C0091/699, Transcript of Proceedings [2003] AIRCTrans 2911 (11 July 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 3431
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C No 00916 of 1999

MARKET RESEARCH INDUSTRY
- CONSOLIDATED AWARD 1996

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

MELBOURNE

2.15 PM, THURSDAY, 26 JUNE 2003

Continued from 25.3.03

PN7

THE DEPUTY PRESIDENT: Any changes in appearance? No. Since the last occasion, I think directions were sent out and I have received the following correspondence. First of all an email from Antonia Parkes of the National Union of Workers dated 29 May, attaching an NUW in principle agreed draft order which it considers meets the requirements of the simplification provisions of the Act. Following that, on 30 May 2003 I received an email from Mr Graham Ihlein, AMRO industrial relations advocate, advising that AMRO, the Association of Market Research Organisations, consented to the making of an award in the form forwarded by the NUW, in summary. Is that correct?

PN8

MS PARKES: If the Commission pleases. Your Honour, I think it gives me great pleasure to indicate that the parties, subject to any issues that your Honour may have, that the parties have been able to reach agreement on the content of the draft award and hence preventing lengthy hearings on outstanding issues and we would like to thank your Honour for your insight onto those issues when we were last before you in conference. If I could just tender, your Honour, a document. The substance of the document is not different from that that has been electronically sent to you, your Honour.

PN9

THE DEPUTY PRESIDENT: All right.

PN10

MS PARKES: Just in terms of the respondency list, the list was divided into two sections. There had been some employers, your Honour, where mail had been returned and it wasn't sure as to whether those employers still existed and three or four of those employers have been moved from one part of the schedule to the other, because we have since established that those employers do exist.

PN11

THE DEPUTY PRESIDENT: That is the only change, is it, to the respondency list?

PN12

MS PARKES: Yes, so that is the only change, the actual substance of the document itself, save for inserting in the relevant dates and your Honour stamping that.

PN13

THE DEPUTY PRESIDENT: I had better mark all these documents.

EXHIBIT #NUW3 EMAIL AND AWARD FORWARDED BY NUW DATED 29/05/2003

EXHIBIT #NUW4 REVISED DRAFT AWARD

EXHIBIT #I1 EMAIL FROM AMRO

PN14

THE DEPUTY PRESIDENT: Out of interest, what did happen to those four or so issues?

PN15

MS PARKES: Your Honour, the parties were able to have discussions.

PN16

THE DEPUTY PRESIDENT: What was the resolution?

PN17

MS PARKES: In terms of the resolution of the issues, it was agreed that - there was an issue in relation to the format of the dispute resolution training leave and the role of delegates and the parties were able to agree on a term based on a provision in the existing award. In relation to the - - -

PN18

THE DEPUTY PRESIDENT: The minimum wage.

PN19

MS PARKES: The minimum wage, your Honour, the parties were able to agree that the minimum wage should apply, so that necessitated arguments in - - -

PN20

THE DEPUTY PRESIDENT: So the minimum wage applies to this particular category of employees?

PN21

MS PARKES: Yes, it was the employees on commencement, your Honour, that was in query so the parties were able to reach a resolution in relation to the dispute resolution training leave, which was previously the trade union training leave, your Honour, in the old award. The parties were able to agree on a format.

PN22

THE DEPUTY PRESIDENT: A substitute clause which provides for trade union training and the dispute settlement clause.

PN23

MS PARKES: That is correct, your Honour, and finally the parties were able to agree on an appropriate personal effects allowance. The document before you, your Honour, we would submit meets the requirements of the Workplace Relations Act and the WROLA Act.

PN24

THE DEPUTY PRESIDENT: Just remind me what the personal effects allowance is?

PN25

MS PARKES: For things like damaged spectacles, your Honour.

PN26

THE DEPUTY PRESIDENT: Right.

PN27

MS PARKES: A maximum claim that an employee is able to receive from an employer.

PN28

THE DEPUTY PRESIDENT: Is this a new allowance been created?

PN29

MS PARKES: No, it was an existing allowance. The issue was to what it should be increased, given that it hadn't been varied for a period of time and the parties were able to agree on an appropriate amount, your Honour.

