C2004/3229, Transcript of Proceedings [2004] AIRCTrans 2729 (16 July 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220
(Administrator Appointed)

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 7753
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2004/3229
C2004/3230
C2004/3231

FAMILY DAY CARE SERVICES
AWARD 1999

CRISIS ASSISTANCE, SUPPORTED
HOUSING AWARD 2002

COMMUNITY EMPLOYMENT, TRAINING
AND SUPPORT SERVICES AWARD 1999

Applications under section 113 of the Act
by Australian Municipal, Administrative, Clerical
and Services Union to vary the above awards

MELBOURNE

10.27 AM, WEDNESDAY, 7 JULY 2004

Continued from 20.5.04

THE FOLLOWING MATTER WAS CONDUCTED BY
VIDEOLINK AND RECORDED IN MELBOURNE

PN63

THE SENIOR DEPUTY PRESIDENT: I will take the appearances in each matter. They have been called on together because Mr O'Brien has indicated that he wants to make a common submission in relation to all of them. Mr O'Brien, you appear for the ASU in each matter?

PN64

MR O'BRIEN: Yes, your Honour, I do.

PN65

THE SENIOR DEPUTY PRESIDENT: And I will take the remainder of the appearances please in matter C3231, which involves the Community, Employment and Support Services Award 1999. Who appears in that matter please?

PN66

MS C. RYAN: I appear for Jobs Australia on behalf of respondent members.

PN67

MS K. RICHARDSON: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry. I also have for the Commission, if it pleases the Commission, a copy of employers who we represent in this matter.

PN68

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #VECCI1 LIST OF EMPLOYERS REPRESENTED BY VECCI

PN69

THE SENIOR DEPUTY PRESIDENT: Any appearances in Perth or Sydney?

PN70

MR M. O'CONNOR: I appear for CCIWA, and I represent a number of Western Australian employers.

PN71

MR P. WILLCOCKSON: I appear for Employers First on behalf of respondent members.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, gentlemen. I will just take the appearances in the other matters first. C3229, which involves the Family Day Care Services Award 1999. I think I have Ms Ryan appearing for Jobs Australia, Mr Willcockson appearing for Employers First; is that correct?

PN73

MR WILLCOCKSON: Yes, thank you, your Honour.

PN74

THE SENIOR DEPUTY PRESIDENT: No other appearances? And in matter C3230 of 2004, being the Crisis Assistance Supported Housing Award 2002, I just have Ms Ryan for Jobs Australia; is that correct?

PN75

MS RYAN: Yes, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Yes. Now, Mr O'Brien?

PN77

MR O'BRIEN: Good, thank you, your Honour. These matters were all last before you on Thursday, 20 May. That was the date before the Full Bench had issued its supplementary decision, and the model clauses in print 062004. Now, prior to that hearing you signed orders of substituted service for all of the three matters, and on 23 June 2004 I faxed all of the employer organisations on the orders of substituted services in respect of each matter the following documents.

PN78

A header sheet with an explanation of a draft order which followed, two was a notice of listing of today's hearing, three was an order of substituted service, and four was a draft order proposed by the ASU. I received facsimile receipts confirming each of the parties had received the faxed documents, and I then forwarded all of that information by fax to your attention to the Commission, and I have fax transmission receipts indicating that you received that information. So all of that should be on the Commission's file.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes.

PN80

MR O'BRIEN: I would normally ask you to mark it, but the draft orders, there will be another draft order, which I will explain, which I think is probably more important. If you wish to mark it, that is fine, if you wanted to mark it as a bundle.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. What I think I will do is, in each matter I will mark the bundle of documents that you have just described as exhibit A1, just in case there are different numberings already on one or other of the files. So in each of the three matters the bundle of documents evidencing service will be exhibit A1.

EXHIBIT #A1 DOCUMENTS RE EVIDENCE OF SERVICE

PN82

THE SENIOR DEPUTY PRESIDENT: Yes, Mr O'Brien?

PN83

MR O'BRIEN: Thank you, your Honour. The draft orders that were sent by fax to the employer's representatives in respect of the three awards actually departed from the drafting of the model clause in print 062004.

