C2003/2624, Transcript of Proceedings [2003] AIRCTrans 3040 (16 July 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 3529

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT DRAKE
COMMISSIONER GAY

C2003/2624, 2706, 3933, 2708,
2709, 3880, 4003, 4004, and 4005

RETAIL AND WHOLESALE INDUSTRY -
SHOP EMPLOYEES - AUSTRALIAN
CAPITAL TERRITORY - AWARD 2000

BRISBANE CITY COUNCIL SALARIED
STAFF AWARD 1992

GENERAL CLERKS (NORTHERN TERRITORY)
CONSOLIDATED AWARD 2000

Application under section 113 of the Act
by Shop, Distributive and Allied Employees
Association and another to vary the above
awards re increasing the minimum amount
payable under the Supported Wage System clause

TIMBER INDUSTRY - CFMEU WOOD PANELS -
AWARD 2000

TIMBER AND ALLIED INDUSTRIES AWARD 1999

Applications under section 113 of the Act
by Construction Forestry, Mining and Energy
Union to vary the above awards re Supported Wage
System for Employees with Disabilities clause

AUSTRALIAN PUBLIC SERVICE AWARD 1998

Application under section 113 of the Act
by the Community and Public Sector Union
to vary the above award re increase in Supported
Wage in 17.3.2 and 17.9.3

SADDLERY, LEATHER, CANVAS AND PLASTIC
MATERIAL WORKERS AWARD 1999

HOTELS, MOTELS, WINE SALOONS, CATERING,
ACCOMMODATION, CLUBS AND CASINO EMPLOYEES
(NORTHERN TERRITORY) AWARD 2002

COMMUNITY AND AGED CARE SERVICES (ACT)
AWARD 2002

Applications under section 113 of the Act
by Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary the
above awards re increase in minimum amount
payable - Supported Wage

MELBOURNE

1.17 PM, WEDNESDAY, 2 JULY 2003

PN1

MS M. GAYNOR: I seek leave to appear for the union applicants in these matters, the ASU, CFMEU, CPSU, LHMU, and with MR RAIMONDO for the SDAEA, and seek leave to intervene on behalf of the ACTU.

PN2

MR S. BARKLAMB: I appear for the ACT and Region Chamber of Commerce and Industry, the Northern Territory Chamber of Commerce and Industry, the Victorian Employers Chamber of Commerce and Industry and Australian Business Industrial. I also seek leave to intervene in all matters on behalf of the Australian Chamber of Commerce and Industry. With me today is MR C. HARRIS.

PN3

MS J. WATTLING: I appear for the Australian Industry Group in 2003/2709 and 2003/4003. Also appearing with me is MR T. HALLS from the Australian Industry Group.

PN4

MS E. WATT: I appear on behalf of the Timber Merchants Association in C2003/2709.

PN5

SENIOR DEPUTY PRESIDENT MARSH: Ms Gaynor, just before calling on - can I just indicate I have received some correspondence from Mr Nadenbousch from APESMA indicating that they have no difficulty with the CPSU application in the public sector matter that he - and they are unable to attend in C2003/3880. Also from the Brisbane City Council consenting the application with respect to 2003/2706 Brisbane City Council Salaried Staff Award 1992, and the Timber and Allied Industries Award 1999 application is consented to by the Timber and Allied Industries Association, and that is from Janet Williams. I just put that on the record. Yes, Ms Gaynor.

PN6

MS GAYNOR: Thank you, your Honour. Your Honour, I can advise the Commission that the applications and notice of hearing have been served in each matter. We apologise for the late serving of notice in three of the matters. I can make copies available of the service if required.

PN7

SENIOR DEPUTY PRESIDENT MARSH: Yes, that might be appropriate to put that on the file at an appropriate time. Thank you.

PN8

MS GAYNOR: Thank you. In dealing with these applications, we ask that the Commission exercise its powers under Part IV of the Act and specifically section 88B(3)(c), the need to provide a supported wage system for people with disabilities. We note that rates of pay for employees under the supported wage system are allowable under section 89A(2)(c) of the Act.

