C0093/998, Transcript of Proceedings [2003] AIRCTrans 61 (9 January 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N VT1187

A: 8.1.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C No 00939 of 1998
C2002/3437
C2002/3438
C2002/3439
C2002/3665
C2002/3669

AMBULANCE EMPLOYEES - VICTORIA
INTERIM ORDER 1994

Review under Item 51, Schedule 5, Transitional
WROLA Act 1996 re conditions of employment

Applications under section 113 of the Act
by Victorian Patient Transport and Others
to vary the above award

MELBOURNE

9.43 AM, WEDNESDAY, 18 DECEMBER 2002

Continued from 27.11.02

PN3897

THE COMMISSIONER: Mr Friend?

PN3898

MR FRIEND: Commissioner, I have had an opportunity to prepare an outline of the submissions we propose to make today. I can say, Commissioner, that my secretary has chosen to rusticate herself somewhere near Mooroolbark, and so you will see that I am not a very good typist, but the good effect of all of this is that I sat a lot longer trying to hone down the submissions so I didn't have to type as much, and hope that I will be short today.

PN3899

THE COMMISSIONER: That is most encouraging, Mr Friend.

PN3900

MR FRIEND: Well, in reality, Commissioner, it seems to me that the parties have to a very large extent joined issue and crystallised those matters that are in dispute before the Commission. Through the broad range of material that we have had, because of the outlines we had, and extensive outlines we had before we commenced, it is really only necessary, in my submission, to direct your attention to the relevant evidence and give the broad framework of how the case is put.

PN3901

Of course, if there is anything further I can do to assist the Commission, I will do that, but it is a time now perhaps to get the big overview and see how it all fits together. As I apprehend it, Commissioner, there are still really three issues remaining. And I think when I opened I said there were three, possibly four; the fourth one was leave loading, and we have dealt with that. So now we are just left with these three. Whether the award should be dealt with under item 49(5) of the WROLA Act, setting new work value award rates for ambulance attendants and patient transport officers, and dealing with the application for a separate part of the award by some of the private providers.

PN3902

Now, what I would propose, subject to the Commission's convenience, is to make our submissions on the first two points, but allow Mr Quigley, because he is the moving party, to make submissions on the latter matter. I could then deal with that in my reply, and no doubt he will want to have a reply to my reply on that issue. But that might be the most convenient way, if that is convenient to the Commission.

PN3903

THE COMMISSIONER: Certainly, Mr Friend.

PN3904

MR FRIEND: Commissioner, our submission is that the minimum rates issue can be dealt with quite simply. If one looks at the WROLA Act, the first matter that is apparent is, it is not talking about a minimum rates, paid rates distinction per se. Item 49(5) provides:

PN3905

If the award provides for rates of pay that in the opinion of the Commission are not operating as minimum rates or were made on the basis that they were not intended to operate as minimum rates, and the application under this item seeks to have such rates of pay varied so they are expressed as minimum rates of pay, the Commission may vary the award so that it provides for minimum rates of pay.

PN3906

There are two discretions there. You have to form an opinion about how the award operated and, secondly, if you do form the opinion that either it wasn't operating as minimum rates or wasn't fixed as minimum rates, you have to decide whether or not to do something about it. Merely forming the opinion doesn't mean you have to do something about it. It will depend on all the circumstances of the case. We point to a number of things which indicate that really there is no need to do anything.

PN3907

Firstly, when the award was made it was clearly made as a minimum rates award. At that time the Commission could realistically make either minimum rates awards or paid rates awards. Senior Deputy President Riordan was obliged, if he was making a paid rates award when he made the interim order, to include the phrase in the award "This is a paid rates award." That was the effect of the Act. He didn't do that, and so we must assume that he was making a minimum rates award.

PN3908

That isn't a very surprising conclusion, and there are a number of other factors that point to that aspect of things. If one looks at exhibit F12, this is for comparison between the award - this is for ambulance officers - between the award rate and the EBA rate. Now, the amount that has been used for comparison is the award plus the first SIPS plus CEP1-6, which we say is the minimum rate, and I will come to that in a minute. But anyway, apples and apples have been compared, because that is what is being compared.

PN3909

You will see that when the award was made in 1994, it was at a level of $507.80. Since that time it has been dealt with, with safety net increases, so all of the variations to that amount have simply been safety net increases, which is consistent with it operating as a minimum rate. In addition it has formed the foundation for enterprise bargaining, and the enterprise bargaining, as you will see, has progressively provided for a higher and higher rate of pay for that classification.

PN3910

Now, another pointer to the fact that this award was in truth operating as a minimum rates award are events in the Employee Relations Commission of Victoria in 1996. Of course, nothing the ERCV could have done in 1996 would have made any difference to the Commission's federal award. But it did have a jurisdiction to set minimum rates, and minimum rates only, minimum rates of pay for various industry sectors.

PN3911

There are two decisions of the Commission which we want to give you extracts of. We seem to have just mislaid one spare copy, if you bear with me a moment, Commissioner. I would hand those up. They might need to be tendered. I don't know how you wish to deal with it.

EXHIBIT #F31 DECISION E94/0177

EXHIBIT #F32 DECISION E96/0346

PN3912

MR FRIEND: Now, the F31 is a report of Deputy President Garlick, and this is an extract from the decision of the Commission based on that report at page 38. At the bottom of the page it deals with a number of awards:

PN3913

Minimum paid rates. The ex gratia payment made by the Victorian Government -

PN3914

this is the SIPS payment -

PN3915

referred to above is more consistent with the minimum rates status for the former state awards, at least with respect to the public sector. The SPSFs submission that the Employee Relations Act has abolished the former paid rates environment and substituted a new minimum standards environment, and that this review is a review of the minimum standards established by the Employee Relations Act, was not argued in full.

PN3916

And going on they deal with the Health Services Award:

PN3917

As to the Health and Allied Services Award, the Residential Care Workers Award and the Dental Technicians Award, the HSUA has committed itself to a minimum rates status with the equivalent federal award ...(reads)... reasons which will become apparent below, it is not necessary to make a decision about the status of the other awards in this decision.

PN3918

So it is an indication, and all it could ever be is an indication. Even if they had said it is definitely a minimum rates award or definitely a paid rates award, all it could ever be was an indication. Then in 1996 the Commission was required to set minimum rates, and there was an issue, of course, about the SIPS payment and whether that should be included in the minimum rate. I am not sure, Commissioner, if you are familiar with the whole SIPS issue. In a general sense it is called a supplementary payment, it commenced in the 1960s, and I think there is material before the Commission in relation to that.

PN3919

But the important issue from the point of view of this case is what the Commission did. And at page 8 of the decision the Commission noticed that:

PN3920

The second significant issue between the Victorian Government and the ALHMWU was the service increments payment scheme in the setting of an appropriate minimum wage. Ms Forbath provided lengthy submissions regarding SIPS in support of her submission, and in this case they should be included in the minimum wage which the Commission may set.

PN3921

And then they summarised Ms Forbath's submissions:

PN3922

Ms Forbath also submitted that there was an agreement between the parties in two areas, first, that some SIPS should be included in the minimum wage, second, that there should be a single rate applying across the state, but no differential.

PN3923

The Department said first level SIPS, but not level 3 should be included in the minimum wage. SIPS was in three levels, and you will recall, Commissioner, in the award there are three levels, in the interim order there are three levels of SIPS that have now been incorporated into the rate. A number of other matters are referred to, and then at the bottom of the page, or the last paragraph:

PN3924

It is unfortunate the award provisions to which the parties refer were not subject to restructuring at the appropriate time. The position of the ALHMWU is that the allowance for the third year should be included in the minimum wage.

PN3925

Skipping a bit, Mr Dimsey submitted that:

PN3926

Such an approach is not consistent with the award provisions which previously applied, and that it is possible for an employee to commence as a qualified ambulance officer without having first undertaken the training normally carried out.

PN3927

They talk about the incidence of that, and then they say:

PN3928

Were this simply a matter of service increments we would have no difficulty on the basis of the submissions put in rejecting the union's submissions. However, as the Victorian Government concedes, these SIPS were introduced as a form of over-award payment to assist in recruiting employees in the '60s. That concession is invoked by the Victorian Government's own proposal that the first year allowance be paid.

PN3929

Following the conclusion there were further matters referred to:

PN3930

They looked interstate, which is one of the matters that the Commission can take into account. We say this is sufficient. The minimum wage sought in Victoria is 14.32, in Tasmania it is 14.40, South Australia 14.52, and so on ...(reads)... instead we adopt the minimum wage proposed by the Government, which is 14.08 an hour, but which is, in fact, a little higher than the federal award rate at the time.

PN3931

Now, the position in relation to the second and third SIPS is that the employer, or rather the private employer applicants, if I can call them that in shorthand, have asserted they are not allowable increments. But, of course, you will see in the award that has, in fact, been made that the increments depend upon further qualification and further skills or training having been completed, and they are precisely consistent with the types of increments that are said to be allowable in the paid rates review decision. It is true that an increment payable simply by reason of service - - -

PN3932

THE COMMISSIONER: Passage of time.

PN3933

MR FRIEND: Passage of time would have some difficulty. But as it is phrased in the award that you have made, it is completely allowable, in my submission. Now, even if you thought, well, that somehow this wasn't a minimum rate, and there needed to be some adjustment, if one undertook a minimum rates adjustment then, in fact, the rate that is in the award at the moment, even on the private employer applicant's analysis, is lower than the relevant equivalent, what they say is the relevant equivalent, C5 in the Metals Award. C5 is 130 per cent of the tradesman's rate.

PN3934

Now, we have indicated that in the future the union will be making application in respect of the work value with ambulance paramedics. So we don't say that that is necessarily the correct rate, but if one assumes on the basis of the way things are at the moment that C5 is the correct level, as the employers submit, and if you compare that rate with the award rate, including CEP1-6, then, in fact, the award rate is lower.

PN3935

You will see on page 2 of the outline there is a reference to some of the evidence. The paragraph numbers which are referred to there are those that establish that an ambulance officer must re-qualify in CEP7 every year. That is the defibrillation. If you don't re-qualify you don't get the allowance. So on no basis, in my submission, could it be said that the CEP7 allowance is part of the minimum rate for the classification. We accept CEP1-6 must be part of the minimum rate for the classification because everyone who is qualified has done those things, and once you have done them you get those amounts.

PN3936

But CEP7 is an allowance dependent upon re-qualification on an annual basis. If you look at the outline of submissions filed by the private sector applicants, which is P2, at page 72, you will see they have set out a chart there with the Metal Award classifications as they say are relevant. Now, we say that is not the way this should be done. You line up the key classification, then you look at your relativities. And the key classification, everyone seems to agree, is ambulance officer.

