C2003/232, Transcript of Proceedings [2003] AIRCTrans 3071 (17 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N WT0554

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

AG2003/232

APPLICATION FOR CERTIFICATION
OF AGREEMENT

Application under section 170LK of
the Act by Genesis Holdings WA Pty Ltd
for certification of the Genesis Holdings
WA Pty Ltd Collective Agreement 2003

PERTH

2.05 PM, FRIDAY, 4 JULY 2003

Continued from 2.7.03

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, any change in appearances?

PN84

MS R. WYATT: Ms Raelene Wyatt.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes. You appear with Ms Hussey for the company, do you?

PN86

MS WYATT: Yes, I do.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Wyatt. I have received from solicitors for the company a table setting out the matters that I asked to be set out in a table. I wonder, has that been prepared by you, Ms Wyatt?

PN88

MS WYATT: It has, your Honour.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MS WYATT: Yes, your Honour.

PN91

THE SENIOR DEPUTY PRESIDENT: Would you like to take me through it, please.

PN92

MS WYATT: Firstly, in regards to the pay rate, we are reflecting the current pay rate under the award which covers exhibit 1, 13.22. And the certified agreement pay rate at $18.15. Probationary officer pay rate is exactly the same as the award pay rate. There is no difference there with 96 per cent of the - - -

PN93

THE SENIOR DEPUTY PRESIDENT: Yes.

PN94

MS WYATT: Okay? The roster presented by Genesis Holdings is 12 hours a day, Monday to Sunday. Every employee worked in a 2 week period. It is a seven day shift rotating roster. In a two week period or a 14 day period, every employee will work one Monday, one Tuesday, one Wednesday, Thursday, Friday, Saturday and a Sunday. In regards to working out the no disadvantage test against the award, the attached split it up into two sections. The first section being what the award would pay if an employee worked for 12 hours on a Monday to Friday.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes.

PN96

MS WYATT: So, because there is no withstanding agreement for a seven day shift rotation currently in place with the union, we have had to apply the 38 hour week provisions under the award. That being the case, the first eight hours of the 12 days would be paid at ordinary time. The next two hours would be paid at time and a half. And the next two hours would be paid at double time. The agreement pays 12 hours at the ordinary rate of $18.15. Then, we would also need to apply, because it is a Monday to Friday, an afternoon shift allowance, because the shift starts before 6 pm, of 15 per cent on the ordinary hours of work only, which is the eight hours. It is not paid on any overtime.

PN97

We then move through to a Saturday and a Sunday, in which case the award allows for Saturday - all hours worked on a Saturday to be paid at time and one half. And all hours worked on a Sunday to be paid at time and three quarters. The certified agreement will pay 12 hours at the ordinary rate of pay. So, we then apply an annual total because that is a 14 day period. We then apply - sorry, that should be 26 fortnights in the year, shouldn't it? Sorry. Sorry, I worked it out on a monthly basis.

PN98

THE SENIOR DEPUTY PRESIDENT: 26 fortnights.

PN99

MS WYATT: Yes, 26 fortnights in a year brings our annual total up. The award is greater when you just look on a dollar for dollar basis without taking into account any allowances. Okay? We then move down into the allowances section. So, our first provision under the award would be provision for annual leave. So, because we are basing our agreement, the NDT analysis, on a 38 hour week under the award, the award only allows for 4 weeks a year plus leave loading. The certified agreement allows for five weeks a year. Now, the award does allow for five weeks a year when there is a seven day shift rotation agreement in place, but that is not currently in place, so we haven't allowed for that.

PN100

Leave loading, 17.5 per cent under the award. The certified agreement has an elevated pay rate which incorporates - so there is no leave loading paid. On public holidays, because - the way that I have ratio-ed it is that you are essentially working seven days within 14 days, so there is ten public holidays in a year. I have said that. Five are worked and five are not worked. On that basis, if five days public holidays are worked under the award, the award would pay double time and a half for a minimum of 3 hours. We actually based that on a 12 hour day so that calculation reflects double time and a half at 12 hours. The agreement pays it at $18.15.

PN101

Just pays it at the ordinary rate. For the days not worked, the award will pay 8 hours at the ordinary rate and for the days not worked under the certified agreement, we pay four hours at the ordinary rate of pay. There is no redundancy provision under the award. We are allowing, for the first year, five days at 12 hours, so 60 hours. And then it increases accordingly, up to - so the first year would be five days and after that it jumps to four weeks for every second year of service, to a maximum of eight weeks. Accrued sick leave buy back, the award doesn't allow for the employee to cash in any of their sick leave. However, the certified agreement does allow provision of 40 hours to be cashed in at a rate of $10. Genesis sometimes do it - you know, they do it as a Christmas bonus or it can be done on the annual leave. Annual - - -

PN102

THE SENIOR DEPUTY PRESIDENT: But is it discretionary or is it - - -

PN103

MS WYATT: Whatever is accrued is there. Come the full year of service, it is paid.

PN104

THE SENIOR DEPUTY PRESIDENT: All right.

PN105

MS WYATT: There is an alarm re-set allowance of $5 per week under the award. I have calculated that out. There is no provision under the certified agreement for this alarm re-set allowance. Meal allowance is not applicable under this roster system. Even though it is included in the award, it wouldn't actually be paid under the award because it is only for overtime with no notice given. And under this roster system, everyone would be aware that they are working their 12 hours a day. Location allowance, not applicable for this employer's location. Call back, again, not applicable, because as one person finishes their shift, another person is there to start the day shift.

