C2003/5520, Transcript of Proceedings [2003] AIRCTrans 4368 (1 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2003/5520

ACTORS TELEVISION PROGRAMS AWARD 2001

Application under Section 113 of the Act
by the Media Entertainment and Art Alliance
to vary the above award re wage rates - safety
net adjustments May 1999, 2000, 2001, 2002 and
2003

SYDNEY

9.25 AM, TUESDAY, 16 SEPTEMBER 2003

PN1

MS C. MONTGOMERY: If the Commission pleases, with me is S. WHIPP, appearing on behalf of the Media Entertainment and Arts Alliance.

PN2

THE COMMISSIONER: Yes, thank you, Ms Montgomery.

PN3

MR C. GRAHAM: I seek leave to appear on behalf of the employer respondents to the award who are members of CTVA.

PN4

THE COMMISSIONER: Yes, thank you, Mr Graham.

PN5

MR A. BAUMGERTNER: I appear for the Screen Producers Association of Australia.

PN6

THE COMMISSIONER: Yes. Thank you, Mr Baumgertner. Unless I have an objection, I will grant leave to Mr Graham. No objection? Yes, Ms Montgomery?

PN7

MS MONTGOMERY: Commissioner.

PN8

THE COMMISSIONER: Yes, please.

PN9

MS MONTGOMERY: The Media Entertainment and Arts Alliance has made an application to vary the Actors Television Programs Award. Commissioner, I would like to seek leave to amend the application pursuant to section 111P of the Workplace Relations Act 1996. I will now hand you a copy of the amended application.

PN10

THE COMMISSIONER: Do I have an objection to allowing amendment to the application at all, gentlemen?

PN11

MR GRAHAM: No objection, Commissioner.

PN12

THE COMMISSIONER: Yes, leave granted.

PN13

MS MONTGOMERY: Thank you, Commissioner. Commissioner, the grounds for the amended application remain as those in the original application. However, the detail of the application as to the rates of pay and allowances is now longer as set out in the original application as a result of discussions with employer representatives. All of the employer representatives have been provided with a copy of the revised application. All of the employer representatives have been provided with a copy of the draft order. We therefore seek the leave of the Commission to amend that application as indicated. We understand that the employer representatives do not oppose the amending of the application. Commissioner - - -

PN14

THE COMMISSIONER: Do you need - I'm sorry, Ms Montgomery.

PN15

MS MONTGOMERY: I'm sorry.

PN16

THE COMMISSIONER: I haven't seen your draft order yet but do you need - do you need three absorption clauses? You normally put the one in.

PN17

MS MONTGOMERY: Commissioner, possibly not and I would - I can give an undertaking that I can amend the application so as that it just contains one absorption clause.

PN18

THE COMMISSIONER: All right. Again, no-one has a view on that at all?

PN19

MR GRAHAM: No objection.

PN20

THE COMMISSIONER: No. Yes, Ms Montgomery, whenever you are ready.

PN21

MS MONTGOMERY: Thank you, Commissioner. Commissioner, the Alliance notes the original application together with the notice of listing, the order for substituted service and a draft order were all served on the persons noted in the audit substituted service by the method required in the order for substituted service by registered post and by facsimile on 8 September 2003 and I can hand up a statement of service.

PN22

THE COMMISSIONER: Yes, mark the statement of service A1, thank you.

EXHIBIT #A1 STATEMENT OF SERVICE

PN23

MS MONTGOMERY: Commissioner, this is an application to vary the award in two parts. First, to increase the rates of pay in line with the safety net decisions and second, to increase cost reimbursement allowances in line with movements in the Consumer Price Index. With respect to the increase to the rates of pay, the award was last increased to give effect to the safety net decision of April 1998 on 28 May 1999. The application is to give effect to safety net decisions of the Commission for 1999 Print R1999, 2000 Print S5000, 2001 Print 002001, 2002 Print 002002 and 2003 Print 002003. I will now hand up a draft order in the terms we seek.

PN24

THE COMMISSIONER: We will mark the draft order A2, thank you.

EXHIBIT #A2 DRAFT ORDER

PN25

MS MONTGOMERY: Commissioner, I rely on my earlier submission in relation to the absorption clauses.

PN26

THE COMMISSIONER: If we just remove the first two and ensure that the last one is correct.

PN27

MS MONTGOMERY: Thank you, Commissioner. Commissioner, the draft order is consistent with the statement of principles although it is sought to expedite the increases to avoid the usual requirement for a delay of 12 months between each safety net adjustment. In this regard, the Alliance submits that we are of the view that performance engaged in work, the subject of the award, are engaged at rates of pay in excess of those which would apply under the new award rates proposed. In this regard, we refer to the unregistered Act as Television Programs Agreement 2000. Since 2000, all performers engaged in the work, the subject of the award, have been engaged under the terms of this agreement.

PN28

The Alliance notes that it is finalising the terms of the new Actors Television Programs Agreement which will see the rates set out in the 2000 agreement increase further. Therefore, the Alliance submits that the expediting of the increases should impose no additional cost burden to any of the respondents employing performers within the scope of this award. With respect to the increases to the cost reimbursement allowances, the increases are consistent with provision 5(A) of the Commission's Statement of Principles.

PN29

The proposal includes all increases in the Consumer Price Index to the end of the quarter ending 30 June 2003. I am able to hand up a summary of the calculation of the increases.

PN30

THE COMMISSIONER: Yes. We will mark that summary A3, thank you.

EXHIBIT #A3 SUMMARY OF CALCULATION INCREASES

PN31

MS MONTGOMERY: Accordingly, Commissioner, based on the submission, the Alliance seeks to vary the award effective from the date of the Commission's decision, if the Commission pleases.

