C2002/5923, Transcript of Proceedings [2003] AIRCTrans 4670 (23 October 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N 10613
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C2002/5923

METAL INDUSTRY (VICTORIAN PUBLIC
HOSPITALS AND PUBLIC TRANSPORT)
AWARD 2002

Application under section 33 on the Commission's
own motion to vary re wages and conditions of
employment

MELBOURNE

9.35 AM, FRIDAY, 3 OCTOBER 2003

PN1

MS Z. ANGUS: I appear on behalf of the Australian Workers' Union.

PN2

MR R. CORBOY: I am from VHIA.

PN3

THE COMMISSIONER: Thank you. Yes, Ms Angus.

PN4

MS ANGUS: Commissioner, this is an application to vary the Metal Industry Victorian Public Hospitals and Public Transport Award 2002. Commissioner, as you will be aware, this is the final stage, if you like, of a fairly long and intensive process of award simplification, that involved all the parties throughout those discussions. There was, at the end of the award simplification process only one outstanding matter, and that was to having adjusted the award rates to make them effectively minimum rates, awards, there was the process still of updating those rates and allowances.

PN5

And what we have before you today, Commissioner, you will be pleased to hear, is in fact a concluded process in that regard. So the application before you, effectively does three things. It updates the award to include the last four safety net adjustments and the allowances with that. It updates the casual loading, in line with the - consistent with the private metal industry award. And it extends the parental leave clause to cover eligible casual employees as well, consistent with the recent test case.

PN6

The AWU undertook to prepare those rates, and we have done so, and together with Mr Corboy, who is here today, we have had some discussions about the draft orders. Now I understand you should have, Commissioner, before you a copy of the proposed draft orders. If not, I have - - -

PN7

THE COMMISSIONER: Yes, I do.

PN8

MS ANGUS: You do. There are, if I could just make a number of points about that. For the purpose of the record, it is worth indicating the rationale that was adopted. The wage rates simply reflect the minimum rates contained in the private sector metal industry award. The allowances in all bar four cases, all bar four allowances, also represent the appropriate allowances or parallel allowances in the private sector metal industry award as well. So they were, if you like, uncontentious.

PN9

There are four allowances just for the benefit of people who follow on after Mr Corboy and myself. Four allowances, that are not contained in the - what we have deemed to be, and what is the appropriate parent award, the private sector metal industry award. And they are the - firstly at clause 14.2.1 there is a licence allowance for electricians. The parties agreed that the appropriate parent award to use to assess the allowance in that regard is the National Electrical Electricians and Construction - the award number is 791396, which is the parent electrical industry award.

PN10

And then there are three other awards which are the Experience Payments Mechanical Tradesmen Public Holidays allowance. The Certified allowance for Mechanical Tradespeople, and the Lift allowance. Those three allowances are not contained in the Private Sector Metal Industry Award, and the parties agree that the appropriate way to update those allowances is to apply the standard principle of the percentage increase of the safety net adjustments, has been applied to those allowances. So in all other regards, the allowances contained in this award reflect identical allowance in the private sector award, and that is the rationale that we have adopted there.

PN11

In relation to those four allowances, one is a clearly industry specific electricians allowance, and we have used a parent award there. And the other three, we have updated them consistent with the percentage increase in the four safety net increases. That is the rationale just for the purpose of people who follow on after. I understand from Mr Corboy, in light of that - certainly prior to today's hearing, we were proceeding on a consent basis. And obviously Mr Corboy can speak for himself, but I understand that we are now in agreement about the calculations themselves.

PN12

The final point that I would say, Commissioner, is that consistent also with the principles developed by the Commission, although this is an application to update for four safety net adjustments, the 12 month period between safety net adjustments is appropriately waived in the sense, that is because the application is proceeding by consent. It is essentially an administrative exercise and there is an enterprise agreement in place that provides for the site conditions anyway. So for all those reasons, Commissioner - - -

PN13

THE COMMISSIONER: Which the award doesn't upset, or - - -

PN14

MS ANGUS: Which the award doesn't upset.

PN15

THE COMMISSIONER: - - - contradict, yes.

PN16

MS ANGUS: No, that is correct. So unless there are any specific questions about the draft orders or the process involved, Commissioner, we are pleased to commend the application to you.

PN17

THE COMMISSIONER: Thank you. Mr Corboy.

PN18

MR CORBOY: Thank you, Commissioner Hingley. Yes, I have had discussions with Ms Angus from the Union and we have agreed on the rationale. We have also, as Ms Angus has very succinctly put on the record, is to record for posterity the rationale behind this award, because it is an award which is not necessarily high-focus in any industry besides public health, every now and again. There is one - and I agree with the - Ms Angus's view about how she has calculated the safety net adjustments, and we consent to those being varied today, which were omitted from the draft orders, being the Electricians Lift Allowance, the Mechanical - the Experience Trades allowance, and the Certified Trades allowance.