PN30

THE DEPUTY PRESIDENT: Right, and you have increased that in compliance with the principles governing the adjustment of allowances?

PN31

MS PARKES: Yes, the parties had consideration to the CPI indicators, the change from the time that the allowance had last been varied.

PN32

THE DEPUTY PRESIDENT: And that is the way it is to be adjusted in accordance with the principles governing adjustment of allowances, is it?

PN33

MS PARKES: Yes, your Honour, so in all future adjustments of appropriate allowances, where they are - - -

PN34

THE DEPUTY PRESIDENT: It is an expense related allowance, is it?

PN35

MS PARKES: Yes, so that would be done in accordance with CPI as opposed to the Furnishing Glass formula for work related allowances.

PN36

THE DEPUTY PRESIDENT: Now, on this issue of trade union training and dispute resolution, just remind me. I think the authorities are essentially this, that the seven member bench that originally considered this issue raised the possibility that trade union training leave to enable training and dispute resolution procedures might conceivably be allowable as incidental and necessary to the allowable matter being dispute settling procedures. Now, just tell me this. I am sure you have an answer. How am I to be satisfied that it is incidental and necessary for the effective operation of this award for this provision to be included in it, that being I think the legal test that I have to be satisfied of?

PN37

MS PARKES: Your Honour, we would submit that indeed the dispute resolution training leave is necessary for the effective operation of the award and in particular is incidental and necessary to the disputes procedure on the basis that the award covers a large range of enterprises, covers a very large workforce in terms of the number of companies involved, it is a highly casualised industry and in terms of assisting delegates at the workplace or other elected workplace representatives in their capacity to resolve any disputes at the workplace as per the disputes procedure, it is vital that some sort of provision for training went to the disputes procedure take place. Further, your Honour, we would note that the parties have reached agreement on the form of a clause that is very similar to that in a range of other awards that have been before this Commission in terms of being simplified awards, your Honour.

PN38

THE DEPUTY PRESIDENT: Is that statement of facts agreed between you? Mr Ihlein, do you agree with that?

PN39

MR IHLEIN: Yes, if the Commission pleases, I should indicate two things. Firstly, we are engaged in a range of industry negotiations over the last six to eight weeks as to renegotiation of an agreement for the industry that expires nominally on 30 June. We have taken into account our desire to achieve good will in those negotiations and, secondly, that we have taken into account that the award as varied, these particular provisions would not be relevant to the no disadvantage test and given that we have an agreement that currently operates in the industry and includes these types of provisions, we are not concerned that it creates any - - -

PN40

THE DEPUTY PRESIDENT: I can understand that, but the two issues you have just raised seem to me to be almost certainly irrelevant to the issue I ask you about which is whether that particular provision is incidental and necessary for the effective operation of the award. Ms Parkes has put to me a set of facts which in her view make it such. I really don't think it matters whether or not good will is created for your industry negotiations or whether a clause of that sort is in the industry award or not. In fact, to be perfectly frank, that submission would tend to incline me to suspect that the provision is other than incidental and necessary, so do you have a submission to put on the actual legal test that has to be satisfied?

PN41

MR IHLEIN: Well, our submission would be that we do accept the submission put that the Commission's tests would be complied with in this case.

PN42

THE DEPUTY PRESIDENT: Thank you very much.

PN43

MS PARKES: If I could just add, your Honour, there is also a number of respondents to this award that are not covered by the industry agreement, so if your Honour was minded to give any weight to those particular issues, there are quite a large number of respondents not covered by any agreement and, hence, for them the award is the sole form of instrument monitoring such conditions and we would say that because of the vast range of employers covered by this award and the vast range of employees and the nature of the workforce in this industry being casual, approximately 90 per cent casual, I would add, that it is very necessary for the effective and smooth operation of any grievances at the workplace that there be a training mechanism in place, your Honour.

PN44

THE DEPUTY PRESIDENT: Well, this evidence isn't contested in any way. Therefore, I am prepared to accept it from the bar table in the current circumstances. Thank you for that.

PN45

MS PARKES: Thank you, your Honour.

PN46

THE DEPUTY PRESIDENT: I think I raised with you one issue which is that of whether parental leave counts for the purposes of service, for the purpose of various leave entitlements.

