C2004/3396, Transcript of Proceedings [2004] AIRCTrans 4490 (22 November 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 3612

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER BACON

C2004/3396

QUEENSLAND LOCAL GOVERNMENT OFFICERS' AWARD 1998

Application under Section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the above award
re various clauses

BRISBANE

9.40 AM, TUESDAY, 5 OCTOBER 2004

Continued from 20.5.04

PN50

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

PN51

MR. R. BEER: I appear for the Local Government Association.

PN52

MS C. KING: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN53

THE COMMISSIONER: Mr Buckley?

PN54

MR BUCKLEY: Commissioner, the application is before you today in accordance with Section 113 of the Workplace Relations Act and my understanding is that the purpose of today's hearing is to deal with those matters which have been agreed to by consent. Now, the way that the application is being amended such that schedule 1 deals with those issues which are consent matters, and I'll just speak to you about that further when I have finished these, and schedule 2 are in respect to those matters which have been the subject to some conciliation, but are not yet deemed to be consent matters, unless Mr Beer has some other submissions to make along those particular lines at this time which we're not aware of.

PN55

So it's only in regards to those issues which are shown there in schedule 1. Now, Commissioner, schedule 1 came about by a series of errors and omissions which were made during the re-consolidation of the award following the Section 89A stripping back in 1998, and there were some requests made from the Queensland Local Government Officers' Association, supported by the Australian Services Union, at that time, to Commissioner Hodder to make those changes to the award by correcting the errors and omissions which are identified by the parties.

PN56

That was communicated to the Commission by way of letters to Commissioner Hodder, but through some misadvertence on the parts of the parties, they were never ever effected. Now, you've heard some submissions in regards to that during the conciliation stage and we've sorted those out. Now, Commissioner, we thought we'd sorted them out to the extent that schedule D, which was identified as a schedule in the award which had been inadvertently omitted but was referred to within the body of the award itself, would be reinserted. I contacted Mr Beer and indicated to him that those references in schedule D which were not in keeping with the current language contained in the award, such as "town clerks" or "shire clerks" are not longer referred to under the Act or in the award, and they are now referred to as "chief executive officers", that we would change "town clerk" to "chief executive officer", and I would refer to the clauses which were named in the old award to the current clause in the new award. So that's what we have done.

PN57

Now, Mr Beer has arrived here today and indicated that the Gold Coast City Council are objecting to that document being reinserted back into the award. Now, not only do I find that extraordinary, given the circumstances, that Mr Beer should turn up here this morning and make that announcement and say that he's got instructions to do that, how, we submit, he can put that to the Commission, given that schedule D is a part of the award. It's only been left off physically, but it still forms part and parcel of the current award. It's just that the schedule was missing.

PN58

Now, for him now to come before this Commission and make - or intend to make submissions on the basis that the consent matters which were agreed to between the parties are now in some form of jeopardy because he has received some correspondence from the Acting Chief - sorry, the Acting Human Resource Manager at the Gold Coast City Council objecting to a document being - appearing in the award which is within the award technically is beyond me, but I'll let Mr Beer try and convince you on that.

PN59

By sheer chance I brought some documents along, which I would like to tender. Commissioner, it's from the Local Government Association of Queensland and it's dated 10.11.99, to Mr Ron Whittington from Ray Clough for your information. That's the fax front sheet. There's a letter there to Commissioner Hodder, dated 10 November 1999, to the Australian Industrial Relations Commission saying:

PN60

Dear Commissioner, Award Simplification Queensland Local Government Officers Award. The order of 30 June 1998 which formalised the award simplification process in respect to the above award has been found by the parties to contain a number of provisions which will require correction.

PN61

It then goes on to say:

PN62

The parties have over a period of time documented the provisions requiring ...(reads)... indicate their availability should you wish to discuss the matters further. Yours sincerely -

PN63

and it's under the signature of Ray Clough, Industrial Information Officer. Now, it goes through a number of points, Commissioner, and on page 3 of that document at the bottom you will see:

PN64

Schedule D of 1992 Award City of Gold Coast 9 Day Fortnight System -

PN65

and then it says:

PN66

Current deleted from the award. Correction: reinsert in the 1998 award.

PN67

So for Mr Beer to now come here before this Commission this morning saying that he has received instructions from the Gold Coast City Council to object to the consent application going ahead is totally beyond me, given that in 1999 on 10 November the LGAQ formally requested the Commission to reinsert that very document into the award and by sheer inadvertency it has not been done.

