C2004/1857, Transcript of Proceedings [2004] AIRCTrans 1127 (25 March 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6406

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2004/1857

THE AUSTRALIAN WORKERS
UNION (VICTORIAN PUBLIC
SECTOR) AWARD 2001

Application under section 113 of the Act by
The Australian Workers Union to vary the above
award re Safety Net Review - May 2001, 2002
and 2003

MELBOURNE

10.07 AM, MONDAY, 15 MARCH 2004

PN1

MR S. WOOD: I appear for the Australian Workers Union.

PN2

MR C. BOON: I appear for the Department of Sustainability and Environment.

PN3

THE COMMISSIONER: Yes, who is leading? Mr Wood?

PN4

MR WOOD: Yes, if the Commission pleases, the Australian Workers Union have made this application to essence bring the award up to date, putting aside the fact that shortly I understand there's going to be another national wage decision, but this application deals with the previous three national wage decisions: Safety Net Adjustments 2001, 2002 and 2003. I can put on the record, Commissioner, in terms of one of the principles that whilst there is an application for three safety net adjustments, it is my understanding and belief that the three adjustments won't result in any actual pay increases.

PN5

There's enterprise bargaining agreements already in place and therefore this award is principally only being used as a safety net and as I can say, there won't be any increases in base rates of pay as a result of this application. If I can just quickly take the Commission to the calculation sheet just to point out a number of issues? As I said, the safety net adjustment for 2001, 2002 and 2003 have been applied for. In terms of the work-related expenses, we've calculated that out and once again this has been approved by the Full Bench of the Commission. The relative percentage for those increases are 3.048 for 2001, 3.549 for 2002 and 3.24 for 2003. In relation to - - -

PN6

THE COMMISSIONER: Which classification are they taken from?

PN7

MR WOOD: The hundred per cent rate in the matter.

PN8

THE COMMISSIONER: Which is what? Where is that? Which of your classifications?

PN9

MR WOOD: In terms of our classifications - - -

PN10

THE COMMISSIONER: I thought it might be the construction and maintenance carpenter but I don't know.

PN11

MR WOOD: Yes, it was, construction and maintenance carpenter which was 542.20 now. They were the equivalent to the fitter rate in the Metals Industry Award of the same time in terms of the minimum rates.

PN12

THE COMMISSIONER: Thank you.

PN13

MR WOOD: Clause 18 has been increased. That was previously $440 which is the federal minimum wage, now increased to 448.40 in line with the Full Bench decision. The support wage from $50 in clause 21.3.2 is now increased to $60 in line with the Full Bench decision.

PN14

THE COMMISSIONER: So that is supported wage, is it?

PN15

MR WOOD: Yes. In clause 23.3.2 we have used the travel figures in the CPI for expense-related allowances. In 2001 that was 5.1 per cent. In 2002 it was 0.1 per cent. In 2003 it was 5 per cent. In clause 24.1.1 and through to 24.2.3 we've used the holiday and travel and accommodation CPI figures of 3.2 per cent, 11.3 per cent and 4.6 per cent and in clause 28.1 - 17.1 we've used the clothing and footwear CPI figures. In 2001 it was 5.6, 2002 it was 1.4 and in 2003 it was 0.2. In terms of - - -

PN16

THE COMMISSIONER: They vary, don't they, Mr Wood?

PN17

MR WOOD: I beg your pardon?

PN18

THE COMMISSIONER: They vary, don't they, some of those indices?

PN19

MR WOOD: Yes, they do.

PN20

THE COMMISSIONER: It is a bit hard to think how you would be on a .2 if previously it is 5 per cent and so on, but nevertheless that is what the ABS say.

PN21

MR WOOD: Yes. Now, in line with the meal allowance at 29.5.1, we have increased that in line with the AWU Maintenance and Construction Award, that is meal allowance, going from 8.50 to $9.10, which is also as I understand it in the Metals Award as well. The union has served the necessary documents both in the Commission and to the employer. I understand because of the size of the department of the employer, they did receive the notification but they haven't as yet received the draft order and the calculation sheet. That is not to say it wasn't sent, just to say that they haven't got that. Agreement has been reached today with the organisation that we would give the employer time to have a look at that calculation sheet and the draft order to see if there was any corrections that needed to be made.

PN22

Agreement has been reached that the Commission would be free to make the award in the terms sought, subject to any amendments that might want to be raised at the close of business on 22 March, which is Monday next week.

PN23

THE COMMISSIONER: Yes.

PN24

MR WOOD: If you don't hear from the employer, as I understand that they have agreed to - - -

PN25

THE COMMISSIONER: Well, we will see about that, Mr Wood, but that is your submission.

PN26

MR WOOD: That is right. Now, there is just one other - I have just noted this as a mistake in my draft order.

PN27

THE COMMISSIONER: Are you going to hand up the draft?

PN28

MR WOOD: I have filed it all with the Commission, I thought.

PN29

THE COMMISSIONER: Well, you must be a bit troubled by where some of this material is going. Unless it is here and I haven't been able to see it, because it does not appear on the file but my - - -

PN30

MR WOOD: I sent it to the Commission on - - -

PN31

THE COMMISSIONER: Was it sent with all your workings?