PN47

MS PARKES: Parental leave would count towards - it wouldn't break the continuity of service, your Honour, if there was any issue in relation to that. It wasn't the intent of the parties to do that.

PN48

THE DEPUTY PRESIDENT: No, no, I understand that argument, but the issue is this. Say an employee takes 12 months' parental leave, right. Now, I understand the continuity of service isn't broken and that is quite appropriate and I have no issue at all with that. The question is does that 12 months' service during parental leave count for the purposes of accumulation of annual leave, sick leave and other forms of leave in the award, including parental leave, I suppose? Do you see what I mean? Is that dealt with in this draft?

PN49

MS PARKES: I will have a look, your Honour. It is our understanding, your Honour, that we submitted the test case standard in relation to parental leave.

PN50

THE DEPUTY PRESIDENT: Yes. You see, the test case standard was handed down, an award which provided in the annual leave, sick leave and other clauses that parental leave didn't count for the purposes of service and this award may not include such provisions.

PN51

MS PARKES: Certainly, your Honour.

PN52

THE DEPUTY PRESIDENT: I probably should have checked this, but unfortunately I have been busy. If you have a look at clause 27, it just says:

PN53

Every full-time employee shall at the end of each year of employment become entitled to annual leave.

PN54

MS PARKES: Your Honour, perhaps what may be appropriate, I am aware that there was a clause in the previous parental leave of the current award, your Honour, prior to simplification which deals with that particular issue. It may be possible and if I could read that onto the transcript, the parties could put that - forward that to your Honour's chambers, that one amendment and that could be incorporated into the NUW4, your Honour.

PN55

THE DEPUTY PRESIDENT: That would be suitable.

PN56

MS PARKES: If that would satisfy your Honour's concerns.

PN57

THE DEPUTY PRESIDENT: It certainly would. I will read the clause. I have it in front of me. Is it this clause:

PN58

Subject to this clause, notwithstanding any award or other provision to the contrary, absence on maternity leave -

PN59

I suppose that should be parental leave -

PN60

shall not break the continuity of service of an employee, but shall not be taken into account in calculating the period of service for any purpose of any relevant award or agreement.

PN61

MS PARKES: That is correct, your Honour, so that could be inserted within clause 30, the parental leave clause. Perhaps at the end of clause 30, it could be inserted as subclause 30.11, your Honour, and subject to that amendment being made to exhibit NUW4, that would satisfy your Honour's concerns.

PN62

THE DEPUTY PRESIDENT: I think it would. I take it that is agreed between you, is it?

PN63

MR IHLEIN: Yes.

PN64

THE DEPUTY PRESIDENT: Yes, AMRO has indicated its agreement.

PN65

MS PARKES: And, your Honour, we would undertake to make that amendment and to forward that electronically to your chambers.

PN66

THE DEPUTY PRESIDENT: Does NUW4 include the latest safety net adjustments?

PN67

MS PARKES: No, your Honour, what the parties have agreed to, because there had not been a 12 month period, the parties have agreed that it will reflect the 2002 safety net adjustment and that the 2003 safety net adjustment, in due course the parties will make application for that, but the parties have agreed that that would take effect from the first pay period on or after 1 February 2004, your Honour.

PN68

THE DEPUTY PRESIDENT: Thank you. That is quite a logical thing for the parties to do. Is there anything else in this you want to draw my attention to, something I have missed? I will be looking at it again, so it is probably best to raise it now, if there is something.

PN69

MS PARKES: Certainly, your Honour, Mr Ihlein has just reminded me and in terms of the schedule of respondents and this is just a typographical error when we were cutting and pasting the changes. On page 38, your Honour - - -

PN70

THE DEPUTY PRESIDENT: I see it. It is handwritten.

PN71

MS PARKES: It is written in. It should be Pty Limited there.

PN72

THE DEPUTY PRESIDENT: I see that. Thank you. So it is A.C. Nielsen Research Pty Limited. Thank you very much, Mr Ihlein. Is there anything else of a contentious nature that you want to deal with, Ms Parkes? Is there anything else in this draft that is of a contentious nature?

PN73

MS PARKES: Your Honour, I am not aware of any other issues that are of a contentious nature. Should your Honour subsequently discover that there might be, we would certainly be happy to provide further submissions if necessary, your Honour.

