C0086/598, Transcript of Proceedings [2003] AIRCTrans 393 (7 February 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N VT1418

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00865 of 1998
C No 30455 of 1998

BUILDING SERVICES (VICTORIA)
AWARD 1994

Review under item 51, Part 2,
Schedule 5, WROLA Act 1996

BUILDING SERVICES (VICTORIA)
AWARD 1994

Application under section 33 of
the Act for simplification of the
above award on the Commission's
Own Motion

MELBOURNE

10.20 AM, THURSDAY, 23 JANUARY 2003

PN714

THE SENIOR DEPUTY PRESIDENT: Good morning and happy new year. This is the last hurrah, isn't it?

PN715

MS R. FRENZEL: Yes.

PN716

THE SENIOR DEPUTY PRESIDENT: Yes. Okay, Ms Frenzel.

PN717

MS FRENZEL: Thank you, your Honour. Your Honour, firstly I would like to thank the resources of the Commission for the benefit of the award simplification unit going through the draft award. We did e-mail to your Associate yesterday, late yesterday - - -

PN718

THE SENIOR DEPUTY PRESIDENT: Yes.

PN719

MS FRENZEL: - - - a revised draft. There are a couple of hiccups with it, which are easily resolved, and given the lateness of the union forwarding the draft to the employers, they have requested and we are quite happy to give them seven days just to make sure that the i's are crossed and the t's are dotted - - -

PN720

THE SENIOR DEPUTY PRESIDENT: Yes.

PN721

MS FRENZEL: - - - and those sorts of things. Or is it the reverse? But what I thought I would do very quickly is go through the award and just outline for the Commission what we have done with respects to the comments which came back, and if I can start firstly with the matters of the arrangement clause at page 2.

PN722

THE SENIOR DEPUTY PRESIDENT: Yes, it does seem a little messy, doesn't it?

PN723

MS FRENZEL: It is a little messy, but I am not sure, your Honour, there is a way of making it any less messy, and primarily for the - the primary reason for that, I think, is because of the operation of appendix B, the portability of long service leave provision, and having a separate respondency list to that. There is that. There is also the training wage appendix, because with the contract cladding industry traineeships, given the part-time nature of the award - - -

PN724

THE SENIOR DEPUTY PRESIDENT: Well, but why is that appendix B and not appendix C. You seem to have two appendix Bs.

PN725

MS FRENZEL: Well, that should be appendix C.

PN726

THE SENIOR DEPUTY PRESIDENT: I think that was my problem.

PN727

MS FRENZEL: Okay. We can deal with these issues fairly easily. I - - -

PN728

THE SENIOR DEPUTY PRESIDENT: So you have got an appendix A, example of pay, and an appendix B, portability of long service leave, then a schedule to that appendix, then an appendix C, and a schedule A to appendix C, is it?

PN729

MS FRENZEL: Now, that is a schedule A. That is the schedule of respondents to the award as a whole.

PN730

THE SENIOR DEPUTY PRESIDENT: I see. Well, why don't we just make that a schedule of respondents, instead of calling it schedule A? Because there is no - there is not schedule B.

PN731

MS FRENZEL: I am more than happy to do that, your Honour.

PN732

THE SENIOR DEPUTY PRESIDENT: Yes. So cut out the schedule A. Make schedule of appendix B schedule 2 appendix B - portability of long service leave. And then fix up the appendix C and I think that makes sense.

PN733

MS FRENZEL: Wonderful. The next matter was a 4.2 and we took into account the comments of the simplification unit and clarified it was the schedule of respondent employers. But we might need to now just put - in keeping - to keep it consistent, we might need now to say schedule of respondents.

PN734

THE SENIOR DEPUTY PRESIDENT: Yes.

PN735

MS FRENZEL: That would be consistent with the previous clause. With respect to the relationship - - -

PN736

THE SENIOR DEPUTY PRESIDENT: Perhaps it is better to leave it as respondent employers and make it "respondent of employers" in the - in the index. Because it is only employers, isn't it?

PN737

MS FRENZEL: That is right.

