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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 10735
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER EAMES
C No 80011 of 1997
GENERAL CLERKS (NORTHERN
TERRITORY) CONSOLIDATED
AWARD 2000
Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award
MELBOURNE
10.43 AM, MONDAY, 15 DECEMBER 2003
THESE PROCEEDINGS WERE CONDUCTED VIA VIDEO LINK AND RECORDED IN MELBOURNE
PN1
THE COMMISSIONER: Can I take the appearances, please, in Melbourne.
PN2
MR J. NUCIFORA: I appear for the Australian Services Union. I have here as a witness MR K. HARVEY.
PN3
THE COMMISSIONER: Thank you. Thank you, Darwin.
PN4
MR L. MATARAZZO: I appear on behalf of the Australian Services Union.
PN5
MR M. BLANDY: I am from the Northern Territory Chamber of Commerce and Industry, appearing on behalf of our members respondent to the award.
PN6
MR R. GIFFORD: I appear on behalf of the respondent members of the Australian Mining and Metals Association.
PN7
THE COMMISSIONER: Yes, Mr Nucifora.
PN8
MR NUCIFORA: Thank you, Commissioner. Commissioner, I have just checked prior to the hearing commencing formally today that all my friends in Darwin have received copies of various authorities and authorities that we had e-mailed through on Friday, electronic versions of those. I will go to those in detail later. My understanding is that they have all of it. It is possible that a few pages were missing and I am told a decision we faxed through this morning, but I will take you to that later, Commissioner.
PN9
I was going to - I did send electronic - the e-mail through to your Associate, Ms Walker, on Friday, but I will be handing up hard copies or tendering hard copies of documentary material and tabling authorities that we will be relying on in this matter, all those that we have already referred to when we lodged submissions on 7 November. Commissioner, I mentioned before the hearing started that we don't believe that our submissions will go for longer than an hour or two, depending on the submissions from our friends in Darwin. I wasn't intending to go through all the detail, but just to take you to what we believe to be the essential points.
PN10
THE COMMISSIONER: Yes, thank you.
PN11
MR NUCIFORA: Commissioner, this is a section 113 application to vary the General Clerks (Northern Territory) Award 2000 to insert grades 4, 5 and 6 into clause 16 of the award before you, the wage rates and classification structure as it is titled. These generic clerical classifications are identical to those that apply in the Clerical Administrative Employees (Victoria) Award 1999. The award number is AW773032. And this award has been consistently relied on by this Commission as a bench mark for properly-set minimum rate - minimum award rates for private sector clerical administrative employees over the last five to 10 years.
PN12
Commissioner, it is the union's contention that in the context of the national clerical industry, the current three-level structure in the award, that is the Northern Territory General Clerks Award, is incomplete. These three levels that equate to the three grades in the Victorian structure were reached by consent of the parties in 1994. Clearly, as we would submit as a first step in implementing the 1989 structural efficiency principle. This was at a time when there wasn't the certainty about how the Federal Commission would receive the full Victorian structure.
PN13
Since 1994 the Federal Commission, along with all state Commissions, with the one exception of Western Australia, have adopted the six-level Victorian structure as the minimum bench mark. In West Australia only the first three grades have been implemented thus far, and they are in the process of revisiting the post, if you like, post-trade classifications as we are here, Commissioner. Indeed, Commissioner, the overwhelming majority of federal clerical awards now have either the Victorian six-level structure or some variation to the generic structure based on industry and/or enterprise-specific competencies and descriptors.
PN14
The application before you has a long history of almost seven years, going back to when it was lodged by our Northern Territory organiser, Mr Matarazzo, in February 1997. Commissioner, a copy of the original application should be on the Commission's file. I have got a copy here, but I have only got the one copy. I think my friends have that. And that of course referred to the three grades, 4, 5 and 6. As I indicated earlier, the genesis of the application goes back even further than 1997 to the structural efficiency principle of 1989.
PN15
Now, Commissioner, a lot has happened over the last seven years in the Northern Territory, not the least being the change of government. Closer to home, Mr Matarazzo has been elevated to the highest union position in the Territory, and I take the opportunity to congratulate Mr Matarazzo since I haven't seen him since that occurred on recently being elected Honorary Secretary of the NT Trades and Labour Council. Commissioner, Mr Matarazzo in his time as ASU representative in the Northern Territory has assiduously modernised this award as prior to the 1990s it was in a moribund state.
PN16
As there has traditionally been so few ASU members solely reliant on the award, the ASU, and previously the Federated Clerks Union, which were all employees of - had sought not to mount a major case until other federal awards covering more ASU members were determined. That is I guess an honest view that we put, that as much as this award classification structure has been outstanding, there was some uncertainty through the mid to late 90s about the clerical structure. Notwithstanding all this, Commissioner, this particular award as I recall is listed in the top 100 in terms of numbers of employees it actually covers.
PN17
I think it is around 7000, although my friend Mr Matarazzo might correct me on that, at least 7000-plus employees. Of course, in addition to achieving consent for the first three grades in 1994, Mr Matarazzo commenced proceedings before the late Senior Deputy President Polites in this matter at a hearing on 14 April 1997. I won't quote all of what Mr Matarazzo said, but refer you to paragraphs 10 to 35 on transcript. I won't actually - Mr Matarazzo was giving, of course, some of the history that I have already referred to, and I will refer to in proceedings today.
PN18
In addition to giving some history to the matter he referred to issues that might arise if the Northern Territory employers were interested in reaching agreement. Now, back then the employers, Commissioner, were opposed in principle to completing the classification structure, and when this matter was brought back on before you earlier this year their position hadn't changed. Commissioner, given there is no agreement between the parties, all the issues that were raised without prejudice for discussion over the last seven years are now superseded, we would submit, by the arbitration of this matter.
PN19
ASUs sole objective is to insert the proposed grades 4, 5 and 6 into the award operative from 1 January, 2004. Commissioner, if I may now tender as an exhibit an updated version of the draft, or proposed draft order in this matter. I just want to check, I think my friends in Darwin have a copy of that.
PN20
MR NUCIFORA: Thanks, Commissioner. Commissioner, there may have - Mr Matarazzo has circulated an early draft order, and there are only really some minor amendments to this, the correct title of the General Clerks (Northern Territory) Award 2000, that is, and the preamble, now that it has been simplified. The substance of the draft order is the same, if there is one that is relied on by my friends or on the file, Commissioner, as an early draft. Of course, we have got the new dates in there that we propose. You see there, Commissioner, in exhibit N1 of course grade 4 clerical officer in 16.5, it is proposed, and in 16.6 grade 5 administrative officer, and of course grade 6 in 16.7 on page five, grade 6 administrative officer.
PN21
And the descriptors contained therein and the rates of pay are identical to the Victorian clerical structure. There is no difference in any of that. And of course the 2003 safety net adjustment is included there. The draft order also includes of course reformatting of that part of the award. And of course in item B we refer to what we propose to be the operative date for the variation, that is 1 January 2004. Commissioner, the draft order and other - I mentioned earlier documented material were either faxed or e-mailed through to the employers last Friday, and as I understand it, most of that has been received by my friends in Darwin.
PN22
PN23
MR NUCIFORA: Thank you, Commissioner. Exhibit N2 is the outline of submissions that we lodged on 7 November in relation to this matter, and there are some minor changes. We have in paragraph 24, I think in the original we have referred to 24(e). We have left that to 24(a), (b), (c) and (d). I think there was a blank there originally in what we had lodged, so we rely on those awards, and we have included the print numbers there. There are no other changes to exhibit N2, that is changes to the document we lodged on 7 November. Now, I won't go through all the detail of that, but it might be a convenient time at this point to also tender a copy of the reply submissions as an exhibit at this point.
PN24
Sorry, Commissioner. I seem to have missed a copy of that. If I can rely on the copy that was lodged, there is no change to that copy, if I could table that as an exhibit, or tender that as an exhibit.
PN25
THE COMMISSIONER: This is the separate ASU document that you are referring to?
PN26
MR NUCIFORA: Yes, sorry, Commissioner, actually before - actually just in order of sequence there is a separate document, a hard copy of a table that I forgot to include in exhibit N2, and that is what we referred to as the Asco extract that we sent on the 12th, we refer to in our outline of submissions and we sent through on the 12th of - if I may include that as an attachment, that one there, Commissioner, as an attachment to exhibit N2. Apologies for that, Commissioner. We didn't have that in electronic form and it is an attachment to exhibit N2 and was something that was sent out to the parties as a separate copy on 12 November.
PN27
THE COMMISSIONER: Well, I will attach that to N2.
PN28
PN29
MR NUCIFORA: As I say, there is no change to that exhibit for my friends in Darwin. Once again, with the outline of submissions, I won't seek to take you to the detail, but rather refer to them as I take you through to the evidentiary material and authorities. Commissioner, at this point, if I may call on our only witness, Mr Keith Harvey.
