|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
(Administrator Appointed)
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 7501
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
VICE PRESIDENT ROSS
DEPUTY PRESIDENT IVES
COMMISSIONER BLAIR
C2004/2053
APPEAL UNDER SECTION 45 OF THE ACT BY
AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION AGAINST
THE DECISIONS [PR942307, PR943780]
AND ORDERS [PR942316, PR94255,
PR943128, PR943906] OF SENIOR DEPUTY
PRESIDENT LACY AT MELBOURNE ON
23 DECEMBER 2003, 5 JANUARY 2004,
28 JANUARY 2004 AND 19 FEBRUARY 2004
RE CAR PARKING (VICTORIA) INTERIM
AWARD 1995
MELBOURNE
10.14 AM, THURSDAY, 17 JUNE 2004
PN1
MS R. FRENZEL: I appear for the LHMU in this matter.
PN2
MR C. O'GRADY: I seek leave to appear as counsel on behalf of the respondent.
PN3
VICE PRESIDENT ROSS: Thank you. Directions were issued in respect of this matter for the filing of written submissions, which has been done. The directions also indicated that those submissions should set out in full the arguments upon which the parties wanted to rely and that this morning's hearing is really for the purpose of short oral argument. You can take it that we have read the submissions, which I will mark shortly. Have you received what I have referred to as a draft background document?
PN4
MS FRENZEL: I have, your Honour.
PN5
MR O'GRADY: Yes, your Honour.
PN6
VICE PRESIDENT ROSS: I will come to how we might deal with that in a moment. I should have asked, Ms Frenzel, is there any objection to Mr O'Grady's seeking leave to appear as counsel?
PN7
MS FRENZEL: No. He has been a permanent fixture in these proceedings, your Honour.
PN8
VICE PRESIDENT ROSS: Leave is granted, Mr O'Grady.
PN9
PN10
VICE PRESIDENT ROSS: In relation to the draft background document, subject to what the parties want to say, this was how we were proposing to approach it. We would invite comments in relation to pages 1 down towards the base of 7 and in relation to the attachment, and then in relation to the specific issues, dispute settlement, leave, etcetera, we would go through those issue by issue, and we would seek, perhaps a little unusually, rather than run through with yourself, Ms Frenzel, the whole document, we will invite Mr O'Grady - or have some questions for him in relation to each matter and try to deal with them as discrete issues to try and avoid confusing everyone when we get to the end.
PN11
Once we have done that, there will be an opportunity to make whatever short oral supplementary submission you think is necessary. It may be that the issues we deal with on the way through deal with the sort of matters that you will want to raise. So is that agreeable as a method of approaching it?
PN12
MS FRENZEL: That is fine, your Honour.
PN13
MR O'GRADY: Yes, your Honour. Your Honour, before we embark upon that process could I hand up two further documents, and these are in response to the reply that we received from the LHMU this week, and can I indicate it was my intention to e-mail these to the Commission but there was a virus attack on the bar Internet system this week and I didn't get Ms Frenzel's submissions until yesterday. The submissions - - -
PN14
VICE PRESIDENT ROSS: Has Ms Frenzel seen the documents that you are - - -
PN15
MR O'GRADY: Yes. I provided her with a copy of them this morning. There are two documents, your Honour. There is a short outline of submissions of the respondent in reply to Ms Frenzel's reply and there is also some transcript references of submissions put below, if I could hand those up to the - - -
PN16
VICE PRESIDENT ROSS: They may also deal with some questions we had for you on the way through.
PN17
MR O'GRADY: Yes, your Honour. I have three copies of each for the bench. Your Honour, you will see in the short outline of the submissions of the respondent reference is made to an exhibit R29 before - - -
PN18
VICE PRESIDENT ROSS: Yes, which we have.
PN19
MR O'GRADY: Yes. Unfortunately, it would appear you don't have the entirety of that exhibit. You have the written submissions that we filed.
PN20
VICE PRESIDENT ROSS: Yes.
PN21
MR O'GRADY: The transcript discloses, and this is the transcript of 21 February, that appended to that exhibit were some costings that had been forwarded by the respondent to his Honour and to the LHMU by e-mail. That doesn't appear in the copy of the exhibit that I have. I have raised that with Ms Frenzel and she, I think, accepts that it should be part of the exhibit and we are attempting to obtain copies of that.
PN22
VICE PRESIDENT ROSS: You might check with my associate afterwards but I think I have seen that document in the folders I have read.
PN23
MR O'GRADY: Well, I just wanted to raise that, your Honour.
PN24
VICE PRESIDENT ROSS: Yes. I didn't see it attached to R29 but there are certainly some documents dealing with costings by the union and I don't know whether it is Pricewaterhouse or - it has some notation on the employers' costings.
PN25
MR O'GRADY: There were a number of costings done, your Honour, because it was quite a significant issue, as we saw it, in the case before his Honour SDP Lacy and I would simply seek to ensure that the costings that were referred to in the transcript of 21 February be provided to the bench so that they can appended to the exhibit.
PN26
VICE PRESIDENT ROSS: Sure.
PN27
MS FRENZEL: I might just rise to indicate that the exhibit R29 provided in the union's appeals books were in actual fact provided to us by Pricewaterhouse in the preparation of the appeal and it is just unfortunate the costings weren't included.
PN28
VICE PRESIDENT ROSS: Sure.
PN29
MR O'GRADY: I certainly didn't mean to make any criticism.
PN30
VICE PRESIDENT ROSS: No, that is all right. Well, once we adjourn, the parties can rifle through the appeal folders I have and I am reasonably confident I have seen some costings material. I haven't yet gone to the transcript part where it is dealt with to go through it but I am sure there are some exhibits there that deal with costings. I don't think they had a mark as an exhibit, so they may well be the attachments you are referring to, but in any event, we will certainly pursue that course.
PN31
MR O'GRADY: Thank you, your Honour.
PN32
PN33
VICE PRESIDENT ROSS: Can I now turn to the draft background document. Just dealing with the introductory material, is there anything from paras 1 to 15 or in relation to the annexure to which the parties don't agree or want to draw our attention to errors or anything of that nature? No?
PN34
MR O'GRADY: Your Honour, the only matters I would raise are in my submission it would be appropriate in that part of the decision to refer to the statement of principles that his Honour referred to in paragraph 163 of his decision.
PN35
VICE PRESIDENT ROSS: Just bear with me for a moment. Yes. Aren't they attached in the appendix?
PN36
MR O'GRADY: I am not saying that they are not reflected in the attachments, your Honour, but as I understand it, this part of the decision is, in effect, a summary of the general approach of his Honour.
PN37
VICE PRESIDENT ROSS: No, it is not. The purpose in referring to the stuff at attachment 1 is really just to clarify that was the position that pertained when his Honour was dealing with the matter. The questions of what principles he applied or how that works is really dealt with in your submissions and it is clear on the face of his decision.
PN38
MR O'GRADY: Yes, your Honour. Well - - -
PN39
VICE PRESIDENT ROSS: We have really just sought to, in this part, try to set out what was the positions that were put by the parties below.
PN40
MR O'GRADY: Yes. Well, your Honour, the other observation I have probably falls into the same category, namely that his Honour made a number of findings of fact in paragraph 166 and in my submission, that should form part of the summary.
PN41
VICE PRESIDENT ROSS: Indeed, yes, and I think some of those are challenged in the course of the appellant's submissions but we - - -
PN42
MR O'GRADY: Perhaps indirectly, your Honour, although - - -
PN43
VICE PRESIDENT ROSS: Yes.
PN44
MR O'GRADY: - - - not specifically.
PN45
VICE PRESIDENT ROSS: No, not specifically directed at that paragraph. It is put in a number of places that his Honour may have misconstrued the evidence of one witness or another and there is your reply in relation to that.
PN46
MR O'GRADY: Yes, your Honour. Those are the only observation I have with respect to that part.
PN47
VICE PRESIDENT ROSS: Okay. Well, on that basis, if we can go to the first matter, dispute settlement leave, the position and the arguments advanced are set out from paragraphs 16 through to 23. Firstly, is that an accurate characterisation of the arguments that you are each putting and if it is, then I have a question for you, Ms Frenzel, arising from it.
PN48
MS FRENZEL: We say that the summation and the background paper is a correct summation of the arguments put.
PN49
VICE PRESIDENT ROSS: Same for you, Mr O'Grady?
PN50
MR O'GRADY: Subject to this caveat, your Honour, as - - -
PN51
VICE PRESIDENT ROSS: We haven't put in your reply submission - - -
PN52
MR O'GRADY: Sorry, your Honour?
PN53
VICE PRESIDENT ROSS: We haven't, obviously, noted and we will note whatever you say in R2 and R3 in relation to this.
PN54
MR O'GRADY: Yes, your Honour, and I would also ask that perhaps more generally with respect to all of these issues, there are a number of submissions appearing at the front of our outline of submissions, paragraphs 4 to 13 and 17 to 25, that apply generally and - - -
PN55
VICE PRESIDENT ROSS: Generally, yes. No, I appreciate that.
PN56
MR O'GRADY: And I appreciate they haven't been accommodated as yet into this document.