PN3937

We are looking at ambulance officer as it was last work valued in 1989. Let us assume it is C5, 130 per cent of the tradesman's rate, $648.60 per week. They say absorption of $11.65 because they include CEP7. In fact, the award rate, excluding CEP7 at the moment, is $634.41, which appears from F12. So, in fact, there would be an argument for adjusting up, but because we have foreshadowed a different procedure we just say that this is another thing that points to the operation of the award as in truth one which provides for minimum rates of pay.

PN3938

And that even if you form the view that there hasn't been a minimum rates adjustment, that there needs to be some type - well, that there might need to be some type of assessment of the award on a minimum rates adjustment basis, looking at all of these things that I have just referred to, the matter really cries out as one in which the Commission wouldn't exercise a discretion to do anything because everything is pointing to this being an appropriate minimum rate.

PN3939

So you might recall, Commissioner, that no one raised this minimum rates question until the simplification process had been going for a very long time and it came up at the end, and it is obvious that MAS and RAV, as being the major employers, don't have any interest in this question. We submit that is because it is just simply the rates there, it is right as a minimum rate and there is no need to do anything about it.

PN3940

Now, work value is the second topic I need to deal with. I am not going to take you, Commissioner, to all of the evidence. Our statements, we say, are comprehensive and deal with the range of work undertaken by ambulance attendants and patient transport officers. In addition you have had the benefit of the inspections, and I have already made submissions in regard to that, and we have got the document that was prepared by Ms Forbath summarising those matters.

PN3941

We would ask you, Commissioner, to look at those statements again, and also direct your attention to the passages of the evidence that we have referred to here. We say that these propositions are made out. The work of both ambulance attendants and patient transport officers is highly skilled, requires high levels of training and the ability to deal with urgent cases constantly, and emergency cases on occasions.

PN3942

Now, obviously there is a difference between ambulance attendants and patient transport officers, and a very significant difference, and we don't resile from that. But put together, looking at the work as a whole that is undertaken often by them together, and looking at this issue of urgent and emergency, there is a good deal of evidence there which touches upon those things.

PN3943

It will no doubt be said by Mr Quigley, in reliance upon the document that was obtained under subpoena from MAS, that there are only a few lights and sirens cases every year; that is P13. We, of course, rely in part on the document which we tendered in relation to that, which was the code 1 responses of just one employee over an 18 month period, seven of which existed; that is F30.

PN3944

Now, it is not necessarily to the point how often this happens. And one of the interesting pieces of evidence that arose in respect of this from the subpoena directed to MAS was the web page of Ambulance Services Victoria, which is F27. You will see on page 1 of 1 at the bottom paragraph it says that both MAS and RAV provide non emergency patient transport services. And then on the next page there is a summary of these:

PN3945

Non emergency services, stretcher transport, planned transports which have been -

PN3946

at the bottom of the page -

PN3947

arranged by or on behalf of medical practitioner for a person not experiencing a health crisis but whose condition warrants the transport undertaken by an experienced and skilled ambulance attendant, but not necessarily an attendant with paramedic skills. Crewing consists of one qualified ambulance attendant and one qualified patient transport officer. All ambulance attendants are accredited in rapid response defibrillation and can cope with the same range of patient conditions as emergency crews.

PN3948

We say there is a very significant statement by MAS there about the level of skills that they require the ambulance attendants have to have. Then over the page:

PN3949

These vehicles carry the same range of equipment as emergency ambulances, and with the exception of Narcan, Glucagon, Midezolam, the crews are able to administer the same range of therapeutic drugs.

PN3950

Now, I think that might be slightly out of date because I think there are some additional matters, but the evidence goes to that and, in fact, the paragraphs I have referred to deal with that. In my submission it is not to the point to say that they don't do emergency work all the time. They have got to be able to deal with it, it does happen, and they are trained at least to the level and probably to a much higher level, in fact, than ambulance officers were back in 1989.

PN3951

And, Commissioner, you have before you the summaries of the courses they undertake, and the evidence of Mr McDonell about the range of work that they do and the extent of knowledge that they are required to have, and the changes that have occurred between 1989 and now in respect of ambulance paramedics. And, indeed, the next paragraph 12 deals with the question of ambulance attendants now being engaged in similar work to ambulance officers the last time there was a work value in 1989, and we have referred to some transcript references in relation to that.

PN3952

There is also some transcript evidence dealing simply with the work of ambulance attendants and also patient transport officers, and as a matter of convenience, Commissioner, we have set those out so that you can see the relevant passages both in examination-in-chief and - well, both our witnesses and their witnesses in cross-examination in respect to those issues.

PN3953

It appeared to us, if we might say so, Commissioner, that Mr Brown, when he gave evidence, attempted to downplay the level of skill required, and that was perhaps epitomised by his statement, in his written statement, that only 84 crews had ever filled in a PCR when there were possibly, I think, on his evidence, hundreds of thousands of them. Anyway we have made a comment there. We think that, or I submit really, Commissioner, that you need to approach Mr Brown's evidence with a good deal of caution. And I don't go any further than that because we don't need to, but one would be looking for corroboration, in my submission.

PN3954

Now, on the basis of the ambulance attendants level of skills being so similar to that of ambulance officers when the position was last work valued, there might be some things that are less, some aspects of the job that are less, and some that are more, but all in all it would seem the evidence would point to an equivalence. And, in fact, that is, of course, the practice widely in the industry, and what had been proposed before this late application came along, well, we submit, that ambulance attendants should be at the same rate as ambulance officers, and we have indicated that we will be making an application in respect to ambulance paramedics in the future.

PN3955

Obviously if the Commission accepts my submissions in that regard, that issue would have to be taken into account in any work value for ambulance paramedics. One wouldn't be trying to achieve a parity in a work value for ambulance paramedics in respect of ambulance attendants. The relativities would have to change. So we accept that, but we say the appropriate, given the rates that are paid now, given the nature of the job, the appropriate thing is to fix ambulance attendants at the same rate as ambulance paramedics, and allow the work value on ambulance paramedics to take place and run its course in due course.

PN3956

Patient transport officers, we submit, should be fixed at the equivalent of a student level 2. And there is a good deal of material in the evidence, in the written evidence we have presented in relation to that, and I don't want to, unless it would assist the Commission, to go through that chapter and verse, it is all set out there, and I would really only be repeating it if I were to say anything. But if the Commissioner would be assisted in any way by me drawing comparisons and showing how it works, I am happy to do it, but we really rely on the evidence that is there and the documents in relation to the courses and, of course, the practice that appears to have developed in the industry.

PN3957

Now, Commissioner, those are the two issues that we might be said to be moving parties on. I suppose we are not really moving parties on the minimum rates aspect, but we have made our submissions on that. It would be more convenient if I could deal with it separately after I have heard what Mr Quigley has had to say.

PN3958

THE COMMISSIONER: Certainly, Mr Friend. Mr Quigley?

[10.15am]

PN3959

MR QUIGLEY: Thank you, Commissioner. Actually, Commissioner, I have had a little bit of luck. Marco Polo, after his long journey coming within sight of his home town, but realising that we have still got a few rivers to cross before we get home. I think this matter has been going on for well over a year, hopefully we are just about there. Commissioner, I would like to encapsulate that it is that these proceedings have involved, certainly as far as the employers whom I represent have viewed these proceedings.

PN3960

I think we need to say that there has been nothing raised in the submissions of the union to convince the employers whom I represent that there is any reason why their application, that is the employers, for a separate part of the Ambulance Services and Patient Transport Employees Award (Victoria) 2002 is not warranted. It is clear on the evidence, in our submission, that there are some fundamental differences between the work that is performed in the public sector emergency ambulance services and that performed in the private sector non emergency patient transport sector.

PN3961

It is our submission that importantly not only is the work performed of a different character, but that the environment in which the work is performed is also starkly different. We further submit that an award ought to be made by the Commission that reflects not only that reality relating to the work performed and the environment in which it is carried out, but also that the award should meet the requirements of the Commission's own principles and the obligations imposed by the Workplace Relations Act.

PN3962

Now, the Act provides for wages and conditions of employment to be determined as far as possible by the agreement of employers and employees at the workplace or the enterprise level upon a foundation of minimum standards with an effective award safety net of fair and enforceable minimum wages and conditions of employment. And from our point of view this is what these proceedings have been concerned with, an effective safety net of fair and enforceable minimum wages and conditions.

PN3963

It should be noted by the Commission that whilst these proceedings have been going on, agreement in principle has been reached between the union here and two of the employers whom I represent for agreements pursuant to section 170LJ of the Act. Now, those agreements in principle have yet to be voted upon by employees, but I think it is fair to say that the principles in the Act of a set of underlying safety net award provisions, and sitting over that enforceable agreements is the developing trend within the private sector.

PN3964

And there is certainly no reluctance on the part of the employers to enter into agreements, whether it be agreements with the union or agreements as otherwise provided for under the Act. Now, the award that the Commission is being asked to make is, in our submission, a first award proper. In its submission of 19 September, which is exhibit F11, the union asserts that this is not a first award. They say that the interim award was the first award, and, indeed, the union appears to have the view that an interim award somehow or other loses its status simply with the effluxion of time.

PN3965

True it is that the award, or the interim award or interim order made by Senior Deputy Riordan in 1994 is eight years ago, but that does not detract at all from the interim nature and the circumstances that led to the interim award being made by his Honour in the first place, and they are spelt out clearly in his decision, and we have referred to that several times in the earlier submissions that we have made on this matter.

PN3966

We also say that the state incremental payment scheme payments that are contained in the award give the award its paid rates character and, in our submission, precludes the award being regarded as a minimum rates award, and I will be coming to that in more detail shortly. We maintain the view that the increments provided for in the award are not allowable under section 89A of the Act, and I will deal with that point further as well. We also say that the long service leave provisions of the award are in excess of the Commission's standard on long service leave, and especially in respect of the private sector, and we submit that in those circumstances it is not possible for a single Commissioner to make an award with such provisions in it.

PN3967

Importantly, the terms and conditions of employment of ambulance employees have their origin in a public sector emergency service environment. And we have already put substantive submissions to the Commission on the classifications and associated rates of pay in the context of a minimum rates adjustment process, and this includes the new classifications of ambulance attendant and patient transport officer, and their work value assessment.

