C2003/5581, Transcript of Proceedings [2003] AIRCTrans 4657 (22 October 2003)

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TRANSCRIPT OF PROCEEDINGS


O/N 10616

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2003/5581

DISABILITY SERVICES AWARD
(VICTORIA) 1999

Application under section 113 of the Act
by The Australian Education Union to
vary the above award re the Safety Net
Review - Wages May 2003 Decision

MELBOURNE

2.00 PM, MONDAY, 6 OCTOBER 2003

PN1

MR D. COLLEY: I appear on behalf of the Australian Education Union.

PN2

MR P. EBERHARD: I appear for VECCI.

PN3

MS N. BOYLE: I appear for VHIA on behalf of respondent members.

PN4

THE COMMISSIONER: Yes, Mr Colley.

PN5

MR COLLEY: If the Commission pleases, this is an application pursuant to section 113 of the Workplace Relations Act 1996 to adjust the Disability Services Award (Victoria) 1999 in respect of the safety net adjustment permitted under the May 2003 Safety Net Review Decision of the Commission. Specifically, the application seeks to vary the award by increasing wages by the equivalent of $17 per week for wage rates up to and including $731.80 per week and by the equivalent of $15 for award rates above this amount. The application also seeks to adjust a number of allowances in the award which have not changed consistent with principle 5 of the wage fixing principles.

PN6

The application itself was made on 12 September and at the same time an application for an order for substituted service was made and granted and service was effected in accordance with that order. It is our submission, Commissioner, that the application meets the criteria specified in the wage fixing principles. The date of adjustment of the last safety net was 19 September 2002 and so more than 12 months have elapsed since that time. The union, as the applicant, gives the commitment as to absorption of over award wage payments consistent with the principles and in the draft order the required offsetting clause is also included.

PN7

In the draft order that we filed, after discussion with the parties, a number of errors have appeared, so I will hand for the Commission's purposes two copies. The terms of that draft order, having been checked by parties for the other side, is now by consent. We are seeking a date of 6 October 2003. I should point out for the Commission that there are, in substance, four discrete salary clauses relating to different categories of employer and classes of employee. Two parts of that order are annualised salaries and I need to put on the record that the multiplier used for that annual salaries parts is 52.179 rather than 52.

PN8

That is a position that has been adopted in respect of this award at least since the completion of the minimum rates adjustment of last year, if not earlier. I should also point out for the assistance of the Commission that in respect of what is known as a special schools allowances detailed at the top of page 5, that allowance was not adjusted in 2002 by the 2000 safety net and so the figures there incorporate the safety net adjustment for both years. Other than those matters, Commissioner, they are the submissions of the applicant, subject to any questions you may - - -

EXHIBIT #AEU1 AMENDED DRAFT ORDER

PN9

THE COMMISSIONER: Mr Eberhard.

PN10

MR EBERHARD: Commissioner, it might sound a bit flippant, but the only thing I would disagree with is the word "consent", only because my managers tell me I am not allowed to use that word, so we would not oppose the application. We would certainly agree with the - - -

PN11

THE COMMISSIONER: And you don't disagree with the calculations, I take it?

PN12

MR EBERHARD: No. Well, I think between the VHIA and VECCI I think we have finally got it right, more so through the contribution of VHIA than through my own contribution, Commissioner. Certainly I think it is important that for the record we do note that with respect to both parts 2 and 4 that the multiplier that will be now used for future applications is the 52.179. There was some disagreement between VECCI and the AEU with respect to that. That has now been clarified. And we had asked the AEU to put that on record, and we are supportive of that, and we will be using that into the future.

PN13

The only thing I would add to that is that the transcript is not necessarily distributed in these types of applications. We would ask that the Commission from our point of view certainly send us a copy so as we have that for our file, if the Commission pleases.

PN14

THE COMMISSIONER: Certainly. I think it is appropriate as there is an agreement in terms of the multiplier that there is a record of that and transcript is the easiest - we will arrange for the transcription of these proceedings. Ms Boyle.

PN15

MS BOYLE: If the Commission pleases, we have no objection to the application being made today and also having checked the amended draft order we find no discrepancies, thank you.

PN16

THE COMMISSIONER: All right. Thank you. The only other matter I wanted to raise with the parties, and I apologise for not raising this with you earlier, but I have been on leave and I am still cranking back into gear, so to speak; during the 2003 safety net review the Full Bench made some comments in relation to the supported wage that is contained in a number of the Commission's awards, and indicated that it would be appropriate on application to vary that supported wage from time to time in conjunction with applications such as this one.

PN17

My associate has checked the award and as I understand it at the moment there is a supported wage at the level of $56 in the award which has subsequently been varied by a Full Bench to $60 as I am informed. What I would suggest and the parties may need to confer on this briefly, is as part of this application if it was the wish of the parties and it was agreed that the supported wage be also varied at this time, then I would do so. If in fact the parties needed some time, then my suggestion would be that an application could be made in due course for such a variation to be made.

PN18

MR COLLEY: If the Commission pleases, we had not taken on board that particular comment, more through oversight than from - that is, comments of the Full Bench in the review decision, more from oversight than for any other reason.

PN19

THE COMMISSIONER: It is at paragraph 238 of the decision, just for information.

PN20

MR COLLEY: 238. Subject to further discussions with VHIA and with VECCI the suggestion or the comment that could be incorporated into this application is certainly a convenient way to go. My only query would be that we amend the application to incorporate that or simply amend the draft order.

PN21

THE COMMISSIONER: No, I do that on my own motion. I will amend the draft order if the parties are agreed to incorporate the application of the supported wage.

PN22

MR COLLEY: And in view of that, perhaps in a day or so if the parties could contact your office as to an agreement or otherwise, and should there be an agreement, then an amendment to the draft order be forwarded at that time.

PN23

THE COMMISSIONER: Yes, all right.

PN24

MR COLLEY: If the Commission pleases.

PN25

MR EBERHARD: Commissioner, I know that we have been involved, or VECCI has been involved in a number of these applications and there is a Full Bench decision with respect to the variation to the $60 for the supported wage. Given the Full Bench decision we certainly wouldn't oppose the Commission acting on its own motion to include or to vary this particular application to reflect the supported wage varying from $56 to $60, so if the Commission takes that on board we would certainly be supportive of that.

PN26

THE COMMISSIONER: All right. Thank you.

PN27

MS BOYLE: And if the Commission pleases, we would also be supportive of moving the supported wage from $56 to $60 as well, thank you.

PN28

THE COMMISSIONER: All right. Well, on the basis of those submissions and the earlier submissions in relation to the substantive application I should indicate that I am satisfied that the criteria set out in the safety net review decision of 2003 which is contained in print PR002003 has been met in this case. It is appropriate to vary the award in the terms sought by the parties and as I have indicated on transcript I will amend the draft order in the terms as it is submitted in AEU1 to include a variation in relation to the supported wage clause moving the present amount from $56 a week to $60 a week.

PN29

The variation will - or the order will issue and will come into force from the first full pay period to commence on or after today's date, 6 October 2003, and will remain in force for a period of 12 months. Formal order will issue from the Commission in due course. The Commission stands adjourned.

ADJOURNED INDEFINITELY [2.12pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AEU1 AMENDED DRAFT ORDER PN9