PN57
VICE PRESIDENT ROSS: No. This part is really trying to identify what was decided below and in circumstances where what was decided varied what was in the interim award, what the effect of that is and what the parties say directly in relation to that issue. I appreciate there are other - the union would have the same view about its submissions in respect of the award simplification principles, for example. We understand that those issues permeate the appeal - - -
PN58
MR O'GRADY: Yes. I would simply ask that they be taken into account under all these heads. As your Honour pleases.
PN59
VICE PRESIDENT ROSS: Certainly. Ms Frenzel, I had one question for you and it is in relation to paragraph 23 of the outline. You submit that the propositions put by the employers in reply to your appeal submission were not advanced in the proceedings at first instance and you say there they confined their submissions to the question of whether or not the union's claim was allowable. I am not sure that is right. Exhibit R29 sets out the employers' submissions. In relation to this issue, it is paragraphs 45 to 55. Can I take you to that. A number of the points made by the respondent in reply, it seems to me, are dealt with below.
PN60
At paragraphs 45 and 46 certainly and 47 and 48, they are advancing the allowability point but then at 49 they make reference, as they do in their reply submission, that if such leave is to be appropriate, it is done on a case by case basis. They then make the point that there is no evidence that in the absence of such a clause the award has not operated effectively in relation to a dispute settlement. That is at paragraph 50. They make the point in 51 that the award which they say you are relying on is a very different clause to the one that is being advanced before his Honour.
PN61
At 52 they make the point in relation to Commissioner Eames' decision that the Commissioner said that the appropriateness of this sort of leave will depend on a case by case analysis, and then they highlight the differences between the circumstances before Commissioner Eames and the matter before SDP Lacy; that is that before Commissioner Eames there was evidence that the dispute resolution clause may not have been working effectively at the Workplace level and also that that matter was determined by consent. Finally, at paragraph 55, they raise the issue of the cost implications of the claim.
PN62
So would you accept that it is not quite accurate to describe their submission as solely related to allowability and in fact they advance the proposition that - I don't - well, we will see what Mr O'Grady says but I think, on the face of this document, at least - something further may have been said on transcript - the language used by his Honour about the detail of the clause and matters being dealt with through bargaining, the point wasn't put to him in those terms by Mr O'Grady below but Mr O'Grady's submissions do canvass issues that go beyond the allowability of the claim sought?
PN63
MS FRENZEL: They do, but they are also limited to the extent that in the submissions of Mr O'Grady there are a number of awards quoted with respect to a dispute settlement training leave where, if I can take you to page 12 of exhibit R1, the point the LHMU wishes to make with respect to paragraph 29 is that none of that material was put to his Honour at first instance.
PN64
VICE PRESIDENT ROSS: Yes. No, I accept that proposition, at least on the R29. There may be some other material that Mr O'Grady will take us to but they didn't - because that submission is really directed to the clause that his Honour determined. No, they didn't put that below.
PN65
MS FRENZEL: They argued the case - I mean, I accept what you say, your Honour, about the limitations of paragraph 23 of the background paper but, having said that, they argued the case on the basis of a broad premise, and the broad premise was basically, firstly, it is allowability and, secondly, although we accept what you say about the premise being broader than set out in the LHMUs submissions, we say also that their reference in R29 at paragraph 51, that decision dealt with two awards, not just one. It dealt with the Building Services (Victoria) Award 1994 as it then was - it is now a 2003 award - and secondly, it dealt with the Security Employees Award.
PN66
We made the observation that with respect to the dispute settlement procedure and the Security Employees Award, it is, in actual fact known for its brevity but with respect to the Building Services Award there is a very comprehensive dispute settlement resolution procedure and is consistent in its terms to the one contained within the Car Parking Award. We say that with respect to the submissions put by the employers about the terms of any clause that may have been inserted, there simply weren't any.
PN67
There were no submissions put by the employers to say, in the event the Commission is minded to grant the application, these are the sorts of clauses that we say should be inserted. And with respect to the issue of consent before Commissioner Eames, the matter, in actual fact, was not consented to. What, in essence, happened was at the eleventh hour, the employers acquiesced and then we argued about the terms of the order itself, but the order itself was not by consent.
PN68
VICE PRESIDENT ROSS: So the issue was consented to that there would be a provision dealing with it but not as to its precise terms.
PN69
MS FRENZEL: That is correct.
PN70
VICE PRESIDENT ROSS: Is there anything you wish to say further in relation to this discrete issue before I turn to Mr O'Grady?
PN71
MS FRENZEL: Just bear with me, your Honour. I have just got to have a look at some - and exhibit R2 as well.
PN72
VICE PRESIDENT ROSS: You may want to come to deal with R2 generally if you like. I note that essentially the point made there is the point that I just put to you. This is at paragraph 14.
PN73
MS FRENZEL: Can I say with respect to the case by case basis, we accepted that before his Honour, we accepted that before Commissioner Eames and the whole point of the matter was that there was evidence taken by the union from three witnesses which went to the value of having dispute settlement training leave inserted into that award, and the evidence, in particular, of Mr Jackson was very good on that point, where he gave evidence that the employers now were seeking him out to assist with the resolution of disputes in the workplace.
PN74
VICE PRESIDENT ROSS: As I understand your submission, it is that his Honour determined the principle in your favour and accepted that evidence, presumably.
PN75
MS FRENZEL: Correct.
PN76
VICE PRESIDENT ROSS: But that didn't translate into the provision he awarded and you put that the provision awarded doesn't give rise to an entitlement at all, so that is your complaint. Really, it is the translation of the decision - - -
PN77
MS FRENZEL: That is right.
PN78
VICE PRESIDENT ROSS: - - - into the form of variation he ordered.
PN79
MS FRENZEL: And also that his Honour failed to indicate how he arrived at that clause. There was no obvious reason as to why that clause was determined. There was no obvious authority pointed to such as - if you look at the Eames decision, for example, he refers to other decisions with respect to dispute settlement training in determining the scope of the clause. But his Honour didn't do that. His Honour just said, well, yes, I accept the principle that the union is putting but I am going to award this, and that - - -
PN80
VICE PRESIDENT ROSS: Of course he wasn't limited to awarding something in the form you sought. Just as a jurisdictional issue, he would have been entitled to award something different provided it dealt with the same sort of subject matter.
PN81
MS FRENZEL: We accept that, your Honour, but we also say that in the event that something else is awarded, at least there should be a basis for the reason that the clause, such as it is, was inserted.
PN82
VICE PRESIDENT ROSS: All right.
PN83
MS FRENZEL: If the Commission pleases.
PN84
VICE PRESIDENT ROSS: Mr O'Grady, was there anything you wanted to add before we go to questions for you?
PN85
MR O'GRADY: The only point I would make, your Honour, is the one that I make in the last sentence of paragraph 14 of the submissions in reply and it really just picks up what your Honour just said to my friend, that even if it were the case that we didn't urge this approach on his Honour, it doesn't mean that his Honour was in error.
PN86
VICE PRESIDENT ROSS: Just in relation to the nature of the clause, as a general proposition would you accept that award clauses should generally give rise to rights, obligations or entitlements? I am thinking here of the award simplification decision, for example, which general statements of policy or exhortation, etcetera, were removed from awards as being inappropriate and they focused on entitlements.
PN87
MR O'GRADY: In my submission, it would be incorrect, with respect, to describe clause 10.6 as a general exhortation as such. It does provide a right and the right is to request that people be relieved.
PN88
VICE PRESIDENT ROSS: Well, it doesn't create a new right then.
PN89
MR O'GRADY: No.
PN90
VICE PRESIDENT ROSS: The union can request whatever it likes.
PN91
MR O'GRADY: I accept that, your Honour, but in my submission, it does set out a process by which these requests can be made and would be considered by the company and, of course, there is a dispute resolution provision within the award, in which any dispute over the employers' response to this issue could be dealt with and, were it to be the case that the employer was unreasonably refusing such requests, then there are procedures that could be followed to address that. In my submission, that is the way in which his Honour has approached the issue and in my submission, that was open to him.
PN92
DEPUTY PRESIDENT IVES: Well, that makes an assumption, doesn't it, Mr O'Grady? There is nothing in the clause that talks about what should happen in the event of an unreasonable refusal.
PN93
MR O'GRADY: No, it doesn't but there is - the dispute resolution provisions are in the award, your Honour, and it, in my submission, is not an unreasonable assumption to assume that if the employer had unreasonably refused such requests, then that would give rise to a dispute that could be pursued through that clause. If I can say this in general terms, your Honours and Commissioner, these provisions were, of course, discussed in conference with his Honour. I don't want to go into what was said but these issues were canvassed.
PN94
VICE PRESIDENT ROSS: Thank you, Mr O'Grady. Just in relation to the last point, Ms Frenzel, was the question of the enforceability of this issue raised - what I haven't been able to locate is the correspondence the union and the employers sent after his Honour's decision on 23 December last year, where you will recall that you took up his invitation to raise some issues about the practical translation of the decision into the award. Was this issue raised in that context?
PN95
MS FRENZEL: I recall that it was. It was certainly - leading off from what Mr O'Grady was saying, the enforceability of the provision was certainly raised with his Honour in those conferences trying to settle the order and avoid the prospect of an appeal. But I might have a bit of a look and see if I can find the two sets of correspondence.
PN96
VICE PRESIDENT ROSS: That is fine and perhaps if you can do the same, Mr O'Grady, it can be dealt with after the hearing. Can I turn now to the casual loading issue, which is dealt with at paragraphs 24 through to 36. Does what is set out there accurately reflect his Honour's decision and what is argued in relation to it on the appeal, Ms Frenzel, from your perspective?