PN3968

There is considerable detail already put to the Commission in that respect, and we would ask that the Commission refer to those in the context of our submissions as to what the appropriate minimum rates are for those particular classifications that we believe are relevant within the private sector part of the award that we seek. We also bring to the Commission's attention that the proposed private sector part of the award has been drafted to eliminate what we believe are provisions unsuited to a non public sector, non emergency ambulance service, and we would ask that the Commission adopt provisions that are more in line with prevailing ambulance industry awards.

PN3969

Commissioner, the companies who are the applicants in these proceedings conduct patient transport activities in their own right and they also contract to the Government of Victoria for the provision of non emergency work. There has been material put to the Commission already, including the material of the Metropolitan Ambulance Service, which identifies the various categories of ambulance work, and that can be generally divided into four categories; emergency ambulance transport, urgent medical cases, planned transport, and routine transport.

PN3970

Now, pursuant to their contract with the Victorian Government, the companies, or at least some of the companies provide urgent medical cases, planned transport and routine transport. It is our submission that emergency ambulance transport work is not performed by the non emergency employers. The majority of that non emergency transport is undertaken through either direct arrangement with practitioners of the services or through a contractual arrangement with the Metropolitan Ambulance Service.

PN3971

Now, in relation to the minimum rates issue, the union says that the award is and has been operating as a minimum rates award. We reject that notion, and we do so for these reasons. And we have already put already significant submissions to the Commission in relation to that. But prior to 1 March 1993, as the Commission will be aware, the terms and conditions of employment of persons engaged in patient transport were governed by the Ambulance Services Award, an award of the Industrial Relations Commission of Victoria.

PN3972

Now, at that time the only employer subject to the Ambulance Services Award was the Government of Victoria. That award was in its terms and according to custom and practice a paid rates award formulated and applied on a basis consistent with all paid rates awards applicable in the public sector. Amongst other things it made provision for service increment payments, or SIPS, and for classifications that establish salaries within a band.

PN3973

On 1 March 1993, the Employee Relations Act 1992 came into effect, the Employee Relations Act in Victoria, and section 172(6) of that Act provided that:

PN3974

All awards in force on 1 March 1993 expire on that day. Section 24(3) applies to an award that expires because of this subsection.

PN3975

And subsection 3 of section 24 provided that:

PN3976

If an award expires, each employee who continues to be employed by the employer, and the employer are, unless a new award is made, or the employee and the employer make an employment agreement by an individual employment agreement with the same terms and conditions as those that apply to the employee and the employer until the expired award.

PN3977

In other words, there was an ongoing provision there in relation to those conditions of employment. It is our submission that on 1 March 1993, the Ambulance Services Award was a paid rates award, it was not a minimum rates award, and it was in its terms applied by operation of section 24(3) of the Employee Relations Act to individual employees. On 29 April 1993, the union, the ALHMWU, and the Ambulance Employees Association jointly served a log of claims on employers conducting ambulance services in Queensland, Victoria, Northern Territory and Western Australia.

PN3978

On 11 October, the Commissioner found a dispute relevantly between the LHMU, the AEA and the employers in Victoria. That finding is found at print K9423. And on 23 March, the Commission made an award in part settlement of the log of claims binding upon the State of Victoria and its agencies, the LHMU and the AEA. Now, in print L2476, at page 2.9, the Commission said:

PN3979

There will be an order made which in effect guarantees to the employees of the ambulance services the terms and conditions of employment specified in the previous Victorian State award covering such persons.

PN3980

And the order was made giving general effect subject to one qualification, and that was that:

PN3981

This order shall not apply to an employee who is a party to any employment agreement which has been entered into since 1 March 1993, and prior to 21 March 1994, provided that the AEAV shall have the right in respect of any employment arrangements covering work of the kind performed under the award/agreement which the AEAV finds unsatisfactory, to seek a variation of this order in respect of such agreement.

PN3982

Now, I am coming up to the point that this becomes particularly relevant, Commissioner. On 26 May 1994, at print L3430, the Commission made the order foreshadowed in its decision of 23 March 1994, in respect of the named respondents set out in the order. In particular, the order applied to all of the employers operating an ambulance service, that is the government agencies, as well as a number of private sector respondents who had entered the industry in 1993, and on 26 May, the Commission published the loose leaf version known as the Ambulance Employees Victorian Interim Order 1994.

PN3983

Now, appendix 3 to the interim order set out the actual rates of pay for employees whose terms and conditions of employment had been regulated as set out in clause 2 of the interim order, and service increment payments were identified in appendix 3 as being payable for all purposes based on years of service. Similarly, appendix 4 to the interim order that applied to salaries of the ambulance officers training centre Victoria provided salary ranges within each classification, but not to exceed the maximum for that classification, and progression to higher classifications was the basis of appointment or promotion to a vacant position.

PN3984

Now, relevantly, in seeking the introduction of a paramedics skills allowance for inclusion in the interim order, the union relied upon accrued rights in support of its application on the basis that the Workplace Relations and Other Legislation Act had by its introduction limited the jurisdiction of the Commission to make new awards that were other than minimum rates awards. In its decision in print P0547, Senior Deputy President MacBean noted, at page 8 - this is in relation to the paramedics skills allowance, Commissioner:

PN3985

The LHMU further submitted that because the matter had been heard, and a decision reserved on 28 November 1996, there was an accrued right under the previous Act, which is preserved ...(reads)... paramedic allowance should be discounted so as to provide for minimum rates only for such classification.

PN3986

At page 9 of that print the Commission found:

PN3987

I consider the circumstances of this case are not distinguishable from those in the CSIRO decision. I adopt the reasons given by the Full Bench in the CSIRO decision in deciding the matter of jurisdiction and applying those reasons to the factors in this case. We have concluded that the LHMU has an accrued right preserved by section 8 of the Acts Interpretation Act 1901, to have their application decided under the previous Act.

PN3988

So the Commission by so deciding granted a two level paramedic skills allowance based on experience. The allowance granted was not discounted, nor was the issue of any alleged minimum rates basis for the allowance further identified by the Commission. We say that it having been determined to consider the application on the basis of the approved right of the LHMU, the Commission did not proceed to determine the matter as if the subject matter were an application to vary a minimum rates award, but rather as if the Commission were determining the matter based on the actual rates to be paid.

PN3989

And what we say is that the decision of the Commission in print P0547 identified the status of the interim order at the relevant time, namely, 31 December 1996, at which time it was a paid rates award, it was not a minimum rates award. And there is no evidence to the contrary in the custom and practice and conduct of the relevant parties to the award in operation by virtue of the interim order was consistent with it being a paid rates award. It is certainly not consistent with it being a minimum rates award. And what we say is that the paid rates nature of the interim order was consistent with awards applicable generally to the public sector prior to 31 December 1996. And we have already put considerable submissions to the Commission in that respect.

PN3990

Now, in relation to what was happening in Victoria within the Victorian system, on 1 March 1993 the Ambulance Services Award expired by operation of law, and it continued in force as deemed individual employment agreements pursuant to subsection 3 of section 24 of the Employee Relations Act. And on 10 May 1996, the Employee Relations Commission of Victoria was given jurisdiction by the Employee Relations Amendment Act 1994 to declare industry sectors, work classifications and minimum hourly rates of pay.

PN3991

In the course of exercising its jurisdiction the State Commission declared the Health and Community Services Industry Sector which applied to, amongst others, the general and ambulance services stream. And the Commission's attention has already been brought to the decision E96/0346, where the parties identified the actual rates of pay that were applicable in the area.

PN3992

Well, Commissioner, there is no evidence that the health and community services industry sector ever applied persons engaged in the work carried on by the applicants in these proceedings, and in particular the decision of the Commission was not made until 10 August 1996, and could only apply to the extent that the interim order did not apply. Now, what we say is that the minimum hourly rates of pay established by the Victorian Commission at that time are not relevant to these proceedings, and we say further that the Victorian Commission distinguished the component parts of the minimum hourly rate in recognition of the actual wages paid in accordance with the paid rates nature of wages and conditions regulation in the industry sector.

PN3993

Commissioner, the union has submitted that the Commission has a discretion to vary an award under item 51(4), and it is not required to do so, and it is submitted that at this stage in all of the circumstances it is not appropriate to vary the award. We say that if ever there was a case that warranted the Commission exercising its discretion under item 54(1), this is it. Indeed, we say that for the Commission not to vary the award would be to ignore the decision of the Commission in the paid rates review. That is at print Q7661, a decision of a Full Bench of the Commission comprising President Giudice, Senior Deputy Presidents Marsh and MacBean, and Commissioners Smith and Larkin, of 20 October 1998.

PN3994

Now, Commissioner, in that decision the Commission set out the basis of why there ought to be a minimum rates adjustment process, and at page 12 of its decision it said - sorry, at paragraph 12 it said:

PN3995

It will be necessary to examine the history of fixation of rates in each review of an award under item 51 to ascertain whether the discretion in item 51(4) needs to be exercised ...(reads)... bear an appropriate work value relationship to rates for work covered by minimum rates awards which have completed the MRA process.

PN3996

And the Bench then went on at paragraph 3 to say what they had decided. There is a fair bit in there, Commissioner, and I would, probably for the purposes of these proceedings rather than go through them, indicate that we bring to your attention paragraph 13 of that paid rates review decision where the Commission set out what was required as part of that minimum rates adjustment process. But what we say comes out of all of that decision is that those provisions clearly demonstrate that awards made under part VI of the Act should be minimum rates awards, and that paid rates awards are only provided for in part VIB.

PN3997

Moreover, under the statutory scheme, rates and conditions should only be adjusted for market consideration through certified agreements pursuant to 170MX, or perhaps by exceptional matters or orders pursuant to section 89A(7). Just moving along. So the union says that the incremental payments which are provided for in the award don't offend against the principle in section 89A, and are entirely consistent with the principles in the paid rates review.

PN3998

Now, this assertion can only be accepted if it is the case that the SIPS payments are based on work value. Now, the union says, but we have now put some work value words to that clause that was in the award, and it now would fit within the principles. Well, what we say to that, Commissioner, is that the additional words which have been cobbled onto clause 12 of the award don't constitute anything like the work value test that the Commission would be obliged to be satisfied about.

PN3999

The increment payments are SIPS payments no matter how the union tries to dress them up. Now, we dealt with the history of the SIPS payments at pages 25 to 39 of our 23 August submission, and it is clear that the purpose of the SIPS payment was, as described by Peterson J, in quoting a decision of the Full Bench in re Metal Industry Victorian Government Departments and Instrumentalities Interim Award 1981, as the SIPS allowance was created to counterbalance over award payments made in the private sector, and to bring VPS employees total rates into line with Australian public sector rates.

