C2004/3213, Transcript of Proceedings [2004] AIRCTrans 2730 (16 July 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

C2004/3213

GENERAL CLERKS (NORTHERN TERRITORY) AWARD 2000

Application under Section 113 of the Act
by Australian Municipal, Administrative, Clerical
and Services Union to vary the above award re
Redundancy Case decision of March 2004

BRISBANE

11.10 AM, WEDNESDAY, 7 JULY 2004

THIS HEARING WAS CONDUCTED BY VIDEOCONFERENCE
AND RECORDED IN BRISBANE

PN1

MR L. MATARAZZO: I appear on behalf of the Australian Services Union.

PN2

MS B. ROBERTS: From the Chamber of Commerce and Industry, Northern Territory.

PN3

MR R.H. GIFFORD: Representing respondent members of Australian Mines and Metal Association. We are in Perth.

PN4

MR S. WHITE: From the WA Local Government Association on behalf of Local Government respondents.

PN5

THE COMMISSIONER: I presume the ASU wants to lead off in this matter.

PN6

MR MATARAZZO: Thank you, sir. Sir, the Australian Services Union has notified all the relevant Northern Territory employer associations and relevant persons who represent the relevant organisations. The General Parks (Northern Territory) Award is a common rule award, and this application before you today, sir, is in line with the two relevant Full Bench decisions, namely the one of 26 March 2004, print number PR 032004, and the supplementary decision of 8 June 2004, print number PR 062004. The ASU submits that the General Clerks (Northern Territory) Award is the safety net award of some on or around 10,000 Northern Territory private sector office workers. It is one of the larger awards in the Northern Territory. The proposal by the ASU to vary this award is in a draft order. It has been circulated to all the parties, and your office, sir, in electronic version, and I wish to, just for the sake of completeness, though, just address a couple of issues in the draft order.

PN7

If the ASU may seek your indulgence, sir, just some guidance on some variation - minor variations we are seeking. In 10.6(b) on page 1, in the second sentence, it has the relevant union or unions. The ASU would be requesting a minor variation, just to have the word "the union" in lieu of the words "the relevant union or unions." There is a definition of the word "union" in the award in clause 6, in the definition sections, and you know, we are a bit parochial here. We don't want the impression that there is more than one union that is a respondent to this award. So we hope the employers will consent to that. The - - -

PN8

THE COMMISSIONER: Sorry, just to go back to that in detail: you are seeking the retention of the clause up "the relevant union" but the deletion of the words after it, including "or unions."

PN9

MR MATARAZZO: Yes, yes.

PN10

THE COMMISSIONER: And the clause to continue thereafter, with the commencement of the parentheses.

PN11

MR MATARAZZO: That is correct.

PN12

THE COMMISSIONER: Relying on the definition in the common rule award itself for union.

PN13

MR MATARAZZO: Yes, sir.

PN14

THE COMMISSIONER: Right. Well, I will come back and ask - I mean, the supplementary decision contemplates some measure of - how should I say - formatting or drafting changes, and I think, from the top of my head, at clause 30 of the decision, so I think it is permissible to do these sorts of drafting issues, but as we go around the parties afterwards, we will ask them each whether they are in agreement with the amendment that you seek. But I presume there is more to go, though?

PN15

MR MATARAZZO: Yes. And just quickly, on page 4, subclause 14.4.4, the date that the ASU has put in the draft order there is 8 June 2004, and the ASU is, I guess, putting matters of proposal to all the employers here today, but we are happy to accept any recommendation or guidance from yourself, sir, in regards to that proposed date, so I leave that open, I guess, for matter of discussion today, and determination. The other issue is on page 5, sir, in clause 14.8.

PN16

My national office asked me to put on the table for the parties, and we seek guidance from yourself, too, sir, in regards to the dot point, Apprentices, bearing in mind this award covers clerical and administrative white collar office workers and employees, and the question is whether that dot point, Apprentices, actually should apply, as it has been stated that white collar employees, who are in a - that they are normally in a traineeship, rather than in an apprenticeship, so the question is raised whether that dot point word, Apprentices, is necessary, and - well, we put for discussion or determination today whether the word and the dot point, Apprentices, should be deleted.

PN17

And there are - which I've picked up recently - or sorry, the Chamber picked up, in 14.9.2, where there is a reference to "14.8.1(b)." That is an error, and it should actually read "14.9.1(b)." So we are seeking to make that amendment, and I am happy for the parties here today to consider that. And the final thing in the draft order, sir, is again the date of effect of this draft order right at the end on page 7. In our draft order, we have put 8 June 2004. Obviously, the ASU puts this on the table and seeks your guidance and comment from the parties. The ASU is aware that the issues of the dates will impact on small employers as to when service counts for the purposes of redundancy in the small business sector, and, obviously, as to an entitlement to the larger employers in regards to longer serving employees. So they are the - I guess, the points we just wanted to make today, and we are happy to respond, subject to what the employer associations submit in regards to those matters in the draft order, but the ASU is seeking that the draft order as presented, subject to those items I've referred to for discussion, otherwise be considered by the Commission May it please.