PN738

THE SENIOR DEPUTY PRESIDENT: Yes.

PN739

MS FRENZEL: And it makes it nice and clear then.

PN740

THE SENIOR DEPUTY PRESIDENT: Yes.

PN741

MS FRENZEL: With respect to the relationship to - with other awards and the suggestion that we insert the roping-in awards, can I indicate to the Commission there are probably about 40 roping-in awards to this award.

PN742

THE SENIOR DEPUTY PRESIDENT: Yes.

PN743

MS FRENZEL: And certainly the LHMEUs preference would be to leave the provision the way it is. We don't think that anything is lost by leaving it the way it is.

PN744

THE SENIOR DEPUTY PRESIDENT: And I agree.

PN745

MS FRENZEL: Thank you, your Honour.

PN746

THE SENIOR DEPUTY PRESIDENT: We will leave it the way it is. And we will need to fix up clause 7.5 - - -

PN747

MS FRENZEL: Schedule of respondent employers. Yes, we will do that. We have inserted the rates at clause 7.6.7(c).

PN748

THE SENIOR DEPUTY PRESIDENT: Yes, $4 and $2 respectively I can see, yes. Are they appropriate rates, are they?

PN749

MS FRENZEL: They are current rates, your Honour.

PN750

THE SENIOR DEPUTY PRESIDENT: Yes.

PN751

MS FRENZEL: I am not sure if they are appropriate, but they are certainly current.

PN752

THE SENIOR DEPUTY PRESIDENT: You would say they are too low, Ms - the others say they are too high. Yes.

PN753

MS FRENZEL: I do. But we can deal with that under the wage fixing principles in any event.

PN754

THE SENIOR DEPUTY PRESIDENT: Yes.

PN755

MS FRENZEL: The transmission clause, there is two issues about that. The first one that we have put it into, the redundancy clause as suggested. Can I also indicate that my trustee assistant has inserted part of a redundancy clause, for reasons best known to herself, at 7.8.4, and we will delete that.

PN756

THE SENIOR DEPUTY PRESIDENT: Sorry. You say you want to leave 7.8 and - through to 7.8.3.

PN757

MS FRENZEL: That is correct.

PN758

THE SENIOR DEPUTY PRESIDENT: Yes.

PN759

MS FRENZEL: 7.8 - - -

PN760

THE SENIOR DEPUTY PRESIDENT: Because it is dealing with different things, I think.

PN761

MS FRENZEL: That is right. She has just left a part of a redundancy clause by mistake.

PN762

THE SENIOR DEPUTY PRESIDENT: Yes.

PN763

MS FRENZEL: The next issue was the junior rates of pay at clause 8.3. We have inserted the junior rates of pay at 8.3.2 and re-numbered the clauses consecutively.

PN764

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN765

MS FRENZEL: With respect to the enterprise flexibility provisions we have taken account of the unit's comments, and we have inserted the provision found in Print P7500.

PN766

THE SENIOR DEPUTY PRESIDENT: Yes.

PN767

MS FRENZEL: With respect to clause 10, my friend, Ms Whitecross, is going to provide a draft of that to me, that being the index of facilitative provisions and will solve that problem fairly easily, I would have thought.

PN768

THE SENIOR DEPUTY PRESIDENT: Yes, just bear with me for a moment. There is no clause 10, yes.

PN769

MS FRENZEL: That is the problem.

PN770

THE SENIOR DEPUTY PRESIDENT: Okay. That will come. Yes. Very well.

PN771

MS FRENZEL: With respect to clause 11, the dispute settlement procedure, we have taken - we have deleted in accordance with the suggestions clause 11.2 and 11.9, given that they are statements of objectives of intent and not, therefore not allowable. But the rest of the clauses remain as is.

PN772

THE SENIOR DEPUTY PRESIDENT: Yes. What about clause 11.9.4 in the draft.

PN773

MS FRENZEL: That is right. 11.9.4. Yes, I was coming to that.

PN774

THE SENIOR DEPUTY PRESIDENT: Okay.