PN19

What Ms Caldwell has done is adopted our agreed position, which effectively increases these allowances by 12.9 per cent, which reflects the safety net movements in that time. We agree with Ms Caldwell - sorry, Ms Angus's application that in this situation the Commission, as we are doing an administrative exercise of bringing the rates up after a four year gap of attendance, we believe that 12 months should be waived between each safety net adjustment, and we hope the Commission - or we assume the Commission has the capacity to do that.

PN20

There is only one thing. As the allowances that we have agreed to today have an application separate to the enterprise agreement, and I neglected to raise this with Ms Angus today, we would be hoping that the actual rates of pay would occur from the first pay period on or after today that affect those allowances, because they are separate to the enterprise agreement. Otherwise the pay officers will have to - - -

PN21

THE COMMISSIONER: Just take me through that again, will you?

PN22

MR CORBOY: Well, the enterprise agreement has - is read in conjunction with the award.

PN23

THE COMMISSIONER: Yes.

PN24

MR CORBOY: And I apologise, in our hurry, we didn't have a chance to discuss this prior to the Commission. The wage rates aren't affected. The specific allowances in the certified agreement aren't affected like the enterprise flexibility allowance and numerous other allowances, which are separate to the award. However, the enterprise agreement is read in conjunction with these allowances, so that there - if the current draft order has an application date as the 1 June 2002, I believe - - -

PN25

THE COMMISSIONER: Yes.

PN26

MR CORBOY: And as some of these wage - or some of these allowances will have an effect on an employer, we would be seeking those allowances will actually be effective from the first pay period on or after today. Now, as I said - - -

PN27

THE COMMISSIONER: I understand your submissions.

PN28

MR CORBOY: - - - I haven't had a chance to raise that with Ms angus, and no doubt she will have a view on that. But I think for simplicity and fairness we need to have that application date today, so we can advise our members to make the correct payments.

PN29

THE COMMISSIONER: Yes.

PN30

MR CORBOY: If it applies. Because a lot of these allowances come from the parent award, and they are not necessarily found in a public health environment. But we need to cover the case just - you know, the situation, in case they are.

PN31

THE COMMISSIONER: Yes, I understand your submissions, thank you.

PN32

MR CORBOY: Right. Apart from that, I want to thank Ms Angus for her work. Thank you.

PN33

THE COMMISSIONER: Mr Corboy, do you confirm all the amounts?

PN34

MR CORBOY: Yes, yes, I do, Commissioner. With the exception of those ones which were characterised as a series of stars - - -

PN35

THE COMMISSIONER: Yes.

PN36

MR CORBOY: - - - on the draft order, which we have discussed today and I have checked all of those and I have worked through all the calculations. I would say, unfortunately, because it is not an easy draft order to work through. So thank you.

PN37

THE COMMISSIONER: Indeed. Thank you. Did you want to say anything on those allowances? It is only as to operative date.

PN38

MS ANGUS: I beg your pardon?

PN39

THE COMMISSIONER: As to operative date, the question Mr Corboy - - -

PN40

MS ANGUS: Yes, I understood that. My only concern is that we might then be perpetuating the problem that we have had up until this point of an award that effectively remains constantly out of date. So I wonder if - obviously it is difficult to negotiate from the bar table, but I wonder if an appropriate exercise would be that in this instance the union doesn't seek retrospectivity, but rather we agree to the 12 months operative date for the next - for the 2003 safety net adjustment to commence earlier than 12 months from today. So that we, rather than perpetuating an endless cycle of a delayed 12 months, that we agree to the award being effective, operative - the rates being operative as of today, but that the 2003 rates would come in in say January of next year.

PN41

MR CORBOY: I would have no problem with that, Commissioner. I think it is a matter of equity, which we have to address. Ms Angus has triggered the point that we haven't dealt with the 2003 safety net adjustment yet, and I think that is something that we need to do, and rather than hold up today's proceedings, I think if the parties can agree to have an application date for the new allowances as of 1 January, as a special consent matter. I haven't seen the application for the 2003 safety net. That may be something Ms Angus and I may need to work through. If the Commission pleases.

PN42

THE COMMISSIONER: Thank you, Mr Corboy. I must say I am pleased to see the matter concluded at last. The Commission will adopt those submissions that are consent submissions of the parties. The only matter that I want to raise with you now is that initially this was a section 33 action on the Commission's own motion, and I have received a letter from Clayton Utz. It says:

PN43

We confirm our instructions that PTC no longer employs anyone under the terms of the above award, and on that basis respectfully request that the PTC be deleted as a respondent to the award.

PN44

And I indicate to you that I do intend to do that, and it would be appropriate therefore, and as a consequence of that to delete from the title of the award, Public Transport, and I will do that in varying the award. And I thank you both again, especially for your hard work in the calculations, Ms Angus.

PN45

MS ANGUS: Thank you, Commissioner.

PN46

THE COMMISSIONER: We will adjourn.

ADJOURNED INDEFINITELY [9.49am]