PN68

So, I think, Commissioner, from a threshold point of view we need to clear that up and find out just where Mr Beer is going with this because to be quite frank I feel very angry about this because if indeed he had any inkling of this matter being put to him by the Gold Coast City Council, he should have at least informed ourselves and this Commission so that we're not wasting more time in regards to this matter. If he's saying that Schedule D is not in by consent, I can't see how he can say it, given what I've put to you at the present moment. I will just leave my submissions there for the moment, if I may, Commissioner.

PN69

THE COMMISSIONER: Very well. Thank you. Do you have anything, Ms King?

PN70

MS KING: I have nothing further, Commissioner, other than to add that we support the ASUs claim.

PN71

THE COMMISSIONER: Very well. Thank you. Mr Beer?

PN72

MR BEER: Thank you, Commissioner. I think Mr Buckley puts it too strongly that I've got instructions to object to Schedule D going into the award. What I have got is an email communication from Council's Acting Manager of Human Resources at the Gold Coast, simply requesting that LGAQ not consent to the addition of Schedule D to the award. They say to me in explanation of that in their email that:

PN73

Further, we would also seek some time to consider the material provided by the LGAQ as to its content and potential impact.

PN74

And that material that is referred to is in fact a copy of the application that was filed in the Registry on 1 October which LGAQ promptly forwarded to its membership on 1 October. Mr Dunley has clearly picked up that advice to the councils and has realised that in Schedule 1 there is the inclusion of Schedule D to go back into the award and consequently this morning I received the email to which I have referred.

PN75

I should indicate to you that LGAQ has given advice to the Gold Coast City Council which is entirely consistent with the document that Mr Buckley refers to and the Council does acknowledge that. I am happy to quote from the email that suggests that that is in fact the case; that our advice to the Council has been that Schedule D was omitted as a clerical error on the part of the Commission itself and that's why it doesn't appear in the print currently for the 1998 award. I have no problem with that being the situation because that is clearly what I understand the situation to be and I have communicated that to the Gold Coast City Council. But, notwithstanding all of that, they have come back to me with an email that says - and I quote:

PN76

We would ask that you do not consent to its reinstatement.

PN77

So, for the record, that's precisely the position I'm in this morning. I don't know there's a lot more that I can assist you with in that regard, Commissioner.

PN78

THE COMMISSIONER: Very well. Thank you, Mr Beer. Mr Buckley?

PN79

MR BUCKLEY: Well, Commissioner, I won't labour the point but, with the greatest respect, the request from the Gold Coast City Council would appear to the ASU to have no validity whatsoever: you cannot object to a clause which already forms part and parcel of the agreement in terms of reference within - - -

PN80

THE COMMISSIONER: Well, you can.

PN81

MR BUCKLEY: Yes, you can but whether or not - - -

PN82

THE COMMISSIONER: How much regard the Commission might have to that - - -

PN83

MR BUCKLEY: Yes, we would suggest, Commissioner, that the Commissioner have no regard to that request and dismiss the request from the Gold Coast City Council and that the matter proceed with in line of the arrangements which we had.

PN84

THE COMMISSIONER: You have nothing else in relation to the other matters?

PN85

MR BUCKLEY: I have, Commissioner. Commissioner, there is an amendment, which we apologise for, which Mr Beer has identified this morning, which we concur with. If I could take you to clause 13 or point 13 - it may be better for me to refer to it - of Schedule 1. It says:

PN86

By deleting subclause 15.7.4 and inserting the following -

PN87

and then we've got 15.7.4:

PN88

This provision does not apply to executive officers.

PN89

And then at 14 we've got:

PN90

By deleting subclause 15.8 -

PN91

now, we've made an error there. It should be: "by deleting 15.74" and then subclause 15.8 reads:

PN92

This provision does not apply to executive officers.

PN93

Mr Beer has correctly pointed out that if we keep it in 15.74, it will only have reference to 15.7 rather than making it 15.8: it would have effect to the whole of clause 15 which is what the original award said. So he is perfectly correct in regards to that. So 13 will read:

PN94

By deleting 15.74 -

PN95

14 will then read:

PN96

By deleting - - -

PN97

THE COMMISSIONER: Is 15.8 new?

