C2002/5223, Transcript of Proceedings [2003] AIRCTrans 447 (12 February 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 1, 17-21 University Ave., CANBERRA ACT 2601
(GPO Box 476 Canberra 2601) DX5631 Canberra
Tel: [phone] Fax: [phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER DEEGAN

C2002/5223

MEDICAL OFFICERS (NORTHERN TERRITORY
PUBLIC SECTOR) AWARD 2001

S113 application by Australian Salaried Medical
Officers Federation - Commonwealth Branch
to vary the above award re vary wages to
include Safety Net Review - Wages May
2001 and 2002

CANBERRA

2.35 PM, TUESDAY, 28 JANUARY 2003

PN1

THE COMMISSIONER: Yes. No changes to appearances? No. Remain seated now we are on the video camera. It will be less disruption. Yes.

PN2

MR R. HOSKING: Commissioner, with me is C. McGOREY. He is also representing the Commissioner for Public Employment.

PN3

THE COMMISSIONER: Thank you, Mr Hosking. All right. On the last occasion as I understand it, Mr Hosking, you were going to get some instructions about the position of the Northern Territory Government about the application made by ASMOF.

PN4

MR HOSKING: That is correct, Commissioner.

PN5

THE COMMISSIONER: You have received those?

PN6

MR HOSKING: The position of Government is that it is normal we do not support the application. What we are suggesting is that there is a need to minimise the cost of the application.

PN7

THE COMMISSIONER: All right. So, you are relying on principle 7, are you, the standard hours reduction principle for that?

PN8

MR HOSKING: Commissioner.

PN9

THE COMMISSIONER: Right. And your position is, Mr Saunders?

PN10

MR M. SAUNDERS: ASMOF's position, Commissioner, is that principle 7 has been met in that there is no cost impact of the application being awarded in the sense that 38 hours a week has been standard in practice in this award - sorry - in this employment sector for eight years now. So, I guess it is a question - - -

PN11

THE COMMISSIONER: How did that come about though?

PN12

MR SAUNDERS: That came about through enterprise agreement.

PN13

THE COMMISSIONER: Through enterprise agreement.

PN14

MR SAUNDERS: That is correct, yes. So, our position at the moment is that the cost impact as set out in principle 7 has to have its ordinary everyday meaning of whether there is an actual cost to the employer in having the claim granted. And we were waiting to hear, I guess, further argument or advice from the Commission on whether the cost impact had to be interpreted within the confines of the award itself.

PN15

THE COMMISSIONER: I see. And have you got anything further to say in support of your position, Mr Hosking?

PN16

MR HOSKING: Yes, Commissioner. Basically our position is two-fold. One is that principle 7 refers to award variations and the use of a certified agreement clause is not appropriate in relation to translating it into an award variation. The main area of contention is the fact that the reduction of hours from 40 to 38 would cost the N.T. Government 5 per cent - in the vicinity of 5 per cent. And while this is encompassed in the certified agreement, there is a continuation of the total package of employment. So, the employment conditions are tied up in a certified agreement, and that is one of the factors that is in the agreement is the reduction of hours.

PN17

One of the interesting things is that we put to the ASMOF that we also, as a trade-off, include the span of hours being 6 to 6. Now, that has also been in the certified agreement in the same clause as the 38 hours since 1994. ASMOF have rejected any trade-off, arguing that principle 7 is in plain English and therefore they do not need to reach any trade-offs. The other issues - and it was forwarded to you by ASMOF - is the two letters, exchanging letters, Commissioner.

PN18

THE COMMISSIONER: Yes.

PN19

MR HOSKING: The letters themselves were sent to you on 15 January.

PN20

THE COMMISSIONER: So, this is a letter of 12 December from Mr Kearn to ASMOF, and the reply on the 23rd.

PN21

MR HOSKING: That is correct, Commissioner.

PN22

THE COMMISSIONER: Yes.

PN23

MR HOSKING: Now, in the letter of the 12th the Commissioner sets out the reasons for the rejection. Basically the fact is that it is our belief that the two are not compatible. Principle 7 has got the requirement that the impact is minimised, and we believe that while there is a 5 per cent costing in any certified agreement, and that it automatically goes in the award, it does not minimise the cost to government. That means in any future negotiations, the Government would need to find an extra 5 per cent.

PN24

The other issue is that when we become reliant on the certified agreement, we will find there that, as I said, the span of hours was 6 to 6. ASMOF have refused to vary the award to include that span of hours. So, the next negotiations will be still happy to negotiate the 6 to 6 span without the advantage of the 38 hour week. And also the other issues that we put to ASMOF in our letter, Commissioner, was to reduce the penalty payments on a Saturday for overtime, to be consistent with all the other employment conditions in the public sector of the other employees. ASMOF have again rejected that.

PN25

It is an issue that gets raised on most of the negotiations for this certified agreement. And another one is - another issue that gets raised in the certified agreement negotiations is the clause that is in the certified agreement to do with non - unrostered overtime. And the difficulty there is that medical officers decide they are going to return to the hospital and do a ward round, and they claim the minimum payment provisions of four hours to do half an hour's work. And what we are saying - that fits in with the unrostered overtime provisions, and we sought to have that clause rectified to compensate for the loss of the 5 per cent. And we also draw your attention - - -

PN26

THE COMMISSIONER: Sorry. That clause - there is a clause - when you say, "that clause rectified" - there is currently in the award a clause dealing with unrostered overtime?

