C2004/3396, Transcript of Proceedings [2005] AIRCTrans 1088 (6 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11411-1

COMMISSIONER BACON

C2004/3396

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
s.113 - Application to vary an Award
(C2004/3396)

BRISBANE

10.07AM, THURSDAY, 28 APRIL 2005

Continued from 11/2/2005

Reserved for Decision

PN5522

MS L HEAP: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union. With me is MR I BUCKLEY.

PN5523

MR K WATSON: I appear for the respondents, and with me is
MR ROGER BEER, from the Local Government Association of Queensland, Incorporated.

PN5524

MS HEAP: Commissioner, I understand that we appear before you today to do a range of things, and I'd just like to put on the record what we understand those things to be. Firstly, the first task before us is to finalise the issues related to a draft order to be issued in relation to your decision on the matter that you actually had determined in that decision. Secondly, you've asked us to come back to you in relation to further submissions on three items, the first being the proposal to delete the stand-by provision from the award. The second related to the
10 per cent loading for part time employees, and the third being information that you require in relation to the calculation of the appropriate casual loading in the award.

PN5525

So those are the matters that we have before us today, Commissioner. You have before you a draft order which has been prepared by the Australian Services Union and updated as late as today to take account of some of the issues that the Local Government Association of Queensland has raised on behalf of the applicants in this matter, but there are matters within that draft order which still remain outstanding, and so it would be appropriate, based on our discussions prior to the hearing today, to start on the record today dealing with each of the issues in the draft order which remains outstanding between the parties.

PN5526

THE COMMISSIONER: Very well, thank you.

PN5527

MS HEAP: The first issue outstanding between the parties, Commissioner, is in relation to the wording at 8.2 of the draft order. Clause 8.2 in the draft provided by the ASU starts with the words, "To ensure that all officers are correctly classified a respondent will" and continues on in an area that is uncontested between the parties. The ASU says that those words are appropriate in the context of your decision in order to pick up the point that the reason for providing this information or the reason for having this provision within the award is to ensure that employees have accurate information necessary for them to be able to determine whether they're appropriately classified in accordance with the schedule in the award which sets out the classification descriptors.

PN5528

It is therefore a statement of fact about why this information has been provided and we say it's useful to be included upon that basis and the LGAQ and the applicants in this proceeding pose the use of the words "To ensure that all officers are correctly classified", and that's the difference between us on that matter, Commissioner.

PN5529

THE COMMISSIONER: Thank you. Mr Watson?

PN5530

MR WATSON: It might assist the Commission and Ms Heap if I hand up a document which actually encapsulates the differences that we have with the draft order which has been supplied. This has been the subject of an email between Mr Beer and Ms Heap, so it doesn't take Ms Heap by surprise, my handing up this document. You will note that I have deleted, that is, crossed out, certain items on there. That's because, as a result of that email, those matters have now been picked up in the draft order which has been put up to you.

PN5531

On this matter, I repeat what I said off record, namely that there is an obligation which recognises the respondents are under in relation to correctly classifying employees. That's an obligation which emanates from the award as a whole. It is what is required by the award. These words don't add anything and don't detract from that obligation. In my submission they are superfluous, but perhaps more importantly, they don't resonate what you said in your decision, and if I can simply read out what you said at paragraph 48 of your decision of 29 March, you said:

PN5532

The Commission has reached the conclusion that the ASU has established that the award should be varied in some way to ensure that employees are provided with relevant information concerning the classification to which the employee is appointed and the reasons for such appointment.

PN5533

That is not ensuring that people, persons are correctly classified. It is, as we recognise, what you said in your decision, and what the remainder of the clauses do, namely, that is mainly to provide relevant information, and that's the obligation. They are my submissions.

PN5534

THE COMMISSIONER: I don't think these words do anything. And what they do, I don't think is achievable. Because they say that, to ensure certain things, well, that means that there will never be a dispute about a classification because you can't ensure something, I mean, there's all sorts of difficulties with the use of the word "ensure". The important point about all of this was that the ASU complained that people weren't being given adequate information and it was the intention of the Commission to correct that, and the clause as proposed by the LGAQ in my view achieves that. So I would not intend that the contested words would be included in the award variation, and I don't think that really does anything to the paragraph itself. Ms Heap?

PN5535

MS HEAP: Commissioner, I understand therefore then what you're saying at 8.2 is that the clause will start:

PN5536

A respondent will -

PN5537

is that correct?

PN5538

THE COMMISSIONER: Correct.

PN5539

MS HEAP: Thank you. Commissioner, the next matter is in relation to clause 8.4 in the draft order and the matter concerns whether or not the words that should be used - whether or not we should have a provision that states that any disputes that are initiated in accordance with the process - sorry. The dispute is really about, as I understand it now, from reading the latest proposal from the LGAQ as to whether or not there should be a further amendment to the award in clause 34 to include the fact that you said in your decision that there is a value. Whilst generally the Commission doesn't reinforce provisions that the dispute settlement procedure can be used, when it can be used for every clause in the award, the decision that you made was that it was useful in this context to reinforce that concept to clarify any confusion that could exist around this issue.

PN5540

So 8.4 was included to make sure that we picked up that point. I understand what the LGAQ is saying is that there should now be a variation to clause 34 of the award of the dispute settlement procedure to say within that provision that 8.4 also applies in the dispute settlement procedure. To be quite honest with you, I hadn't understood that until seeing this draft yesterday from the LGAQ and looking at it today, we would say it's not necessary but we wouldn't argue over that point in any great detail.

PN5541

THE COMMISSIONER: Thank you. Mr Watson?

PN5542

MR WATSON: May it please the Commission. We may be being overly cautious here, but it really again emanates from what you said in your decision at paragraph, this time paragraph 53 where you said the disputes procedure is at clause 34, that procedure captures disputes over reclassification. We don't cavil with that. Whilst it is slightly repetitive the parties agree that the clause should include a statement that in reclassification disputes, shall be dealt with in accordance with the disputes procedure. In order to provide certainty the Commission will include such a statement in the award.

PN5543

When you said the parties agree that the clause - and having referred to clause 34, we are of the mind that you were anticipating that there be some statement in clause 34 to the effect that the disputes procedure will also utilise for dealing with reclassification disputes to make the matter abundantly clear. We also suggested that in the current draft before you in 8.4 that perhaps both of those matters might be achieved by inserting after:

PN5544

with the disputes procedure of this award -

PN5545

in the second line, the words, "contained in clause 34", or something to like effect. So that perhaps, more specifically:

PN5546

with the disputes procedure contained in clause 34 of this award -

PN5547

is perhaps how it should be read.

PN5548

The difficulty about this is that - I think everyone here knows what was intended by the Commission with respect to that. We're just looking to what may happen in five or 10 years' time or something like that, so that there's absolute clarity as to what's being done with respect to that.

PN5549

THE COMMISSIONER: Ms Heap?

PN5550

MS HEAP: Just to clarify, then, Commissioner, we would accept the wording change proposed by the LGAQ this morning at 8.4 of the order.