PN30
PN31
MR NUCIFORA: Commissioner, I wonder if Mr Harvey can be given a copy of his witness statement.
PN32
Mr Harvey, have you prepared a statement for the Commission today?---Yes, I have.
PN33
And is that a copy of it before you there?---Yes, it is.
PN34
I wonder if you could just check that statement, and if there are any changes, if you could raise that with the Commission?---In reading over this, Commissioner, again before today I can only see one thing that really needs to be corrected, and that is at paragraph 9, which is on page 2. It is just that there is a full stop missing at the end of the first sentence which ends:
PN35
...which became known as the Victorian Clerical and Administrative Employees Award.
PN36
There should be a full stop, and then it should go on to say, as it does:
PN37
This award covered the bulk of -
PN38
that is the only tiny correction I would seek to make to the statement.
PN39
THE COMMISSIONER: All right. I have noted that?---Other than that that is a correct copy of my statement.
PN40
MR NUCIFORA: Is that a full and correct statement to the best of your knowledge and belief, Mr Harvey?---Yes, it is.
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN41
Commissioner, if I may now tender that witness statement as an exhibit. I am just going to ask whether Mr Harvey would need to sign that or?
PN42
THE COMMISSIONER: No, no, no, that is fine.
PN43
PN44
MR NUCIFORA: Thanks, Commissioner.
PN45
Mr Harvey, could you summarise to the Commission your qualifications and work experience as outlined in your statement?---Yes, certainly. My work experience is that for the last 20 odd years I have been an employee of the Australian Services Union, or its predecessor union, the Federated Clerks Union of Australia, working either in the research, or research training, or an industrial capacity. Over that period of time I have been closely involved in, firstly, the development of classification structures in the union's main awards, particularly those arising from the structural efficiency principles in the late '80s and continued that on in the industrial work I have been doing since that time. In addition, as I indicate in my statement at paragraphs, I think, 2, 3, 4 and 5 and some later ones as well, since the late 1980s and particularly through the whole of the 1990s and continuing I have been involved in what you might call training reform work which has largely involved the development and implementation of competency standards for clerical and administrative employees which, in large part, grew out of the restructuring of awards as a result of the structural efficiency principle and award rationalisation and modernisation at the time. So where awards introduce new skills-based classification structures industrial parties, both on the employer and the employee side determine that there ought to be competency standards which completely sort of fleshed out in more detail the skills that were described in a relatively brief form in the award. That then became part of a, sort of a national system called the National Training Reform
**** KEITH YOUNG HARVEY XN MR NUCIFORA
Agenda which endorsed those competency standards across a wide range of occupations and industry and provided that training providers, if they wished to provide nationally endorsed and accredited training, had to provide training based on those competency standards. So I have been involved in that work for the past 12 or 13 years initially in the clerical administrative areas with the National Office Skills Formation Advisory body of which I was, generally speaking, either the chair or the deputy chair over the course of the 90s. I am still involved in that although that is called Aspire Training and Consulting now. But I am also a member of another body called Business Services Training Australia which has the responsibility for competency standards and training packages as they are now known for the business services industry more broadly defined and I have been involved in a number of Australian National Training Authority committees, bodies, inquiries and what-have-you dealing with various aspects of industry training and training reform over that period of time.
PN46
Thank you, Mr Harvey. Mr Harvey, if I could take you to paragraph 10 of this statement. You refer to attachment A. I just wonder if you could explain to the Commission the table you provided in attachment A?---Yes, certainly. Commissioner, attachment A is a document which we maintain in the national office of the ASU which compares - or provides information about two things basically. The number of grades there are, first of all, in what we sort of loosely refer to as the Clerical and Administrative Common Rule Awards which apply - and when I say common rule, they are common rule in most places but not in Victoria at the present time. But the Tasmanian award, the Victorian award, Queensland, South Australia, Western Australia, the Northern Territory award and the award - there are two different awards which - a New South Wales state award which applies in New South Wales and also an award of this Commission which applies in the ACT but has the same classification structure. So attachment A, firstly, you know, indicates all those awards and then shows how many grades or levels there are in each of those awards and then sets out the pay rates. In fact, this particular version of the table sets out the pay rates over three years, for the last three years, but really only one column is relevant at any one time. It also, in the shaded part on page 1, it shows the relativities set against the C10 rate of pay. So it shows the relativities above and below trade. I am not sure why - if you turn to page 2, Commissioner, the first column on there which is actually the 2003 rates for Queensland are more heavily shaded. That is an error, I think. There is no reason why that should be shaded that way but they are the current rates for Queensland.
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN47
THE COMMISSIONER: It could only happen in Queensland?---Yes, possibly, Commissioner, but it could possibly only happen as a result of my skills in Excel as well. So that shows - if we go across the pages, for example, in the Tasmanian award it actually has seven grades. In the Victorian award there are six grades. In the Queensland and the South Australian Common Rule Awards there are actually five grades and in Western Australia and the Northern Territory at the present time there are only three grades and in the New South Wales and the ACT award there are five grades. Now, while that is all a bit - well, in some cases we consider it to be confusing, the purpose in one sense of the table is to show that even though there are different numbers of grades and even levels within those grades around the country there are also some fairly strong alignments in those and the most strong alignment is at the C10 rate where, for example, the Tasmanian Grade 3B rate is currently $542.20 which is the C10 rate. So that is a hundred per cent rate which is the same level as grade 3 after six months in Victoria which is the same rate as level 2, year 3, in Queensland which is the same rate as level 2, year 2 in South Australia which is the same rate in WA as grade 3 in the second year and the same rate in the Northern Territory award at the moment at grade 2, second year, and the same rate at grade 3 in both New South Wales and the ACT awards. So there is an absolute alignment at the C10 level although there is some slight variations in, for example, in how long you need to be at that particular grade. And the other thing that the table attempts to do is to show that even though, for example, there are only five grades in Queensland and South Australia which follow the same model - in fact the same development, the same model - the reason there are only five grades effectively there isn't the equivalent, say, of the Victorian grade 1, they start at grade 2 there. So they start at the equivalent of the Victorian grade 2, so their level 1 equals Victoria grade 2 and therefore their level 2 equals the Victorian grade 3. Now, above and below the C10 rate there are variations which are obvious and apparent from that table and the relativities are all, you know, slightly different around the place but the purpose of the table is to indicate that there is some sort of, you know, essential and underlying, perhaps I could say, harmony in the structures even though the rates of pay and the relativities are slightly different. And in case I forget, Commissioner, the other thing I should note in explaining that table is that the lightly highlighted - or shaded columns show the relativities as they are in 2003 against the C10 rate. That is not the relativities that were originally set according to the Commission's structural efficiency principles. They have declined obviously above the C10 rate as a result of the flat rate safety net adjustments over the last 10 years or a little less and increased a little against the C10 rate below that 100 per cent rate. So they are the relativities as they stood in - as they stand in 2003.
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN48
Thanks, Mr Harvey. Mr Harvey, I wonder if I could take you to paragraph 12 in your statement. You refer to attachment B on the top of the third page - bottom of the second and top of the third page. Could you explain to the Commission the table at attachment B?---Yes, certainly. This is slightly more complicated, Commissioner. And what I should say, Commissioner, is this table compares the skills in most of the awards which appear in attachment A. And when I say most of the awards, this document was drawn up quite some time ago by myself but before the New South Wales and the ACT awards were done so there is no column for New South Wales and ACT in attachment B, but a column could be added and I would say it would be consistent with the rest of the column. But for the purposes of this exercise New South Wales and ACT are not in it. But what this document which is really comprised of a series of documents attempts to do and does in my view, it compares each of the skills in each of the levels in each of the awards in those five states or territories - sorry, they are all states. And each of the awards, even though they were restructured by different Commissions, including the Federal Commission, but also State Commissions, each of them went through a slightly different process in order to be restructured. They all sought to introduce a skills based classification structure so they attempted to identify all the skills which would need to be carried out or utilised by a clerical administrative employee working in an average sort of an office so they identified what those skills were and then wrote down effectively what the performance standard for that skill should be. I won't go into the details of how that was done, Commissioner, unless you or somebody else wants to ask me that question but I am happy to do it. But if you look at grade 1 which is the first page of attachment B, Commissioner, the first skill is general, or what I call general, but each of the classification structures sort of has a preamble at each level and says what the general sort of level of expertise is at a particular level. So I have reproduced in this table and I have just taken the exact words out of each of the classification structures without changing them. I may have left out a few words and put in a few dots here and there but basically this is every word from every one of these classification structures. So I have set them out. For example, in Victoria the award says:
PN49
...employees in this grade perform or are accountable for clerical and office tasks as directed within...