PN32

THE COMMISSIONER: So the allowances are being updated from 1998?

PN33

MS MONTGOMERY: That is correct, Commissioner.

PN34

THE COMMISSIONER: Yes, thank you, Ms Montgomery.

PN35

MS MONTGOMERY: Thank you.

PN36

THE COMMISSIONER: Mr Grant.

PN37

MR GRAHAM: Thank you, Commissioner. Commissioner, this is an application and in two parts. The first part to increase the safety net adjustments of the National Wage Case Decisions from 1999 to 2003. As the application set out in the draft order contains only one set of rates of pay and that the union seeks to have those rates apply from the date of decision of the Commission, it is appropriate that the union did address you on the effect of the lack of 12 month's delay between the variations.

PN38

As the Commission is aware, principle 8(C) of the Wage Fixing Principles is appropriate and it says:

PN39

In awards where the variation for a safety net adjustment arising from the April 1999 ...(reads)... applicable 12 month delay between variations may be waived.

PN40

In our submission, Commissioner, the Commissioner has a discretion to waive the 12 month gap between each of those national wage decisions and we respectfully submit that in its discretion it can take - it should take into account two things. First of all, whether there is consent of the parties and secondly, whether there is any increase that will result in an actual increase to the employees affected by that variation.

PN41

With respect to the television stations that I appear for, we are able to say that the increases that are sought will not result in an increase in wage rates actually paid for those actors. Commissioner, that is the first part of the test but we would draw your attention to the fact that, despite the consent of the parties, we believe that this principle states that the May 2003 safety net adjustment is only available earlier than 12 months after the May 2000 decision has been applied if it does not result in an increase in the wage rates actually paid to employees or an increase in wages costs with respect to actors who are engaged by all respondents to the award.

PN42

We therefore think it is appropriate that the Media, Entertainment and Arts Alliance address you as they dd and that they need to convince you that with respect to all actors who are engaged under the award, that there would not be actual wage increases paid to them. Having said that, Commissioner - - -

PN43

THE COMMISSIONER: Or an increase in the wage costs of an employer?

PN44

MR GRAHAM: Yes. Having said that, Commissioner, we can confirm that as far as the four respondents that we act for there would not be such an increase, therefore we would be prepared to consent to the rates of pay increases and the allowances set out in the draft order on the basis that we would seek once again a period of grace from the Commission before the Commission issues an order so that we might check the rates that are set out in the application.

PN45

The reason, Commissioner, why we seek that period is because we've been handed the documents, the draft order in the application today and between the date of service and today's date the union, as a result of discussions between ourselves and the union, has provided us with a number of variations to the drafts. We understand, Commissioner, that as far as the operative date for both rates of pay and allowances is concerned, that the union is seeking a date from today's date and we would be prepared on that basis to consent to that as well, if the Commissioner pleases.

PN46

THE COMMISSIONER: Thank you, Mr Graham. Mr Baumgartner?

PN47

MR BAUMGARTNER: Yes, Commissioner, we do not object to the application today. SPAA and its members do operate pursuant to common law agreements with MEAA which are in excess of rates that would be applicable under this award and under the variations made today. As far as we can apprehend, all current actors are engaged by SPAA producers or employed by the networks. So in relation to any of the current employed actors, as we apprehend it, each of them are employed by people that operate pursuant to either our common law agreement or agreements pursuant to the networks so we do not apprehend that there will be any increases beyond that although we cannot be sure of that, Commissioner.

PN48

THE COMMISSIONER: Sorry, could you give me the last bit of that submission?

PN49

MR BAUMGARTNER: I was saying that as far as we can understand, there would not be any increase for other producers because they are not actually producing at this point in time but as far as our members are concerned, they all operate pursuant to common law agreements with provided rates in excess of this award.

PN50

THE COMMISSIONER: Yes, thank you, Mr Baumgartner. Ms Montgomery? Thank you Mr Whipp.

PN51

MR WHIPP: Commissioner, look, as both Mr Graham and Mr Baumgartner have set out and as Ms Montgomery set out before them, it is anticipated and we certainly give a commitment that rates of pay to performers engaged within the scope of the award would not increase in fact as a result of these increases being expedited. As Ms Montgomery set out and as has been agreed by Mr Baumgartner and by Mr Graham, performers have been engaged pursuant to either registered agreements or common law agreements at rates of pay in excess of those set out or proposed to apply after today's date in the union's application and therefore it is our view that the expedition of those increases would be consistent with the principles in the Commission set out in 8(c). I don't have anything to address you further on that point unless you have any specific questions.

PN52

THE COMMISSIONER: No, thank you, Mr Whipp. Nothing further at all? Well, on the material before me I have no reason to doubt that the application made by MEAA and reflected in the draft order marked as A2 is contrary to the principles established by the Full Bench in the Safety Net Review decision. Again on the basis of the material before me, I will grant the application as amended in the document handed up during the proceedings and reflecting the draft order A2, again as amended in regards to the absorption clause from today's date, 16 September, 2003 and that order shall remain in force for a period of 6 months. However, prior to issuing of that order the employers have 7 days to view the draft order, check the calculations and if I have not heard any different from the employers or MEAA, that order will issue no later than 23 September, operative from 16 September, 2003. That matter is now adjourned.

ADJOURNED INDEFINITELY [9.42am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT OF SERVICE PN23
EXHIBIT #A2 DRAFT ORDER PN25
EXHIBIT #A3 SUMMARY OF CALCULATION INCREASES PN31