PN5551

THE COMMISSIONER: Which I understand to be, to insert after the words:

PN5552

disputes procedure -

PN5553

the insertion of the words:

PN5554

contained in clause 34 of this award -

PN5555

MS HEAP: And full stop.

PN5556

THE COMMISSIONER: Correct.

PN5557

MS HEAP: That's acceptable to us, and we don't believe that any variation to clause 34 is therefore required.

PN5558

THE COMMISSIONER: I'm more than happy, Mr Watson, that this provides more than sufficient precision about what's intended. If there's a dispute about this it's to be dealt with in accordance with clause 34 of the award, being the disputes procedure.

PN5559

MR WATSON: I agree, Commissioner. As I said, it was an abundance of caution given what you said in paragraph 43.

PN5560

MS HEAP: Just to clarify, when I said full stop, Commissioner, I mean, that's the end of that sentence. But the next sentence would - abundantly cautious, as we are in this process - would then continue on after that.

PN5561

THE COMMISSIONER: Yes, I understood that.

PN5562

MS HEAP: Commissioner, the next issue was in relation to a simple drafting issue. The LGAQ pointed out to us that in some of our drafting at clause 51 we hadn't picked up that the current drafting within the award uses the language of respondent for the employer and officer for the employee. We have picked that up now in this draft order, except that in relation to the setting out of the, if you like, the Full Bench component of clause 15, which is at 15.2, we continued to use the word "employee" and "employer", mainly because, if you read it, say, for example, the example at 15.2.1:

PN5563

any risk to officer health and safety -

PN5564

doesn't flow as well as:

PN5565

any risk to employee health and safety.

PN5566

We are not concerned if, as from a consistency point of view the decision should be that we should, all the way through it, use officer and respondent if it doesn't change the context of the actual provision and that may be the best way forward, subject to what the LGAQ has to say.

PN5567

MR WATSON: We don't understand this to be an issue, so whatever the ASU has put up, we accept.

PN5568

THE COMMISSIONER: Is there a definition in the award which says either that an employee is an officer or an officer is an employee? Is that made clear somewhere? This is just the consistency of language, is it, where sometimes it's an important that a person is described as an employee and sometimes as an officer?

PN5569

MR WATSON: Yes.

PN5570

MS HEAP: I'm advised, Commissioner, that it may be that there were references originally in the 1992 trialling document that was used to define - there was a definitions provision in that, but it hasn't found its way, apparently, into the actual drafting of the award. That's made clear. I mean, I don't think there's any issue between the parties that that's the understanding of the language within the award.

PN5571

THE COMMISSIONER: I think there's some benefit in consistency of language and if it is the general of both sides that the term officer is used throughout the award, then, unless someone can show me a good reason, then that term should be used in 15.2.1, 15.2.2 et cetera. I don't again think much turns on it. I doubt there could ever be much contest about it.

PN5572

MS HEAP: And I understand, Commissioner, that it's not an issue between us in the sense of anything turning on it. So what we would do is we'd say 15.2.1 in the draft order currently before you would be amended to say:

PN5573

any risk to officer health and safety.

PN5574

THE COMMISSIONER: Or "to the officer's health", "to the officer".

PN5575

MS HEAP:

PN5576

To the officer's health and safety.

PN5577

And 15.2.2 would read:

PN5578

the officer's personal circumstances -

PN5579

and 15.2.4 would read:

PN5580

The notice given to the respondent of the overtime and by the officer of his or her intention to refuse it.

PN5581

And I think that picks up all of the outstanding matters. In any event if we find any in the rest of today, for example, I'm sure we could correct any on the basis that we have a clear understanding about why we would be doing it, from the consistency point of view.

PN5582

THE COMMISSIONER: Thank you.

PN5583

MS HEAP: Commissioner, the next issue is in relation to the drafting in 17.1, types of employment. Now, Commissioner, it appears that there is a clear difference of understanding at this point, anyway, about the intention of your decision on this matter. If we go to your decision in relation to this issue, the decision deals with effectively the ASU application for a fixed term employment provision and obviously in relation to - actually if we go back a step. Your decision in relation to method, what the ASU put to you obviously was that we wanted to have a method of employment provision introduced in the award that set out the types of employment available within the industry and the types of employment that we had put to you were full time, part time, casual and fixed term employment.

PN5584

In relation to the drafting that we proposed in relation to this matter, you rejected the ASU's submission about how the types of employment provision should be drafted in a general sense and said that you believed that the better approach would be to use the drafting picked up by the Full Bench in the award simplification decision and to set out simply that the heading would be types of employment, and to then specify what the categories of employment would be, full time, part time, and in this sense you said the Full Bench decision set out full time employees, regular part time employees or casual employees and you go on in your decision to say - and that's what you propose should happen here, but obviously you reserved about what the full category, the full levels of category employment would actually be.

PN5585

Thinking, as you express in your decision, that you've got to deal with the ASU's application round fixed term employment and eventually you rejected our application for fixed term employment and determined that you should put a provision around maximum term employment. So the drafting around clause
17 is just that, is no more than what you've suggested should be done in relation to using the award simplification case, but adding the decision that you subsequently made about the inclusion of a new category of employment called maximum term employment, a category of employment which, you said, was designed to pick up the old concepts around temporary employment and project employment and the new circumstance, having brought to your attention around other ongoing scenarios.

PN5586

So that's what we've done in relation to the draft and I don't understand why that's actually contested in the sense that it's relatively clear that maximum term employment should be listed in the category of types of employment under the types of employment provision. I understand that on this point the LGAQ objects to the inclusion of maximum term of employment under the heading of types of employment.

PN5587

THE COMMISSIONER: Mr Watson?

PN5588

MR WATSON: With the greatest respect, we submit that your decision on this matter is abundantly clear, and it occurs in paragraph 80 of your decision where you say:

PN5589

The clarity the Commission intends of both the following paragraphs of the award simplification case decision be included in the award -

PN5590

and you set out the clause that you proposed, except that of course consistently "officers" has now been used rather than "employees". There is no mention there of maximum term employment.

PN5591

Now, there is a good reason for that and we submit it comes from this. When you used words and then follow use the words categorically or set as categories and then follow them with the word "or", they suggest alternatives. Maximum term of employment is not an alternative to full time. You can be a full time employee and a maximum term employee. You can be a regular part time employee and be a maximum term employee. So that it really sets out something which is alien to your decision and at the highest, based on your decision, but it can be confusing.

PN5592

THE COMMISSIONER: Mr Watson, clearly the Commission intended that this matter need to be the subject of further discussion. I mean, I accept what you say about clause 80. But clearly clause 86 flagged the Commission's view that dependent upon what view I took about these other types of employment questions, there may be a need to include in the types of employment clause something about either fixed term or maximum term employment.

PN5593

The issue that exercises my mind is that I agree fully with you that either fixed term employment is a subset of full time employment and maximum term employment is a subset of part time employment, or full time employment and part time employment are two separate subsets of fixed term employment. I agree that they are not exclusive, and neither is fixed term for that matter. Fixed term employment is not exclusive of full time employment or part time employment. It is exclusive of casual employment, because casual employment, as we know, ends every day.