PN4000

And as we also pointed out in those submissions, the increment payments made to ambulance employees are no different from the authority allowance paid to employees of the Country Fire Authority in Victoria, and for a good reason; they have a common genesis in SIPS. And for the union to say, well, there is now a work value element in relation to payment of the second and third year, well, what we say is that that is clearly inadequate.

PN4001

The major thrust of our application, Commissioner, has been that an award originally made to cover government employees in the ambulance services in Victoria is an inappropriate instrument to apply to private sector non emergency patient transport operators because of the differences in the way in which the work is performed, and the environment in which that work is performed. And as we have already pointed out, and as the Commission, I think, will have picked up from the inspections and from the evidence that has been given in these proceedings, the non emergency patient transport sector does not carry out emergency work.

PN4002

At paragraph 27 of its submission of 19 September, the union claims that the employers are wrong in claiming that the former state award was made for employees performing emergency work. It points out that there are employees of MAS and RAV, such as fleet maintenance officers, communications officers, clerical and administrative employees, and clinic transport officers who do not perform emergency operation work but who enjoy common conditions of employment.

PN4003

We say that rather than defeat our argument, the union's submission actually supports what we are saying. We say that the award is a classic case of the emergency tail wagging the non emergency dog. Leaving aside the matter of emergency services superannuation which is subject to specific Victorian Government policies, the fact that emergency and non emergency employees enjoy common conditions of employment in the public sector, merely proves the point that the standards have been set, we say, by the emergency part of the operation.

PN4004

The union also tries to suggest that the amount of emergency work that is performed as between the government emergency sector and the private non emergency sector is not in issue. We say it is the issue. And the emergency side, that is pretty well all that the employees do, handle emergencies, emergencies which they are required to be able to deal with no matter what they might be. In the non emergency patient transport sector, if any emergencies do arise, as they may from time to time, the evidence from exhibit P16 is that out of some 200,000 transports in the non emergency patient transport sector, lights and sirens were used on only 15 occasions, and even then only half of these were found to have been justified.

[10.45am]

PN4005

Now, Mr Friend has put up a document from an anonymous person, a straw man, if you like, who has indicated that he has been keeping his own records. Well, the author of that document was never brought forward as a witness, so we don't know how all that was done. But even on the MAS documentation, even if all of those 15 were genuine emergency cases, it is still so infinitesimal as to be irrelevant. We do accept, however, that employees have to be qualified such as to be in a state of readiness and to respond to situations as they occur.

PN4006

Now, that, we say, is a significant difference from the circumstances in the emergency sector, where that is happening continually, and that is why we have referred to the what if situation in respect of public duty work, for example. There is no denying that the employees have to have certain qualifications, and if they didn't there wouldn't be any need for an ambulance service, whether it was a non emergency patient transport service or an emergency purpose. If there was no need for staff to be trained then people could be simply moved around in taxis, but that is not the case.

PN4007

Now, Commissioner, in relation to that I would just like to deal with some of the evidence that was given in those proceedings, because the parties are at odds over some of these things, and I think it is important that we take the Commission to some of the key points. The point we make is that the training and qualifications of the employees is appropriate to what they do. There is no evidence that employees were asked to do any work that was beyond their training or was beyond their job descriptions. Evidence in that regard was given by Mr Bearup on 2 October at paragraph number 2431, by Mr McKnight on the same day, reference paragraph number 2541, and Ms Brunswick, paragraph number 2637 and 2639.

PN4008

There was also evidence given that employees deal with emergency cases because they might come across car accidents. Well, there is a significant difference we say between being called to deal with an emergency and coming across a situation where people who have got certain training stop to render assistance, in the same way as a school teacher who has got first aid training, or a nurse or a doctor, a vet or a dentist, or anyone who has some training would stop to attend. And in that respect the requirement to assist is only to the extent of their skills or training.

PN4009

So an ambulance attendant is only required to render the amount of skill and assistance that he can or she can based on her training, and the same with a patient transport officer. But as was stated by Mr McKnight at paragraph number 2563, non emergency patient transport employees don't respond to emergency calls. Now, we might compare that with Mr Morris' evidence at paragraph number 1931. It seemed to suggest that they did. Mr McKnight is a current employee, Mr Morris, I dare say, has not worked for some time as an ambulance officer.

PN4010

It is also worth making the point that in relation to the patient transport officers, that they work under the direction of the ambulance attendant, and there is no suggestion that when the patient transport officer was working with an ambulance attendant it was other than under the direction of the ambulance attendant. That point was made by Ms Brunswick at paragraph number 2616, and at paragraph number 2618 she emphasised that the PTOs role is to drive the vehicle, not to attend at patient care.

PN4011

And Ms Brunswick, in the course of her evidence, also made the point that cases are assigned to the non emergency patient transport operators having been assessed before they are assigned to them, so it is not that cases are assigned willy nilly, but there is an assessment made by the proper people within the hospital environment, or wherever, so that the cases that do get sent have been identified as to whether or not they are emergency cases or standard transport, or whatever.

PN4012

Now, references have been made to the training and the skills required for these positions, but in relation to the qualifications, Mr McDonell was referring to a Bachelors degree being required for an ambulance officer, and he said that someone who did the Ambulance Officer Associate Diploma in 1990, and someone who has done the first year of the Bachelor of Health Science Program would be able to do the job of an ambulance officer, and he also said the national competencies determine the training requirements, although who it was who determined these natural competencies we never seemed to be able to track down.

PN4013

He also pointed out that the base level requirement of an undergraduate Bachelor degree for an ambulance paramedic is in reference to the emergency sector. And I think it is important to note that Mr McDonell's evidence was devoted to that, because when asked he said he did not know in terms of the national competencies if the development in the upgrading of courses for patient transport officers and ambulance attendant have been brought about by identified needs in the non emergency patient transport area. And he made that point at paragraph number 2729.

PN4014

He also made the point that he was not familiar with the duties of an ambulance officer in the non emergency patient transport sector; that is at paragraph number 2736. He said he was not familiar with the award classification of student level 2, which the union was saying was the proper comparison; that is at paragraph number 2735. And he also conceded that the proposed certificate change for patient transport officer is not yet in place; and that is at paragraph number 2733.

PN4015

And he also conceded that he didn't know how the exact process by which national competencies were arrived at were done; and that was at paragraph number 2732. So I think, Commissioner, we have got to take with a considerable grain of salt the evidence of somebody like Mr McDonell, who is in a tertiary institution and is involved with programs and is quite readily making concessions that he, in fact, knows little about what it is that is happening on the ground, certainly in the non emergency patient transport area. That was his evidence.

PN4016

Evidence was provided by Mr Dawson from Patient Transit Care, and he made the point that his company transported voluntary psychiatric patients. He also made the point that the working environment and decision making was mostly routine, medically stable patients, and it is significantly less demanding than that of the emergency ambulance officer. We would ask the Commission in particular to have regard to the inspections that were conducted, and the Commission would know from those inspections of the particular way in which the work is carried out. I think it can be readily accepted that the work environment is very different from that which obtains in the emergency area.

PN4017

Mr Dawson also pointed out that with his particular qualifications he is able to work in the non emergency patient transport sector as an ambulance officer, but he would not be able to do so in MAS or RAV. I think also it is pertinent to note the size of the organisations that we are talking about here. Mr Dawson's company employs only 60 people with a small administration and one where a number of people do a range of duties such as, Mr Dawson I think gave evidence that amongst the other work he does is handling the calls for the business. It is not a huge bureaucracy as you would expect would apply in the public sector.

PN4018

And he had also confirmed that point about the fact that patients are assessed before they are assigned to the non emergency area. He also pointed out that as far as this company is concerned they do very little public duties work, although he did say he once attended a triathlon; that was at paragraph number 3007. Now, in relation to what the employers were seeking in respect of their application, Mr Dawson pointed out that what the employers were looking for, at least as far as what he was looking for as one of the employers, was a base that the company could work from, in other words, an underpinning safety net, to show that the ambulance officers that he employs can be remunerated and have terms and conditions appropriate to the sort of work they do, given that the work they do is quite different from that which is carried out in the emergency sector; and he made that point at paragraph number 3094.

PN4019

Now, in some of the references that have been made as to the relevant rates of pay for the ambulance attendant and the patient transport officer, the union have indicated to the Commission that there are already rates in place in the industry, and there certainly are. But what we say in relation to those, that they are rates that have not been necessarily set by any work value basis, but have simply reflected market rates. And Mr Dawson indicated that at paragraph number 3152. He also made the point that in a competitive environment that the non emergency patient transport operators will have to continue to have regard to market rates.

PN4020

But these proceedings are not about setting market rates in the non emergency patient transport industry, nor, indeed, in the emergency ambulance sector. These proceedings are in respect of minimum rates underpinning the safety net process. Now, the other evidence that was given on our behalf was given by Mr Brown. Mr Friend says we should take Mr Brown's evidence with some caution. The point that we make out of what Mr Brown has said is that the employees of his company, the ones that he is experienced with, are well qualified for what they do.

PN4021

They are not obliged nor required to work beyond their level of skill and training, they are not required to work beyond their job descriptions, and in relation to the issue of whether or not they all complete a patient care record, or whether or not they produce them by the hundreds, the scores, the thousands, the point to be made in relation to those is that a PCR, as they are colloquially known, is akin to the chart that a nurse maintains at the end of a patient's bed in a hospital. It maintains an indication of a person's condition arising from observations that the ambulance officer or the ambulance attendant has made.

PN4022

There is a requirement that a patient taken to a casualty department of a hospital has to have a patient care record with them that requires the ambulance officer or the ambulance attendant to take observations each 15 minutes. Now, that has to be done whether or not the patient is a seriously ill cancer patient, for example, or whether it is somebody who has sprained an ankle. It has no reflection on the seriousness or the state of the patient. It is purely there for the purposes of maintaining observations so that the patient's condition is able to be more readily assessed by those receiving the patient at the hospital.

PN4023

Now, Commissioner, I would like to move on to this question about the separate award. Now, the union says that the interim award that was made by Senior Deputy President Riordan in 1994, was the first award. It submits that health industry awards in Victoria provide for common conditions across the public and private sectors covered by health awards, and it also submits that the application for a separate award would reduce entitlements.

PN4024

Well, it is our submission that this Commission has previously determined that public sector provisions are not appropriate in the private sector. And we have already referred to the comments of the paid rates decision Full Bench, which talked about enterprise specific awards, so as not to disturb relativities arising from the minimum rates adjustment process. We have also referred the Commission to the decision of a Full Bench of the Commission dealing with annual leave for public sector employees in the Northern Territory, and that was at pages 15 to 16 of our submissions of 23 August.