PN32

MR WOOD: That is correct.

PN33

THE COMMISSIONER: Well, in that case it should be here.

PN34

MR WOOD: It was a draft order, a calculation sheet.

PN35

THE COMMISSIONER: It is here. I am going to mark that now. It is here with a wages page.

PN36

MR WOOD: That is the way I generally do it, Commissioner.

PN37

THE COMMISSIONER: I want to ask you about the draft order. So it is part 5, rates of pay, and then 17.

PN38

MR WOOD: Yes, 17.1.

PN39

THE COMMISSIONER: Sets out the schedule, then the cook-house personnel come after.

PN40

MR WOOD: Yes.

PN41

THE COMMISSIONER: The cook's offsider, which is a very nice - it has not been modernised too much, that phrase, has it?

PN42

MR WOOD: No, it has not.

PN43

THE COMMISSIONER: I hope there are some cook's offsiders and then the junior agricultural farm workers and they follow in the draft order and it is about - - -

PN44

MR WOOD: Now, the page I am referring to, Commissioner, is under parental leave. I have actually left in inserted dates agreed by parties, that should be deleted. I can send this electronically to you and the dates that are in there, on 1 January '98 and 4 July 2001.

PN45

THE COMMISSIONER: Where does that appear in the order?

PN46

MR WOOD: Well, basically this is to bring it up to date. I believe that that is in line with what would happen in any event and in the second paragraph in clause 35 there's a date, 4 July - we would keep that - 2001 and 4 July 2002, we would keep that date as well. So just the inserted dates in there. Once again the employer may wish to raise issues about that.

PN47

THE COMMISSIONER: Do you say that is agreed, this retrospective benefit for parental leave recipients?

PN48

MR WOOD: I believe that the government actually had that in place in any event. So that is why I say those dates are relevant. If they check that out and say: no, we don't want any retrospective because it might result in some unwanted claims, or might just say: look, I am happy for that to apply on today's date for all of those, you know, backdating it all. But at this stage we would say that it won't result in any back-pay claims. It was something that was already paid but it wasn't done by the instrument of an award entitlement.

PN49

THE COMMISSIONER: Yes.

PN50

MR WOOD: On the last page, the draft order had 1 March. Obviously that would change to 22 March.

PN51

THE COMMISSIONER: Where are all the statements that are necessary?

PN52

MR WOOD: The statements?

PN53

THE COMMISSIONER: The statements under the national wage decisions. I prefer your old-fashioned term but I better call them safety net to show that I know what they are properly called, but the necessary statements about absorbability and the incantations that are necessary. You haven't got those in?

PN54

MR WOOD: No, no. It is new to me, Commissioner. Generally what I have always done is in making these types of applications in terms of the principles I have made submissions on the day to the Commission about absorption and that type of thing without providing statements.

PN55

THE COMMISSIONER: We will have a conference now, go off the record.

OFF THE RECORD

PN56

THE COMMISSIONER: We have had a brief conference in this matter and it is clear that Mr Boon wants to be agreeable but he wants to be agreeable in an informed way and he wants to have the opportunity to consider the detail of the draft order. Through some misadventure it has not arrived in the correct path of the Department of Sustainability and Environment but notwithstanding that, having had a chance to look in a very cursory way at Mr Woods' material, a copy of which has been provided for him, he does indicate that there seems to be no problem, as long as a sufficient period is given for careful checking of the draft order. Mr Boon, I think post-conference I am not giving you an opportunity to say this and I should do it. Do you want to put something on the record now?

PN57

MR BOON: Yes, Commissioner. Well, I can only agree. We have agreed that subject to getting the orders and checking them through with the union and agreeing on those, we would send them back at a timetable to be determined by the Commission. I don't have any objection to the award being varied on the basis that it does meet the principles.

PN58

THE COMMISSIONER: Yes, thanks, Mr Boon. Well, I am going to vary the award. First of all I am going to mark the draft order as W1 in these proceedings but note that a new draft order will be provided by Mr Wood. It will reflect the liaison he has with Mr Boon and we have discussed in the conference some of the things that it is going to say.

EXHIBIT #W1 DRAFT ORDER

PN59

THE COMMISSIONER: Mr Boon is going to give a particular response to Mr Wood about the claimed effective date in relation to the parental leave, in addition obviously to the detail, the checking of figures to make sure that there's no snag with the figures. In the unlikely event that there is a need for there to be a further hearing or to have some sort of round-up about the disagreement in relation to figures, I think it is very likely that there will be an agreement reached between Mr Boon and Mr Wood and that will be reflected in the new draft order which will be provided by Mr Wood to my associate, not more than a week from today.

PN60

It will then be capable of - the order will then finally issue, but I do indicate now, subject to that caveat, that I will vary the award with effect from today's date and consistent with W1 as it is to be amended and subject only to the rights reserved to Mr Boon. That will mean it won't be necessary to sit again and instead an order in the terms that has been closely foreshadowed by Mr Wood will be made and will include the necessary provision from the safety net decision. The order when it issues will come into force on the first pay period to commence on or after 15 March and it will remain in force for a period of 3 months. I will now adjourn.

ADJOURNED INDEFINITELY [10.28am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #W1 DRAFT ORDER PN59