C2004/5011, Transcript of Proceedings [2004] AIRCTrans 4805 (8 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 8968

A 29.11.04

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/5011
C2004/5063

APPLICATIONS FOR A COMMON
RULE AWARD

Applications under section 141 of the Act
by Victorian Trades Hall Council and Others
for common rule awards

MELBOURNE

12.47 PM, THURSDAY, 4 NOVEMBER 2004

Continued from 4.10.04

C2004/5011

DRAUGHTING, PRODUCTION PLANNERS
AND TECHNICAL WORKERS' AWARD 1998

PN42

THE SENIOR DEPUTY PRESIDENT: We will deal with the Draughting Production Planners and Technical Workers' Award 1998 common rule application first.

PN43

MS S. TERPSTRA: I appear for the Australian Manufacturing Workers' Union.

PN44

MR N. BUTTER: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN45

MR L. STEWART: I appear for the AI Group.

PN46

MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN47

THE SENIOR DEPUTY PRESIDENT: I have received telephone advice from Ms Boehm from the VACC indicating that they will not be represented today but they have no objection in principle to the making of a declaration. Ms Terpstra?

PN48

MS TERPSTRA: Yes, your Honour. And I can confirm that the VACC had sent correspondence to us indicating they had no objection to the making of a declaration as well. Your Honour, if I might just in respect to the declaration as has been correctly stated this is an application pursuant to section 141 and 493A of the Act in respect to seeking a declaration for a common rule. The union would submit that the declaration as outlined, and I do have an updated copy of that, your Honour, which I would seek to hand up at this point.

PN49

THE SENIOR DEPUTY PRESIDENT: I will mark the draft declaration you have handed up as T1.

EXHIBIT #T1 DRAFT DECLARATION

PN50

MS TERPSTRA: Your Honour, the declaration is a consequence of discussions between the parties with respect to this matter. And I would just like to make one amendment, small amendment, to that. In the - on page one under the heading of "The Industry" the words that read:

PN51

Extend to and included persons engaged in or in connection with the following -

PN52

should be deleted.

PN53

THE SENIOR DEPUTY PRESIDENT: So how would it then read?

PN54

MS TERPSTRA: It shall then read, and this is taken exactly from the incident clause of the parent award - it shall now read:

PN55

"The industry" applies to the following occupations:

PN56

THE SENIOR DEPUTY PRESIDENT: So:

PN57

"The industry" applies to the following occupations:

PN58

and then it would be:

PN59

1. Tracers and draughtspersons -

PN60

etcetera.

PN61

MS TERPSTRA: Yes, that is correct, your Honour. Your Honour, we would submit that the declaration as proposed supports making of the award common rule by including the substantive provisions to operate under the award. But expressly setting out those provisions of the award that do not apply and the exclusions of the award are set out at clause 4 of the declaration. Further we would submit that the application and declaration as proposed is consistent with the historical award coverage of both - of awards in this area both in respect of Federal and State levels of coverage.

PN62

We would also submit that the terms of the award have been fixed consistent with the principles set out in the safety net review wages May 2004 decision. We would also further submit that the application follows the decision of the Commission in this matter - the Full Bench decision of the Commission in this matter. And complies with the Commission's requirements and Act. Your Honour, in respect to overlap issues the union would like to provide the following undertaking in respect to this matter.

PN63

Your Honour, the undertaking is provided in respect to overlap issues and the undertaking is stated in these terms. The AMWU:

PN64

It is not the intention of the AMWU to seek to retrospectively enforce the common rule declarations in circumstances where an employer has been legitimately and appropriately applying another award which also covers the ...(reads)... under Part IX of the Act.

PN65

Your Honour, we believe that this undertaking would satisfy any particular concerns raised throughout the course of these proceedings with respect to issues of overlap. Consequently, your Honour, we would submit that the declaration for the making of a common rule award in respect to this matter should be granted from the earliest possible date fixed by the Commission. Thank you.