PN5594

MS HEAP: Well, Commissioner, this is the issue with the LGAQ's reasoning, and that is that what they're saying is, casual employment is a separate category. The logical conclusion of their reasoning is a full time employee is a full time employee, a part time employee is a part time employee, a casual employee can work full time, a casual employee can work part time, right? So what they're saying is, you know, what I think is happening here - - -

PN5595

THE COMMISSIONER: No, a casual employee can't work part time. They can work the equivalent hours of a part time worker or they can work the equivalent hours of a full time worker.

PN5596

MS HEAP: Yes, and - - -

PN5597

THE COMMISSIONER: But in the different context, I'm not saying every award or agreement that I've ever seen is absolutely precise on these points, but it nevertheless remains a separate category of employment.

PN5598

MS HEAP: And what we're saying here is that in effect the way that you've made your decision is maximum term employment is a separate category of employment, right? Because what you- - -

PN5599

THE COMMISSIONER: It's how you word that?

PN5600

MS HEAP: It's how you word that, we agree with that. But it's not - I mean, what the LGAQ says, it's just like probation. Any person could be maximum term employed. Their solution was that you say it's the same as probation. You start everyone off on - effectively you'd start everyone off on maximum term and, you know, at some point there'd be a decision whether that's right or not. Well, that's not right. What you say in your decision is that you are forming the view that there should be a new category of employment called maximum term employment. You take away project employment, you take away temporary employment, and as a new category.

PN5601

Now, what we say is this. We're getting highly technical in a way that we don't need to be. It's quite often that awards will have a definition of full time employment, a definition of part time employment, a definition of casual employment, and a definition of other forms of employment which could actually be full time or part time, or worked on a full time basis or worked on a part time basis. The use of the language, full time and part time, is designed to try and categorise some rights that are around those issues. Really what we're talking about in this award is that there are ongoing employees who may work full time or part time, and there are non ongoing employees who may be employed on a casual basis or who may be employed on a maximum term basis and whose hours may be regulated, and we'd set out the provisions for that.

PN5602

It's not fixed, the issue is not fixed by what the LGAQ proposes or by suggesting that it isn't a different type or category of employment, the maximum term employment, and so what we say is it's very common for awards to have this provision. Full time is basically effectively a category of employment, it's a short term way of saying, this is ongoing employees and they will work these hours, and part time is, these are ongoing employees who will work less than those hours and will have these rights. Maximum term in this context is about a different type of employment, albeit that they could work those hours on a full time basis, or they could work those hours on a part time basis.

PN5603

I think there's that difference between us which is an absolute - it's a substantive difference. The LGAQ is wrong to say that maximum term employment I the context of your decision is not a different form or type of employment, because the consequence of that is, what they say is that all employees could be engaged on a maximum term provision as the same as you would use a probationary provision and that's not correct. So whether we've got the words right or not in terms of capturing the decision, the solution that they propose is not the correct solution.

PN5604

THE COMMISSIONER: The question I have for you is how that may interrelate with other parts of the award which deal with, for instance, the accrual of leave. Leave is accrued on a full time basis, that I in the annual leave clause, for full time employees, for part time employees and for casuals, in that they don't get any. So all three of those things are dealt with. The issue, and why I'm hesitant to introduce, as it were, another type of employment as such, is how do you deal with that, for instance, in the annual leave clause, because currently they wouldn't be identified.

PN5605

I guess one of the questions I have is that, again, this comes into issue because it's currently under the microscope, but the same issue presumably has always - well, to the extent that there's any conflict, it always applied to project work, people employed under that clause, because they could have been employed part time or full time.

PN5606

MS HEAP: That's correct.

PN5607

THE COMMISSIONER: And temporary employment to the extent that roughly the period of engagement was known, and those people could be engaged as a temporary, either on a full time basis or a part time basis.

PN5608

MS HEAP: Exactly that, Commissioner, that's exactly our point, that the use of the full time employment, the definition of officers as full time employees and part time employees is essentially a shorthand way - what the industry has used and what a lot of industry use - possibly inappropriately - of shorthand saying, these are ongoing roles. I mean, really what you'd have is the hours clause that says people can work on full time hours which are this, and part time hours which are this, and the method of engagement provision wouldn't actually relate to hours. It would actually try and describe the type of ongoing employment.

PN5609

So you'd have ongoing employee who could work part time or who could work full time, and you'd have casual employee and you'd have, in this scenario, maximum term employee and they would be the methods of engagement. But what this industry has done, and as I said again, what all industries have done is shorthand, instead of trying to define that concept of method of engagement properly, they've used the shorthand, full time and part time, essentially. They've mixed up the hours concept with the nature of the type of employment, and you're exactly right when you say that this is not an issue of the making of your decision at all. It's an issue about the way the award has always operated, because it's the same issue for project employees, it's the same issue for temporary employees.

PN5610

The point that we're making is that the LGAQ's solution is not the solution, because what they then say is what you do is you introduce the concept within the award of maximum term engagement as if it's the same as probation, and that cuts absolutely across the rationale for your decision. The rationale for your decision was, as was the case in the NTU case, was that there is some rationale and reasoning that should be supported to say that you shouldn't have willy-nilly insecurity of employment where it's not required.

PN5611

So their reasoning in this process would cut across the logic of your argument and the logic that the Full Bench has, and the Full Bench that you relied upon in relation to why it was useful to actually introduce this concept of setting out some rights or setting out some entitlements for people who are in less secure employment arrangements. So we say that the industry has always used full time and part time as descriptors to categories of ongoing employment. We continue that on in this draft. We're just introducing the new category of employment called maximum term which picks up two others. That's not controversial. If that's not sufficient, then we say if a different drafting has to be introduced, and a very different review, that the LGAQ's drafting is not the appropriate solution to the problem.

PN5612

THE COMMISSIONER: Does this take us forward? If you go to the proposed clause 17 and the fourth dot, which is maximum term employment, if after that brackets were inserted and words to the effect of "including employment on a full time or regular part time basis"?

PN5613

MR WATSON: Look, Commissioner, well, we wouldn't agree with that. It's confusing. You see, frankly Ms Heap is wrong, with great respect, to what we submit you decided in your decision in relation to maximum duration or maximum term. We understand, and it's a point which is brought out in our differences in relation to the definition of maximum term employment, we understand you said there were two distinguishing characteristics in relation to maximum term employment.

PN5614

One was the end date is ascertainable, so to speak, and so that the employment would end with the effluxion of time. The second was that there was the ability of either party, an unfettered right were the words you used, on either party to end the contract during that time. Those, with great respect to what Ms Heap is saying, are really circumstances that arise during or attend the contract of employment. They are not necessarily a type of employment, so to speak, as being recognised in this clause. There seems to be some idea that we need to segregate maximum term employment or maximum terms of employment as if it's out there on its own, it has all the characteristics of employment of its own, as distinct from part time, as distinct from regular part time, as distinct from casual, as distinct from full time. We don't, and with great respect, your decision didn't say that.