PN775

MS FRENZEL: The - we say this about the - about 11.9.4, that the agreement can be either between the employer and the union, in the event that it is a union delegate attending the leave for a lesser period of notice. Or it can be between an employee representative and the employer as well. So we say that it isn't in actual fact a provision seeking the agreement of the union. It is actually more an agreement between either the employee representative or the union on behalf of the delegate.

PN776

THE SENIOR DEPUTY PRESIDENT: So it is - - -

PN777

MS FRENZEL: But it is not seeking agreement at all. What it is saying is that the notice period to attend a course, and therefore trigger the leave - - -

PN778

THE SENIOR DEPUTY PRESIDENT: Yes, I see - - -

PN779

MS FRENZEL: - - - can be varied by agreement.

PN780

THE SENIOR DEPUTY PRESIDENT: Yes. And I see this - yes. That is in relation to attending genuine training leave, so that is - yes. Yes. I think that is okay.

PN781

MS FRENZEL: The next one was on page - sorry, clause 12.3.2, and that was just inserting the word "without", because the current draft had "with the payment of overtime". I am sure that Ms Whitecross and Mr Borobokas would have had something animated to say about that, obviously.

PN782

THE SENIOR DEPUTY PRESIDENT: Where is that? 12.3.2 at - - -

PN783

MS FRENZEL: 12. - (b).

PN784

THE SENIOR DEPUTY PRESIDENT: (b)?

PN785

MS FRENZEL: But I actually found that one. Because it says at the moment that the employees can be rostered to work 38 ordinary hours with the payment of overtime. And it should be "without".

PN786

THE SENIOR DEPUTY PRESIDENT: Yes.

PN787

MS WHITECROSS: We thank Ms Frenzel for that.

PN788

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Ms Frenzel. The employers are suitably grateful.

PN789

MS FRENZEL: Don't worry. I missed a couple of others, though.

PN790

MS WHITECROSS: I will find them.

PN791

MS FRENZEL: This is like War and Peace, this.

PN792

THE SENIOR DEPUTY PRESIDENT: Okay.

PN793

MS FRENZEL: With respect to the clauses which are excluded from casual employment, there is a couple that need to come out, under 12.4. They are blood donors, and contract of employment, because obviously we now have the types of employment clause. But with respect to the annual leave, that was in the former award although, your Honour, I really can't tell you why it was in the former award, because casuals under this award do not get annual leave. So annual leave should also be deleted.

PN794

THE SENIOR DEPUTY PRESIDENT: Doesn't that just make it clear that they don't get annual leave?

PN795

MS FRENZEL: Sorry.

PN796

MS WHITECROSS: Yes.

PN797

MS FRENZEL: It is that I am - I am reading it the other way. Annual leave should stay in. That is right.

PN798

THE SENIOR DEPUTY PRESIDENT: Yes.

PN799

MS FRENZEL: Now, the termination of employment clause, we say that with respect to the comments from the unit at 13.1.5 that the summary dismissal provision is in fact related to the notice provision, because obviously people who are summarily dismissed do not get notice. We say it is related, and therefore it is allowable. I am not exactly sure what the unit was getting at with that provision. We don't have a strong view either way, your Honour, but it just seems to me that it is in fact related to the period of notice.

PN800

THE SENIOR DEPUTY PRESIDENT: Yes. No, I am inclined to agree with you, Ms Frenzel. I think it should stay in.

PN801

MS FRENZEL: Okay.

PN802

THE SENIOR DEPUTY PRESIDENT: Yes, we will leave it as is.

PN803

MS FRENZEL: Thank you, your Honour. Now, 13.4, my initial view was to delete it, and that is what we have done, but there is now - having just thought about it very briefly this morning, although it is not part of the test case provision we do have the appendix dealing with averaging - or pay averaging, and the two are inter-related, and there would be, I think, an issue about how termination pays and those sorts of things operate without the operation of that clause.

PN804

THE SENIOR DEPUTY PRESIDENT: Yes. So it is something specific to this award that has work to do in this award it seems.