PN84

THE SENIOR DEPUTY PRESIDENT: They are departures, did you say?

PN85

MR O'BRIEN: They are. The ones that were sent out, there are several departures, they are identical departures for each awards, and I have had discussions with most of the employer representatives, in fact, I think now all of the employer representatives, and I agreed to submit an amended draft order in respect of each award today. There is just simply not sufficient time today to argue the toss over areas which are not agreed, and this would inevitably result in an adjournment and a loss of the operative date of today, so I have decided to return to the standard test case model clause with only one departure, which I believe is agreed and necessary in the case of all three awards. So I will tender as what will be referred to as option B orders in respect of each matter.

PN86

THE SENIOR DEPUTY PRESIDENT: The option B orders in each matter will be exhibit A2.

EXHIBIT #A2 OPTION B ORDERS

PN87

MR O'BRIEN: Thank you, your Honour. I would like to hand up a copy of the model clauses, and it just makes it easier to point out to you where the one change is that I have made.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes. This is the model clause from the supplementary decision, is it?

PN89

MR O'BRIEN: It is. That is appendix A, and also the redundancy disputes section as well, I have put them all together. The redundancy dispute section is also in each of the draft orders in A2. Now, if you look at the second last page you will see I have highlighted one sentence, which is R.3.4, and that sentence states that:

PN90

Provided that service prior to -

PN91

and the date to be inserted there, which would be today's date in this case I am hoping -

PN92

shall not be taken into account in calculating an entitlement to severance pay for an employee of a small employer pursuant to R.3.2.

PN93

Now, it is a necessary omission in this case due to the fact that each of the three subject awards do not possess the exemption clause relating to employers who employ 15 or less employees. Each of these awards did not have that in them in the 84 TCR case.

PN94

THE SENIOR DEPUTY PRESIDENT: But that is not necessarily a reason not to put it into the awards now, is it, Mr O'Brien?

PN95

MR O'BRIEN: I would submit it is, your Honour, because of the question of service. If you were to put that clause in it would have an effect of quashing a right of those employees to service in respect of the periods of time that they have collected a right, accrued a right to the entitlement. You see, the fact that the 15 or less exemption is not in the award means that those employees have always had a right if they work for an employer with 15 or less employees to severance pay up to a maximum of eight weeks, and that is what this test case provided for them, but in a prospective way. They have already got that right, and this sentence - - -

PN96

THE SENIOR DEPUTY PRESIDENT: Because they weren't excluded from the awards, because employers with 15 or few employees were not excluded from the awards in the past?

PN97

MR O'BRIEN: That is correct, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: So those employees have always had a right to severance pay?

PN99

MR O'BRIEN: Had an entitlement, yes.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes.

PN101

MR O'BRIEN: So if we were to include the test case clause, there would be a situation where you would effectively quash that right, and that would be at odds. I am sure the Full Bench would not have, or didn't investigate that or hear anything about that particular set of circumstances. And in discussing with each of the employer representatives I believe they all agree that that would not be a desirable outcome, and they, I believe, are consenting to the omission of that particular clause, or sentence.

PN102

THE SENIOR DEPUTY PRESIDENT: Well, doesn't that run contrary to a decision of Senior Deputy President Watson's handed down a week ago, which was drawn to my attention by Mr Henderson of the ASU in a previous matter?

PN103

MR O'BRIEN: Well, that is a possibility, in which case it may have to go to the President.

PN104

THE SENIOR DEPUTY PRESIDENT: Yes.

PN105

MR O'BRIEN: But I would say perhaps not to, because if you look at the - there is I think perhaps enough latitude in the test case supplementary decision. I don't know if you have a copy, your Honour, in front of you.

PN106

THE SENIOR DEPUTY PRESIDENT: Of print PR062004?

PN107

MR O'BRIEN: Yes.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, I do.