PN97
MS FRENZEL: A few observations, your Honour. With respect to paragraph 26 can I also indicate that the LHMU at first instance took his Honour extensively to the Metals Casuals decision and not just that one part of it quoted and with respect to those parts that we took his Honour to - - -
PN98
VICE PRESIDENT ROSS: Just before you leave that, the survey that you have referred to doesn't seem to provide a lot of support to a 25 per cent loading because only 15 per cent had such a loading, 22 per cent were above 20 per cent, 6.4 had a higher loading. Presumably, the rest were at 20 per cent or less; is that right?
PN99
MS FRENZEL: That is probably correct, your Honour. That was in 1990 and can I indicate that that formed part of the Metals Casuals decision, that survey.
PN100
VICE PRESIDENT ROSS: Yes.
PN101
MS FRENZEL: But there was also other material put to his Honour arising out of that decision, by the LHMU and that went to the - if I can just go to the employers' authorities book, which is at tab 14 of the authorities book. We also put other matters to him arising out of that decision as well and in particular we drew his attention to part 7.4, conclusions about the award history of casual types of employment, including there the history of when with respect to one certain award, the ..... Consolidated Award, the loading had been increased from 10 per cent to 15 per cent in 1963 to 20 per cent in 1974.
PN102
With respect to part 12.5, the case by case character of loading adjustments and core common components, we also took his Honour extensively to that material as well. We also dealt with the issue of the loss of certain conditions of employment, including annual leave, sick leave, and now obviously there are other forms of leave as well awarded by the Commission.
[10.42am]
PN103
With respect to the specific components to be assessed in determining the casual wage at part 13 of that decision we also took his Honour to that part of the decision as well. So, with respect to our submissions about that one survey we also say that it was counter-balanced by the submissions we made about the metals casuals case in general terms. With respect to - - -
PN104
VICE PRESIDENT ROSS: Did you - I couldn't find it as an exhibit, but did you go to - you will recall in the metals casuals case the union quantified the value of the entitlements it said were comprehended within a casual loading to justify its argument that the then loading was - under-valued those components, and the bench formed a view in the context of that award as to the value to be attributed to the various components. Did you undertake that task in respect of this award, valuing the components?
PN105
MS FRENZEL: We didn't do that on the basis that the components contained within the Metals Award, if I can use that expression, are the same as the components contained in the Car-parking Award, and - - -
PN106
DEPUTY PRESIDENT IVES: Was that a submission that you put to Senior Deputy President Lacy?
PN107
MS FRENZEL: I didn't, to be perfectly honest, we didn't put that to him in those terms, but what we did say was that the casual - and bearing in mind also that the metal workers claimed a 30 per cent loading, and we were claiming the 25 - what we did say to his Honour was that the 25 per cent was the appropriate loading for this award for these employees on the basis that the components which made up a 25 per cent outcome with the metals casuals decision were the same components in the Car-parking Award.
PN108
VICE PRESIDENT ROSS: What about the second point put by the employers, that - which was summarised at paragraph 34 - where they say unlike - they are trying to draw a distinction with the metals case, saying there is no evidence here of the sort of use of casuals to circumvent other provisions in the award? Was there any evidence about that?
PN109
MS FRENZEL: We put two points to his Honour. The first point was that the quantum of the casual loading was not an appropriate safety net in 2003, and we used the metals decision plus a number of other decisions to support that contention. With respect to the issue about the engagement of casuals - sorry, increasing the loading to prevent the circumvention, we say that there was evidence given by Mr Oates which said that the reason that there was a fairly high percentage of casuals in the industry was because the casual loading was so low.
PN110
We also make the observation that with respect to - and I will put the notes in my submissions - that although - - -
PN111
DEPUTY PRESIDENT IVES: Didn't he also say something about there being no access to part-time work?
PN112
MS FRENZEL: Well, I was about to come to that, your Honour, because the whole point of it was that three witnesses for the union gave evidence; Mr Oates, the organiser, Mr Duras, who at the time of the case was a former employee and former delegate of Secure Parking, and Mr Jackson, who was still employed by Kings Parking. Now, Secure Parking is a little bit different to the extent that it has a 170LJ agreement which provides for part-time employment, and we say that the mere fact that the award itself did not provide for part-time employment didn't stop the employers from approaching the LHMU, and let us cross-examine the employers about this - approaching the LHMU to enter into or indeed doing an LK agreement, or indeed, doing AWAs.
PN113
The mere fact that part-time employment wasn't provided for by the award didn't mean they couldn't access part-time employment. And we put that very clearly, as I recall, to Mr Larkin.
PN114
VICE PRESIDENT ROSS: Thank you. Is there anything else in relation to the casuals issue?
PN115
MS FRENZEL: There is. With respect to - and if I could just briefly take the Commission to the transcript reference we have provided - the references with respect to the casual loading - - -
PN116
VICE PRESIDENT ROSS: This is starting at page 32 of exhibit A3.
PN117
MS FRENZEL: But the full transcript references with respect to casual loading go from page 25 through to 36 of exhibit A3. And we say that the - we say at paragraph, it is on page 33, paragraph number 6526, we say this; we say that it is extremely relevant with respect to the point of casual loadings, particularly in the context of this application. So we say the employers' arguments that the increase in the loading was to stop the possible abuse of casual employment wasn't the only issue dealt with by that full bench.
PN118
DEPUTY PRESIDENT IVES: Sorry, where are you reading from, Ms Frenzel?
PN119
MS FRENZEL: From the transcript references provided to the Commission.
PN120
DEPUTY PRESIDENT IVES: Yes. Just which - - -
PN121
MS FRENZEL: Page 33.
PN122
DEPUTY PRESIDENT IVES: Page?
PN123
MS FRENZEL: Page 33.
PN124
DEPUTY PRESIDENT IVES: Sorry, which of the paragraphs on that page?
PN125
MS FRENZEL: 6526.
PN126
VICE PRESIDENT ROSS: 6526 isn't on that page.
PN127
DEPUTY PRESIDENT IVES: No.
PN128
MR O'GRADY: It is on mine. Page 40, your Honour.
PN129
MS FRENZEL: It seems that my pagination and the Commission's pagination and my friend's pagination might be completely different.
PN130
DEPUTY PRESIDENT IVES: Yes, I think that is the case, because page 49 is paragraph numbers 4848, 4849 through to 4851.
PN131
VICE PRESIDENT ROSS: In any event, this document in some - whatever the page number is - doesn't really matter, but you have set out the relevant sections of the transcript from your perspective in the proceedings below in relation to each of the matters that are identified. Is that right?
PN132
MS FRENZEL: That is correct.
PN133
VICE PRESIDENT ROSS: Yes. Well, we will certainly go through that, Ms Frenzel.
PN134
MS FRENZEL: I think I have dealt with the issue of enterprise bargaining, and the only other observation I would make with respect to his Honour's failure to provide reason for the 20 per cent versus the 25 was that he did in one sense say, well, because of the shift penalties and because of other extraneous matters I will award a casual loading of 20 per cent. We say that the casual loading was not designed to compensate, or shouldn't be offset against shift penalties, weekend penalties, such as they are and the like, but in fact the casual loading is designed to compensate employees for lost entitlements such as leave, notice, redundancy and the like.
PN135
VICE PRESIDENT ROSS: Which paragraph of the decision are you referring to there?
PN136
MS FRENZEL: Bear with me, your Honour.
PN137
VICE PRESIDENT ROSS: Yes, sorry, 214. Mr O'Grady, anything you wanted to add?
PN138
MR O'GRADY: Your Honour, we have sought to - I have sought to address this issue in paragraph 15 - - -
PN139
VICE PRESIDENT ROSS: Yes.
PN140
MR O'GRADY: You will see there, your Honour, that I have referred to a passage of transcript in Ms Frenzel's submissions before his Honour, and with respect to the last point made by Ms Frenzel it would appear that there was a suggestion that - well, there was a linkage drawn, if you like, between penalties and overtime and the casual loading in that part of the submission, and it may be that his Honour was referring to that when his Honour made the comments in the decision referred to.
PN141
With respect to the evidence, your Honour, I have referred to in paragraph 16 of the submissions in reply to the appropriate or to the relevant parts of exhibit R29, and we would obviously rely on those submissions and the evidence referred to in them. And your Honour will see that that evidence discloses that there was a relationship between the level of casual engagement and the inability to engage people on a part-time basis. With respect to the evidence of Mr Oates, could I simply refer your Honours and Commissioner to paragraph 1076 of the transcript.
PN142
I apologise for not having copies of this to hand up, but there is a passage of evidence, and perhaps if I read the paragraph in full for the bench, I put to Mr Oates as follows:
PN143
So your evidence is that notwithstanding the fact that the employer has decided to engage these people on a part-time basis as you are entitled to, and has done so pursuant to a registered industrial instrument that provides for such engagement, you say they are not really part-time employees, they are casual employees.
PN144
And Mr Oates responded:
PN145
They were employed to a large degree as casual employees. In terms of hours of work, they are regular, I don't believe you could find an agreement that would state their regular part-time employment records.