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN50
blah, blah, blah. And similar sorts of words appear in Tasmania and WA. Obviously, from what I said in talking about attachment A, Commissioner, there is no equivalent grade in South Australia or Queensland so that shows up. So at each of the - at the commencement of each of these grades, or levels, there is a general statement about what people in that grade do. And then if you turn the page, Commissioner, you go over to the second page, there is a number of particular sorts of skill areas identified. In this case we start with machine operation, computer skills, enterprise or industry knowledge, information handling and business and financial skills were identified in Victoria, Tasmania and WA as being important skills. And then you can have a look at those and you go to, say, machine operation for the moment and it says:
PN51
Skill level 1. Operate telephone or intercom systems or telephone answering machines, facsimile machines, photocopies, franking machines, guillotines, etcetera.
PN52
And you can go across to Tasmania and WA and you can see there is slightly different - or one of them I think is an identical number of words. The one for WA expands at a little as to the number of machines. But you can go through there and see what skills the employees are being asked to exercise at this particular grade. You go over again to, say, information handling. You will see the three awards which have skills at that level or have one talking about mail systems, you know, the work done by a traditional mailing clerk - a mail room clerk, "receives, sort, open and distribute mail". And they all start off in the same way. In that particular structure only WA has a business financial skill listed at grade 1. So the process continues all the way through, Commissioner, and unless somebody asks me I won't - obviously I don't propose to read out every one of these but just to give you an indication. Again, at level 2, the general introduction is a bit more complex, there is a lot more words there. And then go over to the next page there is machine operation which then, in all cases, essentially talks about the skills necessary to be a switchboard operator. So all the awards, including South Australia and Queensland in this which kick in at this level, so that employees at that level ought to be able to - employees doing this would be graded at that particular grade in their structure. You can see, Commissioner, if you look at that, in particular, even though they all sort of - some of them describe it in slightly different ways but the first one which is, of course, Victoria says:
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN53
...be able to copy type 25 words a minute with 98 per cent accuracy.
PN54
That is exactly the same skill set out in this case for Tasmania and WA, 25 percent - 25 words per minute, sorry, and 98 percent accuracy. The other two awards, the South Australia and Queensland, describe it slightly differently, and then you can follow it all the way through, Commissioner. So the purpose, the overall purpose of this particular exhibit is to support attachment A and show that not only do the rates of pay more or less line up all around the country, but that so do the skills required, as you would expect because the rates of pay are derived from those skills, but the skills align as well. So as I said before, Commissioner, even though you don't have effectively the equivalent of Victorian grade 1, in South Australia and Queensland they kick in at the equivalent of Victorian grade 2. When you look at attachment B and grade 2, you will find that, you know, the skills that are identified in Victoria at grade 2 for example, are the skills which are found in the South Australian and Queensland structures at their level 1, as they call it. So the skills are identical - sorry, I said identical, they are not always identical, they did go through slightly different processes and they came up with slightly different results or definitions of what you had to do. And I think there is an example of that at grade 3 on the third page if you look at keyboard and typing, in Victoria the skill there was 40 words per minute with 98 percent accuracy. In Queensland it ended up at 65 percent words at 98 - words per minute at 98 percent accuracy. Tasmania it is 40 words with 98 percent, and so it is in WA. So there are some variations around the place which you could pick up, the same thing with secretarial skills at grade 3, the amount of shorthand somebody ought to be able to take, whether it is 70 words per minute or 80 words per minute at 98 percent or 95 percent accuracy, and so on and so forth. But my evidence would be that taken overall, and if you look through the whole of the structures, there again is an essential sort of amount of harmony in these structures for comparative purposes. So even though the State Commissions, you know, in some of the other states did things a little differently, overall they, you know, they more or less identified, you know, the same set of skills and more or less set them - set the definitions of what those skills ought to be in the same way and then effectively aligned the wage rates to them in a consistent manner. And there is only one other thing I should say by way of explanation of that document, at the end there is effectively sort of two grade 6s. The second-last one in the bundle is grade 6 using a Tasmanian grade 7 for comparison and there is another one just comparing effectively the two grade 6s in Queensland, with the
**** KEITH YOUNG HARVEY XN MR NUCIFORA
Queensland one with Tasmania. And that is only done for the sake of completeness and fullness because obviously there is seven grades in Tasmania and only five or six in the others, so you have to - there is an extra grade so an extra set of skills so you have to make a value judgment at the very top end as to which one of those lines up, so I have done it both ways, you know, for the sake of completeness, but I don't think it alters anything. So the object of the exhibit, and I am happy to answer any questions about it, obviously is to show that there is some sort of underpinning sense to it all even though, as I say, the various State Commissions, you know, as is obviously their right, you know, chose to sort of implement the sort of the, you know, the skills base structure in slightly different ways, describe the skills in slightly different ways, and in some cases, although not at the C10 level, awarded slightly different amounts of money for some of those skills depending on exactly what was in the package. But it would be my evidence that the, you know, taken overall of the, you know, the packages across those grades as we have set them out, as demonstrated by attachment B, are essentially and fundamentally in harmony and consistent all around the country.
[11.15am]
PN55
MR NUCIFORA: Thank you, Mr Harvey. Mr Harvey, in paragraph 23, you refer to attachment C. I wonder if you could explain to the Commission the material that is contained in that attachment?---Yes, Commissioner, this is - well, I couldn't say it is more complicated, but it involves a little bit of explanation, and so what I say in paragraph 23 of my statement is that we - I was asked to try and work out what the potential economic impact of putting in the three higher levels in the Northern Territory award might be. And in my capacity as a sort of research person of the ASU we sought to find out whether there were any Australian Bureau of Statistics' statistics which might indicate what rates of pay were being paid in the Northern Territory to clerical administrative workers who might be classified in levels 4, 5 and 6 should they be inserted into this award. And we discovered that there is nothing by way of published ABS statistics which tell you that so you have to ask the ABS, and for that matter pay the ABS, to produce some unpublished statistics based on their surveys of employee earnings and hours. Now so that is what attachment C is, this is the material that we asked the ABS for, and I have attached it to my witness statement exactly as it was received by me from the ABS on e-mail. Now by way of explanation to sort of show what this can and what this can't tell us, I suppose, Commissioner, is that you need a little bit more information about it because the ABS doesn't classify
**** KEITH YOUNG HARVEY XN MR NUCIFORA
clerical and administrative employees exactly in the same way as award classifications in clerical administrative awards now do. And that is mainly because the Australian Standard Classification of Occupations predates award restructuring and skill based classification structures by some years, I think it is mid-80s that it was first introduced, and does it mainly on the basis of job titles. And even though it is not attached to my statement and I don't have it in front of me, the attachment I think it was to - - -
PN56
Commissioner, I wonder if Mr Harvey could be given a copy of the attachment to - in fact he can have my attachment to exhibit N2?---That just is here to assist people sort of following this explanation. The attachment to N2 is a summary of the various job titles and the structure of the Australian Standard Classifications of Occupations as issued by the ABS, they break up jobs into obviously a number of job families and then particular job titles within those. And N2, on the second page of it which is sort of page 18 of the document it was taken from, that is a summary of all the areas. So the ones that are relevant to this exercise are group 5, which is advanced clerical and service workers, group 6, which is intermediate clerical sales and service workers, and group 8, which is elementary clerical sales and service workers, and just the - you know, and what the ABS does is classify people and jobs into these group families starting with a one digit number, that is what I just mentioned, group 5, then goes down - breaks it down in a bit more detail into a two digit number, so if you look at group 5, the ones under that are group 51, which is secretaries and personal assistants put together, etcetera, etcetera. It will also break it down to three digit numbers and four digit numbers and you can see those on the next page, Commissioner, which is page 31, which is where group 5 starts in the more detailed list of ASCO, again starts with group 5, group 51 and then various - well, there is only a couple of them - a three digit breakdown and then a four digit breakdown under that. And then there is lots of other jobs under advanced clerical and service workers with four digit breakdowns, make that six because they have got extra digits attached to them. But the next page goes into intermediate clerical sales and service workers and you go over a couple more pages you get to the elementary ones or all the lowest levels and again it spells out the detail. So in order to work out what ABS statistics might tell us about what people get paid under a - actually in the Northern Territory, you then really have to go and do some matching between the detailed job titles that you see in ASCO with what we know about what the classifications say about particular jobs in awards. And even though, as I say, it is not a really good match, which is regrettable, but I say in paragraph 24 of my statement that some reasonably accurate comparisons can be made. And there is
**** KEITH YOUNG HARVEY XN MR NUCIFORA
one other qualification I should say, which is mentioned at page - at paragraph 24 of my statement, Commissioner, and that is all this data is based on survey data, not a census, so this is a sample of employees in the Northern Territory and therefore it is subject to sampling variability. And I say in paragraph 24 that the data is subject to the normal sampling errors as described by the ABS in their report and that is - there is a caveat, for example, at the bottom of the first page of attachment C which mentions that - and I should say when we are going through this that the first page of attachment C is the critical one, the ones that we really need to look at, but the next pages are the standard errors that statisticians like to talk about, and the next page is relative standard errors as well, and I hope nobody asks me about that. But the last page goes into more detail about what the sampling errors mean and how accurate they are. So, you know, make that up front, it is a survey and therefore survey material is subject to sampling errors which statisticians like to worry about. But I would say, Commissioner, if you looked at the ASCO - sorry, there is one other clarification. Because the Northern Territory is a relatively - got a relatively small population in terms of people employed in clerical/administrative capacities, it is not always possible to get, say, four-digit data; you know, the same size is too small to be reliable and therefore the ABS won't release it and, in fact, they haven't released some of it, if you see at attachment C, at the three-digit level as well which I will come to in a minute.