PN5615

Your decision said that when you have those circumstances there are certain consequences for respondents that flow in terms of if you want to, for example, terminate the employment beforehand, then certain consequences will flow, and after two years certain consequences will flow in terms of what an officer might do who is engaged in that situation. But to turn that situation into some sort of distinct category of employment, really is wrong. It's to argue backwards, really, from a situation where, with great respect, you seem to be regularising or trying to regularise what might happen in certain circumstances, given a certain type of contract of employment where the ASU seems to be trying to erect a whole new category of employment which is, in my submission, not what you decided at all.

PN5616

MS HEAP: That's not right. Commissioner, I think that let's not lose sight of the decision. I don't think we agree with your proposed wording in bracket either because I think it doesn't help us to the extent that - I think what you're saying is that they could work full time hours or they could work part time hours, and that was what the LGAQ originally said, that their rationale was based upon, well, you can have a person who works full time hours as a maximum term, how does that fit together? And we say, well, it's not been an issue that you raised in relation to the award before, and it used to apply before, and everyone knew, you know, we had some issues around those things, but this is just a short - full time is a shorthand for saying, ongoing. But I just want to go back to your decision, and particularly in relation to where, at paragraph 155, you say:

PN5617

The Commission as constituted respectfully adopts the reasoning of the Full Bench in their Higher Education case. That reasoning leads the Commission to conclude that the safety net award ought to be varied and ought to provide security to employees engaged on maximum term contracts.

PN5618

You go on to say that:

PN5619

The Commission has considered the course adopted by the Full Bench in Higher Education of prohibiting the employer from terminating the employment of an employee engaged in such a contract -

PN5620

et cetera, and you set out what the LGAQ says, but you go on at paragraph 157 to say this:

PN5621

In principle, the Commission is more attracted to this approach providing security of maximum term employees rather than prohibition on the termination of such employees. Whilst the Commission is of the view that it is preferable for the employer to retain the right to terminate such employees, the Commission concludes that to provide the security discussed by the Full Bench the termination of employment provisions for maximum term employment should be different to those applicable to ongoing employee employment and that the award will allow an employer to terminate -

PN5622

et cetera. Then further on, when you're talking about the issue around the types of employment, you say, at paragraph 168:

PN5623

The evidence established that on occasions maximum term contracts are constantly extended or new contracts entered into such that the Commission has adopted the Full Bench conclusion that in circumstances this is unreasonable and accordingly be consistent with the reasons in the approach adopted in relation to the casual employees, the award will allow for a maximum term employee to apply to the Commission to have their employment type converted to ongoing full time -

PN5624

et cetera. And when you're dealing with the issue of how you deal with the provisions that currently exist for project and temporary employment, you say, at paragraph 178:

PN5625

The Commission's approach in relation to maximum term employment and the decision to delete project work from the award, means that an employee engaged for a specific project or on a maximum term contract will now have the termination of employment and redundancy provisions applied to their contracts.

PN5626

Et cetera. And in paragraph 179:

PN5627

The uniform approach herein is that all temporary or non-ongoing full time or part time employment other than casual employment will be founded in maximum term contracts.

PN5628

Okay.

PN5629

The inclusion of a right to terminate -

PN5630

et cetera -

PN5631

- a right to terminate such a contract during its term has already been discussed. Given that right and given the evidence it is conceivable that an employee may be on a maximum term contract and may be retrenched -

PN5632

et cetera. Now, Commissioner, we say that what you've done in relation to your decision, and we say what you've done correctly, is recognised the concept of ongoing employment and recognised the concept of non-ongoing or
non-continuing employment and that that should be reflected in the types of employment provision, not what the LGAQ is proposing, which is a drafting which leads everyone to the conclusion that everyone could be in the category of non-ongoing employment and it's just the case that you assess it somewhere down the track as to whether or not they've got conversion provisions.

PN5633

It's really sensibly very - it cuts across the principle that we believe the Higher Education Full Bench established, and which we believe you established in this case, and that is that there are circumstances for ongoing employment and there are circumstances for non-ongoing employment, and it's not appropriate to say - - -

PN5634

THE COMMISSIONER: Under which term, I don't think you can find in the award.

PN5635

MS HEAP: No.

PN5636

THE COMMISSIONER: So you're right. The Commission was about, and the whole case was about dealing with, dare I call them types of employment, but differences between employment arrangements, one which is ongoing and one which is not. But the term ongoing or non-ongoing employment is not seen as a category of employment at least by the award as it's currently written.

PN5637

MS HEAP: That's correct, and we say it's because the industry has used - and the award has reflected this - full time and part time employees, effectively, as shorthand for, an ongoing relationship, and casual and others, for that
non-ongoing scenario.

PN5638

THE COMMISSIONER: I think that for most of the last 100 years, or for however long local government awards have existed, it has been the general approach that employees are ongoing.

PN5639

MS HEAP: That's correct.

PN5640

THE COMMISSIONER: And in the last half a decade or so, that has changed, and the award hasn't really, or the Commission perhaps, hasn't really come to grips with the impact of that in the workplace and what that means for the terminology and the arrangements for the award, and it's a matter I grappled with, and, I think, even in the Higher Education decision, somewhere, I think, the Bench says that full time and part time employment are a subset of fixed term employment, that it's the fact that you're trying to say, this is about people who don't have ongoing employment, but the trouble is, there's nowhere in the award that says what ongoing employment is, or deals with ongoing employment and non-ongoing employment. So, you sort of - - -

PN5641

MS HEAP: Well, it is in a sense, Commissioner, and the LGAQ's solution is not the answer, because what they're saying is you just treat it the same as probation and that's not right, it can't be right. I mean, yes, you can have - what I would say is you can have full time and part time employment is a subset of ongoing employment and it is a subset of fixed term or maximum term employment. The problem that we've got historically with the award is it's probably no fault to anyone in the past, used that language of full time and part time as a short way of describing that what has been up until most recently the most dominant form of employment in the industry, which is ongoing employment. No one disputed that it was the way everyone was employed, and now we have circumstances which have been brought before you which demonstrate that's not the way the industry is operating now and there are problems associated with that.

PN5642

THE COMMISSIONER: Or to the extent that people called it permanent employment.

PN5643

MS HEAP: That's right.

PN5644

THE COMMISSIONER: And it was terminable on a week's notice.

PN5645

MS HEAP: And let's be frank, it was the concept of permanency or tenure, if you like, but it's not the solution to the problem to pick up the LGAQ's proposal, which, in effect, says that these employees are even more worse off than casual employees. That maximum term employment within the industry is even different to casual employment within the industry because it's actually not described in any way and what you can do, the same as what you do with probation, is just wholesale, to put everyone on maximum term employment.

PN5646

THE COMMISSIONER: Well, why couldn't the employer put everyone on maximum term employment?

PN5647

MS HEAP: Well, because what do you have the provisions of full time and part time employment for then? What do you have the concept of ongoing employment for?

PN5648

THE COMMISSIONER: Because the employer gets the discretion to offer those contracts. The risk that an employer has with this type of contract is that they might put the wrong person on and they'll have to pay them six months' notice. That's the issue. It's that if the employer elects to go wholesale into this less secure type arrangement, there are characteristics of that type of arrangement which the employer must take into account. The freedom is still there to do it, but there is some additional security to the employers in the event that the employer, for instance, chose to put the whole workforce on such arrangements.