PN146
In my submission, that part of the evidence colours Mr Oates's other observations about the level of casual engagement in the industry. That was a question directed to employees of Secure, which of course was the one employer who had the capacity to engage people on a part-time basis because of the agreement that was in place with respect to that. Your Honours, those are the only observations I would seek to make on that issue. If the Commission pleases.
PN147
VICE PRESIDENT ROSS: In relation to the payment of wages issue, and what was decided and the submissions put in the appeal are set out in paragraphs 37 to 43 of the document. We note that - what you say in your further reply, Mr O'Grady. Is there anything either of you wish to add or correct in relation to what is set out at the paragraphs I have just mentioned?
PN148
MR O'GRADY: No, your Honours.
PN149
MS FRENZEL: No, your Honour.
PN150
VICE PRESIDENT ROSS: In relation to shift allowances Monday to Friday, this issue is dealt with at paragraphs 44 down to 51. I will come back to what is said about clause 19 a little bit later on, because I am not entirely sure what the effect of - you seem to be in agreement that there is an anomaly, but it is really what the anomaly is and what should be done about it. I will come back to that in a moment, but in relation to the Monday to Friday shift allowances proposition - this was the union's claim for a 15 per cent loading on afternoon and rotating night shift, and 30 per cent non-rotating night shift - are there any comments in relation to what is set out at those paragraphs before we put some questions to you?
PN151
MR O'GRADY: No, your Honour.
PN152
VICE PRESIDENT ROSS: No. Ms Frenzel.
PN153
MS FRENZEL: There was, your Honour, and I think it is fair to say ..... confusion between both parties about the ..... and certainly Mr O'Grady will correct me if I am wrong, but the - during the conference before his Honour trying to settle the order when the issue of the shift penalties being paid Monday to Saturday arose I made the observation in my submissions which has been set out on page 19 of the background document that the employer seemed to be just as surprised as what we were about the Monday to Saturday element of it.
PN154
On looking at the issue again late last night, it becomes obvious to me that the employees in actual fact did claim Monday to Saturday, and there was evidence of Mr Hargitay, as I recall, about that, when I put it to him that they were claiming Monday to Saturday, and he indicated that they were, but it doesn't overcome the fact that we say that the shift penalties should apply Monday to Friday and should be read in conjunction with the weekend penalties and so on. With respect to the - - -
PN155
VICE PRESIDENT ROSS: Just before we leave that, the consequence of the Monday to Saturday, do you say that it means that you get both penalties, the shift penalty and the provisions relating to weekends and public holidays if you are a shift-worker?
PN156
MS FRENZEL: Logic suggests that wouldn't be the case. What we would say is that the Sunday - the way we read his Honour's decision was this. We say that the Saturday penalties which were in effect time and a quarter up till 1 pm, double time thereafter for day workers, and time and a half thereafter for shift workers, was to be substituted by this shift penalty. So, in effect, the - and it is one of the main arguments about this appeal - in effect, the Saturday penalties as such disappear. And I think with respect to the Sunday penalty his Honour was quite clear that the shift penalties would not be paid with respect to Sunday, so that the shift penalties were to operate Monday to Saturday.
PN157
VICE PRESIDENT ROSS: In relation to the - what I will refer to as the Monday to Friday penalty that you were seeking below, that is the 15 and 30 per cent, in the proceedings below you refer to - you take issue with his Honour's characterisation of your submissions as saying there is a test case standard, but you relied on similar awards and other decisions of the Commission to support your claim. Was there any evidence beyond the reliance on those cases and what was the position in other awards advanced in support of your claim?
PN158
MS FRENZEL: We tendered a folder, folder 5, which had on the front of it - and these are the interstate car parking awards.
PN159
VICE PRESIDENT ROSS: Yes.
PN160
MS FRENZEL: It had on the front of it a table, a comparative table, setting out what the shift penalties were.
PN161
VICE PRESIDENT ROSS: Yes, but I mean other than that sort of comparative material or decision base, was there any evidence from - any witness evidence or anything of that nature that went to this issue?
PN162
MS FRENZEL: There was evidence from Mr Duras about shift work and where you go - - -
PN163
DEPUTY PRESIDENT IVES: What did that evidence go to specifically, Ms Frenzel?
PN164
MS FRENZEL: The disabilities of working shift work and also the type of work that he did when he was working shift work for Secure Parking. We also set out as an aside paragraph 28 of our submissions in reply, and the different quantums with respect to shift penalties and weekend penalties with the interstate Car-parking Awards as well, which we derived off exhibit LHMU6 before his Honour. We also say with respect to the evidence of the employers that - and we say this - and this is at paragraph 51 of exhibit A - sorry, of the background document.
PN165
We say that the Monday to Saturday claim and the resulting reduction in the Saturday penalty rates was unsustainable on the evidence before his Honour with respect to the employer's claim as well.
PN166
VICE PRESIDENT ROSS: Yes. We will come to those in a moment. Mr O'Grady, is there anything in relation to this issue?
PN167
MR O'GRADY: Your Honour, as we have stated in our written submissions and in the submissions in reply, these issues would appear to be interrelated with other parts of his Honour's award and I suppose the primary submission of the respondent is that one has to view this holistically, and his Honour has decided that with respect to this particular issue the appropriate provision was the one that he awarded, but clearly he has made that decision in the light of some of the other adjustments to other provisions that he has made, and it is our submission that his Honour has to an extent given with one hand and taken away with another.
PN168
He has clearly turned his mind to the economic evidence that was before him, and there is a difficulty in approaching this issue on appeal in a piecemeal fashion, with respect. The only other observation I would seek to make, your Honour, and I should have - - -
PN169
VICE PRESIDENT ROSS: Can I just go to that issue for a moment. Isn't that what the incapacity to pay principle is there for?
PN170
MR O'GRADY: Well, your Honour - - -
PN171
VICE PRESIDENT ROSS: And isn't the setting of safety net awards to be done based on the principles and disabilities that you are seeking to compensate people for rather than the capacity to pay which is addressed in a separate principle?
PN172
MR O'GRADY: Well, your Honour, in my submission, his Honour was entitled to take into account the impact of any award variation that he might make on the viability of the enterprises that he was regulating, and the impact on employment that might flow from any award increase, and in my submission, that is what his Honour sought to do. Your Honour, if I could also observe that in the background document reference is made to paragraph 45 of the respondent's submissions in reply.
PN173
With respect to shift penalties Monday to Friday the respondent's submissions commence on paragraph 39 through to 44 and then deal with weekends and public holidays at paragraph 45. I should have brought that to your Honour's attention earlier.
PN174
VICE PRESIDENT ROSS: No. I was going to make the observation, disregard pages 19 through to the top of 26, because the cut and paste isn't always accurate and there is no attempt to summarise what is said. I thought in relation to those which deal with Saturday, Sunday and public holiday work, I just take you through orally.
PN175
MR O'GRADY: Yes.
PN176
VICE PRESIDENT ROSS: Our understanding of what occurred and what - we can see from the submissions what you are arguing, so you don't need to put that again, but I do want to - there seems to be a slight difference between you about the effect of what has occurred, and I want to test my understanding of that, and then we will go to the annual leave payment issue. Can I start the penalty rates question with the Saturday work, Ms Frenzel. My understanding is this, that in the interim award shift workers receive time and a half for work on a Saturday. That is from clause 13.
PN177
Non-shift or day workers receive time and a quarter before 1 pm, that is in clause 10B, and double time after 1 pm, in clause 13. Essentially below you claimed time and a half for all Saturday work by everyone, shift workers, day workers, etcetera. The employers claimed ordinary time for all time worked on a Saturday, and the effect of his Honour's decision is to provide for ordinary time for all worked on a Saturday. It seems to come this way, that the ordinary hours for day workers and shift workers can be worked on any day of the week. That is provided for in clause 18.1.2 and 18.2.2.
PN178
And there is no separate penalty provided for Saturday work, so it would seem to be ordinary time paid for ordinary hours worked on a Saturday, seems to be the consequence. And I see what you say about that in your submission, that is, that there was no evidence or justification for the reduction. Am I right as to the characterisation of the position before and after his Honour's decision?
PN179
MS FRENZEL: There was - if you go to clause 10 of the interim award - - -
PN180
VICE PRESIDENT ROSS: Just bear with me for a moment. Yes.
PN181
MS FRENZEL: It talks about a special additional rate for Saturday morning work. That special additional rate applies to weekly employees. It doesn't actually appear to exclude shift workers. So - and there have been debates between the employers and the LHMU about these clauses over the years.
PN182
VICE PRESIDENT ROSS: I see. So it may be contended that for shift workers it is time and a quarter in the morning and time and a half in the afternoon?
PN183
MS FRENZEL: I think that is correct, because when you look at Saturday and Sunday work at clause 13 it says the rate payable for work other than shift work performed on a Saturday after 1 pm. And yet, there was - - -
PN184
VICE PRESIDENT ROSS: I see. So - - -
PN185
MS FRENZEL: And yet there was evidence - - -
PN186
VICE PRESIDENT ROSS: So you wouldn't need the second paragraph in 13 if the converse was right. So, do you say that what the interim award - do you accept what the interim award says, is that the shift workers it is time and a quarter before 1 pm, and time and a half after 1 pm?
PN187
MS FRENZEL: I think that is correct, yes. And then with respect to day workers it is time and a quarter and double time.