PN109

MR O'BRIEN: Good. There is clause 30, other matters, and that is on page 11. And we agree with the proposal jointly put forward that we should publish model termination and redundancy clauses which incorporates the agreed arbitrated changes resulting from proceedings. It should be understood that variations in the model clauses are permissible but generally only when a variation is necessary in order to accommodate the individual circumstances of particular industries, or for drafting clarity. Now, I would say that what I have done in omitting that sentence in this case satisfies both criteria.

PN110

THE SENIOR DEPUTY PRESIDENT: Well, let me just try to understand this. You have put in the severance pay category for small employers in R3.2, so that, you say, continues the position that has pertained with the small employers, is that right? The small employers have been subject to paying severance pay to their employees in terms identical to those that are now contained in clause R3.2 of the model clause, is that right?

PN111

MR O'BRIEN: Yes, that is what I am putting to you.

PN112

THE SENIOR DEPUTY PRESIDENT: And you are continuing that position?

PN113

MR O'BRIEN: Yes. It is just a continuing right. The accrual and the entitlement to severance pay would have commenced at the time they commenced their employment and services provided from each award.

PN114

THE SENIOR DEPUTY PRESIDENT: Yes. And by deleting the sentence that you are proposing to delete in clause 3.4, that maintains that accrual. If that sentence were to be put in then it would take away the right that those employees already have?

PN115

MR O'BRIEN: It would be at odds, it would be basically a contradiction to a right they already had, yes.

PN116

THE SENIOR DEPUTY PRESIDENT: It would take away that right, wouldn't it?

PN117

MR O'BRIEN: It would tend to quash it, I would think, yes.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, I understand.

PN119

MR O'BRIEN: But this would set employees backwards rather than forwards and would be - - -

PN120

THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Yes, thank you.

PN121

MR O'BRIEN: That is all I wish to put to you, your Honour.

PN122

THE SENIOR DEPUTY PRESIDENT: And apart from that the model clause is in identical terms to the draft clause provided by the supplementary decision?

PN123

MR O'BRIEN: There is a few minor typos which I have marked, I think you will see, in the Crisis Assistance Supported Housing Award order. There should be the word annual deleted, and additional.

PN124

THE SENIOR DEPUTY PRESIDENT: Just a minute. Yes.

PN125

MR O'BRIEN: So that is one departure in that order. There is another one which - - -

PN126

THE SENIOR DEPUTY PRESIDENT: Sorry, just a moment. That is in the redundancy disputes clause. That is just a typo on your draft?

PN127

MR O'BRIEN: That is all, yes.

PN128

THE SENIOR DEPUTY PRESIDENT: But it makes it consistent with the Full Bench's decision.

PN129

MR O'BRIEN: It does, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. We might be at odds on what I wishing to have confirmed, Mr O'Brien, is that apart from the change in clause R3.4 there are no other deviations from the model clause provided by the Full Bench in the supplementary decision?

PN131

MR O'BRIEN: Well, apart from typographical errors, minor typographical errors, there is only one in this particular award, and that is on the second page at 13.1.1.1. And the reason for that - do you have that one, your Honour?

PN132

THE SENIOR DEPUTY PRESIDENT: Yes.

PN133

MR O'BRIEN: Provided that an employee in Victoria shall not receive less than four weeks notice irrespective of his or her period of continuous service. That actually appears in the subject award at this present point of time, and if we were to adopt the test case standard without that proviso put in there it would be a reduction in an existing right of employees.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes. And that, of course, has always been an addition to the previous test case standard.

PN135

MR O'BRIEN: Yes, it has.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. And that is the only other deviation?

PN137

MR O'BRIEN: There is no other departures or deviations from the standard clauses.

PN138

THE SENIOR DEPUTY PRESIDENT: Yes. And that comment is applicable to the other two awards also, is it?

PN139

MR O'BRIEN: It is, your Honour.

PN140

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr O'Brien. Yes, who wants to address me next? Yes, Ms Ryan?

PN141

MS RYAN: Your Honour, I would like to support the submissions put by Mr O'Brien in regard to the deviation from the test case orders which he has outlined. I would affirm that the employers that we act for have already been obliged to consider the possibility of redundancy pay upon termination of employees in a redundancy situation, and I believe that that goes to the heart of the issue that the Full Bench was looking at in terms of the small business exemption.