PN27

MR HOSKING: In the award and in the certified agreement.

PN28

THE COMMISSIONER: All right. Now, when you say you wanted it rectified - in the award, I assume.

PN29

MR HOSKING: Yes.

PN30

THE COMMISSIONER: What did you want done to it?

PN31

MR HOSKING: We wanted the medical officers paid for the time that they returned, not the four hours.

PN32

THE COMMISSIONER: Not for the minimum. Right. And currently is that in the EBA or not?

PN33

MR HOSKING: It is not in the EBA.

PN34

THE COMMISSIONER: It is not in the EBA. Right.

PN35

MR HOSKING: But there are words in relation to the unrostered overtime provisions in the - - -

PN36

THE COMMISSIONER: Right.

PN37

MR HOSKING: I would also like to draw your attention, Commissioner, to a Full Bench decision involving Vice President Ross, Senior Deputy President MacBean and Commissioner Mahon. The print number is N6868 of 27 November 1996. It is to do with The Motor Inn, Motel and Accommodation Association and ALHMWU to vary the Motels, Accommodation and Resorts Award of 1992. In that there was an application from the Miscellaneous Workers Union to reduce the hours from 40 to 38. Also an application from The Motor Inn, Motel and Accommodation Association to reduce penalty rates.

PN38

And this is similar to the very case that we are talking here - is that we have got an application from ASMOF to reduce the hours, and our application is that the minimum rate - we would need some sort of reduction in costs to government to meet that request and the application. And the decision of the Commission was that both were applied - the reduction of hours, but also they brought in a decision to reduce the penalties. And in their summary:

PN39

Given the conclusion we have reached in respect of the penalty rates issue and the package of measures proposed by the ALHMWU we are satisfied that the cost impact associated with a reduction in standard hours has been minimised.

PN40

So, the decision of the Full Bench was that it should be considered as a total arrangement where the reduction is consistent. The other issues are three Queensland matters, Commissioner - B47 of 1990, which is the AWU Queensland v The Local Government Association of Queensland. In that it was a very similar situation that we have got now, and the Commission determined that there was a need to minimise the cost of the impact of the variation. And similarly in B262 of 1997.

PN41

The decision there was that - with three Commissioners - was that the same thing - is that the spread of hours should be included; ordinary starting time altered to give seven days notice; ordinary hours worked could be extended to 10 per day; and the increase for the number of hours of time worked before a meal break was determined as part of the trade-off for the reduction of hours. And the other matter in relation to Queensland was B1083 of 1997 where they awarded the reduction of 40 hours per week to 38 subject to this spread of hours and a couple of other conditions, Commissioner. So, there is precedent in relation to our objection to the ASMOF's application, and I guess we seek guidance from the Commission on this matter.

PN42

THE COMMISSIONER: All right. Mr Hosking, can you just tell me - you say that the cost to the Government would be 5 per cent if it was reduced - 40 to 38.

PN43

MR HOSKING: That is correct, Commissioner.

PN44

THE COMMISSIONER: Have you done any costings to see what cost benefits you would get from the three matters that you mentioned - the spread of hours, the - - -

PN45

MR HOSKING: We were hoping, Commissioner, that - we proposed it to the ASMOF - and we were hoping that we would be able to sit down and reach a conclusion on those figures.

PN46

THE COMMISSIONER: I see. All right. Thank you. Mr Saunders.

PN47

MR SAUNDERS: Commissioner, I have to say the employer has been consistent in its position on the matter in that ASMOF requested the change to 38 hours per week in the award simplification proceedings, and that was not agreed to, and that is why this application has subsequently been lodged. The 38 hours a week is the community standard now, it seems to me, on a reading of the Statement of Principles, that that is very clearly acknowledged and it will only not happen if there is a cost impact involved. So, I guess what we need is guidance from the Commission on exactly what context the cost impact has to be interpreted.

PN48

THE COMMISSIONER: I see.

PN49

MR SAUNDERS: And if your decision is that it does have to be contained within the confines of the award, then ASMOF would enter into discussions that the employers would agree to.

PN50

THE COMMISSIONER: All right. And there is nothing further you want to draw my attention to that might support your argument, Mr Saunders?

PN51

MR SAUNDERS: No thank you, Commissioner. We did say in our letter back to the Office of the Commissioner for Public Employment that in the absence of any precedent or statement or other evidence, we were standing by our position. Mr Hosking has now referred to some further material.

PN52

THE COMMISSIONER: All right. Thank you. Well, I reserve my decision. I will do it as quickly as I possibly can. I just want to look at those authorities Mr Hosking has taken me to and referred to a couple of other things. Hopefully I will be able to get a decision to you within the next week or so so that we can at least progress from here. Can you tell me what was Commissioner Eames' attitude during the award simplification proceedings? It was Commissioner Eames, was it not, who simplified the award?

PN53

MR SAUNDERS: It was Commissioner Eames, and the parties agreed to leave it aside for determination later.

PN54

THE COMMISSIONER: Yes. I think it should have been done in the award simplification proceedings myself. But since you have not, as I said, I will reserve my decision and hopefully get a decision to you as quickly as possible.

PN55

MR SAUNDERS: Thank you, Commission.

PN56

THE COMMISSIONER: I will adjourn.

ADJOURNED INDEFINITELY [2.49pm]