PN188
VICE PRESIDENT ROSS: Yes.
PN189
MS FRENZEL: And then with respect to Sundays - - -
PN190
VICE PRESIDENT ROSS: Yes, I will come to Sundays separately. I just want to try and bite off one bit at a time.
PN191
MS FRENZEL: But it is interesting, your Honour, because the issue of who got paid what - just bear with me for a moment - under cross-examination one of the employers actually agreed with me that the employees got paid - shift workers got paid time and a half for all day on Saturdays, and it was also clear that - this is at paragraph number 6482, 6484. His Honour and I had a verbal exchange about the relationship between the hours clause and the penalties clauses, and I have said that - in precis form I said this to your Honour; I said, now the Saturday work, just so we are very clear about the Saturday work, they say should be ordinary time, and sorry, I will start again, your Honour. I am not doing very well this morning.
PN192
Paragraph 6482, we say that we are not resiling from the fact that we seek to significantly increase shift penalties, and we also say that we are seeking to alter the penalty rate for Saturday morning work from time and a quarter to time and a half, all time worked before 1 pm. And we are seeking to have time and a half all day for ordinary hours worked. I go on to say what they failed, they being the employers, failed to say in that submission, was that after 1 pm for day workers double time is paid on Saturdays, and his Honour actually pulled me up and said, currently, do you mean, and I said, yes.
PN193
There was a problem with the understanding about the - in my submission - about ordinary time on Saturdays versus overtime on Saturdays.
PN194
VICE PRESIDENT ROSS: Yes. You refer to that in your written submissions where - - -
PN195
MS FRENZEL: There was a blurring of boundaries, if you like. But the - Mr Hargitay at paragraph 5726 onwards up to 5730 essentially agrees with the notion that shift workers get paid time and a half for all hours on Saturdays.
[11.10am]
PN196
VICE PRESIDENT ROSS: Sorry, what was the first reference before 57 - - -
PN197
MS FRENZEL: Paragraph 5726 and there was cross-examination by me of Mr Hargitay with respect to the issue of Saturday penalties.
PN198
VICE PRESIDENT ROSS: Okay, well, that is what they are actually paying but I think your mutual understanding of the position under the interim award was that shift workers and non shift workers received time and a quarter before 1 pm. After 1 pm shift workers received time and a half and non shift workers received double time.
PN199
MS FRENZEL: That is correct.
PN200
MR O'GRADY: Excuse me, your Honour, that is not my understanding, your Honour. My understanding is that with respect to shift workers they received time and a half for work - for all work done during the day on Saturday and Sunday.
PN201
VICE PRESIDENT ROSS: So the loss was greater under your interpretation?
PN202
MR O'GRADY: Well, that is my - - -
PN203
VICE PRESIDENT ROSS: Yes.
PN204
MR O'GRADY: - - - understanding is the practice. Now, as your Honour - - -
PN205
VICE PRESIDENT ROSS: Well, whether - I want to distinguish between the practice and what people were being paid - - -
PN206
MR O'GRADY: Yes.
PN207
VICE PRESIDENT ROSS: - - - what their entitlements were under the interim award for a moment.
PN208
MR O'GRADY: Yes, your Honour.
PN209
DEPUTY PRESIDENT IVES: So are you disputing the entitlement under the interim award, Mr O'Grady or are you simply saying that the practice was that shift workers were paid time and a half on each of those days?
PN210
MR O'GRADY: The latter, your Honour.
PN211
DEPUTY PRESIDENT IVES: Thank you.
PN212
MR O'GRADY: That they were getting time and a half on each of those days.
PN213
VICE PRESIDENT ROSS: Mr O'Grady, in relation to the employer's contention below that ordinary time should be paid for all time worked on Saturday what evidence was lead in relation to that issue and what arguments were put below. Where would I find that?
PN214
MR O'GRADY: The evidence - and I think this is summarised in exhibit R29, your Honour.
PN215
VICE PRESIDENT ROSS: Yes.
PN216
MR O'GRADY: But the evidence went in broad terms to the changing nature of the car parking industry with respect to extended shopping hours and the greater activities within the city on a Saturday as well as the issues of automation and the competitive nature of the industry and his Honour, I think, made the findings of fact in paragraph, I think it is 166, that touch on some of those issues. And the arguments were that in those circumstances it would not be appropriate to extend the ordinary hours to include Saturdays.
PN217
VICE PRESIDENT ROSS: And Ms Frenzel has referred earlier to an aspect or part of his Honour's decision where he refers to the change in standard hours and the cost issues associated with that. Do you say that - did you argue that this would be one means of minimising the impact of the introduction of the 38 hour week?
PN218
MR O'GRADY: Yes, your Honour, yes.
PN219
VICE PRESIDENT ROSS: And I would find that in R29?
PN220
MR O'GRADY: I think you will find that in R29 and you will also - perhaps in the more general parts of R29 as opposed to under this particular heading because your Honour will see in R29 that there was a description of the industry and the issue facing the industry and the like. And there were also tendered, your Honour, towards the end of the proceedings confidential exhibits detailing the impact of various cost increases on the viability of a number of car parking stations. I don't whether your Honour has seen that in the material but it was - and I can find the exhibit number for your Honour, if you will just bear with me.
PN221
It is exhibit R26 and R27, your Honour. A Mr Purdie was called who gave evidence about how those costings had been derived and that evidence was in February of 2003. I think it is the second last day of the transcript.
PN222
VICE PRESIDENT ROSS: In relation to the Sunday penalty the union sought a penalty at double time and the employers contended for the status quo which was under the interim award shift workers would get time and a half and non shift workers would get double time. The union's case, essentially, being that it was inequitable for one group of workers working on a Sunday to receive less than other group and his Honour maintained - at clause 22 - essentially maintained the position as it was under the interim award. And you have set out in your submissions - your respective submissions are what each of you say about them.
PN223
Is there anything - there was one issue, which I will come to with you, Mr O'Grady, that paragraph 93 of exhibit R29 - - -
PN224
MR O'GRADY: Yes, your Honour.
PN225
VICE PRESIDENT ROSS: - - - seems to acquiesce in the double time proposition?
PN226
MR O'GRADY: I don't believe that - well - - -
PN227
VICE PRESIDENT ROSS: It was put by Ms Frenzel that you seemed to agree with her.
PN228
MR O'GRADY: I have paragraph 93 and I don't believe it was intended to extend to shift workers, your Honour. But as your Honour has noted the existing position as clearly provided by clause 13 was that shift workers were treated differently with respect to Sunday work and that they received time and a half and that is what his Honour ultimately awarded, and in my submission, that was open to him.
PN229
VICE PRESIDENT ROSS: Okay, is there anything else in relation to the Sunday rate before we go to the public holiday matter, no. Public holidays is curious because under the interim award, as I understand it, there was no provision made for rate of payment or any penalty for work performed on a public holiday. The union in the proceedings below largely relied on the material you have taken us to, Ms Frenzel. What pertains in other awards relating to car parking attendants contended for double time and a half with a minimum payment of four hours for weekly employees and three for casuals.
PN230
And the employers contended for double time and his Honour awarded double time. Is that the essence of it, and you argued on appeal that his Honour hasn't placed sufficient weight on the arguments you advanced. There is one in particular where one of the employer witnesses, Mr Larkin, talks about - and his Honour refers to this at paragraph 129 of the decision where Wilson Parking has adopted the practice of paying its employees double time and a half. And the decision to pay that rate was based on the provisions of the Motor Drivers Award and expired Victorian State Award.
PN231
And the Motor Drivers Award, the one that is in evidence, I think, is the earlier - there was one - there are two that are referred to. It is the '74 one, I think, that is in evidence and it does refer to double time and a half for work on a public holiday. I think it is Part 7 which applies to all the employees covered by the award. Was that the award that was taken up, essentially, when the interim award was made.
PN232
MS FRENZEL: It was.
PN233
VICE PRESIDENT ROSS: And is there any decision in relation to the making of the interim award?
PN234
MS FRENZEL: I have got to say, your Honour, not that I am aware of. But with respect to the Motor Drivers Award, it was divided into a series of Parts.
PN235
VICE PRESIDENT ROSS: It is, but the public holiday payment part is in Part 7, I think, which applies to all Parts of the award.
PN236
MS FRENZEL: That is correct, page 17.
PN237
VICE PRESIDENT ROSS: Okay and that is the one that was, essentially, found its way into the interim award - the relevant parts of that award?
PN238
MS FRENZEL: That is right, but with respect to public holiday penalties, that didn't find its way.
PN239
VICE PRESIDENT ROSS: No, that is right.
PN240
MS FRENZEL: It kind of disappeared.
PN241
DEPUTY PRESIDENT IVES: Besides the evidence that the Vice President has referred to regarding Wilson Parking was there any other evidence as to what the practice has been, subsequent to the making of the interim award?
PN242
MS FRENZEL: I can recall, I think, it was Mr Hargitay, indicating that that company paid double time. But the - and this is an observation, I make, your Honour, with respect to the case itself. The award has some 18 respondents and three employers gave evidence. Now, we don't say a lot about that mainly because the three employers who gave the evidence are the largest employers. But, with respect, to industry practice outside of those three there was nothing put to the Commission by either the LHMU - because we weren't in a position to do so - or by the employers in support of their contentions.
PN243
DEPUTY PRESIDENT IVES: There would be all sorts of things happening out there, Ms Frenzel.