PN805

MS FRENZEL: That is right. And my suggestion would be, in actual fact, that rather than taking it out we should leave it in.

PN806

THE SENIOR DEPUTY PRESIDENT: Yes.

PN807

MS FRENZEL: And I will - - -

PN808

THE SENIOR DEPUTY PRESIDENT: I am happy with that. Is that agreed?

PN809

MS WHITECROSS: Yes.

PN810

THE SENIOR DEPUTY PRESIDENT: Yes, that is agreed. Yes.

PN811

MS FRENZEL: And I will put that back in.

PN812

THE SENIOR DEPUTY PRESIDENT: Yes.

PN813

MS FRENZEL: Now, the redundancy clause also isn't a test case provision, your Honour, and the reason for that is largely at 14.5, and without putting too fine a point on it, your Honour, if we inserted the test case provision into this award the employers would be demonstrating in the streets because what 14.5 does, essentially, it says that if a cleaner is offered employment by an incoming contractor on a contract change, or secures employment - - -

PN814

THE SENIOR DEPUTY PRESIDENT: Yes.

PN815

MS FRENZEL: - - - then the outgoing contractor does not need to pay severance payments under this provision.

PN816

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, that clause should stay in.

PN817

MS FRENZEL: Yes. We have inserted the transmission of business provision, as suggested. We have made that 14.8.

PN818

THE SENIOR DEPUTY PRESIDENT: Yes.

PN819

MS FRENZEL: And we have deleted the 14.8 that was suggested by the unit.

PN820

THE SENIOR DEPUTY PRESIDENT: So you have deleted - - -

PN821

MS FRENZEL: The provision with employees with less than one year's service.

PN822

THE SENIOR DEPUTY PRESIDENT: Yes.

PN823

MS FRENZEL: Then have the classification structure and the rates. Well, what we did with the numbering of the grades, was we made it consistent and we used - rather than using Roman numerals we used standard numerals, and the Commission will note that is all the way through the award now. The savings clause obviously stays in. Now, this is where we come to the matter of the additional payments, and not surprisingly, the award simplification unit picked up those incremental payments based on service.

PN824

And we say that arising out of the consent position reached between the union and the employers, that they should stay in their current form, given that they are going to be phased out as at 28 May this year. And in fact, 28 May 2003 will be the time when the award will be varied, we hope, for National Wage case this year, and at that particular time it is the parties' intentions to delete that clause in its entirety, with the incremental payments, because that will, if you like, clean up that provision into the future.

PN825

THE SENIOR DEPUTY PRESIDENT: Should there not be something in the award that says that this - - -

PN826

MS FRENZEL: Yes, there is. At 15.3.4, your Honour. And we say:

PN827

Implementation of pay rates review decision ...

PN828

THE SENIOR DEPUTY PRESIDENT: I see. Yes, I see.

PN829

MS FRENZEL: And we say that arising out of that decision:

PN830

... the clause will cease to operate for the first pay period on or after 28 May and the following provision will operate from that date.

PN831

THE SENIOR DEPUTY PRESIDENT: Yes. Yes. Have we defined the School Cleaning Award that is mentioned in 15.3.3? These are some of the things that my staff have found for me.

PN832

MS FRENZEL: There used to be - just one moment. The easiest way to deal with that, your Honour, is to take out the translation clause, because people would have translated that at the time, and there are in fact - there is in fact no School Cleaning Award of this Commission in Victoria.

PN833

THE SENIOR DEPUTY PRESIDENT: No, it was a Victorian award, wasn't it?

PN834

MS FRENZEL: It was. It was a former State award.

PN835

THE SENIOR DEPUTY PRESIDENT: And there is no translation of - still to occur, obviously. It is already done?

PN836

MS FRENZEL: That is right. We were keeping it on until the award was made.

PN837

THE SENIOR DEPUTY PRESIDENT: Yes, so that clause is redundant.

PN838

MS FRENZEL: So we take 15 - - -

PN839

THE SENIOR DEPUTY PRESIDENT: Take it out.