PN5649

MS HEAP: And what we say to you, Commissioner, is that that wasn't the case that the LGAQ ran and wasn't the case before you and that that overthrows the whole concept on which the award has been based.

PN5650

THE COMMISSIONER: But the employer has always had the discretion to put people of those type of contracts, unless somehow they were unlawful. How could they not have that discretion?

PN5651

MS HEAP: Because we say, Commissioner, that the concept within the award was that employment would be full time, would be part time, would be casual, would be project or would be temporary and they were the forms of employment on which they could engage a person.

PN5652

THE COMMISSIONER: But I don't see anything being consistent to employ someone on a full time basis and agree with them at the commencement of that employment that they would terminate in two years' time, for instance. Now, depending on your view of temporary, they might have been categorised as a temporary employee.

PN5653

MS HEAP: But then why did the award have those provisions, like the provisions like project employment, within the award if that was the case? You can't take that scenario - - -

PN5654

THE COMMISSIONER: You could put everyone on project employment, could have made everybody subject to - - -

PN5655

MS HEAP: No, there were requirements the purpose for which project employment was appropriate or wasn't appropriate.

PN5656

THE COMMISSIONER: Yes, that may be so. There wasn't in relation to temporary.

PN5657

MS HEAP: There wasn't in relation to temporary. So, I mean, it's throwing out the whole history of this industry to say, without a case before you as to why that should be the case, to say that the notion of non-ongoing employment is gone and it's the employer's discretion.

PN5658

THE COMMISSIONER: But see, what you're really looking for, it seems to me, is some way for the award to say there is a primacy of employment here and the primacy is full time ongoing engagement.

PN5659

MS HEAP: Not full time, Commissioner, ongoing.

PN5660

THE COMMISSIONER: Well, full or part time or ongoing engagement, and I'm not sure that that's a matter that the award should direct and it was discussed by the Bench in the Higher Education case, and ultimately they indicated that, well, you can have this type of employment but there's going to be some things that attach to it. Now, I went down that road with the Bench and said, well, you put in place one set of things, but I prefer in this instance these things and I'm not going to say that they were put in the award to make that form of engagement less attractive because that's not the case, but there is no doubt that an employee, at least as the award is concerned, not the common law contracts that were being offered in any event, but as far as the award is concerned now, that an employer has some matters it need consider about putting someone on and would need to be more careful who it puts on these contracts.

PN5661

Now, given the fact that if they put them on for a 12 month contract and they're the wrong person and they find that out after three months, effectively to get rid of them they've got to give them six months' notice, or in the other event, that they're really a subterfuge for ongoing employment, that the person will have a right at some point in time to elect to be made ongoing, and they're I guess the protections that I thought appropriate and they're the protections I think, on a fair weighing of the material, puts in place all of the balance that the employer needs to consider about whether to engage someone as an ongoing full time employee, an ongoing part time employee, a casual employee or on this arrangement, and I just - I know what you're looking for is - and it was apparent in the submissions you made in the case that you want somehow that to be limited.

PN5662

You want someone to say that, look, the primacy here is this form of employment and there are only limited occasions on which you can deal with this other type of employment, and that was discussed and not a course the Commission was prepared to take.

PN5663

MS HEAP: I think we go further, Commissioner. I think we say in fact the award currently does that. I mean, for example, you don't have within the award currently - I mean, another example of why we say there is this premise or inherent notion of ongoing employment as a premise within the award as it currently stands is that you don't have the concepts of adequate compensation in the award like you do with casuals, even though we say that some of that is not adequate, but you have the compensation elements for casuals in the award to take the fact that they don't have all the entitlements of the award, and you don't have those current - the way the award currently stands, you don't have those compensatory elements in for project work and you don't have them in for temporary work, and we say, it's all because the industry up until relatively recently respected that notion that within the award there was primacy for ongoing employment.

PN5664

Now, if we're going to overthrow that, then we have to overthrow it properly - and we say you shouldn't, but you've got to overthrow it properly. I mean, you can't have this concept of it now being described as full time employment and part time employment when it's really ongoing employment and non-ongoing employment and the hours question is different. We say you shouldn't go down that path and you should fix it in the context of what we've proposed, but it's certainly not the LGAQ's solution that would even give effect to what you've determined.

PN5665

THE COMMISSIONER: The difficulty you have immediately with, for instance, your proposed 17 is there is absolutely no difference between the basis of employment as far as the award is concerned, other than for one matter, or perhaps two matters, between a full time employee and a maximum term employee. The only difference between the two of them relates to a right a maximum term employee has in the event that they have consecutive contracts beyond a certain period of time, and the second is what is required by way of notice or payment in lieu of notice, are the only differences, and for all other award aspect, those two types of - and you can't - they're to mutually exclusive.

PN5666

MS HEAP: Well, we say in the way that we've drafted it, they are and the categories and the types of employment were a respondent would have to make a decision.

PN5667

THE COMMISSIONER: But if that is a different type of employment, then you're going to have to go through every clause and include how maximum term employees are going to accrue their sick leave, et cetera, et cetera, because at the moment most of those things are determined on the basis of full time employment gets X, part time employment gets a direct pro rata of X and casual doesn't get X at all.

PN5668

MS HEAP: And what we said to you, Commissioner, when we originally forwarded the orders to you in correspondence to you was exactly that. It may be the case that we will need to do a whole series of cross-referencing and other drafting issues associated with your decision and we proposed a process which said we thought that the parties should then sit down once the decision is issued and the order is issued in this matter to consolidate the award with those amendments including other amendments that you have before you in another matter and make sure that we've captured that all.

PN5669

THE COMMISSIONER: Well, I've heard - unless there's anything that you've got to say, Mr Watson - I'll take all that on board and issue something in due course. I'm just not sure what to do, and I've heard what everybody's had to say. What's the next matter?

PN5670

MS HEAP: The next is in relation to clause 17.7 and it relates to the issue under casual employment which is not an issue in principle between us, I understand it, it's a drafting issue. In 17.7 the draft that we've provided to you, Commissioner, we've included the words at the end of it. So 17.7 reads:

PN5671

Casual officers shall mean an officer engaged and paid as such by respondent who is employed on an hourly basis and whose employment is subject to termination at any time without notice, subject to payment of the minimum engagement period as required in sub-clause 17.10.

PN5672

The difference between the parties in this matter is everything after the words "without notice", so the "subject to the payment of the minimum engagement period". Now, as I said, I don't understand it's an issue of - and it should actually say 17.9 I think the reference should be - we all agree that that's what should happen, that that states the fact of what should happen. The question is, should you refer to 17.9 and 17.7 or should you just leave it alone and keep it in 17.9?

PN5673

The reason why we suggested that you include the reference to clause 17.9, the minimum period of engagement, is that we believe in the way lay people read the award, that they could read 17.7 and go, that's all we're responsible for and not even look down to 17.9 and go, that's actually a minimum engagement period and that's why we've used that language, to make that abundantly clear. As I said, I don't understand it's a disagreement on what actually should be the reality of the entitlement. It's just about how we express it in the award.

PN5674

THE COMMISSIONER: Mr Watson?