PN244
MS FRENZEL: No doubt there are all sorts of things happening out there, your Honour.
PN245
DEPUTY PRESIDENT IVES: Mr O'Grady, can I just go back to the Motor Drivers Award which seems to be the antecedent award to the interim award.
PN246
MR O'GRADY: Yes.
PN247
DEPUTY PRESIDENT IVES: If the first award principles had been appropriately applied, wouldn't you have in the interim award a penalty for working on public holidays of double time and a half?
PN248
MR O'GRADY: Your Honour, in my submission, it is hard to answer that in the absence of any reasons associated with the making of the interim award. As I understand it, the first award principles do not necessarily mandate - - -
PN249
DEPUTY PRESIDENT IVES: No, it is prima facie, yes.
PN250
MR O'GRADY: Yes and in my submission it is not open, with respect, just to speculate how it was made the way it was. Clearly, when the interim award was made the union participated in that process and one would have thought that these issues would have been considered with respect.
PN251
DEPUTY PRESIDENT IVES: I suppose we are all speculating a bit. Perhaps the safest course in relation to this is, we will make some enquiries as to whether we can get a hold of the file and if there is any material on that to which we propose having regard, or taking into account, we will provide that to the parties and give you an opportunity to comment on it. There may be transcript - - -
PN252
MR O'GRADY: Yes.
PN253
VICE PRESIDENT ROSS: - - - of it though. That might be a bit optimistic given the passage of time but if there is anything, either, we can find a decision or transcript that relates to it, we will provide it to you and give you a short opportunity to reply.
PN254
MR O'GRADY: Thank you, your Honour.
PN255
DEPUTY PRESIDENT IVES: What material did the employers put in support of their claim that double time was appropriate?
PN256
MR O'GRADY: There was really - in addition to the general costing material that I have already referred to, you Honour, and the material with respect to the other financial impacts of the variations that were consented to, including of course the move to a 38 hour week, there was material on the industry practice to the extent that it could be given by the respondent employers who said that they were paying double time.
PN257
DEPUTY PRESIDENT IVES: That was Mr Hargitay?
PN258
MR O'GRADY: Mr Hargitay and I think Mr Larkin might also have touched on that, your Honour, as well, but - - -
PN259
DEPUTY PRESIDENT IVES: But you went to double time and a half, I think. It is set out in his Honour's decision at 129, yes. It is on page 25 of the draft background document.
PN260
MR O'GRADY: Yes, your Honour.
PN261
DEPUTY PRESIDENT IVES: And it is his Honour's finding - I mean, we will obviously - - -
PN262
MR O'GRADY: Yes.
PN263
DEPUTY PRESIDENT IVES: - - - check Mr Larkin's evidence but it is dealt within the evidence of Hargitay and Larkin; is that right.
PN264
MR O'GRADY: That is my understanding, your Honour.
PN265
DEPUTY PRESIDENT IVES: The last issue is in relation to annual leave payment and this is the material set out at paragraphs 53 to 65. Ms Frenzel, I just want to test my understanding as to what the reduction is. Does it work this way, that it arises from the definition of ordinary pay in the 2003 award? In clause 25.1.1(a) that excludes shift penalties, whereas clause 21C of the interim award includes shift penalties. My understanding of the interim award, or your interpretation of it, at least, is that 21C, under that provision a shift worker received their ordinary pay, that is, classification rate plus shift penalty and then under 21E they received a further loading - annual leave loading of either 17-1/2 per cent or the shift penalty, whichever is the greater.
PN266
So it would seem that it would work this way, that if you were - and this is under the interim award - if you were a continuous night shift worker, what would you get when you went on annual leave. You would get the classification rate, a 25 per cent shift loading and a further 25 per cent pursuant to clause 21E and under the 2003 award that his Honour has handed down, a continuous night shift worker would get their classification rate plus the 25 per cent loading but no 17-1/2 per cent?
PN267
MS FRENZEL: The way that we interpret this provision is that a shift worker would get their shift penalty, including weekend penalties, or the leave loading, whichever was the greater.
PN268
DEPUTY PRESIDENT IVES: Yes, yes, that is right.
PN269
MS FRENZEL: In other words, the standard way that it is meant to operate. We don't - - -
PN270
DEPUTY PRESIDENT IVES: So that is a reduction from what occurred under the interim award?
PN271
MS FRENZEL: Our complaint with respect to the interim award versus the new award is that it has done away with the payment of weekend penalties. In other words, a shift worker who would normally be rostered, say, Wednesday to Sunday, would normally, according to the leave case, get paid on the basis of their protected roster. So they will get their weekend penalties - it is ordinary time in lieu of the 17.5 per cent loading. Now, what the clause does is - it in effect wipes out, not only the weekend penalties with respect to the projected roster but it also wipes out the shift penalties, although - - -
PN272
DEPUTY PRESIDENT IVES: Well, except you get the shift penalties back, don't you?
PN273
MS FRENZEL: You do, but you don't get the weekend - - -
PN274
DEPUTY PRESIDENT IVES: Through the loading, through 25.6.2?
PN275
MS FRENZEL: That is correct but you don't get the weekend penalties back.
PN276
DEPUTY PRESIDENT IVES: Okay, so, it is the definition in 25.1.1(a), doesn't include weekend penalties?
PN277
MS FRENZEL: That is correct, whereas previously it did. Now, the - - -
PN278
DEPUTY PRESIDENT IVES: Would it work this way that if 25.6.2 was altered such that they would have received shift loadings and weekend penalties, so there you are aggregating the shift penalties and weekend loadings and if they are greater than 17-1/2 per cent, they get those. If they are less, they get 17-1/2 per cent; is that what you - - - '
PN279
MS FRENZEL: Yes.
PN280
DEPUTY PRESIDENT IVES: Okay, right.
PN281
MS FRENZEL: And I put this in my submissions and I don't want to take the Commission to it at great length, but the employers argued that this was a clarification of the entitlements.
PN282
DEPUTY PRESIDENT IVES: Yes - no, I - - -
PN283
MS FRENZEL: And we very clearly argued that it was a reduction in the entitlement.
PN284
DEPUTY PRESIDENT IVES: And this wasn't one of the section 113 matters, this was an award simplification - - -
PN285
MS FRENZEL: I think it was - from memory, your Honour, I think it was part of the employer's section 113 application.
PN286
DEPUTY PRESIDENT IVES: Okay. Mr O'Grady, do you agree with the effect of it as put by Ms Frenzel? It means that before a shift worker received their classification rate, shift penalties plus the weekend penalties that would be applicable to the roster they would be working when they are on leave, or their classification rate plus 17-1/2 per cent whichever is the greater of those two?
PN287
MR O'GRADY: The only thing I need to clarify, your Honour, if you will bear with me, is whether or not before the weekend penalties would have been received by a shift worker pursuant to the award and if your Honour will just bear with me, I will just clarify that.
PN288
DEPUTY PRESIDENT IVES: Certainly, yes, you mean the interim award?
PN289
MR O'GRADY: Yes, yes, your Honour.
PN290
MS FRENZEL: Can I rise to assist my friend and indicate that sub clause C(a) defines:
PN291
Ordinary pay in relation to any work commenced, remuneration for the work ...(reads)... and where the worker is provided with board and lodging -
PN292
etcetera.
PN293
DEPUTY PRESIDENT IVES: Yes.
PN294
MS FRENZEL: So it is clear that the award provided for the weekend and public holiday penalties.
PN295
MR O'GRADY: I can't take issue with that, your Honour.
PN296
DEPUTY PRESIDENT IVES: Yes. Does that mean it was an unintended consequence?
PN297
MR O'GRADY: It would appear to be the case, your Honour and a - - -
PN298
DEPUTY PRESIDENT IVES: So - I am sorry, if I can go back. So the employees didn't actually argue that they shouldn't get the weekend penalties, it is just that in restructuring the award in plainer language, that issue was inadvertently omitted?
PN299
MR O'GRADY: That would appear to be the case, your Honour and it is an omission that - the thrust of the employer's application in this regard was to make it clear that there was an alternative between getting penalties or the 17-1/2 per cent leave loading.
PN300
DEPUTY PRESIDENT IVES: No, quite, you couldn't get both and I think there is at least some ambiguity, in my mind, in the interim award about how all of it inter-connected but, yes, so, and that is not contested by Ms Frenzel. It is accepted that you either get the penalties that you would have been entitled to for the roster you would have worked - - -
PN301
MR O'GRADY: Yes.
PN302
DEPUTY PRESIDENT IVES: - - - or you get the 17-1/2 per cent whichever is the greater. And that approach is also consistent with the annual holidays decision to which you refer.
PN303
MR O'GRADY: Yes, your Honour.
PN304
DEPUTY PRESIDENT IVES: Yes.
PN305
MR O'GRADY: That was our intention.
PN306
DEPUTY PRESIDENT IVES: Well, that deals with the specific issues. Ms Frenzel, as to what you are asking us to do, it is essentially find there are, on the bases that you have identified in respect of each of the matters to which we have taken you, those discrete issues, and you want us to either then grant the claim that you agitated below or remit the matter to his Honour for determination?