PN9

The applications before the Commission seek to increase the minimum payment under the supported wage system clause in the awards which constitute the awards or successors to the awards used in the 1994 Supported Wage System test case. The ACTU undertook to review the level of the minimum payment on an annual basis. In this regard I note that the date of effect of last year's variations to these awards was 11 May 2001.

PN10

Your Honours and Commissioner, figures provided by the Department of Family and Community Services Annual Report 2001-2002 indicate that during the financial year there were 1169 new placements and 2249 clients continuing to access wage assessments under the supported wage system.

PN11

Consistent with previous agreements between the parties in seeking to adjust the minimum payment under the supported wage system, the ACTU and unions have taken into account the level of the disability support pension income test-free area of earnings. In fact, this amount has increased as of 1 July 2003 to an amount of $120 per fortnight, equivalent to $60 a week. If the Commission pleases, I table the Guide to Commonwealth Payments which will verify this amount.

EXHIBIT #G1 GUIDE TO COMMONWEALTH GOVERNMENT PAYMENTS

PN12

MS GAYNOR: This is, as the Commission will see from the bottom of the first page, these rates apply from 1 July to 19 September 2003. I take the Commission to the second page of the document, chart C, Income Test for Pensions, and the family situation, single for full pension per fortnight up to $120. The supported wage system minimum payment has reference to the weekly equivalent of this amount; that is $60 per week.

PN13

Given that the current level of income test applies from 1 July 2003, we seek leave to amend the applications in these matters and to amend the draft orders in these matters. I seek to tender a copy of amended draft orders which seek to reflect the $60 amount.

PN14

SENIOR DEPUTY PRESIDENT MARSH: So you are handing up one set, are you?

PN15

MS GAYNOR: Sorry, yes, I should have brought further sets, your Honour.

PN16

SENIOR DEPUTY PRESIDENT MARSH: I think we should mark them as an exhibit because they represent amendments. The draft consent orders as a bundle will be marked exhibit G2.

EXHIBIT #G2 DRAFT CONSENT ORDERS

PN17

MS GAYNOR: Thank you, your Honour. As the supported wage system was developed on a tripartite basis, the ACTU wrote to the ACCI and the relevant federal departments to advise our intention to seek to update the minimum payment in federal awards to reflect the income test which applies from 1 July 2003. The Department of Family and Community Services have indicated their agreement in a letter dated 27 June 2003. Mr Barklamb for other employers has indicated the consent of ACCI, and as the Commission has noted, we note that the Brisbane City Council has indicated its agreement to the amendment of the draft order and to the amount of $60 in a letter to the ASU copied to the ACTU. And that the Timber Trade Industrial Association has also indicated its agreement in an e-mail communication to the CFMEU copied to the ACTU.

PN18

Your Honours, Commissioner, the ACCI has asked the ACTU and applicants to agree to a date of effect of 17 July 2003. In all the circumstances, the ACTU would agree to a date of effect of 17 July 2003 on the basis that such agreement to a prospective date will not be used as a precedent in any other matter.

PN19

Finally, we note that the Full Bench in the Safety Net Review Wages May 2003 decision asked the parties to awards containing the supported wage system model clause to review the level of minimum payment when applying for the safety net adjustment. If the applications are granted, from our part, the ACTU will be advising our members that the new level of the minimum payment is $60 and asking them to reflect this level in any draft orders for safety net adjustment applications yet to be heard or filed. If the Commission pleases.

PN20

SENIOR DEPUTY PRESIDENT MARSH: Thank you, Ms Gaynor. Mr Barklamb.

PN21

MR BARKLAMB: Thank you, Deputy President. I can firstly indicate that we have no objection to the amending of the applications and orders which were circulated as exhibit G2 and thereby no objection to the amending of the applications from $58 to $60 per week. There are unique circumstances involved and we believe that that will assist in facilitating the continuation of an agreed approach which has underpinned this rate for some time.