PN4025

And in that decision, when the Full Bench granted additional leave to public servants in the Northern Territory, it made the point that there could be no basis for a flow of the additional leave into the private sector as the decision simply recognised an existing level of benefits which had been a feature of employment in the industry for a very long time, and provided for in one way or another in most of the public sector awards.

PN4026

Now, I expect that the union will say, well, you know, the private sector employers were aware of the prevailing terms and conditions of employment when they commenced the process of obtaining government contracts for the provision of non emergency patient transport services, and therefore should be expected to operate with the same terms and conditions of employment as emergency government ambulance employees enjoy, because that is the natural consequence of their argument.

PN4027

Now, against such an argument, we say that the Commission has recognised that where government services are privatised, public sector terms and conditions do not transfer. I refer in particular to a decision of Senior Deputy President Harrison, in a decision of 7 July 1998. Now, the decision deals with the question of union coverage in correctional facilities; it is at print Q2952. I have got a copy of that decision here, if the Commission wishes it. I am not sure whether the Commission has a practice of marking Commission decisions.

PN4028

THE COMMISSIONER: Not if they are complete, no.

PN4029

MR QUIGLEY: The point we make in relation to this case, Commissioner, is that her Honour was deciding on an application by one of the operators of a private prison, that the Community and Public Sector Union, which is essentially a public sector union, should not have coverage in the private sector because of what it, the operator, said was the union's public sector culture and opposition to any private sector involvement in prisons. Now, her Honour concluded by awarding coverage jointly in some cases. There were several private operators involved in the proceedings.

PN4030

So her Honour concluded by awarding coverage jointly in some cases, and to the ALHMU at the expense of the CPSU in some other cases, against the background of the CPSU recognition of the non transfer of public sector conditions into private prisons. And, of course, the point that we make here is that prisons, like ambulance services, were previously government monopoly, and Senior Deputy President Harrison's decision highlights the Commission's approach to terms and conditions in such cases.

PN4031

THE COMMISSIONER: One approach of the Commission.

PN4032

MR QUIGLEY: One approach, but it is consistent with the previous Full Bench decision of the Northern Territory leave case that I have referred to, Commissioner.

PN4033

THE COMMISSIONER: Yes. But there are other decisions in relation to Telstra, for example, and its establishment of subsidiary companies, etcetera.

PN4034

MR QUIGLEY: Yes. But the other point that is of particular relevance here, Commissioner, is, in this particular case the union seeks not only to maintain public sector conditions but it seeks to maintain Victorian public sector conditions, and forsakes even what might be called general ambulance industry conditions. Now, we say in the process of seeking federal award coverage that it is quite appropriate that a national approach be taken rather than a narrow provincial approach or state based approach, which is essentially what the union's position is.

PN4035

Now, in the course of the proceedings we tendered exhibits of the awards covering ambulance employees in other parts of the country. They run from exhibits P4 to P10. Now, to provide some assistance to the Commission I have summarised the key provisions of those awards. In the absence of your associate could I approach the Commission? I would ask the Commission to mark this document.

EXHIBIT #P17 DOCUMENT SUMMARISING KEY PROVISIONS OF VARIOUS AWARDS

PN4036

MR QUIGLEY: The document is updated in respect of certain provisions, which I think there is a previous document dealing with it is a little more up to date. I didn't expect that the Commission would want to go through each of those awards, so we have provided a summary to make it a bit easier for the Commission to appreciate where are application sits and where the existing award sits.

PN4037

We say that an examination of those awards shows that the union in these proceedings is seeking to preserve in a federal award conditions which even by public sector ambulance standards are exceedingly generous, when it is considered that ambulance services in the other states are public sector organisations. It only highlights how inappropriate it is, in our view, to foist upon private sector operators award conditions that do not even fall in line with prevailing ambulance public sector standards.

PN4038

Now, it is of no concern to the private operators how the government sector provide terms and conditions of employment to their employees. But we do submit, however, that the Commission is here dealing with a first award proper, and should, in doing so, have regard to prevailing federal awards in the private sector. The union sought federal coverage in 1993 and '94 to escape what it saw as difficult environments, particularly in Victoria and Western Australia. The Commission is entitled to question whether or not it is appropriate to limit its view to Victorian standards.

PN4039

THE COMMISSIONER: Can I just clarify that P17 sets out the rates in relation to the public sector operated ambulance services in the other states; is that right?

PN4040

MR QUIGLEY: That is right, Commissioner. In relation to Western Australia - - -

[11.10am]

PN4041

MR FRIEND: We don't accept that. There is no evidence that they are all public sector, and we think some of them aren't.

PN4042

MR QUIGLEY: I was going to make the point, Commissioner, the only exception is, in Western Australia the services operated by St John's Ambulance, it is as good as a public sector operator because it is not a profit organisation and it runs on government funding.

PN4043

MR FRIEND: Well, how can you say that without evidence?

PN4044

MR QUIGLEY: The Commission has the award in relation to that. The St John's Ambulance is not a private operator. Now, we heard evidence from Mr Morris, the State Secretary of the union, who is also the National Secretary of the union, and he clarified the point that in respect of coverage of ambulance employees this union only has coverage in Victoria, Western Australia, Queensland and the Northern Territory. In New South Wales the Health and Research Employees Association covers ambulance employees, the Health Services Union covers them in South Australia, and the Transport Workers Union covers them in the ACT.

PN4045

Now, notwithstanding the differences in union coverage in the other states, it is our submission that the work is the same and the work environment is the same, except that Victoria is the only state that has a separate private sector non emergency patient transport sector. In the other states and territories the ambulance service is not split as between the two types. It is also clear that having obtained an interim award in 1994, the AEA has not pressed for further federal coverage of employees within Victoria, and has, in fact, dropped off pursuing an award in respect of ambulance employees in Queensland. Now, as we submitted in our submission of 23 August, at the top of page 20 of those submissions, in making - - -

PN4046

THE COMMISSIONER: Just a question, Mr Quigley. I don't understand your point about the union hasn't pursued further coverage of ambulance employees in Victoria. In the interim award, I don't quite follow what there was left for it to do other than to - - -

PN4047

MR QUIGLEY: Well, the award only applies to named respondents, Commissioner. The parties there are, as I understand it, some nine private operators in Victoria, and the award I think covers four or five.

PN4048

THE COMMISSIONER: Thank you.

PN4049

MR QUIGLEY: Now, Mr Morris indicated that the reason it hasn't done that was that the industry was full of fly by nighters, and that the union had never been able to track them down, that was his evidence. He also gave evidence that the union's current policy was not to pursue federal coverage in other states. But just going back to the point I was coming to, that as we put in our submission of 23 August, in making the interim award, Senior Deputy President Riordan was preserving the status quo of government employed ambulance employees.

PN4050

We say he was not preserving the status quo of private sector ambulance employees because they had not been covered by the state award and, in fact, at the time of the state award those private operators didn't exist. It follows, in our submission, that there has been no private sector non emergency patient transport industry award to which the Commission is able to have regard. And we have put submissions to the Commission already about the principles to be followed in the making of a first award.

PN4051

And what we say, it is inappropriate, in our view, for the Commission to limit its consideration in making a first award for the private non emergency patient transport operators, you should not limit, the Commission should not limit itself to a public sector award which is not only not relevant to the private sector but out of line with prevailing ambulance industry awards covering public sector ambulance services in the rest of the country. So what we say, Commissioner, is that there is two elements to that.

PN4052

The Commission should have regard to private sector standards, it should have regard to the rest of the ambulance industry in Australia, but bearing in mind that in the rest of Australia they are public sector environments with their own particular public sector terms and conditions of employment. And amongst those that the Commission would be familiar with is long service leave. If you look at exhibit P17, you will see that in terms of long service leave - that is at item 5 on that list - all of the other states have public sector type provisions, as you would expect, and they are all in line with what would be generally regarded as prevailing public sector long service leave arrangements, except that in Victoria, instead of 13 weeks after 10 years, it is six months after 15 years.

PN4053

But what we say is that there is a Commission standard of 13 weeks after 15 years, and that is what ought to apply in the private sector to their employees as the basis of a safety net award. In addressing exhibit P17, Commissioner, could I also draw your attention to some of the other provisions that we say show clearly that the current award is out of kilter. Item 1, casual rates, provide for a loading of 25 per cent as against 20 per cent in most states. Overtime, time and a half, that is item 3, overtime, time and a half for the first two hours, and double time thereafter, as against time and a half for the first three hours, and double time thereafter elsewhere.

PN4054

Annual leave loading on all leave, that is at item 7, as against four weeks or five weeks, depending on whether employees are shift workers or not. And in relation to shift penalties at item 9, as the Commission is aware, there is a complex formula based on the ambulance officer rate, as against what we say should be more appropriately a percentage based arrangement, and that is what happens in the upper states. And I might also say that in a recent recommendation made by Commissioner Blair only this week, the notion of utilising a complex formula based on the ambulance officer rate was considered not appropriate for a private sector operator seeking a clause in a proposed certified agreement.

PN4055

But in this case I would like to stress we are talking about an underpinning award. And the comments by Commissioner Blair which I have, if the Commission would bear with me - I bring the matter to the Commission's attention for no other reason than to point out that the Commission had a view in relation to that matter that - and I should say this was in the context of resolving a sticking point in negotiations, that it was appropriate in all of the circumstances to arrive at a position that was more in line with prevailing industry standards. By that I mean industry standards, national standards, without regard to any particular industry.

PN4056

And that is the point that we make out of all of these matters, Commissioner, that properly established minimum rates underpinning safety net award for employees in the private sector, no matter what industry they are in, should be based on prevailing Commission standards, not standards that have their genesis in a public sector environment that is no longer relevant, and particularly in a public sector environment where the private sector parties have had no opportunity to be involved in so many of the decisions.

PN4057

The history of the relations between the union and the government can be traced even to some of the decisions that were referred to this morning, where agreements were reached between the union and the government on certain things. Now, they are matters that the private sector operators don't have an involvement with, but have to accept them. For example, in relation to the minimum rates adjustment process, Mr Friend indicated that MAS and RAV had no interest in that matter, and therefore there was no need to do anything about it, and that they were the major employers in the area.

PN4058

Well, you see, Commissioner, that is the difficulty that the private operators work on. That if it said that the government employees, or, sorry, if the government employers aren't worried about it, then the Commission shouldn't be worried about it, that really does work to our disadvantage, and that is why we say we ought not to be encumbered by an award whose development we haven't been involved with, and whose development may have been for all sorts of reasons; backroom deals, political arrangements, suitable arrangements before elections, or whatever. All of those things probably occurred, and none of them would have been matters that we had any involvement with.