PN307
MS FRENZEL: We - the primary submission of the LHMU would be that, given that the matter has been on foot for some time - the LHMU made its application, from memory, in April 2001, the employers made their cross-application in 2002 and it is all contained in the submissions of the LHMU - that rather than - if the Bench was to find in favour of the LHMU with respect to leave to appeal, we would ask that the Bench rectify the areas identified and discussed this morning as opposed to the matter being remitted back for, what would be no doubt, a further ventilation of the same issues.
PN308
DEPUTY PRESIDENT IVES: Ms Frenzel, could I just ask you with respect to the - one of the grounds that you have put forward. You say that the Senior Deputy President adopted an approach of off-setting the 38 hour week by reductions in award conditions and you say that that was a mistake that the Senior Deputy President made. Can you be a bit more specific on which particular provisions that you say that the Senior Deputy President reduced as a consequence of allowing for the 38 hour week?
PN309
MS FRENZEL: I think - I don't think I have pointed the Commission to any specific clauses but what I can say is that there was a general vein - and I put this in my submissions - a general vein through his Honour's decision about the cost implications of the variations the LHMU were seeking. And with respect to the - just very quickly, the issue of cost, Mr O'Grady indicated that there was evidence taken with respect to the cost implications, and his Honour makes the fair observations in his decision about the two witnesses which went directly to cost and that was Mr Purdie and Mr Williams.
PN310
And the relevant extracts are set out in paragraph 155 onwards in his decision. And, for example, at paragraph 158 - this is with respect to Mr Purdie:
PN311
A further concession was made at cross-examination that Mr Purdie was unaware of Wilson having done any actual costings on the labour cost increases that may arise if the union were successful in their application.
PN312
And with respect to Mr Williams at paragraph 161, his Honour says this:
PN313
During cross-examination Ms Frenzel raised issues as to why these particular eight sites were selected out of a possible 32. She also challenged ...(reads)... that must absorb higher costs.
PN314
So, we say, with respect to the employer's evidence about cost, that it was well and truly challenged by the LHMU and we make that observation in our submissions. The issue of costs generally - for example, the issue of the casual loading and the balancing of the - determining the casual loading at 20 per cent rather than 25 - his Honour does that against - as I have already put to the Bench, does that against things like shift penalties and he does consistently talk about the overall cost throughout his decision.
[11.38am]
PN315
So with respect to your question, your Honour, if you are asking me which particular clauses and which particular parts of it we directed to minimising the cost of the introduction of the 38 hour week, I can't point you to that, but what I can say is that there is this general flavour right through the decision about the issues of cost and we say with the greatest of respect to his Honour that he was preoccupied with that notion.
PN316
VICE PRESIDENT ROSS: Well, I suppose that reflected the nature of the case put by the employers.
PN317
MS FRENZEL: I think that is right, your Honour.
PN318
VICE PRESIDENT ROSS: As Mr O'Grady has indicated there was the general part of their case which was if you - you have regard to what has been consented to and what the union is claiming it will have certain cost implications for the industry and he has responded to that, you say, in a way that - he has fell into error but that seems to be how it has arisen.
PN319
MS FRENZEL: No. I agree with that summation, your Honour.
PN320
VICE PRESIDENT ROSS: Ms Frenzel was there anything - we have dealt I think with the discrete issues. Other than to hear from Mr O'Grady as to what you have just said in relation to the relief sought, is there anything you wanted to say further?
PN321
MS FRENZEL: I do wish to briefly refer to the respondent's authorities which they filed and served.
PN322
VICE PRESIDENT ROSS: Certainly.
PN323
MR O'GRADY: Your Honour, perhaps to facilitate that, I was informed that we only provided one set of authorities to the Commission. I apologise for that. I have another two sets if I could hand those up to the Bench.
PN324
VICE PRESIDENT ROSS: We haven't actually received them either.
PN325
MR O'GRADY: I apologise, your Honour. I was under the impression that one set had been provided to the Commission. I will make sure that another set is provided.
PN326
VICE PRESIDENT ROSS: Commissioner Blair thinks he might have it.
PN327
COMMISSIONER BLAIR: It would be a first if a Commissioner got it above one of the presidential members, but - - -
PN328
VICE PRESIDENT ROSS: Disturbing trend, yes.
PN329
MR O'GRADY: Yes. I believe I do have a third set there, your Honours and Commissioner, if that could be provided.
PN330
VICE PRESIDENT ROSS: Thank you, Mr O'Grady. Yes, Ms Frenzel, you were going to - - -
PN331
MS FRENZEL: Thank you. It appears to us, your Honour, that the employers base their - save and except for the concessions made this morning, base their opposition to the appeal on the basis of leave and we say that with respect to the issue of leave in a broad sense we have covered those - we have covered that in our submissions and in the authorities we have already tendered before the Commission. We don't intend to take the Commission to that any further on the basis that we have filed comprehensive submissions about that. But with respect to the employers' authorities some observations do need to be made. The first authority which is Hillier v CSR is found at print 4972.
PN332
The observations we would make about that - firstly, this decision predated the award simplification principles. Secondly, the process of the - the employers tried to say that this authority deals with the issue of finalising the matter and the issue of cost, and we say the process of the appeal in that matter was completely different and, in fact, appears to have been done on the papers by consent between the parties and we say that we can distinguish that decision quite easily from the matter currently before the Bench. Can I also indicate that we agree with the notion that House v King is a relevant principle with respect to appeals, as well as Norbis v Norbis.
PN333
With respect to Norbis v Norbis the Court also makes some interesting observations with respect to the issue of discretion, and that is another element of the employers' opposition to the LHMUs appeal and if I can draw the attention of the Bench to page 519 of that authority and briefly take the Commission to the second and part of the third paragraph there, where it says:
PN334
It has sometimes been said by judges ...(reads)... rules or guidelines affecting its exercise.
PN335
And we say that is particularly relevant with respect to the wage-fixing principles of this Commission and the award simplification principles.
PN336
VICE PRESIDENT ROSS: Well, the telephone officers' case deals with that directly though.
PN337
MS FRENZEL: Sorry?
PN338
VICE PRESIDENT ROSS: The High Court in the telephone, I think it is - telephone officers' case makes the same point in relation to wage-fixing principles.
PN339
MS FRENZEL: And with respect to the - - -
PN340
VICE PRESIDENT ROSS: I don't - I am sorry. I don't think it is contested by Mr O'Grady, but what he is saying is that his Honour properly exercised his discretion within the confines of the principles that applied to him, whereas you are arguing that he didn't; he either breached those principles or failed to place sufficient weight on the material that was before him.
PN341
MR O'GRADY: That is correct.
PN342
VICE PRESIDENT ROSS: Okay.
PN343
MS FRENZEL: And that point is supported at page 537 of Norbis v Norbis at the third paragraph where the Court says:
PN344
There may well be situations in which an appellant Court ...(reads)... a particular case.
PN345
We say that supports the LHMUs position with respect to the appeal. The House v King authority, obviously we have dealt - we deal with that ourselves in our submissions. We make no comment about the Safety Net Review Decision. With respect to Coal and Allied and the onus of proof argument that my friend puts with respect to that, we say that the onus cuts both ways. We accept that there was an onus on the LHMU with respect to its section 113 application, but we also say that the onus rests with the employers as well with respect to their 113 application. And we say that the award simplification matter, that there is a particular reference at page 317 of Coal and Allied which is in the third paragraph towards the middle of the page. It says this:
PN346
Where a matter commences on the Commission's own motion -
PN347
so that is an item 51 review -
PN348
no party bears any direct onus but the Commission must be satisfied that a proper basis for the exercise of power in the matter is established.
PN349
And we say with respect to that and the onus issue, that the onus with respect to the item 51 elements of his Honour's decision and order are less than the onus with respect to both parties with respect to 113 applications. With respect to the Australian Gas Light decision that is found at tab 8, I think, from memory - yes. We say this case can be distinguished on the basis that the Commission in these proceedings was being - sorry, the Court was being asked to, in essence, convert an agreement into an award provision and we say there is no relevance with respect to this matter before the Commission at the moment.
PN350
The Victorian Local Government - sorry, the Victorian Local Authorities Award, that is found at tab 10. This decision also was used by the employers in the ..... case. And with respect to that matter SDP Kaufman rejected an application by the ASU with respect to on-call allowances and at paragraph 9 his Honour says this:
PN351
Mr Henderson relies on that decision -
PN352
he is referring to two decisions about on-call and availability allowances -
PN353
as supported by his proposition that the variation is appropriate.
PN354
That decision was given before the widespread use of mobile phones and more significantly before the present Act which requires that awards act as a safety net for fair minimum wages and conditions of employment so as to encourage the making of the agreements. And we say with respect to the authorities that have been tendered by the LHMU before his Honour that the bulk of them were, in fact, post the present Act and obviously took into account the safety net provisions of the Act.
PN355
Now, the $2 and Under, my friend indicated before his Honour that the $2 and Under case didn't help us and his Honour agreed with my friend's summation of that, but we don't resile from the fact that we say $2 and Under, particularly given the Full Bench decisions of December last year, which I have included in our authorities book at tab 6, clearly assist the LHMUs case.
PN356
The whole point of $2 and Under was that they came - those employees came off a lower base. Those people came off industry sector rates and the Commission was minded to determine weekend penalties, albeit in two decisions. But be that as it may those employees previously didn't get penalties and the Commission was minded to award, what they saw on the basis of those cases, a fair minimum safety net condition for those employees.