PN66

THE SENIOR DEPUTY PRESIDENT: Ms Terpstra, just looking at the terms of the declaration - - -

PN67

MS TERPSTRA: Yes, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: So given the definition of industry which is occupational based so:

PN69

"The industry" applies to the following occupations: 1. Tracers and draughtspersons.

PN70

MS TERPSTRA: Yes.

PN71

THE SENIOR DEPUTY PRESIDENT:

PN72

Persons engaged in...

PN73

So it is tracers and draughtspersons (or persons engaged in) effectively? That is what it means?

PN74

MS TERPSTRA: My understanding is that it is - well, the incidents clause relating to tracers and draughtspersons. Persons engaged mainly in making drawings or sketches or other data but then not including persons listed in those other subclauses throughout the rest of the declaration industry - industry provisions.

PN75

THE SENIOR DEPUTY PRESIDENT: So you have to be a tracer. If I am a tracer engaged mainly in making drawings from sketches or other data - - -

PN76

MS TERPSTRA: Yes.

PN77

THE SENIOR DEPUTY PRESIDENT: - - - am I covered by the industry?

PN78

MS TERPSTRA: Yes, your Honour.

PN79

THE SENIOR DEPUTY PRESIDENT: What if I am just a person engaged in the planning of operations and or methods and or processes - process, including the estimation of requirements of labour, tools or other equipment - - -

PN80

MS TERPSTRA: Yes.

PN81

THE SENIOR DEPUTY PRESIDENT: - - - or components of goods. So it is one, two, three and four.

PN82

MS TERPSTRA: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: I think we will go into conference.

SHORT ADJOURNMENT [12.56pm]

RESUMED [1.53pm]

PN84

THE SENIOR DEPUTY PRESIDENT: There has been discussions in conference about the common rule in respect of the Draughting, Production Planners and Technical Workers' Award 1998. In light of those discussions there will be some redrafting of the declaration together with an examination of whether an application should be made pursuant to section 113 or of the Commission's own motion to vary the Draughting, Production Planners and Technical Workers' Award 1998 to overcome some problems that appear in that award.

PN85

The matter will be relisted on 29 October(sic) 2004 and if an application is made pursuant to section 113 or if the Commission acts of its on motion in respect of the so called parent award that will be listed on the same date.

C2004/5063

LAND SURVEYORS' GENERAL
AWARD 1998

PN86

THE SENIOR DEPUTY PRESIDENT: I now propose to deal with the common rule declaration in respect of the Land Surveyors' General Award 1998. Who is going to take the running on that? Mr Butter?

PN87

MR BUTTER: Yes, your Honour, if I could formally table a copy of the proposed declaration.

PN88

THE SENIOR DEPUTY PRESIDENT: I will mark the draft declaration as B1.

EXHIBIT #B1 DRAFT DECLARATION

PN89

MR BUTTER: This is an application in accordance with the Act and the principles established in respect of applications of common law declarations. Now, your Honour, the application in accordance with principle 1 seeks to declare all of the substantive provisions of the Land Surveyors' General Award 1998. The exceptions are in respect of machinery clauses as set out in clause 3 of the draft declaration. The proposed operative date is subject to provisos set out in subclauses 5.1 to 5.5 to 1 January 2005.

PN90

The format of the draft declaration in the submission of the Association follows the template that is set out in the test case decision. In respect of overlapping award coverage - although no overlapping issue has been identified the Association is prepared to give the commitment as set out in print number 952589 which says:

PN91

The Association of Professional Engineers, Scientists and Managers Australia undertakes and it is not our intention to seek to retrospectively enforce the common law declaration in circumstances where an employer has been ...(reads)... Part IX of the Act.

PN92

Your Honour, in respect of principle 5 which deals with the historical coverage of the industry this award is a vocationally based award covering two employment categories namely professional surveyors and survey technicians who perform land surveying duties. The Land Surveyors' General Award 1998 has its genesis in the award of the Land Surveyors' Conciliation and Arbitration Board established under the Employee Relations Act of 1979.