PN18

THE COMMISSIONER: Thank you. I just notice one thing, just as I turned the page, there is a clause 14.10 - you see it says there "by deleting 14.11 in its entirety" - no, that is all right. I don't need to bring that to your attention at all, in fact. The only other matter is that you have included the redundancy disputes procedure, I notice, which, from memory was part of the actual order, but that is, nonetheless, an intentional device on your part?

PN19

MR MATARAZZO: Yes, sorry, sir, if I can just say this draft order is based on the order that was issued by the Commission in the Full Bench decision for the Victorian Clerical and Administrative Employees Award, which is the common rule sister award of this award for Victorian private sector office workers, and I must admit I based it and followed that order, and it was - I wish there was an easier way - and I notice that in that order of the Commission that that was in there. So it is based on that reason that we are seeking to insert that in the General Clerks (Northern Territory) Award also.

PN20

THE COMMISSIONER: Okay. Well, let's just go around the parties and see what degree of consensus we have on the draft order as amended, and the request for the - in particular, the request in relation to the date of commencement as well. Perhaps if we could just start with Ms Roberts?

PN21

MS ROBERTS: Yes, thank you, Commissioner. We don't oppose to the redundancy dispute clause being inserted into this order. I don't dispute to the relevant "or unions" being taken out. I would - in 14.4.4 and the operative date, I believe, should be 7 July 2004 as in today's date and, with regards to the premises, in the Northern Territory, the Northern Territory Employment and Training Authority, their Act deems all trainees and all apprentices to be called apprentices. The last couple of - years ago it used to be, like, traditional apprenticeships and then your traineeships.

PN22

Now, everyone is calling everyone an apprentice which has got a bit confusing with trainees and apprentices, but that is what they are calling everyone now, calling them new apprenticeships. So to be on the safe side, I would still retain the word "apprentice" in there as well as "trainees" because, technically, actually, trainees don't exist at the moment but apprentices do, according to the Northern Territory. But who knows what they will do in the future and I would propose to leave both of them in there just in case, again, the government or the training authorities change their mind and start calling them trainees and apprentices again. So I would propose leaving both of those words in there actually. And I agree to 14.9.2 typographical error of 9 instead of 8. That is it, I think. Is there any other - - -

PN23

THE COMMISSIONER: No, I think you have captured everything. Mr Gifford?

PN24

MR GIFFORD: Yes, thank you, Commissioner. Having been provided with the draft order by Mr Matarazzo, we have had the opportunity of reviewing it. We don't have any difficulties with the draft order as provided and, in terms of the amendments that have been sought today by Mr Matarazzo, we don't have a problem in relation to those, and I don't need to address them specifically. But with respect to the operative date, we feel disposed to raise with you this morning, we note that that same operative date has been prescribed under the Clerical and Administrative Employees Victoria Award 1999 but we note that that award was part of a group of awards that formed part of the main redundancy case proceedings that concluded with the supplementary decision of 8 June.

PN25

It is entirely understandable, therefore, that the order relating to that particular Victorian award should be the same as the supplementary decision. But although Mr Matarazzo has filed this application early in the piece, and prior to that date, we would have thought that there is no policy within the Commission that any subsequent adoption within awards of the draft order emanating out of those proceedings should necessarily apply from the same effective date, and, to that extent, we, too, propose that the operative date, and also the reference to the commencement of service for the purposes of small employers, be today's date.

PN26

We feel that, if it were otherwise, certainly in relation to the larger employers who are now affected by the extended severance pay provisions, but there are other changes, of course, too, but the severance pay provisions are the primary new obligations that have been imposed, and they are significant, and we would have thought, in circumstances such as that, the Commission would have believed it to be appropriate that there not be retrospective adjustment to the order. So, whilst not in any sense being critical of Mr Matarazzo in terms of how he has dealt with the matter, and he has dealt with it most expeditiously, there is no doubt about that, but we feel, in the circumstances, that it would be appropriate, with respect, for the Commission to issue it with effect from today's date. Thank you for providing us with that opportunity.

PN27

THE COMMISSIONER: Mr Gifford, though you accepted all of the amendments bar the date of operation, does that extend also to the variation to the exclusion of apprentices under 14.8, under Employees Exempted?

PN28

MR GIFFORD: Yes, it does. We don't have a particular issue with that but I certainly wouldn't be critical of the point that has been raised by Ms Roberts. That has become a point of confusion where we find that the whole traditional apprentices and traineeship arrangement is now described by the heading of New Apprenticeships and it certainly has confused me. I can't put anything authoritative to you on that and so I would have to bow to other submissions as to that.