PN57
Yes?---But the - if you compare, as I have done, I have sat down and compared the skills in ASCO at the various relevant clerical levels, and I find, for example, obviously that, you know, the elementary clerks would be down the bottom end of the classification structure, some of the intermediate level clerks would be, in my view, either 2 or 3, you know, grade 2 or 3, say, in the Victorian structure, and therefore the ones that we are looking at and are relevant for this exercise in my view are jobs which would be at the advanced clerical worker level, and the ABS has really only been able to produce for us, sort of, two lots of jobs. As I say at paragraph 25 of the statement, it appears to me the clerks classified by the ABS as advanced clerical employees would certainly be classified at the above grade 3 in a six-level structure, and attachment C only gives us data for two main groups of those advanced clerical employees, that is secretaries and personal assistants, and a group of clerks called advanced numerical clerks; numerical means basically in this case working with figures and obviously includes in this case bookkeepers and credits and loans officers. Now, if you look at attachment C therefore, Commissioner, you could ignore virtually everything from the bottom up where it goes elementary clerks, intermediate clerks, intermediate numerical clerks,
**** KEITH YOUNG HARVEY XN MR NUCIFORA
keyboard operators, general clerks and even intermediate clerical workers. Then above that you have the advanced numerical clerks and secretaries and secretaries and personal assistants. So it is really those top ones from advanced numerical clerks upwards which are the only ones that the ABS have been able to tell us something useful about in terms of pay rates. So if we start at the top, this material from the ABS shows, for example - and it breaks the data down by a number of - into a number of categories, but in the second - it has got first column as Occupation. The second column is Pay Setting. The Total column means the total of all the ways by which pay is set and then there is three breakdowns of that; that is, people who get paid under the award, people who get paid under a collective agreement and people who get paid under an individual agreement. And then the next column shows Average Weekly Ordinary Time Earnings for those particular people.
PN58
Yes?---So it shows, as I say in my statement at paragraph 26, that secretaries and personal assistants - and I have to say that the first eight entries on this, it is either secretaries or secretaries and personal assistants, but the figures are all the same - it shows that secretaries and personal assistants in the Northern Territory are paid on average more than $630 per week. That is, the lowest rate is just for secretaries paid under collective agreements, which is 631.10, then people who get paid on what they call the award only is 632.40, people who get paid on individual agreements get on average 658.70 and then the overall average is 643. So that is the rates that the ABS have reported by way of these surveys and the average therefore for the lot of them is 643, but nobody gets paid on average less than 631.10. And then the other group of employees that are relevant - I am ignoring the two-digit one because that is including service workers which we are not interested in, but the advanced numerical clerks. Again - now, the overall average, depending on how your pay was fixed, was $725.10 a week for ordinary time earnings. The NP under award only, and there is a footnote towards the bottom of the page, Commissioner, which says that that is not published - "NP" stands for not published - due to confidentiality reasons. Obviously, you know, the unit or the cell of data was too small and the ABS doesn't release it. Those in this particular category in the Northern Territory under collective agreements get on average $924 a week and those on individual agreements, surprisingly in this case, are only $543.50 per week.
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN59
Yes?---So it is - that is the data that we have been able to obtain from the ABS which would give us some indication of what the market effectively for clerical and administrative employees above, say, the equivalent of grade 3 in Victoria, so somebody who might be classified in grade 4, 5 or 6. And then at paragraph 26 of the statement, Commissioner, I have mentioned the - you know, not less than 630 figure, and I have said that this is higher than the rates that are in the union's application for grades 4 and 5, but slightly less than the rate claim for grade 6. And at paragraph 27 talking about the advance in numerical clerks, if it is 725 per week on average, then it is - that is well above the top rate set out in the award. Whether - exactly where, for example, PAs and secretaries would be paid under the classification structure would depend on exactly what their skills were. Some of them might be - some PAs may be grade 4, but some could be grade 6. So there could be a range in those and you would have to go to the actual classification structure and the duties of the employees to find out, you know, which grade they would be in and, therefore, you know, which comparison would be relevant. But that is - it was not part of my brief for this to do that. What we attempted to do as I said, Commissioner, was to get the only pay rate data that appears to be in existence that could tell us anything about what employees in the Northern Territory who might be classified at levels 4, 5 and 6 of an award in the clerical admin area might be paid - I apologise for the length of that explanation, Commissioner, but I think it is important to sort of give you the - you know, the background to these documents.
PN60
THE COMMISSIONER: Thank you. I follow all that.
PN61
MR NUCIFORA: Thank you, Mr Harvey. Mr Harvey, just one final question. In paragraph 14 you have referred to a number of - of your statement, a number of federal awards. I wonder if you could inform the Commission just on your experience and knowledge what percentage of federal awards, that is awards in the - federal clerical awards in the federal jurisdiction have the six level Victorian structure or its equivalent?---Sorry, did you ask me the percentage?
**** KEITH YOUNG HARVEY XN MR NUCIFORA
PN62
The percentage, rough percentage?---I am not exactly sure what the percentage would be. It would certainly be a majority, and I would say overwhelming majority. If I was asked to give a percentage, I would probably say 75 to 80 per cent or more would now have the Victorian six level structure or something based on that. I have noted in - for example, at paragraph 14 that the International Freight Forwarding and Custom Clearing Award actually has eight levels. The Medical Benefits Fund one has seven levels. So there are, again, some differences. The Victorian Legal (Professional, Clerical and Administrative Employees) Award has seven levels as well. But they are - to my knowledge and experience, they are based on the Victorian one plus some more, and I think it operates pretty generally. And in my experience, the only industry which hasn't adopted this for its own reasons has been the vehicle industry so some of the vehicle industry awards don't have the Victorian structure. But most of the others now do and, as they have been simplified over the last few years as a result of the changes to the Act after 1996, we have tended to - in fact, in all cases to my experience, we have put in either the Victorian six level structure or something very closely based on that. So the structure has now flowed through to I would say an overwhelming majority of awards of this .
PN63
Thank you, Mr Harvey. I have no further questions, Commissioner.
PN64
THE COMMISSIONER: All right, thank you. Mr Blandy.
PN65
MR BLANDY: No, I have no questions, Commissioner. Thank you.
PN66
THE COMMISSIONER: All right. Mr Gifford.
PN67
MR GIFFORD: I have no questions in cross-examination. Thank you, Commissioner.
PN68
PN69
MR NUCIFORA: Thank you, Commissioner. Commissioner, if I may now table copies of the two relevant awards for comparison and, in particular, if I may table a copy of the General Clerks (Northern Territory) Award 2000.
PN70
THE COMMISSIONER: Thank you.
PN71
MR NUCIFORA: And also I will table a copy of the Clerical Administrative Employees (Victoria) Award 1999.
PN72
PN73
MR NUCIFORA: Thank you, Commissioner. Just in terms of exhibit N5, Commissioner, of course that was an award that was simplified before you around August 2000. And although it is not an issue that has arisen in any formal written submissions in this matter, I do want to refer you to clause 6 in relation to - in this award 6.2, the definition of a clerk and we say this is consistent with other clerical awards and comparable certainly with the Victorian award before you. If I may quote from that:
PN74
Clerk means any employee of a respondent employer bound by this award who is engaged principally .....(reads),,,,, in performing any clerical or administrative work.
PN75
And that is actually a better definition than a number of other federal clerical awards outside of the Vic Clerks Award. Commissioner, if I may now refer you to clause 16 on page 13 of the copy of the award before you and, of course, we have in clause 16 the first three grades, three classifications and they are not identical in terms of descriptors to - descriptors in terms of the Victorian Clerical Award but they are comparable in the essential competency standards and skills required at each of those levels. I won't go to all the detail of that but there is the other award before you and they are comparable with those. And, of course, this award has the 2003 safety net adjustment, and the draft order before you in exhibit N1 has, of course, the 2003 rates.
PN76
Now, you have before you also, Commissioner, award number 773032, the Clerical and Administrative Employees (Victoria) Award 1999 and I refer you there to clause 5, coverage of the award. You can see that that talks about - I won't quote from it but the employees are employed wholly or principally in clerical work which may include administrative duties of a clerical nature. So that has a comparable coverage clause.
