C0084/399, Transcript of Proceedings [2003] AIRCTrans 334 (4 February 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00843 of 1999
C2001/5397

LOCOMOTIVE ENGINEMEN'S (AUSTRALIAN NATIONAL
RAILWAYS) AWARD, 1978

Review under section 51, item 51,
Schedule 5, Transitional WROLA Act
1996 re CTS Case Description

Application under section 33 of the Act
for review of above award on the Commission's
own motion

SYDNEY

2.33 PM, MONDAY, 20 JANUARY 2003

Continued from 8.7.02

PN437

THE SENIOR DEPUTY PRESIDENT: Gentlemen, I apologise for the delay, there have been some technical problems. No changes in appearances are there?

PN438

MR THOMAS: No.

PN439

MS FAIRBAIRN: No, your Honour.

PN440

THE SENIOR DEPUTY PRESIDENT: I gave a decision in this matter on 13 August 2002 and asked for a draft to be provided. That has been provided and looked at by the award simplification unit and has made a few comments none of which seem to me to be major issues. What have you go to say about it, Mr Thomas?

PN441

MR THOMAS: Thank you, your Honour. The parties discussed the latest draft at a meeting last Friday via a telephone conference and for that reason given the time constraints, your Honour, we have been able to forward to you something in writing. I can take you through the various issues raised in the award. I can say that there is no differences between the parties at the bar table as to the matters raised by the Commission.

PN442

THE SENIOR DEPUTY PRESIDENT: Does that include the bar table in Western Australia?

PN443

MR THOMAS: Yes.

PN444

MR DETEZ: Yes.

PN445

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN446

MR THOMAS: So if I go through them point by point, your Honour. The first point raised by the award simplification unit is really a technical matter, it simply requires the completion of relevant dates and print numbers, etcetera.

PN447

THE SENIOR DEPUTY PRESIDENT: Yes, I don't think we need to worry about that.

PN448

MR THOMAS: It's beyond our control. The second point goes to the anti-discrimination clause and we accept that by comparison with the standard anti-discrimination clause that there is a particular subclause missing. I can take your Honour to that clause. It generally refers to the parties when fulfilling their obligations under dispute resolution procedure to make every endeavour to ensure that neither the award nor its provisions, nor its operation, are directly or indirectly discriminatory in their effects and we accept that that should be included. That would then require some consequent renumbering of the provision in the current award.

PN449

The third matter goes to the definitions and it makes no great difference to us, your Honour, whether it's inserted in alphabetical order or any other order as long as the - - -

PN450

THE SENIOR DEPUTY PRESIDENT: Probably makes sense to have it alphabetically.

PN451

MR THOMAS: Yes, that's fine by the parties, your Honour. The next provision goes to the part time clause and in particular 11.4.3. The reference in the draft is subclause 12.4.2A or C should indeed read 11.4.1A or C by reasoning back to the alterations to hours consistent with the clause.

PN452

The next provision, your Honour, is under the heading of termination. The comments raised by the award simplification unit make reference to the award being inconsistent with the test case. We're not entirely sure of where that inconsistency lies. The only specific comment made in the body of the clause can be found in subclause 12.2.2 where there is a proviso that has been outlined by the award simplification unit. Your Honour, it is the preference of the parties that that proviso remain.

PN453

THE SENIOR DEPUTY PRESIDENT: Yes, I'm happy to leave that as it is.

PN454

MR THOMAS: Okay, well I'll take that no further. Your Honour, the next provision is severance pay. We agree that the term or the heading, Severance, should be altered to Redundancy. In subclause 13.3.1 in the first sentence the reference to subclause 11.1 should read 12.1. And there were some other matters which have been discussed in other awards. On the issue of superannuation the parties are of the view that for the purposes of this award a provision that entitles the employer to reduce the redundancy pay by the amount of the employer's contribution to superannuation that is received by the employee is in fact obsolete given the legislative changes.

PN455

THE SENIOR DEPUTY PRESIDENT: For the reasons I accepted it in this morning's matter I'll be consistent. It needn't go in.