PN74

THE DEPUTY PRESIDENT: It has personal carer's leave in it, has it?

PN75

MS PARKES: It does, your Honour.

PN76

THE DEPUTY PRESIDENT: How did you approach the difficult issue of calculating the numbers? It is a difficult question to ask, but I myself have seen a whole range of mistakes made on that issue.

PN77

MS PARKES: Your Honour, in terms of - this was an agreed clause very early on in the piece. In terms of the personal leave clause, the parties - - -

PN78

THE DEPUTY PRESIDENT: It is the aggregate of sick leave and what?

PN79

MS PARKES: Carer's leave and the bereavement leave, although the bereavement leave component doesn't accrue from year to year. It is what is left of the sick leave and the carer's leave, your Honour, and the parties were able to come to an agreed formula. It should be noted that given that the nature of this industry is casual, there is very few employees that are impacted by this, but the parties were able to, based on the Commission's test case provision in relation to personal leave, were able to do the calculations on that and there is no dispute between the parties as to the calculations, your Honour.

PN80

THE DEPUTY PRESIDENT: That may be the case, but how did you do them, out of interest? I am sorry to ask you that, but it is actually a very difficult technical exercise and in a lot of awards I think errors have been made, rightly or wrongly. Did you take the - I mean, was the previous award in hours, for example, or was it in days in terms of the sick leave entitlement?

PN81

MS PARKES: Your Honour, if you would just bear with me one moment, please?

PN82

THE DEPUTY PRESIDENT: Of course. Take your time. I don't pretend it is an easy question, quite the contrary.

PN83

MS PARKES: Your Honour, in respect to the entitlement in the previous award, sick leave was calculated in terms of hours at the rate of 0.73 hours per completed week in the first year of regular employment, that is 38 hours per year, so that was something that was expressed in terms of hours. In terms of the bereavement leave, because the carer's leave was expressed in the old form of the family leave, your Honour, and compassionate leave or bereavement leave is a term that, your Honour, was also expressed in hours, 15.2 hours, so the reference to in the first year of employment 15.2 hours is the bereavement leave component, your Honour, plus 0.73 hours per completed week is the reference to the sick leave component, your Honour, as per the previous award, so that it preserves the existing entitlement.

PN84

THE DEPUTY PRESIDENT: And the figure 76 is the sum of 15.2 and 0.73 hours per completed week, is it?

PN85

MS PARKES: I would have to imagine that it would be so, your Honour. Unfortunately, I don't have my calculator here.

PN86

THE DEPUTY PRESIDENT: No, that is fine.

PN87

MS PARKES: Yes, each year thereafter that would be, so sick leave does increase to 60.8 - sorry, your Honour, sick leave increases in the second year onwards to 60.8 hours per year, so 60.8 hours plus 15.2 hours which is the bereavement leave component equates to the 76 hours. I do apologise for that confusion, so that is where the 76 hours has come from. It preserves the entitlement in the current award, your Honour, and how that is expressed.

PN88

THE DEPUTY PRESIDENT: I have seen some awards where they have to change hours to days and days to hours. It was very difficult.

PN89

MS PARKES: Certainly, your Honour, we have come across awards like that. Where possible, we do try and reflect what is in the existing award.

PN90

THE DEPUTY PRESIDENT: That is fine. That is relatively straightforward, so there is nothing else you want to discuss? That is excellent. Thank you very much for those submissions and for the work you have done and congratulations on reaching agreement which is not necessarily a straightforward thing to do, I understand, including on the four difficult issues you mentioned on the last occasion. I will certainly review the draft in the light of the submissions you have put and hopefully will be able to issue an order as soon as possible in the form you seek. However, I will be looking at it again in the light of what you have said today and I will also have it checked by the award simplification unit in case there is something I miss. Thank you very much for coming and good luck with your industry negotiations.

ADJOURNED INDEFINITELY [2.36pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW3 EMAIL AND AWARD FORWARDED BY NUW DATED 29/05/2003 PN14
EXHIBIT #NUW4 REVISED DRAFT AWARD PN14
EXHIBIT #I1 EMAIL FROM AMRO PN14