PN840

MS FRENZEL: Yes, take 15.3.3 out.

PN841

THE SENIOR DEPUTY PRESIDENT: And are the employers happy with that.

PN842

MS WHITECROSS: Yes.

PN843

MS FRENZEL: And then we will consequently re-number the paid rates view clause.

PN844

THE SENIOR DEPUTY PRESIDENT: Yes. Yes.

PN845

MS FRENZEL: And once again, it was drawn - the intention of the Commission to 15.3.4(b). The Commission will note once again we have got the phasing out of the incremental structures and the introduction of the single rates set out in very clear terms there as well.

PN846

THE SENIOR DEPUTY PRESIDENT: Yes. Is 15.3.4 still - - -

PN847

MS FRENZEL: Well, now it becomes 15.3.3.

PN848

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the whole thing does, yes.

PN849

MS FRENZEL: Yes, it does.

PN850

THE SENIOR DEPUTY PRESIDENT: Yes. But that reference there, of - where was I?

PN851

MS FRENZEL: I see what you are saying.

PN852

THE SENIOR DEPUTY PRESIDENT: Yes. In 15.3.4(c):

PN853

... shall be paid the rates that are in 15.3.4 ...

PN854

What? It is 15.3.3(a) is it, or - you will just need to work out which sub-clause you are looking at there.

PN855

MS FRENZEL: It is actually 15.3.1(c).

PN856

THE SENIOR DEPUTY PRESIDENT: Okay.

PN857

MS FRENZEL: Because it deals with schools.

PN858

THE SENIOR DEPUTY PRESIDENT: Well, these are the things that the employer - - -

PN859

MS FRENZEL: That we can fix anyway.

PN860

THE SENIOR DEPUTY PRESIDENT: - - - representatives will look at very carefully in the next seven days to - it is very hard to get everything quite right in the one, or even two or even three goes.

PN861

MS FRENZEL: It was a bit like - - -

PN862

THE SENIOR DEPUTY PRESIDENT: And it does need a fine tooth comb.

PN863

MS FRENZEL: It does. Well, it was a bit like War and Peace II, your Honour.

PN864

THE SENIOR DEPUTY PRESIDENT: Yes.

PN865

MS FRENZEL: With respect to the meal allowance, at 19.2 - - -

PN866

THE SENIOR DEPUTY PRESIDENT: What is - there was something at 18 - - -

PN867

MS FRENZEL: I didn't actually - - -

PN868

THE SENIOR DEPUTY PRESIDENT: There was something at 18.5.2.

PN869

MS FRENZEL: I am sorry.

PN870

THE SENIOR DEPUTY PRESIDENT: Just the reference to which you have - - -

PN871

MS FRENZEL: At appendix A - - -

PN872

THE SENIOR DEPUTY PRESIDENT: Yes. That is right, is it?

PN873

MS FRENZEL: I think that is correct, your Honour. I am sorry.

PN874

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN875

MS FRENZEL: Yes, that is right.

PN876

THE SENIOR DEPUTY PRESIDENT: I will take your word for it.

PN877

MS FRENZEL: Yes.

PN878

THE SENIOR DEPUTY PRESIDENT: Okay. Yes. Okay.

PN879

MS FRENZEL: With respect to the meal allowance, we did re-draft it to make the allowance the primary obligation, as opposed to the current clause where it obliges the employer to provide a meal or pay in allowance. Now, we say you pay the allowance, or you provide the meal.

PN880

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, very well.

PN881

MS FRENZEL: And that dealt with that issue. At 19.11, once again it is that incremental phasing out, and we have said it very clear that the obligation cease on 28 May, and the new obligation comes into force from 28 May.

PN882

THE SENIOR DEPUTY PRESIDENT: Yes.

PN883

MS FRENZEL: Colleges allowance.

PN884

THE SENIOR DEPUTY PRESIDENT: Yes.