PN5675

MR WATSON: Our position, may it please the Commission, is, in paragraph 110 of your decision, you said the definition of casual employment will remain as it currently reads. It currently reads without those words, namely the ones that start:

PN5676

Subject to payment of the minimum engagement period -

PN5677

and ending with subclause 17.10 as proposed. Therefore it simply doesn't reflect what you say.

PN5678

THE COMMISSIONER: I'm sorry, that was that paragraph?

PN5679

MR WATSON: 110, the last sentence.

PN5680

THE COMMISSIONER: Just remind me. I don't have it with me, I thought it was in the file, but it's not, but it is my recollection, as dodgy as it is these days - - -

PN5681

MR WATSON: The LGAQ's submission? No? Yes?

PN5682

THE COMMISSIONER: Yes, the parties had agreed to add this concept in the agreed words that they - remember there was a document.

PN5683

MR WATSON: Yes, there was and I can speak to the LGAQ. Certainly what you say is correct, so we're saying now, well, we can only go by what you said in your decision.

PN5684

THE COMMISSIONER: Right, okay.

PN5685

MS HEAP: And what we say, Commissioner, is what you said in your decision is exactly what we've captured there. It's been a matter of drafting it to make it consistent with, and make it applicable and easy for everyone on the ground to read and that's exactly what we've done.

PN5686

THE COMMISSIONER: I'm not prepared to include it and the reason is that I thought about it at the time, but see, it's this issue of attempting to define something and then deal with rights, and to me that's not a definition. A definition is, this is X and then subsequently in the award at some other point, and X has these rights, as opposed to saying this is X and here are some of the rights that X has, it's in the definition and it's some - you know what I mean, it's just - - -

PN5687

MS HEAP: Commissioner, I absolutely understand what you're saying and I think from a technical point of view as practitioners, it's exactly what we would say, keep them separate. My concern is on the ground in payroll officers, when they're reading the award, very oppressed circumstances. They look at it and say, casual officer, whose employment is subject to termination at any time without notice, full stop, and go, that's it, and they do that and no one goes, let me just read the whole of the clause and look down to the minimum period of engagement and make it clear that there is something more there about that.

PN5688

So we are not trying to change the definition of casual employment to make that clear, making it clear. We're just trying to interpose within the industrial instrument something that will assist people on the ground to make it clear to them that there is something that they need to take into account.

PN5689

THE COMMISSIONER: Is the termination of casuals dealt with elsewhere other than in the definition? So there is no provision in the termination of employment arrangements dealing with how you terminate a casual?

PN5690

MS HEAP: No, that's correct. So we're dealing with history in this award again, in terms of, you know, like, a bad drafting or drafting that's been historically there.

PN5691

THE COMMISSIONER: But isn't it a proper approach that the right to terminate without notice should appear in the award other than in the definition of somebody or a category?

PN5692

MS HEAP: Commissioner, if you're taking what you're saying as absolutely right, that's correct. If you're defining something there's a definition and then you deal with the rights and responsibilities questions in each of the provisions. It's just historically not the way that this award has been dealt with and I think casual provision actually excludes casuals from the termination of employment provisions, my recollection of it. So - - -

PN5693

THE COMMISSIONER: What does that mean? You can't terminate your employment at all?

PN5694

MS HEAP: Yes. I mean, and maybe that's some of that stuff about what I was saying about consolidating the award that needs to be taken into account.

PN5695

THE COMMISSIONER: Well, maybe it's a matter that needs to be taken into account now. I mean, it's a question of approach. I don't think it's proper to put those sorts of things in a definition but it seems to me that it is property, that if you're talking about how you terminate various employment arrangements, including casuals, and there's a termination of employment clause, it should deal with how you terminate casual employment and if you provide a right to say casual employment can be terminable without notice, then it may be appropriate to put - - -

PN5696

MS HEAP: Subject to a payment of - - -

PN5697

THE COMMISSIONER: Subject to subclause whatever it is, should go in there, not as opposed to the definition. I was very reluctant I must say to deal with or to change definitions and again, as I say, I think it inappropriate to use a definition to then attach a whole host of rights for that person or class of work. But nevertheless there has to be someone in the award that affords the employer the right to terminate without notice other than in the definition as to what constitutes casual employment.

PN5698

MS HEAP: And, Commissioner, I think what the ASU is saying it's almost the case that - I mean, it would be useful probably if awards of the Commission came out as annotated awards where you had the hint written in brackets underneath saying, you know, for people looking at this provision, please make sure you see subclause or clause X because that applies as well, and just to reinforce to you, Commissioner, we weren't trying to - - -

PN5699

THE COMMISSIONER: That used to be the role of employer organisations. I presume it still is.

PN5700

MS HEAP: Yes. Well, I don't know sometimes. I think sometimes it's to wangle their way through, how they can make the award not apply.

PN5701

THE COMMISSIONER: Is the proper way to deal with, you said something in the termination of employment provisions? Do you have any comment on that, Mr Watson?

PN5702

MR WATSON: The difficulty I have with that, of course, responding, it has been sprung on me, is that traditionally termination of employment clauses have been looked at from the point of view of persons who have some sort of ongoing employment rather than for casuals, whether it be full time or part time. I can't recall an award I must say that has ever had in the termination of employment provision something to do with the termination of casuals.

PN5703

THE COMMISSIONER: What about if it is was in the casual provisions?

PN5704

MR WATSON: Well - - -

PN5705

THE COMMISSIONER: You've got to have the power to terminate them somewhere.

PN5706

MR WATSON: Yes, I know, I appreciate that. Well, really what we're talking about is splitting the definition and that's really what it comes down to, whether it's appropriate to do that.

PN5707

THE COMMISSIONER: Splitting the definition?

PN5708

MR WATSON: Yes, in other words, taking out. I understand what you're saying is that the definition would then read casual officer shall mean an officer engaged and paid as such by the respondent who's employed on an hourly basis, stop. Then there be a termination provision, heading, termination of casuals. A casual officer may be terminated at any time without notice. I mean - - -

PN5709

THE COMMISSIONER: It's pretty standard fare, is it not, based awards, casual is engaged as such or some other very useful definition?

PN5710

MR WATSON: You have the better of me, Commissioner, I don't know. One only tends to focus upon those awards that are of immediate concern. I just can't assist, really. Look, yes, I can't take it - - -

PN5711

THE COMMISSIONER: But nothing - at the end of the day the parties aren't apart on the substance, and that is that you can terminate a casual without notice, but irrespective of if you do and they haven't worked for three hours and they've got to get the minimum engagement.

PN5712

MR WATSON: Engagement, of course.

PN5713

MS HEAP: Yes, correct, and we would suggest, Commissioner, that just as a matter of principle, we find it easier if, in the way people use an award, if the provisions that apply to casuals, for example, are in the casual provision rather than a person going off and trying to find it somewhere else, as a general rule, although we know that there's a mix/match approach really in this award currently in relation to those matters.

PN5714

THE COMMISSIONER: Thank you. Mr Watson?

PN5715

MR WATSON: Just before my friend goes o to the next - I think there's only one more matter to be dealt with and that's the matter of maximum term employment. I'm in the matter at 2 o'clock before Commissioner Hoffman which I understand has been listed in this room as well and I was hoping that - - -

PN5716

THE COMMISSIONER: I wasn't aware of that, very well.