PN77
And, of course, in clause 16 of the Victorian award you can see the first three grades that are there on pages - it is a little bit hard to follow but on 17.4, 18.4, 19.4, right through to 21.4, the first three grades up to the trades equivalent, grade 3, and then we have - and now from grade 4 clause 16.2.4 through to clause 16.2.6, the structure that we have - that is identical to the structure that we seek to have inserted into the NT award. Commissioner, of course, the Victorian award is one that we say is the most relevant award in the federal jurisdiction and, of course, now in the greater majority of the state jurisdictions.
PN78
If I may now take you to relevant decisions referred to in our submissions, Commissioner. Firstly, if I may table a copy, or tender as a copy or table a copy, whichever way you decide, Commissioner, a copy of the decision of Commissioner Hoffman in print L3035.
PN79
THE COMMISSIONER: I won't mark these as exhibits in the proceeding but attach them to the file.
PN80
MR NUCIFORA: Thank you, Commissioner. I understand my friends have a copy of that. That is a copy of a consent order that was, if you like, the last time the Commission formally dealt with structural efficiency in this award and, of course, we have in there the three level structure that was reached by consent by the parties. And I refer you there to, Commissioner, on page 7 clause 6(f), leave reserved clause. If I may quote from that:
PN81
The Australian Municipal, Administrative, Clerical and Services Union reserves the right to pursue classification grades and relativities higher than the relativities in grade 3 level in this classification structure.
PN82
So we have a leave reserved clause. Clearly when this was last before the Commission we say it was contemplated that it was incomplete. The structural efficiency principle had been implemented, albeit by consent by the parties in recognition of what had occurred certainly before the Full Bench of the Victorian Commission. Commissioner, the next decision that I wish to table is one that we sought to fax through to my friends in Victoria - we didn't have an electronic copy of that - but that is a decision of a Full Bench of the Industrial Relations Commission of Victoria in full session. If I may table that.
PN83
THE COMMISSIONER: Thank you.
PN84
MR NUCIFORA: The decision number is D92/03264. Now, this decision I won't go through all the detail. We say this is the originating decision that our union has relied on right the way through to when this was what was the Commercial Clerks, not the Victorian award, was transferred to the federal jurisdiction in '94 and, of course, I will later show through simplification. This structure or, if you like, the work value case under the structural efficiency principle has become, if you like, the most important decision that the Commission has relied on. Although it does date back to '92, it is certainly still relevant, largely relevant in federal clerical awards. If I may refer you, Commissioner, to - on page 25 of that decision. If I may quote from the third paragraph in the decision of the Full Bench:
PN85
The present case can be distinguished from other structural efficiency cases pointed to by the parties .....(reads)..... for the future in terms of a career structure for clerical and administrative employees.
[11.48am]
PN86
And then it goes on to refer in the next paragraph to grades 4, 5 and 6, and the rates of pay and of course the relativities at that time that Mr Harvey spoke of earlier in his witness evidence. Then the rest of that decision has, of course, attachments that go to the inspections conducted by a single member, Deputy President Marsh, at the time, and of course appendix - the appendix E has the - what we now know as the generic clerical and administrative employees classification structure.
PN87
So, Commissioner, that is the most important decision that we would seek to rely on in this case, not only in relation to grades 4, 5 and 6, and of course we would have relied on it in relation to grades 1, 2 and 3. Commissioner, if I may now table a copy of the next decision that we consider important in this matter, in print S1366, if I may table that, S1366 is an award-simplification decision of Commissioner Merriman, simplification of the Clerical and Administrative Employees (Victoria) Award 1995, and this was one of the first of the clerical awards to be simplified, of course in the federal jurisdiction under item 51(4), (5), (6) and (7) of the WROLA Act. If I may quote from paragraph 2, Commissioner Merriman says:
PN88
The award has been reviewed pursuant to item 51(4) and (5), and once varied the award will satisfy the criteria set out in item 51(6) and (7) of the WROLA Act.
PN89
Clause 14, wages:
PN90
The Commission is satisfied based on the submissions made that the rates in this award that the rates have been properly set consistent ...(reads)... Commission of Victoria, as it then was.
PN91
If I can take you down to the bottom of that paragraph, and I quote, Commissioner:
PN92
The Commission is prepared therefore to not only endorse the rates contained in the simplified award, but also the structure and level ...(reads)... requirements of the Act and is allowable.
PN93
So we see then that in the Clerical and Administrative Employees (Victoria) Award post-simplification following the simplification process, that that structure has met the principles, the wage principles, and of course - an I include in that the paid rates principle. Commissioner, if I now may refer you to the next decision which is the clerks breweries - the simplification of the Clerks (Breweries) Award, if I may table that, Commissioner, it is print 9120. It does have a covering page that goes to some amendments to the copy that you have there, and I believe my friends in Darwin.
PN94
Commissioner, in that decision, the decision of Vice President Ross, that was the next clerical award that was simplified in the federal jurisdiction and relied on decision of Vice President Ross. I might add that it does refer to rates of pay and classification structure and we did rely on the witness evidence of Mr Harvey in that particular matter, evidence that if I can take you to paragraphs 28 and 29, there is reference there to the rates of pay, of course, under 28, and in paragraph 29 it refers to the paid rates review decision, and his Honour refers there in 29 in quoting awards that require review in item 2 at the bottom of page 7 of his decision, if I may quote:
PN95
The rates in the award under review should be examined to ascertain whether they equate to rates in other awards which have been adjusted ...(reads)... accordance with these principles.
PN96
Now, in that case the rates of pay were actually higher. The consent structure that was agreed to there was higher than, the Vic clerical structure, and it required conversion and we have now gone through the residual amounts. But his Honour went through a very comprehensive comparison there of the brewery structure, which was a variation of the Victorian clerical structure, and in paragraph 34 found that as the ASU had contended, that grade two was actually the metal trades rate equivalent, that is, of course C10 in the Metal Trades Award, or grade three in the Clerical and Administrative Employees (Victoria) Award.
PN97
So, his Honour is there drawing the comparison between the Clerks (Breweries) Award, the Vic structure - or sorry, the classification structure that had rates of pay that were higher and then seeking to pare them back as a result of the paid rates review, and of course in the process, a very comprehensive process, drawing on the Clerical and Administrative (Victoria) Award as the key structure, and of course the evidence provided by Mr Harvey, and then the rest of the decision goes to making that direct comparison and in fact paring it back.
PN98
And the logical argument, as we see in later decision, is that if the rates are - have not been restructured and in fact lower than the clerical bench mark, then they ought to be increased. Or in the case of the NT Clerks Award, the rest of the safety net we would submit ought to be applied. The other decision that we wish to refer you to, or the next decision, Commissioner, is if I may table a copy of a full bench decision in the Clerks ACT Award 1998 in print S4355. This was a section 108 application to a full bench arising from simplification of the Clerks ACT Award.
PN99
In fact, the ACT Clerks Award had a structure that had not been restructured at all, unlike the NT Clerks Award, but is probably the most comparable award in many respects to the General Clerks Award in the Northern Territory as it is the other Territory, the difference being, of course, the Australian Capital Territory is landlocked by New South Wales and there is a direct link with the New South Wales State Clerks Award. And what this decision goes to is actually picking up the five levels in New South Wales as a consent position between the parties.
PN100
Now, it is a consent position. It was not arbitrated, Commissioner, but it is a full bench, and we considered it quite a significant decision, and other senior members of the Commission have referred back to this decision as well as the clerks (breweries) decision, because in paragraph 8 of this decision, if I may quote, the bench says:
PN101
On the material and submissions before us we are satisfied that the consent variation is in accordance with the minimum rates ...(reads)... 1999 safety net review wages decision 87 IR 190.
PN102
At that point, the President did refer the disputed application to vary the classification structure, because there may have been, as we understood it, there may have been some uncertainty about accessing previous safety net adjustment. I don't want to gainsay with the President's thinking on this, but it was a full bench, and at that point we didn't have later full bench decisions that went to accessing incomplete structural efficiency principles.
PN103
So, they did find, the bench did find that it was - they understood the NSW structure was a variation to the Victorian structure, it was otherwise, if you like, grades four and five, to put it a lot clearer, I guess, 4 and 5 in the New South Wales structure is a compressed version of the grades 4, 5 and 6 in the Victorian structure. And so the full bench accepted that point. After that, if I now may table a decision relating to the National Building and Construction Industry Award 2000 in PR912836 - - -
PN104
THE COMMISSIONER: The forests should be pretty clear at the finish of this.
PN105
MR NUCIFORA: Sorry, Commissioner?
PN106
THE COMMISSIONER: The forests should be fairly clear by the time we finish.