PN885

MS FRENZEL: With respect to the employees driving lifts, once again we have made the allowance the primary obligation. Just re-cast the clause. And I think things start to get easier now. With respect to clause 21.3, that is exempt funds for superannuation, we have re-cast that, because I might indicate that the exemptions clause that we have inserted came out of the Laundry Industry of Victoria Award, which is a simplified award of this Commission. But it removes the objection that the unit had to the provision in its current form.

PN886

THE SENIOR DEPUTY PRESIDENT: Yes.

PN887

MS FRENZEL: There is a small grammatical issue with respect to 22.5 which we have fixed. With respect to 22.6.2 I am happy to say that the Summer Time Act still exists, 1972.

PN888

THE SENIOR DEPUTY PRESIDENT: Yes.

PN889

MS FRENZEL: It took a bit of finding, you know.

PN890

THE SENIOR DEPUTY PRESIDENT: I am happy to say I haven't looked for it in recent times.

PN891

MS FRENZEL: Well, I have no - I have had no need until doing this exercise either, your Honour. Now with clause 25, it didn't make any sense to me why we had the - at 25.3.2, why we have the savings clause for part-time cleaners employed as at 7 June 1990 under the shift penalties clause. Where in actual fact it should be under the Saturday work clause, because it is obviously a matter relating to Saturday work. So what I have done is, 25.3.2 is now 25.1.1(b). All I have done is just move it up, and put it under Saturday work, because that is actually where it lives.

PN892

THE SENIOR DEPUTY PRESIDENT: Yes. Just let me have a look at it. I am assuming that this award will start to operate from about now. Is the reference to this award in 25.1.1 the appropriate wording, or should it be "to this award or any of its predecessors" or something?

PN893

MS FRENZEL: It can probably stay as is, because the provision that we are talking about there was varied during the second tier. It was the old Victorian State Award, and it used to be time and a half for the first two hours, double time thereafter, and then it became time and a half for ordinary time for employees employed post that date. So if we are talking about this award, the rate prescribed by this award, the rate prescribed by the 2003 award is the same as the previous award.

PN894

THE SENIOR DEPUTY PRESIDENT: Yes. No, it was more - it was in the first sentence:

PN895

Provided that a part-time employee pursued pursuant to this award as at 7 June 1990 ...

PN896

MS FRENZEL: I see.

PN897

THE SENIOR DEPUTY PRESIDENT: That seems to me to be a logical impossibility.

PN898

MS FRENZEL: It is.

PN899

THE SENIOR DEPUTY PRESIDENT: So a predecessor to this award:

PN900

... pursuant to a predecessor to this award as at ...

PN901

MS FRENZEL: Yes, that is fine, your Honour, to put those in.

PN902

THE SENIOR DEPUTY PRESIDENT: Yes.

PN903

MS FRENZEL: Okay. A small grammatical change in the annual leave clause. Just inserting the word "to" in 28.1.

PN904

THE SENIOR DEPUTY PRESIDENT: Yes.

PN905

MS FRENZEL: And with respect to the missing text in the personal leave clause being 29, we have inserted the standard text to say that:

PN906

... the provisions of the clause apply to full-time and regular part-time ....

PN907

It should be:

PN908

... full-time and part-time ...

PN909

because there isn't a clause mentioning regular part-time. There are part-time employees and full-time employees.

PN910

THE SENIOR DEPUTY PRESIDENT: So that is to apply to full-time and part-time.

PN911

MS FRENZEL: Yes, that is right. Now, with the parental leave I did - at clause 30, I have left it as is, just for the reason that - well firstly, time got away from me. But secondly, also, I wasn't certain about the employer's attitude to inserting the most recent test case provisions with respect to eligible casual employees, and I almost thought it should be a matter which should be subject to a 113 application in any event.

PN912

THE SENIOR DEPUTY PRESIDENT: If it is done by consent, I am happy to put it in if the employers are happy to put it in.

PN913

MS WHITECROSS: I would have to receive further instructions though, if VECCI doesn't have a problem with it.

PN914

THE SENIOR DEPUTY PRESIDENT: Yes. Well, if it is in the seven days you don't have a problem with it, put it in. I don't think it needs a - if it is by consent I take the view that it can be inserted, made by consent.