PN5717

MR WATSON: I'm just concerned as to whether we will be finished before lunch. It's really a question directed to my learned friend, I think.

PN5718

MS HEAP: Absolutely, I think, sir, I absolutely hope so, certainly before 2.

PN5719

THE COMMISSIONER: Well, obviously before 2, apparently.

PN5720

MS HEAP: It could make it interesting, Commissioner, we could all just sort of mill around. Commissioner, I had indicated to your associate that I had a matter at 12 that I had to attend to and I'm happy to keep going to get this done rather than do that. I'll worry about that another time in terms of - I might get Mr Buckley to make a phone call for me, but I'll sort that out.

PN5721

THE COMMISSIONER: Okay, all right. Where do we go to from here, what's the next matter?

PN5722

MS HEAP: The next substantive matter is in relation to the drafting of 17. It's referred to in the LGAQ's outline as 17.19 but in fact it's - - -

PN5723

MR WATSON: 17.18.

PN5724

MS HEAP: Yes, 17.18, because in taking account of one of their proposals overnight, the numbering of the clause has actually changed in the order. Now, I mean, in a sense, this is partially about the argument that we had earlier and partially not about it, but they are linked in terms of the way that you will have to decide this matter. What the ASU has done is draft maximum term employment definition which picks up what we understood it was saying which is that maximum term employment means employment for a specific term or ascertainable period and it's actually effectively a long definition in one sense because it goes on to deal with what you don't like, from what I've heard this morning, which is in defining it to look then at rights as well.

PN5725

So I understand from hearing you today that you could have issue with our drafting in that sense. We'd be happy to re-look at that given what you've said today in terms of that concept of taking out of the definition any rights or entitlements aspects, but what we say to you is this. That what the LGAQ has proposed is a statement that says maximum duration employment means employment which has an ascertainable date on which the employment will end, with the effluxion of time and contains a provision whereby either a respondent or an officer may terminate the employment before that date whether for cause or otherwise, and we say to you, Commissioner, that there is nobody in the history - in our experience, in Local Government land will understand what that means at all.

PN5726

So we accept the principle behind what the LGAQ is saying, is that the decision actually contained within it the concept of ascertainable time and maximum term being terminable, different from what we were saying in relation to our application for fixed term. We accept that those are the things that you indicated should be included in maximum term, but we say that the definition which has been proposed by the LGAQ just doesn't give anyone any understanding of what it actually means in a practical sense and we thought that the way you'd do that is to actually set out and make it clear. The first element is not hard to grasp, the specific term or period is not hard to grasp at all. It's how you incorporate the concept of the terminable concept without losing sight of the rights and entitlements question.

PN5727

Now we put it all together. We'd be happy to have another go at it give what you've said today.

PN5728

THE COMMISSIONER: Does it need all those words? Is it as simple as saying maximum term employment includes employment that - and I'm paraphrasing now obviously - employment which will come to an end on an ascertainable date, and let me further confuse everything by saying we need to include something in there about, or at the end of a particular task or project - - -

PN5729

MS HEAP: Which is what we did in our drafting.

PN5730

THE COMMISSIONER: And to whom the termination of employment clause applies? See, ordinarily fixed term employment has said, as we discussed, should exclude the termination of employment clause from the operation. If you were drafting up a fixed term in accordance with what is settled what is fixed term, and I think the old project clause did it. It said the termination of employment provisions don't apply to such an officer because the employment will come to an end at the end of the task or project.

PN5731

So all you need to do is reverse that and say for a maximum term contract is a contract that will come to an end at a certain time or date, a certain time or completion of project, and to whom the clause, brackets, termination of employment, applies. So that it means they have the discretion to apply the termination of clause of employment provisions, and then of course, the additional arrangements for such people will have to be linked into that one. Is it as simple as that?

PN5732

MR WATSON: May it please the Commission, I think what you say in relation to the termination of employment provisions is correct because whether or not it's in the contract or not, the fact is it's got to comply with what the award - I mean, the minimum has got to be complied with. As to the former, the reason why I suggested ascertainable date is because, even with project employment, we have a situation where you can ascertain what the date is going to be. Now, it may not be ascertainable in the same way as at the beginning of the employment in the sense of stating in two years' time this contract will come to an end, because you ascertain that right at the beginning. If it's at the end or the completion of this upgrading of our computer, that's an uncertain date at the time that you might, but as it comes closer, you know - I mean, for example, the day before you'll know that the project is going to be completed that day.

PN5733

Now, so therefore the definition which I'm suggesting doesn't mean that the ascertainable date has to be ascertainable at the time that it's entered into, but certainly there is an ascertainable date.

PN5734

THE COMMISSIONER: Yes, but see the decision isn't to that effect. The decision is at the time of the engagement, you either know the date on which the employment will come to an end, and that's all that you need know. Nothing will ever be exchanged between the parties about that any more, the effluxion of time will bring the contract to an end.

PN5735

MR WATSON: Yes.

PN5736

THE COMMISSIONER: In addition to that or in the alternate, is you can be engaged for a project in which the date can't be identified, but the project is identified, and when the project comes to an end you know your employment comes to an end.

PN5737

MS HEAP: Yes.

PN5738

MR WATSON: Yes. No, I agree with that, but - - -

PN5739

THE COMMISSIONER: And all I'm saying is that I would be more comfortable sticking with what I might describe as those two things which are more common and the language is more commonly - I mean, the task or project thing, there's plenty of language around that that I think is well settled that can be just used.

PN5740

MR WATSON: I was trying to endeavour shorten it all.

PN5741

THE COMMISSIONER: Yes, I know.

PN5742

MR WATSON: But apparently I've offended Ms Heap's notions of what everyone would understand anyway, so - - -

PN5743

THE COMMISSIONER: Well, I'm concerned that - - -

PN5744

MS HEAP: That's slightly rude.

PN5745

THE COMMISSIONER: I'm concerned that it's then up for debate.

PN5746

MS HEAP: Yes.

PN5747

THE COMMISSIONER: That's what concerns me. Not that someone starts and says, well, you're going to be here until this project is finished. We don't exactly know when and we'll tell you closer to the time and then, for whatever reason, they forget about that and think that - you know what I mean, no date was told to me and it wasn't subject to the completion of the project. I just think it's more comfortable if you say you're here for this project, and when the project is over, the employment ends and that's it.

PN5748

MR WATSON: I have no difficulties with that concept, may it please the Commission.

PN5749

MS HEAP: Commissioner, I think that we tried to capture the concepts that you expressed in your decision in which you say today you're more comfortable with by talking about the bit in brackets that we have there or in lieu of a finishing date, will specify the circumstances or contingency relating to a specific task or project upon the completion of which the term of the employment shall expire. That's what we understood you were saying.

PN5750

I do have a lot of alarm bells ringing about the way Mr Watson described the concept that some time during the course of the maximum term, that will be settled, because that leads us right back to that argument about, was it ever a maximum term engagement or was it an ongoing engagement, you know, what were the arrangements at the time or what weren't the arrangements at the time and it leaves us right back into that argument that we have in the evidence before you where things were actually rolled over and rolled over and rolled over and negotiated during the content of the employment.