PN456

MR THOMAS: Thank you, your Honour. The provision for employers exempted is also regarded as obsolete for the purposes of this clause as neither of the two employers employed less than 15.

PN457

THE SENIOR DEPUTY PRESIDENT: If that's by agreement say no more, that doesn't go in.

PN458

MR THOMAS: There was one other provision that we noticed in some awards which makes reference to the point that the redundancy payment could not be any greater than it would have been if the employee had continued to normal retirement age. We have not included that. Indeed, the parties are of the view that it would run into problems with the issue of age discrimination so we have agreed to leave that out.

PN459

THE SENIOR DEPUTY PRESIDENT: Is that something that the award simplification unit wanted in, is it?

PN460

MR THOMAS: On my reading, your Honour, the award simplification unit merely raised the comment of some inconsistency with the test case. They did not go into the specifics of where that - - -

PN461

THE SENIOR DEPUTY PRESIDENT: Yes. It is not something you have deleted from the current clause I take it?

PN462

MR THOMAS: The current award does not have a termination of employment clause, it's a new provision. The final provision there in 13.8 - - -

PN463

THE SENIOR DEPUTY PRESIDENT: What about 13.3.2, the unit says something about missing text. I am not quite sure what - after 13.3.2 they provided that the seven something or other.

PN464

MR THOMAS: I took that, your Honour, to be referring to other sub-clauses within the termination provisions you might find in other awards that have not been - sorry, redundancy clauses that have not been included here.

PN465

MS FAIRBAIRN: No, your Honour, if I may, the words "for the employees concerned" were just left out of 16.3.2. It should read, or the simplification unit said, week's pay means the employees ordinary rate of pay for the employees concerned.

PN466

THE SENIOR DEPUTY PRESIDENT: That's fairly self evident. Yes, I've got something here, "provided that the severance" after 13.3.2. I can't follow that so we won't worry about it.

PN467

MR DETEZ: Excuse me, your Honour, if I might.

PN468

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Detez.

PN469

MR DETEZ: I believe that refers to the provision that Mr Thomas is just talking about in relation to provided that the severance doesn't exceed the amount payable to the normal retirement date. That's the part that they may have been referring to.

PN470

THE SENIOR DEPUTY PRESIDENT: Right. We are not putting that in, we've decided.

PN471

MR DETEZ: That's correct. The parties have agreed that that provision shouldn't be in the severance clause.

PN472

THE SENIOR DEPUTY PRESIDENT: Yes, I am happy with that. Thank you for that.

PN473

MR THOMAS: Your Honour, the only other provision relating to the redundancy clause picked up by the simplification unit was the absence of any reference to apprentices.

PN474

THE SENIOR DEPUTY PRESIDENT: Yes.

PN475

MR THOMAS: The award doesn't provide for apprentices.

PN476

THE SENIOR DEPUTY PRESIDENT: That's why there is no reference to it.

PN477

MR THOMAS: That's correct, yes.

PN478

THE SENIOR DEPUTY PRESIDENT: Very well, okay.

PN479

MR THOMAS: Further on, your Honour, the next issue was clause 19 where the award simplification unit picked up an inconsistency between the heading in the arrangement and the heading in the clause proper and the parties agree that after the word, accommodation, in the heading on clause 19 the words, "and transfer" should be included so that the heading is consistent.

PN480

THE SENIOR DEPUTY PRESIDENT: Yes. Then the reasonable overtime?

PN481

MR THOMAS: Yes, we agree that that should be included, your Honour. Further, over the page, and I take your Honour to subclause 39.2.2. There is a proviso there you will see, two parts to that proviso that have been highlighted. The first highlighted area I think stands to reason that the word provided has been included twice. We delete the second "provided" and the reference to clause then in brackets (ordinary hours accruing time) the appropriate clause is clause 28.3..

PN482

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN483

MR THOMAS: I might just also note, your Honour, if you go further down under clause 40: shift work, you will see that subclause 40.2.3 is shown at the moment as subclause 402.3

PN484

THE SENIOR DEPUTY PRESIDENT: Yes.

PN485

MR THOMAS: So I guess we should fix that.