PN4059

THE COMMISSIONER: Were you party to those, Mr Quigley?

PN4060

MR QUIGLEY: I beg your pardon?

PN4061

THE COMMISSIONER: Were you party to those backroom deals, Mr Quigley?

PN4062

MR QUIGLEY: I have been around long enough to know that in the government there are certain pressures to make concessions which in normal circumstances might not have been made. But I might also say that I have also been involved in similar circumstances in the private sector as well. But that is the point we make, that if there are going to be arrangements of any sort like that, if there is an underpinning safety net it doesn't matter. The private sector can then be satisfied that the public sector can go off and do all of the deals they like in relation to their area as long as they don't intrude upon them. And if there are arrangements that are going to be made and put into agreements, as I said, the private sector has got no reluctance to go into that.

PN4063

THE COMMISSIONER: But to my recollection the private sector companies didn't oppose being roped into this award, did they?

PN4064

MR QUIGLEY: No. And I think the point, I wasn't involved there, and, in fact, I think some of the companies that are now in the industry weren't involved at that time either, Commissioner. For example, Wilsons weren't in the industry at that time, and I don't know what the thinking was of the private employers at the time that the interim award was made.

PN4065

THE COMMISSIONER: No, I am not talking about the interim award, I am talking about, I mean, as I understood it, for example, Wilsons would have, if they were around at that time when that award was made, in order to be covered by the award would have had to have been roped in through the filing of a dispute.

PN4066

MR QUIGLEY: They were subject to the serving of the logs, I understand.

PN4067

THE COMMISSIONER: But they are party to the award.

PN4068

MR QUIGLEY: There has been no question about that, Commissioner. But that doesn't, as I said before in relation to another aspect of this, that doesn't deny the fact that the award is still an interim award and that it was made by Senior Deputy President Riordan in particular circumstances, and it was made as an interim award to provide protection to essentially the public sector employees of the Metropolitan Ambulance Service, or whatever they were called at that time.

PN4069

His Honour's decision makes no mention of the private operators and, in fact, the comments that he has made in relation to giving them the conditions that they enjoyed could only have been a reference to the government employers. So as we see it, what has happened is, that a federal award has been made, and there has been no objection to that being made to cover them.

PN4070

And unlike the employer in the stretcher transport case, this isn't an application to seek it out of the award, it is an application to have a proper safety net for the private sector ambulance services. And that is all the application has ever been, and as we pointed out earlier, one of the applicants has had agreements with employees, agreements under the Act for many years, another one of the operators is in the process of finalising a certified agreement. So the provisions of the Act are working, but what is needed is an appropriate safety net.

PN4071

THE COMMISSIONER: Now, you appear for?

PN4072

MR QUIGLEY: Three companies, Commissioner; Wilson Patient Transport, Patient Transit Care, and Medical Transport Services.

PN4073

THE COMMISSIONER: Do you know what percentage of the industry they account for in terms of volume?

PN4074

MR QUIGLEY: I might be able to find that out quickly. I am advised that 75 per cent, Commissioner, so I think it might be fair to take that as a rough estimate, with due respect to Mr Rixon. It had been hoped - and I only say this for filling out the point - that another one of the operators would have been involved in the application, except that company was under administration, and the new owner of the company, or the receiver, whoever he was, whatever status he had there, had indicated that in the circumstances they would rather not be involved. So I think it is fair to say that the - - -

PN4075

THE COMMISSIONER: I think there is some legal impediments if you are under administration. You have to appeal to the Supreme Court to be involved in proceedings in another jurisdiction.

PN4076

MR QUIGLEY: Yes, I think there were probably a host of reasons that were involved for that, but that, I dare say, was probably one at the top of his mind. They are our submissions, Commissioner. And what we have indicated is that we have put in already in our submissions where we think those particular classifications stand under a minimum rates adjustment process. And the other point we wish to make is that the provisions of the Act as we would seem them applying should give cause for no concern to any employees as to what the eventual outcome will be.

PN4077

The union has membership amongst each of the employers. None of the employers has shown any reluctance to enter into agreements with the union. So any comments that the union have made in their submissions about this application affecting terms and conditions of employment, really misrepresents what a safety net award arrangement really is all about. If the Commission pleases.

PN4078

THE COMMISSIONER: Would you not agree, subject to the accuracy of the 75 per cent, there is another 25 per cent of the industry which is not represented in these proceedings, and if your application were granted it could well, unless there is some arrangements for agreements being negotiated in those areas, to a reduction in salary for the employees of those companies?

PN4079

MR QUIGLEY: Well, no, Commissioner, because those employers aren't necessarily respondent to the award. As I have indicated, there is some nine private operators in Victoria who aren't obliged to pay terms and conditions according to the federal award, and so it would be no difference for them except that it might encourage them to embrace federal award coverage if it was considered to be an attractive proposition. And I think that is the point that is worth considering.

PN4080

THE COMMISSIONER: Thank you, Mr Quigley. I was proposing to have a brief adjournment, if that was acceptable. We will adjourn for a quarter of an hour.

SHORT ADJOURNMENT [11.32am]

RESUMED [11.49am]

PN4081

THE COMMISSIONER: Yes, Mr Friend?

PN4082

MR FRIEND: Commissioner, just to raise two points. I will deal with things this way. We don't think it is 75 per cent that those three providers cover, we think it is more like 60. But it did raise an issue in my mind when he said that, Commissioner, which was - and I am just not clear on whether this has been dealt with at some stage - whether the application to vary the award, which is what it is, an application to vary the existing award, was served on all of the respondents, or just on us and MAS and RAV. Because, of course, if it wasn't served on them then there would be serious questions about making any changes in their absence. Mr Quigley whispers to me that it was. That obviously resolves that problem. But we say it is 60 per cent.

PN4083

THE COMMISSIONER: Well, perhaps I had better get Mr Quigley just to put that on the record.

PN4084

MR QUIGLEY: I can indicate to the Commission, and we hold records at the office, sir, indicating that all of the named parties to the award were provided with copies of the application in accordance with the requirements of the Act. I might indicate that one of them was returned, unknown at this address.

PN4085

THE COMMISSIONER: Well, if you could provide copies to the other parties to these proceedings and the Commission in due course, Mr Quigley, that would be appreciated.

PN4086

MR QUIGLEY: Thank you, Commissioner.

PN4087

THE COMMISSIONER: Yes, Mr Friend?

PN4088

MR FRIEND: If I can deal with matters in a similar way, or in the same order again, Commissioner. Perhaps do the reply first and get all of the minimum rates and work value matters out of the way, and then I will have my say on the separate award. There has been nothing said in relation to minimum rates, in my submission, which touches in any relevant way the union's submission. What is really put, and it is really by way of assertion, is that the state award must have been a paid rates award, and therefore it must be regarded as a non minimum rates award at the relevant time. And I think in my outline I wrongly referred to 49(5) when I should have referred to item 51(5), because the 51(5) is after the interim period, but it is the same provision in the first paragraph, Commissioner.

PN4089

THE COMMISSIONER: Yes.

PN4090

MR FRIEND: It is the same provision and it doesn't change the substance of my submission, of course. I can't even blame the typist.

PN4091

THE COMMISSIONER: Well, you can, but it is yourself.

PN4092

MR FRIEND: Yes. Not usefully perhaps. It is really put by way of assertion that it is somehow a paid rates environment. But the question is, were the wage rates operating as minimum rates? And all of the submissions I have made are directed to the answer to that question. And really what is said in answer to that is, well, there is a reference to Senior Deputy President MacBean's decision in relation to the award. And his Honour says, indeed, that there is an accrued right, and then he goes on and talks about the work value principle below the passage that the Commission was referred to, and says at the end of it, look, I have applied the current work value principle though my decision would have been the same had I applied the previous work value principle. It doesn't matter.

PN4093

And, in fact, that argues much more strongly that it is minimum rates than paid rates. That is at the end of the passage in the print headed work value principle. Some reference was made to the paid rates decision, particularly in regard to increments. In the paid rates decision, the paid rates review, Q7661, the Commission specifically approved a clause - I should put it this way, Commissioner. Under the heading of incremental payments it said you couldn't have an incremental structure which geared primarily to length of employment, even subject to satisfactory service, diligent sufficiency and attendance for duty

PN4094

But you could have one - and this is the nurses one - competency at the existing level, 12 months experience at that level and in service training, demonstrated ability to acquire the skills which are necessary for advancement to the next pay point. And that, Commissioner, is entirely consistent with the award that you have made in clause 12:

PN4095

After 12 months service at a particular salary point an employee shall be eligible for progression to the next salary point in that classification if the employee has acquired and used new or enhanced skills, experience and knowledge within the ambit of the classification in accordance with the priorities of the employer, undertaken relevant in service or refresher training as required and provided by the employer from time to time, and given satisfactory performance.

PN4096

And it is a classic allowable incremental payments clause. Now, that is the position in relation to the minimum rates aspects of the matter. We don't see anything that has been put by the employer as really addressing the arguments that we have put to show, and the evidence that we have relied on to show the award was operating as minimum rates in a real sense. And even if we are wrong about that, if you went through the exercise, it wouldn't make any difference, which just confirms what we say in any event.

PN4097

Next there is a question of work value, and there is just a few comments that I can make about that. In relation to Mr McDonell's evidence, some submissions were made picking out some points in relation to his answers, not, we submit, relevant to the burden of his evidence. His evidence concerned the nature of the training and qualifications of ambulance attendants and patient transport officers, and comparing them with ambulance paramedics now and ambulance paramedics back in 1989.

PN4098

Now, all of those are relevant questions. He wasn't called as a witness to show what happened on the road particularly, although he did demonstrate some knowledge of that. He wasn't called as a witness to show how the national competencies framework was developed, or who was involved, because in a sense that is not relevant, it is a given. That is how these things are done, and what does it matter who did it or how it was done? That is really what we have to work on if we are going to use these things.

PN4099

So in those circumstances we would invite the Commission to read not just bits and pieces but the whole of his evidence and his statement to form a view about how it fits into the case. There was some emphasis placed by Mr Quigley on the emergency urgent cases issue. We agree there are not a large number of emergencies, but they need to be dealt with. The document by the individual member who had kept records was tendered without objection and without any request that he be called.