PN142

The employers contended there that it was unfair that employers should have contingencies which they had not had an opportunity to prepare for. In the industries affecting these three awards employers have been obliged to make those - prepare for those contingencies for quite some period of time, so we think that that deals with that issue, and we consent to the variations sought by Mr O'Brien.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Ryan. Yes, Ms Richards?

PN144

MS RICHARDS: Thank you, your Honour. Essentially we would also concur with the submissions put by Mr O'Brien in matter C3231, which is the proceeding for which I appear on behalf of respondent employers, and essentially we would concur with the submissions put by both Mr O'Brien and Ms Ryan in the proceedings. If it pleases the Commission.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Mr O'Connor?

PN146

MR O'CONNOR: Yes, thank you, sir. If it please the Commission, I concur with the amendment to the CETTS award as proposed by the union today. We did indicate to the union that we would want the award, or acknowledge that the award should retain the service for those employers with less than 15 employees to have that previous service recognised because they have an existing entitlement to redundancy or severance payment based on previous service.

PN147

I think having heard Mr O'Brien, I think in any respect I don't think the previous service by this order would expunge the previous service on reflection, because obviously that exemption clause if it was there would only have effect from today's date. But I think people reading the award in the future and reading that sentence would perhaps confuse the issue and might take the view that not knowing the history of the award, that that provision excluded any service prior to today's date. So I think it doesn't, as my friend suggested, I think take away the previous entitlement, but it certainly, by leaving it there, simply adds confusion for those people who come after us in terms of the interpretation of the award.

PN148

So on that basis we believe that previous service quite fairly should be continued to be recognised, and that in itself in our view does not interfere in any way with the tenance of the test case provision. So on that basis we would consent to the award in the terms of the order called option B, and ask you to vary the award in those terms, and presumably we would agree with an operative date if that was to be from today's date. If it please, your Honour.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr O'Connor. Mr Willcockson?

PN150

MR WILLCOCKSON: Thank you, your Honour. Your Honour, we are in receipt of the amended draft orders labelled exhibit A2 in both the Family Day Care Services Award, and the Community Employment Training and Support Services Award. Your Honour, I would just like to clarify a couple of points. I note that in both matters correspondence was sent to your Honour yesterday indicating that we did not consent on the grounds that part of the application omitted a severance pay scale for employers employing few than 15 employees.

PN151

Upon receipt of exhibit A2 from the ASU in both matters we now note that the severance pay scale for employees of a small employer have been inserted at clauses 17.3.2 and 12.3.2. Your Honour, that alleviated that concern of the employers first. We also note that there is a departure from the standard test case provisions in terms of the continuous service being calculated for employees of a small employer. Considering that both of these awards, your Honour, previously did not exempt employers who employed fewer than 15 employees, we are of the view that departing from the test case standard in this matter would not be inappropriate.

PN152

On those grounds, your Honour, we provide our consent to the applications in the terms of exhibit A2, with an operative date commencing on or after today's date. If the Commission pleases.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Willcockson. Yes, well, thank you. I am satisfied that it is appropriate to deviate from the test case standard in the manner sought by exhibit A2 in each of the three matters. It is clear that the employers bound by the awards were obliged to provide severance payments even though they might have employed fewer than 15 employees, and accordingly it is appropriate that that obligation continue to be ongoing. The variation to the model clause by deleting the sentence in clause R.3.4 is appropriate.

PN154

Similarly where employers in Victoria have had an obligation over and beyond the test case provisions of the past, that is appropriate to be continued. Accordingly each of the awards will be varied in terms of exhibit A2 in each matter, and the variation will take effect from today's date. If there is nothing else, we will adjourn the Commission.

ADJOURNED INDEFINITELY [10.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VECCI1 LIST OF EMPLOYERS REPRESENTED BY VECCI PN69
EXHIBIT #A1 DOCUMENTS RE EVIDENCE OF SERVICE PN82
EXHIBIT #A2 OPTION B ORDERS PN87