PN29

THE COMMISSIONER: Are you bowing to Ms Roberts' submissions?

PN30

MR GIFFORD: I am happy to, yes.

PN31

THE COMMISSIONER: Okay, then. Mr White?

PN32

MR WHITE: Thank you, Commissioner. We would consent to the draft order put forward by the ASU with the amendments that they have suggested except for the apprenticeship reference remaining as put forward by the Chamber of Commerce and the effective date being today's date. Other than that, the other amendments put forward by the ASU be consented to.

PN33

THE COMMISSIONER: And that also includes the incorporation of the redundancy disputes procedure as well?

PN34

MR WHITE: Yes, that does, Commissioner.

PN35

THE COMMISSIONER: Sorry, I should ask Mr Gifford, just to make it clear, you also are supporting the inclusion of the redundancy disputes procedure, because it doesn't form part of the original order although it is specified in the decision.

PN36

MR GIFFORD: Thank you, Commissioner. We note that, but we note where the genesis of that has been, that is, the Clerical and Administrative Employees Victoria Award, and, to that extent, we don't take issue with it.

PN37

THE COMMISSIONER: Good, no. Thank you. Mr Matarazzo, do you want to come back now on any of those points that any of the other respondents to the award have made reference to?

PN38

MR MATARAZZO: Thank you, sir. Simply to say that we will - the ASU is happy to be guided by, I guess, a recommendation by you in those matters, and the Commission can - yourself, sir, can issue the order taking into account what we have stated, and we don't wish to go to arbitration on any of those points.

PN39

THE COMMISSIONER: Good. Look, I will just quickly - I won't keep you but a minute. I will just run through each of these so you know exactly what has happened. If I can just look at the first proposed amendment. Well, first of all, if I can say that I accept, for the purposes of inclusion in the draft order, the redundancies dispute procedure as outlined in the supplementary decision, but not included in the final order. In respect of that redundancy disputes procedure, Mr Matarazzo requested an amendment at clause 10.6(b), with the effect of the removal of the words "or unions" and I accept that amendment, and the draft order will be amended subsequently, and that amendment was with the concurrence of the parties to the award.

PN40

In relation to - if I can instead just jump ahead to clause 14.8, Employees Exempted. I understand Mr Matarazzo's submissions. I am, however, acting cautiously on the submission of Ms Roberts in particular that the exclusion, or the removal, or excision of "apprentices" from the Employees Exempted provisions may lead to a difficulty in the short run, and possibly resulting in a request to vary the agreement for any other future changes that might happen in those administrative arrangements that affect apprenticeships and traineeships, so I am not inclined to amend the provision, even though, on Mr Matarazzo's initial submissions, it sounded as though it may be an obsolete provision, I am not certain whether that is the case any longer.

PN41

And I accept also the amendment at 14.9.2 to correct the typographical error. That leaves the two related issues, one at clause 14.4.4 and the other under part B in relation to the date of commencement.

PN42

The Act requires, at section 146(2) of the Act, that the Commission be convinced of exceptional circumstances in relation to any variation from the date of commencement, other than the date of the making of the award. I am not persuaded that there are any exceptional circumstances in this case, and, therefore, I will accept the draft amendment as varied as discussed to commence from today's date, that being 7 July, and to operate for a period, and that will be specified in the order that will be issued shortly. Now that said, are there any issues, or any ambiguities, or any confusions about the check list of changes and so forth? Mr Matarazzo?

PN43

MR MATARAZZO: Just back to 10.6(b), I think the ASU were seeking the words "and the union," and I think we are also seeking the word "relevant" be amended also.

PN44

THE COMMISSIONER: Yes, that's right. I read through this to begin with to see whether - the definition in the award therefore is just for union, not relevant to union. Is that right?

PN45

MR MATARAZZO: Yes, that's correct.

PN46

THE COMMISSIONER: So you want "relevant" excised as well.

PN47

MR MATARAZZO: Yes, please.

PN48

THE COMMISSIONER: And if I can just read it through, it will read:

PN49

10.6(b), where a redundancy dispute arises, and if it has not already done so, an employer must provide affected employees and the union if requested by any affected employee in good time with relevant information including -

PN50

and then on we go. Is that how you see it, Mr Matarazzo?

PN51

MR MATARAZZO: Yes, sir. Yes, sir.

PN52

THE COMMISSIONER: Are there any objections to that drafting? None. Okay, thanks. Nothing else, Mr Matarazzo?

PN53

MR MATARAZZO: No, that's it, thank you, Commissioner.

PN54

THE COMMISSIONER: Good, thanks very much. Someone else requires this line, so I will have to go. Thanks very much everyone. We are adjourned.

ADJOURNED INDEFINITELY [11.34am]