PN4100

It is not true, and there is a tendency for us to slip into calling MAS the emergency sector, and the others the non emergency sector. MAS and RAV both do urgent cases and also patient transport cases. You might recall, Commissioner, the first case that we went to with MAS on the inspection, there were no lights and sirens, it was an urgent case, not an emergency case. Some comments were made about patient care records from Mr Quigley to the effect that they were just - well, he tried to downplay their significance in a way which was inconsistent with the evidence and in a way which wasn't put to any of the witnesses who discussed patient care records.

PN4101

The clear evidence of the witnesses about what patient care records are is that they are a record if there is active treatment. If there is no active treatment then the small slip is completed. And one could have almost thought that Mr Quigley was addressing you, Commissioner, on the small slip rather than the big PCR. That deals with those two issues. Now, if I can address you on the separate award issue or the separate part of the award.

PN4102

The starting point of the employer's application is, and it has to be for the application to have any sort of logical coherence, that it is an application for a first award. There is a fundamental difficulty with that. It might be accepted that when the interim award was made, or the interim order was made, it was an interim order. And in the ordinary course it is quite possible to apply within a reasonable period of time for a first award for the various principles to be applied in relation to that. That is an application for a new award, in effect.

PN4103

Here we have an application to vary an existing award. The application here to vary the existing award is an application to vary a safety net award which has in substance applied to this industry for eight years, or well over eight years now. The changes that are sought are not just tinkering about the edges, the changes that are sought will effect substantial reductions in the safety net terms and conditions of employees. We have prepared a document which compares the proposed new award with the existing provisions, and hand up a copy of that.

EXHIBIT #F33 DOCUMENT COMPARING PROPOSED PROVISIONS OF NEW AWARD WITH EXISTING AWARD

PN4104

MR FRIEND: Now, if I can just go through that very briefly. You will see that casual loading is reduced, seven days notice on rosters, rates of pay are reduced. That is perhaps a matter that is dealt with under the minimum rates aspect. Well, no, it is not, because the ambulance officer rate there is lower than that which is suggested by the C5 level. No increments. The classifications, the limitation of classifications to three seems very odd in the absence of evidence that the other classifications, other work that people do just doesn't exist elsewhere in the industry.

PN4105

Reduction in accident makeup pay, uniform provisions gone, shift allowance significantly reduced, overtime significantly reduced, removal of a number of allowances, again in the absence of any evidence that no one might be in a position to have to pay those allowances, removal of an ADO.

PN4106

THE COMMISSIONER: Sorry, I missed that last point.

PN4107

MR FRIEND: Yes. On the bottom of page 2 there is no evidence, well, I think, in fact, there is evidence, for instance, that there are communications officers, that Mr Dawson gave, but they are removing the allowance. We don't know for a certainly. One can perhaps assume it in relation to MICA qualifications, but we don't know for a certainty that these allowances aren't applicable to the type of work done by all of the private providers. There is not even evidence about the three who have made the application.

PN4108

You might recall, and I will take you, Commissioner, to the evidence in due course, when Mr Dawson sat in the witness box he didn't know what was in the draft award, he didn't know that it reduced the terms and conditions of employment. Removal of an ADO, over the page, there is a change to type of employment, no provision about maximum consecutive shifts, which one would have thought was inconsistent with the current position of the Commission, changes to personal leave. These are significant changes that might affect people.

PN4109

Sick leave, changes to annual leave, changes in respect to public holidays. Long service leave is one that really highlights the problems with the employers late application, because someone may well have got eight years towards accumulating their long service leave, but that will go.

PN4110

THE COMMISSIONER: Well, the rate at which they accrue it will be altered by this.

PN4111

MR FRIEND: Well, it is not clear on the way on the way the employers put it up. But in any event they have had an expectation because the employer, all of these employers have sat on their hands and said, we are not doing anything about the award, we are happy to be covered by the interim order, and then after eight years of its operation, after eight years of it being the prevailing minimum standard for people in this industry in this state they come and say we want to change that, we want it to be new. It is not a first award, it is an application to vary the minimum, it is an application to reduce the minimum.

PN4112

THE COMMISSIONER: Well, effectively it is an application to vary a simplified award.

PN4113

MR FRIEND: Yes, which is the minimum.

PN4114

THE COMMISSIONER: So the simplified award at present picks up rates which were one of the areas of disagreement between the parties.

PN4115

MR FRIEND: Yes. But aside from that, it is an application to vary the simplified award which sets out the minimum terms and conditions and reflects the minimum terms and conditions which have been applicable in this industry since 1994. Now, one could understand perhaps, although there would have been argument, and I will come to that in a minute, one could understand perhaps if they had come along in 1994, in the latter half of 1994, or perhaps even the beginning of 1995, or whensoever they were roped in, and said, well, we shouldn't have these terms and conditions applied to us because we are different.

PN4116

But to carry on accepting them, and then say, oh, we have kept this first award card up our sleeve for eight years and we want to play it now, is really an extraordinary position to take. It is the fact instead that the interim award by reason of its operation as the minimum over such a long period has remained the standard minimum set of conditions in this industry in Victoria. Now, two things really are said against us in relation to that.

PN4117

The first is that it is asserted that there is some principle that public sector conditions don't transmit to the private sector. We don't accept that. The decision that is relied on really stands in relation to its own facts. It is the decision of Senior Deputy President Harrison. If one looks on the third page of the copy that was handed up:

PN4118

It should be clear to all parties that public sector terms and conditions do not transfer with the continuing ability of the CPSU to represent its members. So much is clear in the more contemporary setting of the agreements that have now been certified by me in this industry, and the agreement reached concerning certain conditions of employment at Deer Park Correctional Centre, where the CPSU has representative rights.

PN4119

That is just about the facts of that case. The Northern Territory case was again about the establishment of a new set of conditions. What, in fact, the Commission said there was that the existing conditions for existing public servants would continue, but it didn't mean it would flow on to the private sector. That is not what we are talking about here. We are talking about the existing conditions in the private sector as well as the public sector.

PN4120

And in any event, we say there is no such principle, and that in the health sector in Victoria - and we have included in our outline reference to the relevant awards - that is exactly what has been happening, and there is no reason to depart from that, especially after such a long time. Now, we have also, along with Mr Quigley, prepared a comparison of the various state conditions, and there are some slight differences, and so we should probably - - -

EXHIBIT #F34 COMPARISON OF VARIOUS STATE CONDITIONS

PN4121

MR FRIEND: One of the provisions that Mr Quigley referred to in passing when he was going through his document, P17, was overtime. In Victoria he said the current provision is time and a half for two hours, and double time, and then he said, well, elsewhere it is time and a half for three hours, and double time. Well, only in Queensland, if one even looks at his document. It is double time in Western Australia, the first two hours, and then double time in South Australia, first two hours, and double time in New South Wales.

PN4122

Northern Territory, if we look at our document, F34, double time on a Sunday, double time for unrostered overtime, overtime with four hours notice, time and a half for the first two hours, and double time thereafter. In Tasmania it is double time for Monday to Saturday, and double time and a half for Sunday. And what one sees if one examines this document with the interstate comparisons, is that the employer applicants have cherry picked the provisions they like, the best one from each state, and they have tried to put it together.

PN4123

They have probably gone a bit further in some of them too, even the best in any state. Well, in fact, they have. Because if we look at long service leave, Victoria is six months at 15 years, pro rata at 10 years, so a number of people at two years potentially off their long service leave. New South Wales, it is two months at 10 years plus 15 days for each year after 10, which is going to add up to a very substantial extra amount by the time you get to 15 years.

PN4124

Then Queensland, you have got 13 weeks, three months at 10 years, not at 15; 13 weeks at 10 years in Western Australia; and three months at 10 years again in Australian Capital Territory. There is no reason to change the existing arrangements. And that is really where we come to the final aspect of how we deal with the employers argument. The employers application is not in any sense based upon evidence, except for evidence such as the awards that we have got here.

PN4125

When you look at what was said by the witnesses, and it was really only Mr Dawson, and I think only because I cross-examined him about it, his real point was, well, we just want more flexibility, we would like to pay less. The three of us sat down together and we made up this shopping list. But that is not a basis for reducing terms and conditions that have been in existence for a long time. And then, of course, he says, well, we are not going to reduce anyone's money in any event.

PN4126

And so one fails to understand the necessity for the application. If one accepts - and we have to go back to my earlier submission, if you accept my submission that we are at the minimum rate. If I am wrong about that, I am wrong about that, and it will flow through to the private sector as well as the public sector, or to the three applicants as well as MAS and RAV. If I am right about that, then the minimum rate is the minimum rate. But the same goes for the minimum conditions, because those are the conditions that have been applying in this industry in Victoria for a very long time.

PN4127

And the employers would need, in my submission, to demonstrate a very substantial case to say why that should be departed from and why people's accrued rights should be reduced, and why their expectations of what they are going to get should be undermined. The passages of transcript that I would refer the Commission to, there is some cross-examination of Mr Morris actually at paragraph number 1882 to 1888, that is about the voluntary overtime clauses.

PN4128

Mr Dawson, at paragraph number 2487 to 2491, that is about the provision of somewhere to eat a meal, because that is one of the provisions they want to get rid of. Again, Mr Dawson, at paragraph number 3083 to 3107, it is about his knowledge of these applications, and finally Mr Dawson at 3109 to 3140. So we would say, Commissioner, that no case has been made out to reduce the existing safety net, and the employer seems to be trying to assert that we have got to make out some case to show why the conditions that have existed in the private sector industry unchallenged by the private sector employers for eight years shouldn't be changed to conditions which the employers prefer, because they point to other areas where there are different conditions and they pick things out from one award here and another award there.

PN4129

It is not an appropriate way to proceed. The appropriate way to proceed is to continue the existing status quo. If the employers had had a complaint, then shortly after the interim order was made was the time to make it. Not having made it, the minimum in this industry has been established by the effluxion of time, and it would be wrong after such a long time to reduce the safety net, especially given that, in my submission, no sound basis for doing so has been argued and, in fact, in Victoria there is a principle we would say of the public sector conditions, at least in the health industry, continuing through in this privatisation.

PN4130

Unless there is anything further I can assist the Commission with, those are the submissions of the union.

PN4131

THE COMMISSIONER: Thank you. Now, there is just one issue which it suddenly crossed my mind last week, and it goes to, I suppose, the relationships between principle 10 and principle 11 of the wage fixing principles. My associate can provide you with a copy.

PN4132

MR FRIEND: I have got a copy here somewhere. It might be quicker.

PN4133

THE COMMISSIONER: Effectively, Mr Quigley's argument, if I put it correctly, is that in effect what he is seeking is a first award under principle 11 in relation to the private sector employees.

PN4134

MR FRIEND: Yes.

