C2004/1971, Transcript of Proceedings [2004] AIRCTrans 3334 (26 August 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8211
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2004/1971
C2004/3690

STATE TRUSTEES LIMITED
AWARD 2001

Application under section 113 of the Act
by the CPSU, the Community and Public
Sector Union and another to vary the
above award re clause 4 - exemptions

MELBOURNE

11.40 AM, MONDAY, 16 AUGUST 2004

Continued from 3.6.04

PN542

THE COMMISSIONER: Now, there is another matter that has been called on today; it is an application by State Trustees, I will take appearances in that matter.

PN543

MR S. PETERS: I seek leave to appear on behalf of State Trustees.

PN544

MR R. RICHARDSON: I appear for the CPSU and, with MR D. CHEESEMAN, and we have no objection for leave being granted for Mr Peters to appear.

PN545

THE COMMISSIONER: Leave is granted. Now, what do you want me to do with these two files?

PN546

MR PETERS: Commissioner, there has been late - - -

PN547

THE COMMISSIONER: Late breaking news, is there?

PN548

MR PETERS: Late breaking news, thank you, Commissioner.

PN549

THE COMMISSIONER: Splendid.

PN550

MR PETERS: You have got exactly the right turn of phrase. We have met in my offices upstairs; Mr Cheeseman, Mr Richardson and myself and our clients, and we propose the following with the Commissioner's thoughts, please.

PN551

THE COMMISSIONER: Yes.

PN552

MR PETERS: In the matter of 1971, which of course is the application to vary by deletion of behalf of the CPSU, we say that we do not oppose that application any more. And in the matter of 3690 which is our application, we say that we seek to withdraw that by consent. And we ask from the Commission the following; the first is that, at the Commissioner's discretion, if that is possible for the deletion therefore to occur as of today's date. We say that with a view to not having any retrospectivity. I can indicate to the Commission that that is agreed between the parties, but of course I have used the words "the Commissioner's discretion".

PN553

THE COMMISSIONER: Yes.

PN554

MR PETERS: The second is with the view to the fact that the parties have had some discussion and understand that portions of the 1994 award are somewhat miscommunicative in terms of the way that they have been written. In particular clause 5.1 which talks about parties bound, I think by memory. I will just check that, Commissioner. Well, the definition at this stage on 5.1 talks about eligibility for membership of the CPSU including all employees into this award. The parties agree that we should look, in the future, at adjusting that definition and through that process, if it is adjusted it will, of course, create an exemption.

PN555

THE COMMISSIONER: Yes, I follow how it is done, yes.

PN556

MR PETERS: Thank you. The second part of our submission is that we all understand that at the moment the award reflects upon a classification made that relates to job levels 1, 2, 3 and 4. And that has been superseded some years ago by the current process which, as you might recall, is Merit; M-e-r-i-t. We understand that we do have to, in the future, consider that classification structure so that it reflects more accurately the current method of operation, but the company and the union and employees are in the process of negotiating a certified agreement, and the company's position is that we should await the conclusion of the certified agreements so that we can put, if necessary, to the Commission our views upon - on that more succinctly. And the final thing is just a somewhat moot point, but we suggest that 4, clause 4, now reads, if the Commissioner agrees:

PN557

Deleted by consent -

PN558

or something, so that the numbering system is not adjusted.

PN559

THE COMMISSIONER: I see, okay.

PN560

MR PETERS: But it is just an attempt to be helpful. And that is our position at this stage.

PN561

THE COMMISSIONER: Thanks very much. Mr Richardson?

PN562

MR RICHARDSON: If the Commission pleases, we concur with Mr Peters. We agree that the removal of clause 4 as per our application to vary, should be as of today's date. We agree that the summary that Mr Peters has given about the issues that, to properly establish the award as the safety net, there needs to be some work done on it, and those discussions are continuing and at some stage in the future the parties hope that they will be in a position to bring back a revised document for the Commission's scrutiny. If the Commission pleases.

PN563

THE COMMISSIONER: Thank you. Well, when you have finished your bargaining which no doubt is consuming your efforts, it might be then if you set yourself a timetable to make sure that the award properly underpins the bargain and I wouldn't be disappointed if you gave yourself to the end of this year to complete that task. Very well. By application dated 24 February 2004, the CPSU; the Community and Public Sector Union, sought to vary the State Trustees Limited Award 2004 by deleting clause 4 exemptions. The matter proceeded in conciliation and a number of hearings also took place over this issue. Extensive material has been provided to the Commission both as to the history and to the intent of the parties in relation to these matters.

PN564

By application dated 18 June 2004, State Trustees Limited sought to vary the award to make clear in its view the correct operation of clause 4 exemptions. There have been discussions between the parties which have now resulted in agreement. The agreement firstly is that matter 3690 of 2004 is withdrawn by consent. The second aspect is that in matter 1970 of 2004, State Trustees no longer oppose the variation, and have reached an agreement with the union as to the operative date. All in all it appears to me that a very satisfactory result has obtained in this matter, particularly in circumstances where the parties are going to give some close attention to the underpinning award to make sure that it acts as a safety net for this enterprise, and provides it with the necessary relevance to the work of the enterprise.

PN565

I will vary the award in the manner sought by the union in its application in C1971. The variation will occur from today. Now, I think there was another order that I had on foot too, wasn't there, Mr Peters, do you recall that?

PN566

MR PETERS: At a point of time I think you were referring to a suspension of that clause.

PN567

THE COMMISSIONER: Yes.

PN568

MR PETERS: I assumed that you would seek to withdraw that suspension.

PN569

THE COMMISSIONER: Indeed. Yes, I will add that resulting out of a controversy between the parties, and order was issued suspending the operation of the clause. I shall issue an order setting aside that order also, as of today's date. Well, thank you very much. This matter is adjourned, sorry, yes, Mr Peters?

PN570

MR PETERS: Commissioner, could I just ask that we gain copies of the transcript in the normal fashion? I assume - - -

PN571

THE COMMISSIONER: Of course, yes, we will attend to that, and I will publish the decision that I have just announced, reserving under myself the write to edit it to ensure elegance of language.

PN572

MR PETERS: Thank you.

PN573

THE COMMISSIONER: This matter is adjourned sine die.

ADJOURNED INDEFINITELY [11.48am]