PN98

MR BUCKLEY: 15.8 was there. We're just renumbering 15.74 to 15.8, Commissioner. That's what we'll do. I do apologise for that. That wasn't - - -

PN99

THE COMMISSIONER: Just before you go on, if 15.74 becomes 15.8 and 15.8 reads:

PN100

This provision does not apply to chief executive officers -

PN101

is that right?

PN102

MR BUCKLEY: Yes. 15.8 will read:

PN103

This provision does not apply to chief executive officers.

PN104

THE COMMISSIONER: Very well. Thank you.

PN105

MR BUCKLEY: Just for the record, it wasn't Ms Heap who made the error. That was all my own work, Commissioner. She is very precise.

PN106

MR BUCKLEY: Commissioner, the rest of the schedule has been amended to reflect the language which the parties to at the last conciliation hearing, and I think that there's no other objection in regards to those clauses as they are currently structured, Commissioner. On that basis, we would ask the Commission to vary the award by consent as shown in the schedule, with the exception of the amendment to clause 15.8 and the deletion of 15.7.4. If it please the Commission.

PN107

THE COMMISSIONER: Thank you. Ms King?

PN108

MS KING: I have nothing further again, Commissioner, other than we support what the ASU have said to you.

PN109

THE COMMISSIONER: Thank you. Mr Beer?

PN110

MR BEER: Thank you, Commissioner. I am having trouble recollecting, and the file doesn't reveal whether or not the union actually moved to amend the original application to include what is now a schedule setting out the errors and admissions that you see before you in the application that was filed on 1 October.

PN111

THE COMMISSIONER: You mean formally this morning?

PN112

MR BEER: That's correct. Notwithstanding that - I don't propose that to be an obstacle to you dealing with the matter today, I just note it for the record. And in relation to items 1 to 17, there is consent from the LGAQ to the award being varied in the manner prescribed in the schedule put in by Mr Buckley, and I think issues 18 and 19, which were addressed earlier in these proceedings, remain something upon which I am not able to give consent at this point in time.

PN113

I raise the issue about whether the schedule 1, which didn't form part of the original application, and for which there's been no motion to amend that I'm aware of at this point, I would simply raise that because in sending out this material to the membership last week when it was first filed, the membership would have first - on the first occasion last week seen that schedule 1 was included in the agreement and it was moved to vary by way of correction amendment some omissions from the 1998 award simplification. And I think that's, by way of explanation, probably where the Gold Coast City Council has picked up on, reading the application, expecting to read the substance of schedule 2 and then discover that in schedule 1 there are a raft of other changes which has attracted their attention and accordingly their email to me recently giving me instructions not to consent.

PN114

I just simply offer that, Commissioner, by way of explanation. I should further indicate that I have been given no time frame from the Gold Coast as to the further time they seek to consider the material provided by LGAQ as to its content and impact, that the further time they refer to there, there's been no indication given to me as to whether that's a week, a month or a year. I simply indicate that to you for your information.

PN115

Having said that, Commissioner, as I indicated to you before, items 1 t 17 in schedule 1, we would consent to being made award variations. May it please the Commission.

PN116

THE COMMISSIONER: Very well. Thank you. Well, to the extent it's necessary, the Commission accepts the document that was provided to it in matter C2004/3396, that the original application has been amended in the way that is contained in the ASU material that was received by the Commission I think earlier this week. In relation to that material, it does contain schedule 1 and I note that items 1 to 17 of that schedule are matters that go to correcting what might be described as omissions or errors in the existing award and that there is consent of all parties for the Commission to make those variations.

PN117

Accordingly, the award will be varied to reflect schedule 1 as amended, and those variations will be made by consent.

PN118

Turning to the matters raised in items 18 and 19 of the amended application, I note that that matter doesn't proceed by way of consent but nevertheless I am satisfied that the application should be granted. The reason for that is that it is the correction of an error in the award and, dare I say it, an error that apparently has existed for some five or more years now and obviously not a lot turns on it if an omission of that type can be left out of an award and no-one seems to get too excited for half a decade about it. But, nevertheless, the error should be remedied and it will be, but I do note, Mr Beer, that that remedy is by arbitration of the Commission and by order of the Commission as opposed to anything that's been consented to by yourself.

PN119

All of those variations will come into effect from the first pay period which commences on or after today, and an order varying the award in the way just described will issue in due course. I adjourn the Commission.

ADJOURNED INDEFINITELY [10.05am]