PN4135

THE COMMISSIONER: Whereas your argument would be, in fact, or the union's argument rather, or submission, is that what is involved is varying an award below the safety net, therefore it would fall under principle 10.

PN4136

MR FRIEND: Yes.

PN4137

THE COMMISSIONER: So if that argument is accepted, then, in fact, the matter should have been raised with the President. That hasn't happened yet, but I am minded, in fact, to advise him of the events and see what transpires as a result of that advice going to him.

PN4138

MR FRIEND: Yes. Perhaps that would be a cautious way to approach it, Commissioner. We would say that it is too late to have an application for a first award, and this is an application to vary the award below the safety net. It would have to be an application to vary awards below the safety net in any event, one would have thought, unless one can say that the interim order never operated as the safety net, which would be a very odd proposition to put.

PN4139

One wonders what it could possibly have been. In fact, it is not the interim order we are talking about either, it is the simplified award which has been made. So even if it were a first award it would still be an application to vary below the safety net. And perhaps from that point of view the matter - well, we hear what the Commission says, that I should pass on that. If the Commission pleases.

PN4140

THE COMMISSIONER: Thanks, Mr Friend. Yes, Mr Quigley?

PN4141

MR QUIGLEY: Commissioner, can I just get out of the way a matter that I should have raised earlier, and I don't think it is a contentious one, but it goes to the question of work value. I think the Commission has received enough from us in relation to the work value elements, but I wanted to draw the Commission's attention to a decision with which the Commission will be very familiar. It is, in fact, a decision of the Commission as currently constituted in relation to Security Employees (Victoria) Award 1998, concerning security employees at airports. It was a decision in print PR918644.

PN4142

You will recall the decision, Commissioner, where pretty well the history of this Commission's treatment of work value matters was dealt with in that decision. And as it would be abundantly clear, I believe, from our submission that we are drawing particular attention to that element of the work value principle that deals with the environment in which the work is performed. And we say that that is as important an element as any other of the work value issue, the elements of the work value principle.

PN4143

Can I just go to Mr Friend's comments in relation to the separate award issue, and can I deal with the fist point about what the award is that is being varied. It was our understanding that our application for a separate part of the award was a part of the overall simplification process, in that it was identified by the private operators that the manner in which the simplification process was heading was not what they desired, and in those circumstances - and this was something that came through the overall simplification process itself - it was clearly our understanding that our application wouldn't be prejudiced by the fact that the Commission was making the award that the Commission did make.

PN4144

And, in fact, I clearly recall proceedings in the Commission where it was made quite clear that the parties would not be prejudiced by that award having been made. And if there had been any suggestion that our application for a separate award was prejudiced by the award, we would have asked the Commission not to proceed to do it. Commissioner, there is nothing in the Act and there is nothing in any of the decisions of this Commission that says an interim award only has a short life.

PN4145

The fact of the matter is, that in 1993-94 the union came to this Commission and pleaded for an interim award to be made in emergency circumstances. Senior Deputy President Riordan obliged, and an interim order was made. There is nothing in the history of this Commission that says an interim order peters out or that it loses its effectiveness as an interim award due to the effluxion of time. It remains an interim award, it remains an award that will subsequently have to be converted into a proper first award at some time.

PN4146

The fact that the private operators didn't organise themselves sufficiently to identify that there was probably an alternative to the award that they were encumbered with until some eight years later, is not to the point. The point is that in a process where the award has come under scrutiny as a result of the processes of the Commission and the requirements of the Act, the operators, at least a majority of those who are respondent to the award, have taken the opportunity that has been presented to seek to reflect an award more suitable to their circumstances.

PN4147

Now, Mr Friend, in exhibit F33, went through a number of the clauses and sought to identify that it was really a process of reduction.

PN4148

THE COMMISSIONER: I thought he was going to suggest we have inspections in all of the states.

PN4149

MR QUIGLEY: I don't think it is worth going to the Northern Territory.

PN4150

MR FRIEND: Any particular state?

PN4151

MR QUIGLEY: I think you go to the Northern Territory when the barramundi start running, and I don't know that they are running yet, Commissioner, and I think it is starting to get a bit wet up there. But amongst the points that he has identified were, for example, three classifications, and I think the point we make in relation to that is that - and the Commission will have seen from the operations of the companies on the course of the inspections - we are not talking about mega corporations here, Commissioner.

PN4152

Mr Dawson himself indicated he has got 60 employees, and he mans the phone himself. And Mr Brown similarly spends a lot of time doing other jobs, and that came through in his examination. And this didn't come out in evidence, and Mr Friend might pull me up on this, but I know even with Wilsons - - -

PN4153

MR FRIEND: No. I pull you up. It is too late.

PN4154

MR QUIGLEY: - - - there are different circumstances. But, for example, to talk about reduction in allowances, well, the relieving allowances referred there, as I understand it, is for country employees of Rural Ambulance Victoria to receive an allowance when they are relieving at another depot. Well, the respondents to the award don't operate those sort of arrangements, nor do they employ people who conduct MICA activities.

PN4155

So, I mean, what we did, and Mr Friend used the term cherry picking, and in a sense we don't object to that, because what the private operators wanted was a safety net award that they believe reflects their private sector environment. And we don't think that there is anything wrong with that, because the ultimate test will be the terms and conditions of employment that employees obtain by way of agreements, and that is the way things are moving to and are already in place in a number of the employers.

PN4156

And if an underpinning award operates in the same way as they do in most other industries and in, what we would argue, in other sectors, even in the public sector, the capacity for a private operator who is meeting requirements of contracts such as with MAS and so forth, the greater the flexibility he or she has in terms of being able to develop an agreement, the better they are likely to be able to conduct their business.

PN4157

And we submit that there is a significant difference between a private operator having to operate within a budget and a government enterprise which presumably at the end of the day almost has a bottomless budget, because even if they are behind in their budget there is always a state treasury to go to. I haven't heard of any state ambulance services going broke. I can't say the same for the private operators, some of whom the Commission would be aware are respondents to the award, who have gone into liquidation.

PN4158

THE COMMISSIONER: I thought you were going to talk about your prior personal experience in the transport industry, Mr Quigley.

PN4159

MR QUIGLEY: Well, I was beginning to wonder whether or not they might be needing to call me back, Commissioner. I think the comment about whether or not Mr Dawson knew what was in each of the clauses of the draft award, and I do recall the cross-examination that Mr Friend was conducting, but I think in fairness to Mr Dawson, all he was pointing out was that an overall approach was taken, that there were a number of parties to the application, he was one of three, and that yes, it did involve reductions from what was in the existing award, but that at the end of the day he was still going to have to meet the market in terms of what he was going to be paying his employees.

PN4160

And that is my point about that, we must not lose sight of the fact that what we are talking about here is a safety net award, and that the private operators will continue to have to recruit ambulance employees, and that judgment will have to be theirs as to how they couch their agreements. Mr Friend has drawn you to some of the other conditions that they believe are reductions and, interestingly, he has drawn your attention to Mr Morris' comments about voluntary overtime.

PN4161

I would also draw your attention to the fact that earlier this week Commissioner Blair, in making a binding recommendation on the parties for a prospective enterprise agreement between Wilson Patient Transport and the union, did not find the idea of a voluntary overtime clause objectionable, and it is, indeed, recommended that such a clause be placed into that agreement.

PN4162

And that is because it has regard to the reality of the industry where, in the private sector, there are a significant number of casual employees and it would, we believe, work to the detriment of the permanent employees if they were not - if the permanent employees weren't given an opportunity to volunteer for overtime and to be paid at a rate that would not make it worthwhile for the employers simply to by-pass the permanent employees and to go and seek casuals to fill in the gaps. And that was the basis, and Commissioner Blair accepted that rationale.

PN4163

THE COMMISSIONER: I know it is fairly common in agreements in the security industry, and I think in the cleaning industry as well, but I must say that my knowledge of voluntary overtime clauses in awards is such that I don't know that there are very many of them, if any. But anyway that is a matter for me to find out more about.

PN4164

MR QUIGLEY: Yes. I can say this, and, of course, you would only be taking it as assertions from the bar table, but there are a number of awards within those two industries that you have referred to which do contain such provisions.

PN4165

THE COMMISSIONER: Awards?

PN4166

MR QUIGLEY: Awards of this Commission, Commissioner.

PN4167

THE COMMISSIONER: Thank you.

PN4168

MR QUIGLEY: Now, the other point about Mr Friend's submission, that if the employers had a complaint about the award, they could have done so shortly after it was made. Without deprecating the quality of those whom we represent, I think it is fair to say that in those early days of the award the proprietors of the private ambulance businesses were pretty well all new business people. I know, and it came out in evidence from Mr Brown, that he was a former supervisor within the government ambulance service. Mr Dawson also has a similar background. And in relation to what is now Wilson Patient Transport, the companies from whom they purchased the business also had a background as ambulance officers.

PN4169

I think it is fair to say that - and as I said, I don't want this to be seen as derogatory at all, but they were finding their way as operators of a business, and in terms of their experience in industrial relations matters, although I do notice that at the time of the award being made there was an industrial advocate or industrial representative acting for some of the private employers, I think it is fair to say that - this is without knowing at all whatever advice they may have received - they may well have accepted that that was the award and that was it, and that is what they had to live with. We don't know.

PN4170

But the point I do make is that there is nothing in the legislation or other provisions that this Commission has ever laid down that says an interim award is any less an interim award after eight years than it is after eight weeks or eight months. And we say that the private sector operators are quite entitled, particularly during a process of award simplification, to put their hand up and say we don't think that this award is any more relevant for us, and that we want something that is much more appropriate. I think I will leave it at that, if the Commission pleases.

PN4171

THE COMMISSIONER: Thank you, Mr Quigley. Well, you won't be surprised to learn that I reserve my decision in this matter. And let me assure you that I will read every page of transcript, and I won't give the same commitment about every exhibit, but certainly they will be examined in terms of their significance dealing with the key framework which has been so well put today by Mr Friend and by Mr Quigley. This matter is adjourned sine die.

ADJOURNED INDEFINITELY [12.40pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #F31 DECISION E94/0177 PN3912
EXHIBIT #F32 DECISION E96/0346 PN3912
EXHIBIT #P17 DOCUMENT SUMMARISING KEY PROVISIONS OF VARIOUS AWARDS PN4036
EXHIBIT #F33 DOCUMENT COMPARING PROPOSED PROVISIONS OF NEW AWARD WITH EXISTING AWARD PN4104
EXHIBIT #F34 COMPARISON OF VARIOUS STATE CONDITIONS PN4121