PN107
MR NUCIFORA: Yes, it should be clear. Commissioner, this full bench decision goes to an award where the structural efficiency principle had not been completely applied, and it found there was no - one of the things that it found apart from the key issues, was that there was no requirement for a special case, as it wasn't an application to make or vary an application for wages and conditions above or below the safety net, and if I may quote, in paragraph 15 they quote on page 5 of the decision:
PN108
To further the steps required to ensure stability between the awards the August 1989 national wage case decision ...(reads)... metal, storage and transport industries, and stated -
PN109
and they quote from the decision -
PN110
Minimum classification rates and supplementary payments for other classifications throughout awards should be set in individual cases ...(reads)... clear definitions will have to be established.
PN111
So we find in this decision that in paragraph 25 the CFMEU, the union involved, were contending that they were seeking to give full effect to the 1989 national wage decision, and secondly, to further implement the decision of the Commission in relation to a new classification structure in the building and construction industry. That is not dissimilar from the position we have with the General Clerks NT Award before you. And in paragraph 53 of this decision, if I may quote:
PN112
Accordingly, we have concluded that the CFMEUs claim comes within the terms of items 2 and 3 of the May 2001 safety net ...(reads)... increases in accordance with principle 3 -
PN113
and of course on the next page, principle 3 is the previous national wage case increases, an I quote from that -
PN114
Increases available under previous national wage case decisions such as structural efficiency adjustments, minimum rates ...(reads)... adjustments will on application still be accessible.
PN115
And that is the key point here. We say that there is an incomplete safety net that has been applied for clerical workers in the Northern Territory and it is still accessible, it is not above the safety net in the context of the national clerical industry. And of course, in paragraph 54:
PN116
The CFMEUs claim is made pursuant to the structural efficiency and minimum rates adjustments principle from the August 1989 national ...(reads)... no application to the matter before us.
PN117
And we say that that is the position with the application before you. They also say in paragraph 16:
PN118
We have also concluded that the CFMEUs application is consistent with the current legislative framework which in the Workplace Relations ...(reads)... 88(a), 88(b) and 89(a)(3).
PN119
And, Commissioner, I then refer you to paragraph 57:
PN120
We agree with the conclusion that the paid rates review decision that the above provisions clearly demonstrate the awards made ...(reads)... even more important than it was in 1989.
PN121
And of course, in paragraph 59 of page 80 of the decision, if I may quote:
PN122
The CFMEUs application seeks to extend classification structure and rates which have been determined in accordance with the ...(reads)... is consistent with the legislative framework.
PN123
And then finally in paragraph 63, if I may quote:
PN124
Mr Hutt's evidence went to the development -
PN125
Mr Hutt is the representative of the employer - sorry, the Chief Executive Officer of Construction Training Australia -
PN126
Mr Hutt's evidence went to the development and approval process associated with the National Competency and Training Standards ...(reads)... and likely future developments.
PN127
So they - like we rely on Mr Harvey's evidence in relation to national competency and training standards as they did there in that case. And then in paragraph 72:
PN128
On the basis of Mr Hutt's evidence we are satisfied the existing training and accreditation infrastructure in building construction is sufficiently ...(reads)... generally across the MBCIA 2000.
PN129
And we say that, of course, is the case with the infrastructure for underpinning the classification in the Vic Clerks Award. In paragraph 74, if I may quote:
PN130
Contrary to the employer's submissions we have decided that Deputy President Watson's decision in relation to the MBCIA 1990 ...(reads)... hence no ..... is required.
PN131
In paragraph 79 which may also be relevant in terms of Western Australia at least, if I may quote from paragraph 79:
PN132
Implicit in Bisco's submission is the suggestion that granting the CFMEUs application may lead to the widening of the differences between the MBCIA ...(reads)... counterpart in state awards.
PN133
And we are speaking in particular of Western Australia, and of course they are in the process of dealing with the higher classification above - post-trade. The other decision that I - the next decision that I wish to table, Commissioner, is a decision that goes to the classification structure of post-trades level in the Vehicle Industry Award 2000 in PR920882.
PN134
Commissioner, in that decision, which dealt with classifications above the post-trades level in the vehicle industry and of course, in the second paragraph it goes to the union application to vary the classification structure in order to give effect to three reserved post-trade levels as well as including additional levels and associated training and industry matters. The issue of including post-trade levels within the award was raised in 1996. That was a decision, of course, of Commissioner Foggo, in 2002, more recently, and it went to the union, the AMWU, were ultimately successful, and if I may refer in the third paragraph on page 5, and I quote from there:
PN135
The union has also relied on a number of documents tabled before the Commission as evidence that the variation which they sought to the BIA Award was unexceptional and consistent with many other comparable classifications in awards.
PN136
If I may refer you to the conclusion on page 17 of that decision:
PN137
The issues which are the subject of this application should have been capable of resolution between the parties.
PN138
And it goes on to say, and we say that that was a case here as has been in a number of other clerical awards, we ought to have been able to reach agreement. And if I may quote from the third paragraph on page 18 of the decision:
PN139
The objects of this part of the Act -
PN140
and that is section 88A -
PN141
are very clear in relation to establishing a scheme of industrial regulation based on a minimum wages and conditions to be ...(reads)... unable to be protected by a safety net forever.
PN142
And so, of course, we are talking of - and there was an analogy there with the grades 4, 5 and 6 that we are proposing for the Northern Territory. It is also worth noting in the third paragraph on page 19 in the last sentence, reference to supervisory technical classifications. If I may quote:
PN143
To argue that employees at the level of supervisor in technical classifications should not have a safety net of terms and ...(reads)... provides for minimum wages and conditions.
PN144
Now, we are not talking about in grades 4, 5 and 6 managerial levels. There are employees classified in at least 5 and 6 that go to supervision, but they are not management, capital M management, as we refer to management who would be in positions where they would have the power to hire and fire. Now, that is something that comes up in the Victorian Clerical Award as being a clear distinction. People, while they have the six-level structure, there is a reference in the coverage award to - sorry, in the coverage clause of that award to excluding managerial employees who have the power to, if you like, hire and fire.
PN145
Commissioner, if I can take you to the last decision, the last relevant simplification decision we were going to rely on, and that is a decision of Senior Deputy President O'Callaghan in August last year in PR921127, if I may table that as the relevant decision. This decision - I won't go to all the detail, but on pages 4, 5, 6 and 7 there is a reference of course to the - well, the simplification of the Clerical and Administrative Staff International Freight Forwarding Customs Clearing Industry Award 1992, now award number 772317.
PN146
That is another significant decision that relates to a clerical award and, if you like, simplification and rates of pay. Mr Harvey referred to earlier there is an eight-level structure in this particular award; it does actually go further than the six levels in Victoria and the majority of our clerical awards. His Honour on page 6 in the second-last paragraph refers to the Victorian clerical awards, but doesn't find that to be as authoritative as the ACT Clerks Award decision. On page 7, in terms of - at that point we were seeking to establish what level in the structure equated to the 100 per cent metal trades equivalent. If I can quote from the second paragraph on page 7:
PN147
I have noted the decision which establishes the rates of pay pursuant to the WROLA Act in the Clerical and Administrative ...(reads)... classification upon which I can rely for this purpose.
PN148
And of course we know that, because that was clearly identified in the original full bench decision in the Industrial Relations Commission of Victoria. Now, if I may then quote:
PN149
I have considered the decision of the full Commission in the Clerks ACT Award Print S4355 -
PN150
one of the other decisions that I have tabled today, Commissioner, if I may quote on -
PN151
in which the full Commission endorsed the grade three classification in that award as the trades equivalent classification. ...(reads)... proposed by the parties for adoption.
PN152
He goes on in the next paragraph to refer to the decision of Vice President Ross in the clerks (breweries) decision in print 9120, one of the other decisions tabled before you in this matter, Commissioner. Commissioner, finally I wish to refer, and I have I guess already referred, but to table a copy of the statement of principles. I am just thinking that may be something that my friends on Darwin don't have a copy of, but the statement of principles is attachment A to PR002003, that is the safety net review decision of earlier this year.
PN153
And I have referred to the principles in other decisions before you today, Commissioner, but in particular we refer to principle 1, the role of arbitration in the award safety net and of course in dot 1 it talks about, firstly:
PN154
As a result of the award simplification process awards were, where necessary, to be varied so they act as a safety net of fair, minimum wages and conditions of employment -
PN155
section 88A(b) and then in, if I may quote after the dot points - the paragraph before item - principle 2, and I quote:
PN156
This evolving award system will remain the safety net referred to in the Act.
[12.15pm]
PN157
And of course what we have before you, Commissioner, is what we say is a classification structure that had not been fully evolved under the structural efficiency principle. And principle 2:
PN158
When an award may be varied or another award may without a claim being regarded as available below the safety net.
PN159
They refer to - the principles refer to the following circumstances:
PN160
An award may, on application, be varied without being regarded as a claim for wages above or below the safety net.
PN161
Of course, it refers to (a):
PN162
Include previous national wage increases in accordance with principle 3.
PN163
And then we go to principle 3 which refers to previous national wage increases and if I may quote from that:
PN164
Increases available under the previous national wage case decision such as structural efficiency adjustments.