PN93

The first award for land surveyors was made in September 1987. The jurisdiction of the Lang Surveyors' Conciliation and Arbitration Board covered land surveyors with qualifications making them eligible for membership in the Institution of Surveyors and Survey Technicians. With the abolition to state common rule system coverage was transferred to the Federal system with the creation of the Land Surveyors' Interim Award 1993 to which the AMWU was respondent and the Professional Surveyors' Interim Award 1996 to which APESMA was respondent.

PN94

This was followed by a number of roping in awards and all of these awards were replaced by the Land Surveyors' General Award 1998 which arrives out of the item 51 review. And which amalgamated the previous awards. Your Honour, as I have just pointed out the Land Surveyors' General Award 1998 has been simplified in accordance with wage fixation principles. And I refer the Commission to decision number 784 of 98 print Q2534.

PN95

In respect of principle 9, superannuation. This issue was dealt with in clause 8 of the draft declaration. And finally, your Honour, it is important to point out that many of the employers in the industry are very small with a regular infusion of new entrants and departure of existing employers. And it is without doubt that the granting of this application will have a real practical effect. If the Commission pleases.

PN96

THE SENIOR DEPUTY PRESIDENT: Mr Butter, can I just suggest some - what I regard as setting out matters. Mere matters of drafting which do not change in my view the intent of the parties. In the definition of industry deleting the comma after the first set of brackets. In the third line of the definition of industry "Earth" I think should be lower case "e". And at the end of that definition of industry it should be a semi colon rather than a full stop, there being another definition which comes after it. And "professional surveyor" should be in bold.

PN97

And I think it should be - rather than "professional surveyors shall mean" it is "professional surveyor means the person who has qualifications" and delete the comma after qualifications. Okay. If you do not have any difficulty with those.

PN98

MR BUTTER: Thank you.

PN99

THE SENIOR DEPUTY PRESIDENT: Ms Terpstra?

PN100

MS TERPSTRA: Yes, your Honour. In hearing these submissions of my colleague in relation to this application the AMWU would adopt the submissions as set out by APESMA in respect to this application. We would also go on record in respect of - as has been identified although there was no overlap issues per se identified throughout the course of this, making of this declaration, the union is still content to give the requisite undertaking in respect to overlapping of coverage.

PN101

And we would submit, your Honour, that it is not the intention of the AMWU to seek to retrospectively enforce a common rule award in circumstances where an employer has been legitimately and appropriately applying another award which also covers the work performed by the employees. This position is without prejudice the rights of the parties to seek the making of roping in awards irrespective of the common rule award being applied by the employer or any rights under Part IX of the Act.

PN102

And we give that undertaking as set out. Your Honour, we would also further submit as well that the declaration is consistent and complies with the requirements of the Act and relevant decisions of the Commission in this respect. And we would also submit that the declaration be granted and operate from the first date as soon as practical. Thank you, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: Mr Eberhard?

PN104

MR EBERHARD: Thank you, your Honour. Your Honour, given that both APESMA and the AMWU have given their commitment and whilst it might not have necessarily been necessary, but they have given their commitment, VECCI would not be opposing the application before you today. If the Commission pleases.

PN105

THE SENIOR DEPUTY PRESIDENT: Very well. Having regard to the submissions that have been put to me and the material contained on the file in this matter I am satisfied I should make the declaration as set out in exhibit B1 subject to the minor drafting matters that I have suggested to the parties. I am satisfied that to do so would be consistent with the requirements of the Act and the regulations. The declaration will come into force from - is it 1 January 2005? The declaration will issue in due course in a formal form. I will now adjourn.

ADJOURNED INDEFINITELY [2.10pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #T1 DRAFT DECLARATION PN50
EXHIBIT #B1 DRAFT DECLARATION PN89