIONER: Thanks, Mr Nucifora. Mr Baxter.

PN22

MR BAXTER: Thank you, Commissioner. Commissioner, Mr Nucifora has represented that there is consent to the majority of the draft order and the application, and Commissioner, that is true in respect of the overtime meal reimbursement and the expense - first aid expense allowance, and it is also true of the insertion of the reasonable overtime test case. Commissioner, Mr Nucifora has also corrected a couple of minor errors in the revised draft order tabled today and handed to me also today, and we welcome those changes.

PN23

The operative date, which is the area of concern to the employer, is in the eyes of the employer not a question of reasonableness or any other issue. It goes to the heart of the two limbs of principle 8, and 8C in particular, and there are two questions, so it is whether there is consent and secondly that there is no unnecessary cost implication. At this stage the employer is of the mind that it doesn't consent as a matter of principle because 12 months haven't elapsed, so it is not a question of any other issue there.

PN24

THE COMMISSIONER: Well, that might go to reasonableness, wouldn't it, Mr Baxter?

PN25

MR BAXTER: I haven't - if the Commission pleases, I haven't quite finished yet.

PN26

THE COMMISSIONER: Sorry.

PN27

MR BAXTER: In respect of the employees we are talking about small numbers involved.

PN28

THE COMMISSIONER: Yes.

PN29

MR BAXTER: Less than 10 nationally. To the best of my knowledge, some what - eight of those 10 are paid above award, and they are located in the head office of the employer in Brisbane. The other two will be paid closer to the award rates; whether they are in fact above award I can't represent to you today, but they will be closer to it. So, there is a very fine line. There are very small numbers. The employer, however, is not interested in being capricious or unreasonable altogether in the matter.

PN30

In looking at the dates of the last two safety net review increases which Mr Nucifora has quite rightly pointed out are 7 August, the last two years, and given that the union has been particularly helpful in the work on the award-simplification that Deputy President Ives dealt with last year, the employer would consent to a 7 August 2003 operative date and would agree with that quite readily being certainly in practise at least 12 months since the date of the last increase, and that would be the employer's position on this particular application.

PN31

THE COMMISSIONER: Thanks, Mr Baxter.

PN32

MR BAXTER: Thank you.

PN33

THE COMMISSIONER: What about the reasonable hours? Do you consent to that occurring today?

PN34

MR BAXTER: Commissioner, I did state that we consented to that matter.

PN35

THE COMMISSIONER: Thank you. Now, Mr Nucifora, what do you say about 7 August?

PN36

MR NUCIFORA: Commissioner, we would accept as we did through the simplification of this award the word of Mr Baxter, and we would accept 7 August as an operative date. If the Commission pleases.

PN37

THE COMMISSIONER: We are in furious agreement, then.

PN38

MR NUCIFORA: It doesn't happen often.

PN39

THE COMMISSIONER: This is an application to vary the Frontline Defence Services Clerical Officers Award 2002 to include increases in rates resulting from the decision of the full bench in the safety net review wages decision of 6 May 2003 together with the provisions resulting from the reasonable hours test case handed down on 23 July 2002. Save for the operative date, the terms of the order are agreed. In submissions this morning Mr Nucifora argued that the operative date should be 7 August as that coincided with the regular 12-monthly operative date of previous national wage case decisions, with the exception of the 2002 decision.

PN40

The 2002 decision was combined with the award-simplification process, and the operative date was 15 October 2002. In this matter the employer does not consent to a date - I withdraw that. In this matter the employer whilst it sees 15 October as being the 12-month cycle as referred to by principle 8B, it nonetheless, pursuant to principle 8C, consents to an early operative date given the co-operative approach to the award-simplification and to its relationship with its own employees. The earlier date consent to by the employer is 7 August of this year. That coincides with the submission of Mr Nucifora that the regular 12-monthly cycle is normally 7 August.

PN41

In these circumstances I am prepared to approve that consent and I will vary the award in relation to increases in wage rates and allowances to apply from the first full pay period to commence on or after 7 August 2003. In respect of the matter in relation to the reasonable hours, or the reasonable overtime clause to be inserted in clause 22.7, I shall vary the award in relation to that matter to commence on or after today. The orders resulting from this matter shall remain in force for a period of 12 months. Yes, Mr Nucifora.

PN42

MR NUCIFORA: Sorry, Commissioner, I forgot to mention earlier that the supported wage system is up to date, the rate of pay at $56 as of simplification, and I know that was raised in the national wage principles.

PN43

THE COMMISSIONER: Yes.

PN44

MR NUCIFORA: The other thing is that we have sent electronic copy of the latest order to your associate late yesterday. If the Commission pleases.

PN45

THE COMMISSIONER: Splendid. Thank you very much. All right. Thank you for your assistance. Mr Baxter, I would be grateful if I could see you on another matter upon rising. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [9.19am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 COPY CORRESPONDENCE TO FRONTLINE DEFENCE SERVICES PN5
EXHIBIT #ASU2 NOTIFICATION TO EMPLOYER IN RELATION TO HEARING PN7
EXHIBIT #ASU3 CONSENT DRAFT ORDER PN8