PN165
So we say the wage principles - that that is where the clerical structure in this award can now be completed without being considered an application above the safety net. I also refer you to print Q7661, if I may table a copy of that. That is the Paid Rates Review decision and I think, thankfully, the last tree that I need to hand up, Commissioner. In that, if I may refer you to the principles in schedule A on page 24 of print Q7661, something that we have already referred to earlier today in decisions before you. But in principle 2:
PN166
The rates in the award under review should be examined and ascertained whether they apply to rates in other awards which have been adjusted in accordance with the August 1989 approach with particular reference to the current rates for the relevant classifications in the Metal Engineering and Associated Industries Award 1998, Part 1, print Q2527. Where the rates do not equate they will require conversion in accordance with these principles.
PN167
So we know from the paid rates principles that we can compare with other awards that have had the structural efficiency principle properly applied. And, of course, we refer to a number of clerical decisions relating to clerical awards before you - the Clerks Breweries Award, the Customs Clearing Award. But originally, of course, the Victorian Clerical Award that was adopted by the federal jurisdiction by Commissioner Merriman and, of course, we relate then back to the decision of the Full Bench in Victoria and that award was, of course, equated to the Metal Industry decision of 1989.
PN168
So we say the variation before you is consistent with the application - is consistent with the principles, relevant principles, the wage principles and the paid rates principle. Commissioner, this application, unlike when the question was raised in the Australian Capital Territory, it has been referred by the President back to you as a single member. At the time the ACT Clerks matter was determined there was less certainty about what was considered access to outstanding claims that arose from the structural efficiency principle.
PN169
As a result of the various authorities that have relied on this matter today there is now more certainty, firstly, in relation to what the private sector clerical safety net is and, secondly, what constitutes accessing the second step or, if you like the final step, in the structural efficiency process without requiring a special case that is an application that may be above the safety net. Commissioner, Mr Harvey, earlier on, took you through evidentiary material that related to, of course, the various state awards. He indicated that over 75 - I think it was 75 to 80 per cent of clerical awards in the federal jurisdiction have the Victorian generic structure, the full six level structure or a variation to it.
PN170
Commissioner, we haven't provided details of other federal awards to save a few trees where the generic clerical classification structure has been relied on. Now, I can just refer you to one more recently that was made, the Telecommunications Services Industry Award. But a number of other awards have relied on the Victorian structure as the basis for a classification structure that might apply to clerical administrative employees in a particular industry, in that case the Telecommunications Services Industry Award. Now, there are a number of awards where our union is not the only union party that have relied on this clerical award and we haven't listed those here but they certainly exist.
PN171
When the first three grades were inserted in the award before you there was no dispute between the parties over the bottom half of the classification structure, that is, up to the 100 per cent metal trades equivalent. There clearly was - at that time there was no dispute over that and we say it was contemplated that higher classifications in the context of the national clerical industry would still be available. Commissioner, admittedly, most of the authorities that we have relied on after the Victorian Full Bench decision were based on some level of consent and in particular the ACT Full Bench decision.
PN172
However, the consent position has to be - we say in particular the ACT Full Bench decision had to be approved consistent with the national wage principles and the paid rates principles. In addition to the senior members of the Commission - and I am referring to Vice President Ross in the Clerks Breweries case and Senior Deputy President O'Callaghan in the Customs Clearing Award have formally recognised the generic structure as being the minimum benchmark. And when I say the generic structure I mean the whole structure including grades 4, 5 and 6.
PN173
Mr Harvey's witness evidence clearly shows there is no evidence to suggest any significant economic impact on employees in the Northern Territory. Indeed, Mr Harvey took you to empirical evidence to suggest that most employees classified at the proposed classification levels are paid in excess of the minimum rates applicable. We mentioned earlier this application relates to wage principles 2(a)(iii) and the paid rates principle that takes you to - comparing the award with awards covering the same type of employees.
PN174
We say the application is consistent with the Commission's obligation to maintain a consistent safety net in this case for clerical employees. Commissioner, we say that we know that the Top End is unique but in terms of the national clerical industry we say it ought have the same classification structure as applies to the majority of clerical awards. And we have a number of awards that apply in the Northern Territory now and, of course, when you are comparing other employees that might be employed by road transport companies, for example, where employees respond to the Clerks Road Transport Industry Award, awards like that that already apply in the Northern Territory.
PN175
Therefore, we say that the structure ought be included - the top three levels ought be added and the top end of the structure ought now be completed in the Top End. Otherwise that completes my submissions, Commissioner.
PN176
THE COMMISSIONER: Thank you. Mr Blandy.
PN177
MR BLANDY: Thank you, Commissioner. And, first, may I compliment Mr Nucifora on his preparation of this matter. It has been very well presented - very well prepared and very well presented this morning to you, sir.
PN178
THE COMMISSIONER: Can I just interrupt you before you begin? If you can keep the papers away from the microphone, I couldn't quite pick up all of what you said then.
PN179
MR BLANDY: I realise that, sir. I had them actually over the microphone. That was my error and they have been sitting there for probably an hour or so now. I have taken them away, sir, so they are not over it.
PN180
THE COMMISSIONER: Good, thank you.
PN181
MR BLANDY: Sir, I don't wish to make any submissions other than what I have already made in the written submissions and they, essentially, relate in particular I suppose, emphasising paragraphs 9 and 10, the potential disincentive for agreement-making. Otherwise, sir, I have no other submissions.
PN182
THE COMMISSIONER: All right. Well, I should mark those as an exhibit in the proceedings. B1.
PN183
PN184
THE COMMISSIONER: Mr Gifford?
PN185
MR GIFFORD: Yes, thank you, Commissioner. Firstly, I might just reach over and - the microphone. The hearing is okay, it is coming through okay, Commissioner?
PN186
THE COMMISSIONER: Yes, that is fine.
PN187
PN188
MR GIFFORD: Thank you. Like Mr Blandy we don't intend to re-visit those particular submissions save and except in relation to issues that were raised by Mr Nucifora in his reply. And I think to that extent there needs to be some degree of clarification if you like.
PN189
THE COMMISSIONER: Yes.
PN190
MR GIFFORD: Firstly, with respect to an issue we raised as to one of the relevant objects of the Act which we raised in paragraph 6 and then alluded to further in paragraph 7 of our submission where we made reference to the fact that there were questions as to whether this application truly deals with the maintaining of the safety net. I mean, what is sought to be achieved, of course, is really to complete what the unions say is an incomplete safety net.
PN191
And without wanting to get into an argument about semantics as to what the word "maintain" means we had certainly read it in a limited sense because it is used in conjunction with the word "establish and maintain". And in their response they draw an analogy with the fact that if our interpretation is correct it would mean that no test case provisions could be applied to the award. That is a fair argument and we don't seek to take the meaning of that term as far as that.
PN192
But, in essence, I just wanted to leave the Commission with the thought that whilst we acknowledge that point they make we didn't want to get into a detailed argument as to how all of this relates to the structural efficiency principle and that has been fairly significantly addressed already. But we still seek to maintain the position we have outlined in that particular paragraph.
PN193
Next, seeking to refer to our paragraphs 10 and 11 and leading into that in paragraph 8, we say in the context of how this application has been argued where the union is seeking to complete the safety net, that essentially we read their argument as being an extension of the minimum rate adjustment process. And then we spoke very broadly about that process in paragraph 11 and in fact with the benefit of hindsight perhaps too broadly and this was alluded to in terms of the ASUs response. And there is a little further that I would seek to comment upon here.
PN194
It is certainly true that the MRA process involves, of course, paid rates principles and the supplementary decision to that particular principle as well. And what was inherent in our fairly bald statement to say that there is nothing in the MRA process that permits this kind of application, you can see the distinction that we were seeking to draw was that this was an application that was seeking the adoption - and this is the way we see it - of an extension to the classification structure that is already in the award. We recognise that it has been subject to a leave reserved situation that goes back to 1994 and we recognise that in the interim there has been the simplified award and no doubt that was clearly on the understanding that that same notion of the leave reserved was still in the mind of the union.
PN195
But there is a distinction between the setting of appropriate classification relativities and their linkage to the metal trades fitter compared to what we say is the integral element of this submission, that is, the adoption of an extension to the classification structure. And in viewing that distinction, of course, the other side say that is a fictitious distinction to be drawn, but certainly our reading of the paid rate principles saw this as focusing upon a set of principles for structures that were already there in the award and simply then asking the question: Do those structures require conversion or not? That is the way the principles are written.
PN196
And if you look at principle 1 in the paid rates principles dealing with the MRA process it talks about awards requiring review under item 51(4) will be awards containing rates which have not been adjusted. And then in paragraph (b) awards containing rates which have been adjusted and so on and I don't need to go to the detail of that. And therefore paragraph 2 where it talks about:
PN197
...the rates in the award under review should be examined to ascertain whether they equate with rates in other awards -
PN198
has got to be read in the context of the awards which contain a particular structure and then the question is whether there should be a conversion process. So that is what we say this MRA set of principles, if you like, is directed to and that is why we baldly put them to one side. So that is the position that we are coming from and, of course, in relation to the supplementary decision which essentially deals with how to calculate - or some aspects of how to calculate the minimum rate process we say is similarly not directly applicable in the context of this particular application.