PN486

THE SENIOR DEPUTY PRESIDENT: Put that decimal point in, yes.

PN487

MR THOMAS: The next clause, your Honour, goes to personal leave. This issue has been expanded upon a number of matters before the commission. A similar view is taken by the parties here that the use of the framework as set out in the awards simplification would lead to a diminution. However, we do accept that we could redraft the clause under the general heading of personal leave and consolidate sick leave, bereavement leave and carer's leave under the one clause heading and we could undertake that exercise upon the completion of the proceedings.

PN488

THE SENIOR DEPUTY PRESIDENT: Yes, and that will be done in a similar way to this mornings in that clause.

PN489

MR THOMAS: Yes, your Honour.

PN490

THE SENIOR DEPUTY PRESIDENT: I am content with that.

PN491

MR THOMAS: I might add, your Honour, following on from this morning's matter I did contact both Ms Fairbairn and Mr Detez on this issue because of its parallels.

PN492

THE SENIOR DEPUTY PRESIDENT: Yes, then I had better be consistent, hadn't I? Yes.

PN493

MR THOMAS: Now, your Honour, the final matter is under parental leave and that is clause 46 on page 28 of the draft. The simplification unit has highlighted a reference to what I think is tantamount to an operative date for certain employees.

PN494

Your Honour, in ascertaining the origins of that provision we can mention to the Commission that the clause was taken from the Commission's resource book on the Commission's website. But that then leads us to ask the question about what is its relevance and why is it there. In doing that, your Honour, we had a look at the parental leave test case for casuals. That decision doesn't enlighten you in any way, shape or form because the issue of operative dates was not addressed. However there is a subsequent decision of Senior Deputy President Acton who had to address one of the particular awards that was before the Test Case Full Bench.

PN495

My recollection is that it is one of the Totalisator Agency Board Awards in Victoria. If you'll just excuse me for a second, your Honour, I'll get the decision.

PN496

THE SENIOR DEPUTY PRESIDENT: Yes certainly.

PN497

MR THOMAS: The print number of decision is PR906766 dated 31 July 2001. That decision is some two pages and then it attaches a transcript of the proceedings before her Honour. I might say I think decision is the wrong word, it was a report to the Full Bench. It is noted in paragraphs 457 through to 462 that the operative date reflected the outcome of an agreement between the relevant parties rather than the outcome of any determination by the Full Bench in the parental leave test case for casual employees. As such it doesn't form part of the formal test case outcome. The position of the parties in this matter, your Honour, is that we do not see the need for the reference to any operative date in that sense and for that reason the parties will be content if that particular wording was deleted from the outcome.

PN498

THE SENIOR DEPUTY PRESIDENT: Yes, I am prepared to go along with that also, Mr Thomas. It will operate from the date of the making of the award.

PN499

MR THOMAS: Yes, that being the case, your Honour, we have addressed the issues raised by the simplification unit if the Commission is content with that I take it we could proceed to formally finalise.

PN500

THE SENIOR DEPUTY PRESIDENT: Yes, I think that's right. Do either Mr Detez or Ms Fairbairn wish to add anything?

PN501

MS FAIRBAIRN: No, your Honour.

PN502

MR DETEZ: Your Honour, I did just detect while I was waiting for the Commission to come online one minor correction that needs to be made at 6.2.2. The reference to the party Australian Southern Railroad should actually say Australia Southern Railway.

PN503

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN504

MR DETEZ: Apart from that, your Honour, I support everything that Mr Thomas has put to you and I'm happy for the award to be finalised in that way.

PN505

THE SENIOR DEPUTY PRESIDENT: Yes, thank you all for the hard work that you've put in and if you provide an award in terms of our discussion today I'll make that award as a consent award. Well, it's probably not a consent award because I have to decide a couple of issues. I'll make the award and it will operate from - do you want it to operate from today's date?

PN506

MR THOMAS: That's fine. I mean a week or two here or there is - - -

PN507

THE SENIOR DEPUTY PRESIDENT: Well, it might as well operate from today's date. It will operate for a period of six months. Thank you for your efforts once again.

ADJOURNED INDEFINITELY [2.53pm]