PN357
Now, when you - and there was a debate between his Honour and I about the quantum leap with respect to the size of the LHMUs application and his Honour made the observation that it wasn't - the issue wasn't a quantum leap as such, but whether or not the award acted as a fair safety net. And when you look at what happened with the $2 and Under and what happened with us, we say that $2 and Under does assist us when you look at the Saturday penalties and the claim by the LHMU with respect to that matter for time and a half all day and double time for Sunday.
PN358
Well, that is now being properly dealt with by the Full Bench in $2 and Under in December of last year, whereas the employees in the $2 and Under case didn't have weekend penalties at all and those penalties were awarded to them. And although there is a differentiation between the fact that there is a roping-in award made - and my friend seems to rely upon the fact that the employers were not respondents to any award at the time - the fact is that the Commission still found a fair and equitable safety net for those employees and the quantum leap between our claim and the $2 and Under claim as it turned out wasn't that great.
PN359
Now, given what my friend has said about the issue of the leave decision, save and except for the dispute settlement training leave issue - and this was also dealt with before Commissioner Eames, so I might turn to the Eames decision.
PN360
VICE PRESIDENT ROSS: That is under tab 13?
PN361
MS FRENZEL: That is correct, your Honour, yes. Now, the whole point about the debate about dispute settlement of training leave was that the case that we actually ran before Commissioner Eames was not dissimilar to the case that was run before his Honour. The whole point of the issue was that the union had to make its claim. The onus rested firmly on our shoulders. And if I can take you to - - -
PN362
VICE PRESIDENT ROSS: Because you ran the same case before the Senior Deputy President as you put before Commissioner Eames doesn't mean that the same outcome had to be the result.
PN363
MS FRENZEL: That is correct. But all I am saying with respect to that matter, your Honour, is that there were a number - the employers say it was by consent and, therefore, very limited weight should be given to it, and I have already made submissions, in actual fact, it was a contest. The union did have to prove its claim and the only difference in a real sense between the case put to his Honour and the case put to Commissioner Eames was that an elected officer at the LHMU didn't give evidence in the car parking case.
PN364
What we did in the car parking case was we took evidence from delegates who had undertaken the training and we sought to apply the same principles that we applied with respect to Commissioner Eames' decision, including making sure his Honour was aware of the different decisions that we took Commissioner Eames to at first instance. Just to clarify the consent issue completely, at paragraph 25 of the decision on page 5, and I quote:
PN365
Mr Gregory submitted that VECCIs position was totally ...(reads)... who could potentially take such leave.
PN366
So that confirms my previous submission that the issue in terms of the order was an issue between the parties and, in fact, his Honour - Commissioner Eames at paragraph 45 does what his Honour didn't do with respect to determining a dispute settlement of training leave in the Car Parking Award where he refers to the decision of Commissioner Merriman on 6 December 1999 with respect to the Fish Industry of Victoria Award and the decision of Commissioner Lewin with respect to the Grocery Products Manufacture Wholesale Grocers Award 1999. And he says:
PN367
Having reviewed those decisions I have decided to accept the thrust of the LHMU order with some amendments.
PN368
So he grounds the decision to grant an order in a certain form based on other decisions of the Commission. We have already taken the Commission to the references that we made in the Metals Casuals decision and with respect to the public holidays test case, print L4534, the LHMU puts this about this case, and that is it indicates a broad principle - it indicates a broad principle that the safety net is going to evolve, it is going to change, it is - that that function is contained within the principles themselves as we all know.
PN369
And, indeed, that principle was also ..... we say, by the 2004 redundancy test case which I refer to in my submission in reply when the base in that case said, yes, there are going to be some costs associated with altering the safety net, but that has got to be weighed against what is a fair and equitable and minimum safety net for workers. Now, the one point I want to close on is this, that on the one hand the employers say, look, these car parking attendants, they are paid reasonable.
PN370
Now, all you have to do is look at the award to see what they are paid and to be fair this is the award prior to the $19 flowing into it which occurred two weeks ago, but these workers are not high paid workers and that is directly related to the issue of the Commission having to take account of the needs of the low paid with respect to the safety net. And with respect to the wages themselves the - found at clause 14 - and as I say, these are the rates prior to the $19.
PN371
But there are three levels in the award: car parking level attendant - car parking attendant level 1 gets $462 a week, car parking officer level 2 gets $482 a week and car parking officer level 3 gets $506 a week. These are not high paid workers by any definition and that matter was clearly put before his Honour at the time. Now, the employers at one point say well, they are better paid than their state counterparts. Well, the truth of the matter is that the entire package that his Honour determined makes them paid on average, we say, less than their state counterparts.
PN372
We also say there is - at one point they concede also that they are not high paid workers, so they can't have it both ways. But the fact is that the needs of the low paid have to be taken into account when the Commission is adjusting the safety net and we say that his Honour also failed to do that with respect to the matter on appeal. Unless there are any questions from the Bench we would rely upon our submissions and submissions in reply and the authorities tendered in support of those submissions. If the Commission pleases.
PN373
VICE PRESIDENT ROSS: Thank you, Ms Frenzel. Mr O'Grady.
PN374
MR O'GRADY: Yes, thank you, your Honour. Can I commence where Ms Frenzel left off and this was a matter of some debate before SDP Lacy, as you will see from exhibit R29 and also from the passages of transcript I handed up this morning. It was very much the employers case below that if what the union was seeking to achieve was an increase in the rates of pay that car parking attendants receive, there are ways and means of doing that and there are limits on the way in which that can be done, as prescribed in the work value principle, and that would require evidence of a very different nature to that which the union put before the Commission in this case.
PN375
So to the extent that it is being suggested that his Honour was in error in that he didn't, if you like, allow a wage increase through the back door by making the award that the union sought, we would reject that submission. In my submission his Honour was quite right to reject that approach. Your Honour, with respect to the authorities Ms Frenzel has referred to they have been dealt with at some length in the submissions that we have filed on the appeal and also in exhibit R29 and I don't seek to take up the Bench's time by going over that again. I would ask the Bench to have regard to the various passages we have referred to therein and what we say they mean.
PN376
With respect to the issue - or the suggestion that the primary basis upon which the respondent meets this appeal is the issue of leave, we do raise leave as a significant issue. In my submission there is - it is an important consideration that where these matters have been determined by a member of this Commission, they not be revisited unless a definable error is established. And in the context of the applications before his Honour, in my submission his Honour did have a clear discretion; a discretion, of course, defined by the principles that you referred to earlier, your Honour, but in my submission it hasn't been established in the material that has been filed by the union in these proceedings, that his Honour breached or failed to give due regard to those principles.
PN377
We do, of course, say that even if the Bench were minded to grant leave it would be a further requirement that his Honour erred in the discharge of his function and in my submission - and this appears in the written submissions we have filed - it hasn't been established that the determinations made by his Honour were not open to him and, of course, it is a trite proposition that the test is not what this Bench would award, the test is whether or not his Honour can be said to have been in error in making the determination that he made. Your Honour, there was the issue of what should be the appropriate course should your Honours and Commissioner be minded to allow the appeal. In my submission the appropriate course would be to have the matter remitted to his Honour, and I say that for these reasons.
PN378
As has been apparent from this morning's proceedings, and is clearly apparent from his Honour's decision, these matters are clearly interrelated and in my submission it would be inappropriate to adjust one provision without having regard to the other matters that his Honour awarded. His Honour clearly went to some effort to balance up the various provisions that he was awarding in these proceedings and in my submission rather than inflicting the task of reassessing all of the evidence and making a fresh award, if you like, on this Full Bench, the appropriate course would be to send the matter back to his Honour where his Honour could correct any error if such was identified by your Honours and Commissioner.
PN379
I note that my friend relies on the BHP Coal decision in her submissions - or original outline of submissions. In my submission that case is a very different one to the one raised by this appeal. As is apparent from this decision it was a case that concerned the simplification of the award simpliciter. It didn't involve the two section 113 variation applications that were filed by the respective parties in this case and the Full Bench in that case was really concerned with whether or not it could be said that the Commission at first instance had correctly applied item 51, and in the light of the fact that they form the view that that hadn't been done and there was not sufficient evidence for the various award provisions that were made, they determined to rectify the issue themselves.
PN380
In my submission that is a far more confined task than the one that is raised by this appeal where the parties have both sought to reshape this award in quite a fundamental way and his Honour had to consider all of that material and in my submission has done so and has done so correctly. Other than that, your Honours, I simply seek to rely upon the material that we have placed before the Bench. If the Commission pleases.
PN381
VICE PRESIDENT ROSS: If there is nothing further, our thanks for the assistance the advocates have given and we will adjourn our decision in this matter.
ADJOURNED INDEFINITELY [12.04pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 OUTLINE OF SUBMISSIONS BY ALHMWU PN10
EXHIBIT #A2 SUBMISSIONS IN REPLY PN10
EXHIBIT #A3 TRANSCRIPT REFERENCES PN10
EXHIBIT #R1 SUBMISSIONS OF RESPONDENT PN10
EXHIBIT #R2 OUTLINE OF SUBMISSIONS IN REPLY PN33
EXHIBIT #R3 TRANSCRIPT REFERENCES AND MATTERS DEALT WITH IN THE PROCEEDINGS BELOW PN33
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2004/2405.html