PN22

As Ms Gaynor indicated, we also have no objection to an increase in the supported wage minimum payment on this occasion from $56 per week to $60 per week reflecting the increase in the disability support pension income-free test threshold. Turning to that threshold briefly, we would note again that that was the basis for the creation of the supported wage underpinning rate in our understanding and for its variation from its creation in the early '90s. We do support the continuation of that approach on this occasion.

PN23

As I think we have registered on a number of occasions and I need register again, that that is a determination which we have made each year based on the circumstances of the increase in the threshold and that whilst we have been in a position to consent to that approach to date, that may not necessarily be an invariable approach over time.

PN24

To turn to the operative date, and I welcome my colleagues' indication that they can put to your Honours, Commissioner, that it is appropriate or it is acceptable to move to a 17 July operative date, I would say that we are supportive of that proposed date of effect. I would also put on record our understanding that that is not precedential to other matters as indicated by Ms Gaynor.

PN25

I would just like briefly in closing to turn to an issue which I think is of some importance to put on the record today. Members will be aware of some inconsistency emerging in the level of the supported wage minimum payment in federal awards and that this matter was raised in the recent safety net proceedings by both Ms Gaynor's organisation and ours. I would just like to place on record that we very warmly welcome the Full Bench addressing that in the recent safety net decision and the clarification provided to parties from the Full Bench in that decision.

PN26

We would welcome any consideration which this bench can give to any measures to further assist the continued application of the goals or approaches of the Full Bench in relation to the revised rate from the time of variation of this award forward. I would also indicate that, like Ms Gaynor, we will be advising ACCI members forthwith of any decision of this bench to increase the rate as indicated and hopefully that will assist in other safety net matters coming forward with a supported wage minimum payment that is reflective of the prospective rate.

PN27

I think, having said those things, your Honours, Commissioner, that that ends our submission this morning.

PN28

SENIOR DEPUTY PRESIDENT MARSH: Thank you. Ms Watling - sorry, Mr Halls.

PN29

MS WATLING: Your Honour, the Australian Industry Group has reviewed the application made by the union and the amended draft order that they have provided. The proposed draft order seeks to increase the supported wage allowance from $56 to $60 per week. According to the recent data provided by the Commonwealth Department of Family and Community Services, the income test for employees with disabilities has increased up to 120 a fortnight.

PN30

In regard - the AIG also supports the position of the ACCI in relation to the operative date being 17 July 2003, the rationale being that the increased rate of $60 was handed down on 1 July. This will allow us time to advise our members of the increase to the supported wage. This being the case, the Australian Industry Group does not oppose the variation in the terms sought by the union. If the Commission pleases.

PN31

SENIOR DEPUTY PRESIDENT MARSH: Yes, thank you very much, Ms Watling.

PN32

MS WATT: If it pleases the Commission, the Timber Merchants Association does not object to the Timber and Allied Industries Award being varied as sought and we accept the amendment of the application and we also have no problem with the operative date being 17 July. Thank you.

PN33

SENIOR DEPUTY PRESIDENT MARSH: Thank you very much, thank you. No further submissions? Yes.

PN34

We are satisfied as to service. We grant leave to amend the application for the level for the supported wage as set out in the draft order as contained in exhibit G2. We are prepared to grant the applications. The new rate of the supported wage will be $60 per week. The increase will operate from the first pay period to commence on or after 17 July 2003. I will indicate to the parties that consistent with the sentiment set out in the Safety Net Review Full Bench decision, we will notify members of the outcome of this matter. We will publish short reasons for decision in due course.

PN35

Thank you for the submissions. The Commission stands adjourned.

ADJOURNED INDEFINITELY [1.32pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #G1 GUIDE TO COMMONWEALTH GOVERNMENT PAYMENTS PN12
EXHIBIT #G2 DRAFT CONSENT ORDERS PN17