PN915

MS FRENZEL: Very well, that is excellent. Clause 31.3, which is a substitute day with respect to public holidays. I have put there:

PN916

The employer and the employees may agree that it is not allowable, with respect to agreement from the union.

PN917

THE SENIOR DEPUTY PRESIDENT: Yes.

PN918

MS FRENZEL: And we have also, in accordance with the unit's comments, deleted 31.3.4 to 31.3.6, it once again goes to that union agreement issue. And we have just grammatically changed 2002 to 2003 in clause (b) at page 50. With respect to the pay averaging, that hasn't changed. The portability of long service leave; I really can't advise the Commission whether or not, under clause 1.2.4(j), whether the Victorian - sorry - the company's Victoria code is still current. I did do a bit of fishing around but I wasn't able to determine that. So I have left it as is because, in any event, the intent of the parties is clear about what it means.

PN919

THE SENIOR DEPUTY PRESIDENT: Yes.

[10.45am]

PN920

MS FRENZEL: With respect to the legislation and the reference to relevant bits of legislation, at 1.2.5 - - -

PN921

THE SENIOR DEPUTY PRESIDENT: Yes.

PN922

MS FRENZEL: - - - we have inserted the Long Service Leave Act 1992 Victoria. And we have also inserted that at 1.2.5(c)(i).

PN923

THE SENIOR DEPUTY PRESIDENT: Yes.

PN924

MS FRENZEL: And then we have changed the title of the schedule of respondent's portable long service leave.

PN925

THE SENIOR DEPUTY PRESIDENT: What page is that on?

PN926

MS FRENZEL: That is on page 58, your Honour.

PN927

THE SENIOR DEPUTY PRESIDENT: Yes.

PN928

MS FRENZEL: And then with - - -

PN929

THE SENIOR DEPUTY PRESIDENT: And that will have to be changed again, won't it? It certainly - what was it? It will be Schedule A2, Appendix B, won't it? Is that what we decided at the beginning?

PN930

MS FRENZEL: Schedule 2, Appendix B.

PN931

THE SENIOR DEPUTY PRESIDENT: Just Schedule 2, Appendix B, yes.

PN932

MS FRENZEL: Okay. Now, the training wage provision. This is the provision which was inserted by consent between the parties. And, as I say, it just caters for the special nature of the industry being part time.

PN933

THE SENIOR DEPUTY PRESIDENT: What page are we at now?

PN934

MS FRENZEL: Page 61.

PN935

THE SENIOR DEPUTY PRESIDENT: Sixty?

PN936

MS FRENZEL: One.

PN937

THE SENIOR DEPUTY PRESIDENT: 61.

PN938

MS FRENZEL: Yes. And the first question is, should this be replaced by the National Training Award 2000. And the short answer to that, from the union's perspective, is no. Because that award doesn't take into account the needs of the industry.

PN939

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Do the employers agree?

PN940

MS WHITECROSS: I would have to consider that.

PN941

THE SENIOR DEPUTY PRESIDENT: Yes.

PN942

MS WHITECROSS: I don't know the answer to that. I mean, I don't know what the answer to that - - -

PN943

MS FRENZEL: The application clause. We have just deleted the issue about the - we have deleted all of 4.2 because it deals with union agreement. Clause 6, which is the objectives. Obviously that is not allowable in accordance with P7500, so 6 - the entirety of clause 6 was deleted. With respect to definitions, this grammatical matter, Approved Training - the approved training provision was clarified. Because there was an issue with the deletion of clause 6, that we then weren't specifying the level over the Australian Qualifications Framework that people should be trained to. So we have inserted that under Approved Training. And you can see that the reference to Australian Qualifications Framework 2 or above, appears in the current 6.2 but now appears in the current 6.1 on page 62.