PN199
And so all of this is raised in the context of whether or not a comparative analysis is appropriate and the comparative analysis that is sought to occur here is, very simply, the flow of the Victorian structure directly into this award in the manner in which the parties consented to do so in 1994 and reaffirmed in 2000 with the simplified award. And this is where we say the union have the difficulty because the minimum rate - sorry, the paid rates principle dealing with the MRA process don't deal with the simple question of flow because that is the essence of the application here and that is why we say they can't be relied upon.
PN200
And if you turn to the principles properly, obviously, there isn't a direct principle that deals with the question of seeking to flow a classification structure from one area to another, or one award to another. But what the union rely upon, of course, is the structural efficiency process going right back to 1989. Now, if one looks at the principles, and I am not going to take the Commission on a detailed traipsing back through the principles, but certainly the notion of flow, that is, a comparative analysis based on, simply, the flow of one set of award provisions from that award to another award is not something, with respect, that the structural efficiency process endorsed or adopted.
PN201
And that is why we say that the focus ought to be upon the question as to whether there is a need, some kind of demonstrated need for the extension to the classification structure being included into this particular award. And I won't go through where we have said that in our submissions. I mean, we acknowledge right at the outset that there is no requirement, in our respectful view, by virtue of the principles even though the principles provide for work value, we say we don't consider the parties are obliged to undertake such inquiry for the purposes of this kind of situation.
PN202
But there needs to be some prima facie demonstration of need, and we say this respectfully, for such an extended structure to be included in the award. Now, whether that is some indicative evidence, whether that is a more detailed survey than the ABS material that has been provided, that is a matter for the Commission, of course, and we don't seek to put any detailed submission there. But that is the point that we have come from in relation to this matter and that is why we say, in paragraph 20, that there needs to be some substantive purpose demonstrated as to why there needs to be an extension to the safety net that has already been included in the simplified award.
PN203
And that also can be seen in the context of the principles, that is, the wage principles, in fact, allowing - and I just need to quickly get those principles out in front of me. And certainly one of the authorities, which reference has been made, and I am not sure whether it was the vehicle decision of Commissioner Foggo and I am sorry I haven't got it immediately in front of me. But principle 11 has not been referred to or relied upon by the union in these proceedings and, no doubt, quite intentionally.
PN204
But certainly we would consider - and we have not put this in our submissions in writing, but I just observe in passing that it is another course that could have been undertaken but was not, where one is dealing directly with the comparative analysis in the way in which that is sought to be done here. And I won't dwell any further in relation to that but really to observe the way that principle is written at the moment, it acknowledges that that course is open.
PN205
Finally, there are a couple of alternative positions that have been put in our submissions in relation to the supervisory question and I don't think that I can add further in relation to that matter. And I also raise a practical aspect about the impact of the award if it is the Commission's decision to award it. The practical impact of all of those people out there presently on contracts, or common law contracts more than likely, that don't recognise a range of provisions under the award at the moment including district allowance, overtime, shift and weekend penalties.
PN206
And I proposed a mechanism by which that can be dealt with. There are a number of ways in which that could be dealt with. One other way is also to acknowledge an offsetting but I won't take that any further. Finally, with respect to the operative date that has been proposed in the event that the Commission is prepared to award the extended structure, the operative date that has been proposed for 1 January, I don't know that there is any particular rationale to that but I would have thought that in the event of the Commission including such an extensive set of classification structures compared to how the award sits for the moment, if that is going to be included for the first time, that there is a need for the Commission - and I put this respectfully - to be cautious in its approach and certainly not to be awarding any retrospectivity but indeed one would have thought the reverse.
PN207
So that if there is any opportunity once the decision is out, let us say, and it is in favour of the union position, say, a month's prospectivity or something of that nature be allowed to ensure that employers can get their present arrangements appropriately in place before the obligation to honour all of the terms of the awards actually fits them. But, look, thanks for providing the opportunity for me just to add to what has been put earlier by way of written submissions and there is nothing further that I would seek to put. Thank you, Commissioner.
PN208
THE COMMISSIONER: Thank you, Mr Gifford. Mr Nucifora.
PN209
MR NUCIFORA: Yes, thank you, Commissioner. Just briefly, we would rely, of course, generally on our reply submissions in exhibit - - -
PN210
THE COMMISSIONER: N3, is it?
PN211
MR NUCIFORA: N3, exhibit N3, in relation to what Mr Blandy has put but in terms of what Mr Gifford has submitted today, most of which we have responded to in exhibit N3, just firstly starting from some of the last submissions Mr Gifford made. The operative date, we weren't seeking a retrospective date, but in terms of how cautious we have all been, this application has been around for seven years, and we are seeking for it to be applied as soon as possible given that we have gone back to an adversarial position in having this matter arbitrated. We believe that it is long overdue.
PN212
And in the context of comparative analysis we say that there is a national clerical industry that has otherwise been recognised by the Commission. I won't go through all the decisions there but most of the decisions and authorities we rely on, if not all of them, recognise - those that relate to the clerical awards that have been simplified - recognise that a comparative analysis is the appropriate thing to do under the paid rates and wage principles.
PN213
Mr Gifford, I think in paragraph 16 of their submission, refers to - that we hadn't established there was a need. We say that the need is no different here from the ACT, all those other federal clerical awards to have an appropriate safety net for employees at post-trades level and, of course, in the context of the national clerical industry we say that the various derivative of the Victorian clerical awards has established that safety net, the full safety net, albeit having been pared back by the paid rates principles and allowable award matters. The safety net now is quite clear and has become clearer in the last five years at least if not 10 years in relation to rates of pay for clerical administrative employees in the private sector.
PN214
We say that need is strong. It won't - once again, in terms of employees who might be classified under grades 4, 5 and 6, any difference that it might make to any existing common law contracts of employment, it is the same sort of difference that would have arisen in the ACT and once again in the various federal clerical awards we have in the federal jurisdiction as well as the state jurisdiction. And we, of course, oppose the submission that this is an extension of the existing award.
PN215
It is, what we say is, the final step in completing the safety net that was started in 1994 and that was started in the context of the Victorian structure and the national clerical generic six level structure. And in other decisions that we have had since that consent position '94, albeit by consent, have reconfirmed that that is the benchmark and is one that ought be relied on in this jurisdiction as well as the greater majority of the state jurisdictions. Commissioner, we do also oppose the submissions that go to - relating to coverage of supervisory employees as I have indicated earlier. Descriptors of supervisors and competency standards that are in the six level generic structure have not been, at any other time, separated away from the generic structure. They are inherent in that structure.
PN216
They are quite clearly distinct from someone who is in a position of traditional manager, capital M Manager, a person who is in a position - who has the power to hire and fire. And the distinction is certainly made in the Victorian clerical award. It is not one that was distinguished in any of the other simplification decisions whether it be the Customs Clearing or whether it be the Clerks Breweries decision. That was quite clear, the six level structure came as a package. Whether it be by consent or whether it be arbitrated it comes as a package and we believe that to perpetuate the structure as it is now is really only half the package or a truncated classification structure of clerical, admin employees.
PN217
Otherwise we would say that our reply submissions in exhibit N3, we believe, adequately respond to the submissions made by Mr Gifford and Mr Blandy and otherwise conclude our submissions. If the Commission pleases.
PN218
THE COMMISSIONER: All right, thank you. I intend to reserve my decision in relation to this matter. There are aspects of the transcript that I do want to have a look at again to be sure I am across all of the points that have been made in this matter and will hand the decision down in due course. The Commission stands adjourned.
ADJOURNED INDEFINITELY [12.45pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #N1 DRAFT ORDER, UPDATED VERSION PN20
EXHIBIT #N2 OUTLINE OF SUBMISSIONS LODGED BY THE ASU PN23
EXHIBIT #N3 COPY OF REPLY SUBMISSIONS PN29
KEITH YOUNG HARVEY, SWORN PN31
EXAMINATION-IN-CHIEF BY MR NUCIFORA PN31
EXHIBIT #N4 WITNESS STATEMENT OF KEITH HARVEY PN44
WITNESS WITHDREW PN69
EXHIBIT #N5 GENERAL CLERKS (NORTHERN TERRITORY) AWARD PN73
EXHIBIT #N6 CLERICAL ADMINISTRATIVE EMPLOYEES (VICTORIA) AWARD PN73
EXHIBIT #B1 WRITTEN SUBMISSIONS OF MR BLANDY PN184
EXHIBIT #G1 OUTLINE OF SUBMISSIONS OF MR GIFFORD PN188
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