PN106

So, if there was a situation of a call-back, the next employee starting on the day shift would attend. First aid allowance. Sorry, torch allowance, an allowance of $2.60 per week. They are not actually required to carry a torch and if they are, then the employer will provide one. So, there is no allowance paid under the award. And the first aid allowance, well, the award only pays it at $8.06 per week if it is a condition of employment. And the employer doesn't make it a condition of employment and, therefore, the allowance doesn't apply. Therefore, on a global NDT assessment, the award - it meets the NDT. The certified agreement meets the NDT.

PN107

THE SENIOR DEPUTY PRESIDENT: How can you say that? It is $500 short of the award total, isn't it?

PN108

MS WYATT: The award total is in the first column.

PN109

THE SENIOR DEPUTY PRESIDENT: Yes. $26,759?

PN110

MR TROW: That is the collective agreement.

PN111

MS WYATT: 25,759.

PN112

THE SENIOR DEPUTY PRESIDENT: Is that 25, is it?

PN113

MS WYATT: Yes.

PN114

THE SENIOR DEPUTY PRESIDENT: These rates that are set out here for the award don't incorporate the most recent safety net adjustment, do they?

PN115

MS WYATT: They do, your Honour.

PN116

THE SENIOR DEPUTY PRESIDENT: Sorry? They do?

PN117

MS WYATT: They do.

PN118

THE SENIOR DEPUTY PRESIDENT: I thought the award rates that I was given in the original analysis were before the safety net adjustment.

PN119

MS WYATT: The recent State wage case decision?

PN120

THE SENIOR DEPUTY PRESIDENT: Yes.

PN121

MS WYATT: Yes.

PN122

THE SENIOR DEPUTY PRESIDENT: That was in June.

PN123

MS WYATT: Yes. The award rate went from $12.78 for a level 2 security officer to $13.22 on 5 June.

PN124

THE SENIOR DEPUTY PRESIDENT: On 5 June?

PN125

MS WYATT: Yes.

PN126

THE SENIOR DEPUTY PRESIDENT: And you say these rates that are used here are the new rates incorporating that?

PN127

MS WYATT: Yes. On the third line where it says "pay rate". It says $13.22 and a pay rate for the certified agreement at $18.15. And that is the new calculation to ensure that the NDT - - -

PN128

THE SENIOR DEPUTY PRESIDENT: You are quite sure of that, are you?

PN129

MS WYATT: Quite sure that the rate has increased?

PN130

THE SENIOR DEPUTY PRESIDENT: That it is $13.22?

PN131

MS WYATT: Yes. I have worked it out on $17 per week increase. Was originally set $12.78. Increases by 44 cents an hour.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes. And there is no provision in the agreement, is there, for any increases over the 3 year life of the agreement?

PN133

MS WYATT: No, there isn't.

PN134

THE SENIOR DEPUTY PRESIDENT: Is that a factor that I should take into account in considering the no disadvantage test? Are you - - -

PN135

MS WYATT: I suppose it would be. Well, it is difficult to predict, isn't it, what the increases are going to be. They may include, you know, an increase after a year and a half or after two years.

PN136

THE SENIOR DEPUTY PRESIDENT: Well, the requirements of the legislation in Western Australia is that the safety net adjustment be done in 30 days of the Federal one, isn't it? The Federal one is normally finished in May or headed down in early May of each year. And, you are right, there is no certainty that there will be an increase next year. You wanted to say something, Ms Hussey?

PN137

MS HUSSEY: If I may, your Honour. The employer is prepared to give a written undertaking that we will increase it according to the equivalent of the award increase if that comes up. We obviously hadn't anticipated or thought through this part. But he is prepared to give a written undertaking to the Commission to that effect, if that will assist the Commission.

PN138

THE SENIOR DEPUTY PRESIDENT: Just bear with me a moment. Well, I don't know that I am entitled to take into account the fact that it doesn't include increases. I must say it seems a bit unusual. But, look, I will - you can't assist me in that way, whether or not I should take it into account?

PN139

MS HUSSEY: Your Honour, I would understand that the agreement wasn't able to contract out of a statutory increase anyway and if the minimum amount went up, then we would be bound to increase. But obviously we haven't considered it in the writing up of the agreement which is why the employer is quite happy to make that undertaking and I will certainly take it into account with future ones.

PN140

THE SENIOR DEPUTY PRESIDENT: Well, I am asking if you can assist me. On my quick look at the Act now, it just seems to me that the no disadvantage test is only applicable at the time of certification. It is not required to meet the no disadvantage test subsequently. All I am saying is, do you know whether that is case or not?

PN141

MS HUSSEY: Can't help you on that.

PN142

MS WYATT: That is the case - sorry, your Honour. That is the case. And any subsequent increases in the award rates do not necessarily have to flow on to the certified agreement for the time that it is in place, which is for the three years in this case.

PN143

THE SENIOR DEPUTY PRESIDENT: It seems a bit unfair when it is barely hopping over the no disadvantage test hurdle. All right, I will reserve my decision and consider the matter and I will give a written decision on it.

ADJOURNED INDEFINITELY [2.22pm]