PN944

We changed reference to the Building Services Award 1994 to 2003. And that is at 7.5 of the current award. And it is at 6.5 of the draft. The Training Conditions, given that it is incidental to the provision we left in, that is clause 7, the new clause 7. With respect to, under the notated draft, the reference at clause 9.11, to right of entry under the award, we deleted that. And with respect to the Wages clause, at 10.2 there was an issue about, once again, the union agreement. So what we have done is, we have re-cast the wages clause to delete the words:

PN945

"or any other such formula as agreed by the proving authority and the union"

PN946

So the clause will read:

PN947

The wages prior to training should be 80 per cent of the relevant adult hourly rate of pay provided for...

PN948

Probably:

PN949

...in this award

PN950

It should read.

PN951

THE SENIOR DEPUTY PRESIDENT: Yes.

PN952

MS FRENZEL:

PN953

...full time work, including such time as is spent on approved training.

PN954

THE SENIOR DEPUTY PRESIDENT: Yes.

PN955

MS FRENZEL: And the prevention and settlement of industrial disputes and the issue in the LHMEU membership forms and those sorts of matters, at the current clause 11, were deleted. And then we had a few small issues with respect to respondency of the singular respondents. I might just indicate that these contract cleaning companies can operate under two or three different names and that is why, in the main, we have sought to leave the respondency list as it is because we have obviously logged them under those names at particular points in time.

PN956

THE SENIOR DEPUTY PRESIDENT: I wouldn't require you to delete any that you don't wish to delete.

PN957

MS FRENZEL: No. Just - you just don't know, that is the problem, your Honour.

PN958

THE SENIOR DEPUTY PRESIDENT: No. And for that reason I wouldn't require that of you.

PN959

MS FRENZEL: And with respect to the title for the schedule of respondents, we will change that to:

PN960

Schedule of Respondent Employers

PN961

And I think, your Honour, that is it. If the Commission pleases.

PN962

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Frenzel, you have done a lot of work. Ms Whitecross.

PN963

MS WHITECROSS: If the Commission pleases, your Honour, I will indicate, at this stage, or firstly, thank Ms Frenzel for the work that she has done on going through this, whilst I was enjoying my annual leave. On the sort of first review of this and, as Ms Frenzel graciously indicated that I didn't receive this till late yesterday, and we would be requesting seven days to review - to see if there is any problems with the changes that have been made. Without prejudice. The other thing that I would note, that in terms of the Commission's award simplification unit's comments with respect to the TAFE allowances and the schools allowances that were a matter that initially started off at arbitration, we would - VECCI and the Building Services Contractors' Association acknowledge that discussions were held in good faith with the union, that agreement had been reached with respect to the form in which those - the treatment of those allowances should be made, and we acknowledge that there has been joint consent with respect to those issues.

PN964

THE SENIOR DEPUTY PRESIDENT: Yes.

PN965

MS WHITECROSS: Because Ms Frenzel doesn't think I would ever say that word, but I did.

PN966

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. Mr Borobokas.

PN967

MR BOROBOKAS: Yes, thank you, your Honour. Your Honour, I just wish to lend my support to the submission made here by Mrs Whitecross, Ms Whitecross and just request seven days just to check the draft. And within those seven days I would like to confirm regards to the provision for casuals, parental leave and also the National Training Wage issue and confirm those within seven days as well, your Honour.

PN968

THE SENIOR DEPUTY PRESIDENT: Yes, thank you very much. Well I thank the parties for the hard work that has finally resulted in what I think will be a consent provision. I should also place on record thanks to the Award Simplification Unit who have been involved on more than one occasion, I think. I am prepared to make an award in the terms of the draft with the amendments discussed today, especially in relation to the wage rates issues and the incremental payments. The circumstances of this award are such that the incremental payments are appropriate to continue until May of this year when they will be replaced by the agreed provision, from that date.

PN969

And I will grant to the parties, seven days to provide to me a consent draft award. If there are any issues that require clarification, perhaps that could be put in writing and we may be able to avoid the necessity for another hearing. If I can resolve those issues without a hearing I will do so, if not, we will have to come back, but I think not. So on that basis, thank you again. I will adjourn the Commission and receive something, hopefully, completely agreed, within seven days.

ADJOURNED INDEFINITELY [10.55am]