PN5751

So we would be sitting with you on this issue, that it has to be decided at the start how you're employing somebody, not during the course of their employment that you make that decision.

PN5752

THE COMMISSIONER: Thank you. I'll endeavour to encapsulate that, the two types of arrangements. I mean, it may be that Ms Heap's words do that, but I don't think the two of you are really apart on the issue. Is there anything else?

PN5753

MR WATSON: Yes, we have one further matter, and that is, we would suggest that a further clause needs to be added to the draft to take into account the potential impact in relation to Chief Executives and now Senior Executive Officers as a result of the consent amendment this morning. The clause in the award as it presently stands, when I say that, I mean presently printed, refers to the exemption of Chief Executive Officers. In 6.5.2B saying:

PN5754

The contract's terms and conditions do not result on balance in the reduction of the overall terms and conditions of the Chief Executive Officer under this award.

PN5755

Now, certainly of course when the Chief Executive Officers' case was before you this concept in relation to maximum duration of contracts was not an issue. I mean, it was just simply not raised. In other words, the idea of conversion or whatever, and it seems to us, may it please the Commission, that your decision really wasn't aimed at that sort of situation and therefore we want to forestall any argument that people might then say, well, look, we're offering this person a contract.

PN5756

The effect of that, if they enter into it, will exempt them from the award, but we have to take into account that they're going to miss out on the right to convert and things like that. It just, in my submission, doesn't sit well with both the decision of the Chief Executive Officers' case and what was argued in this case. Therefore we would submit that that proviso needs to go in there so that people aren't - we don't get involved in arguments as to whether the contract in its overall benefits is better, even though it doesn't have a conversion clause, so to speak, in the contract itself.

PN5757

THE COMMISSIONER: Yes, so the only work this has to do is that, should the issue ever come into contest as to whether there is a proper contract in accordance with 6.5 because it could be argued, well, I don't have these things - - -

PN5758

MR WATSON: Exactly.

PN5759

THE COMMISSIONER: And when you measure it up, because they don't have these things, it falls below the line and therefore it's not a valid contract, therefore the award has always applied to me?

PN5760

MR WATSON: Exactly, exactly.

PN5761

THE COMMISSIONER: I understand. So you're saying that whoever and whenever you measure these things to decide whether or not the contract is valid and meets 6.5, you don't weigh up the conversion provisions?

PN5762

MR WATSON: Well, the conversion provision - and we understand there are two aspects of your decision - one is the notice, yes, and the other is the conversion.

PN5763

THE COMMISSIONER: But the contracts that LGAQ is offering included six months of notice other than for under-performance, didn't it?

PN5764

MR WATSON: That may have been - that was certainly a pro forma contract that was part of Mr Vincent's evidence. I can't recall whether - - -

PN5765

THE COMMISSIONER: You're talking about the CEO contracts and - my recollection there was both, one for the CEOs and one for - - -

PN5766

MR WATSON: Yes.

PN5767

THE COMMISSIONER: I understand what you say, thank you. Ms Heap?

PN5768

MS HEAP: Commissioner, we oppose the introduction of the clause that the LGAQ seeks to introduce. We note in doing that firstly that it's not a matter that was raised in the hearing even though all parties referred and knew about the two proceedings that were on foot. So it wasn't a matter raised in this hearing as to why this would apply, and it wasn't a matter raised in the other matter where the award was varied in relation to the exemption for senior officers either, and so this is effectively, then, a new issue being raised, where there's not evidence - - -

PN5769

THE COMMISSIONER: Is that fair? I don't think that the conversion for maximum term employees was ever touted or raised by anybody, was it?

PN5770

MS HEAP: No, but certainly the issues around how a provision would apply in relation to people who were on contracts was canvassed enormously during the course of the proceedings. I say to you this, Commissioner, those are my opening statements, but more importantly the principle contained in this award is that officers exempted under the award, whether they be Chief Executive Officers as it currently stands or the amendment made today in relation to expanding that, is on the basis that all up their contracts are no worse off than what they would get under the award and that's the fundamental principle which we should not undermine in anything we do.

PN5771

Now, essentially what the LGAQ's argument is or any time you vary the award, that could affect the contract and therefore you should have all of these exemption provisions to say that any time any variation means not - but not to - it doesn't apply to exempt officers. Well, the principle should not be undermined, Commissioner, that when negotiating those contracts, what the award says is that you can have these contracts, but you can only have them if all up a person's no worse off than they would be under the award and what the LGAQ is introducing, we say, by the back door is an undermining of that principle ostensibly, that you now have - well, as long as there's no worse off under the award except for some things, and that's not a case that's been run and it's also a principle which we say just shouldn't apply. You can't have people being exempted from the award and say you can be no worse off except for some things that would apply, and it's pretty simple from our point of view on that basis.

PN5772

THE COMMISSIONER: Thank you. Does that leave us with just the three more detailed issues? Do the parties have any view about how long the form might take, given that - - -

PN5773

MR WATSON: Well, I'm really going to be - I think the two issues which really fall to my learned friend are the casual loading and the part time - the matter of the part time loading really falls to me, I think, so I wasn't intending to be at great length on that issue.

PN5774

THE COMMISSIONER: Should we have a five minute break and resume and get stuck into it? We'll do that.

<SHORT ADJOURNMENT [11.41AM]
<RESUMED [11.53AM]

PN5775

THE COMMISSIONER: Ms Heap?

PN5776

MS HEAP: Commissioner, it now stands for us to deal with the three items that you've asked for submissions on and in a sense I'm going to deal with two of those three in-principle submissions. And they are, the issue about the stand by provision, and the casual loading, and in terms of my submissions here today, I will deal with the question of the 10 per cent loading for part timers in response to what Mr Watson has to say, because the responsibility is for him, given it was the application to remove it to respond first on that issue.

PN5777

Commissioner, in relation to stand by, we say this to you. Our principal submission to you was the ASU's view that what we were asking for you to do was not outside the wage fixing principles, albeit that we understand that you've come to a different view in relation to that. We say to you this, that at least with respect to those elements which all parties conceded, and which you noted in your decision were new circumstances and therefore required new entitlements - that is, where now technology had changed and where people were doing work in different circumstances and there was no entitlement for it, that you are able to set provisions for that - and we say that you should set entitlements for that on the basis of what we had before you in the original hearing.

PN5778

Now, the difficulty that we had in the way we cast the claim in our application before you, is we said that that new entitlement would be related to other circumstances which you can't deal with. So we said the new entitlement was a percentage of an entitlement which you say you can't increase under the wage fixing principles in the way that we've asked you. So what we say to you on that point is this, that you should determine that there were new circumstances and that all parties accepted that there were new circumstances, and set an appropriate rate for those new circumstances which reflects an appropriately set minimum set of conditions in the minimum rates award.

PN5779

THE COMMISSIONER: But there's no new circumstances about those employees and stand by. The new circumstances are the arrangements that apply to those employees when they're actually required to do something, in the old days, go to work. Now, get on a laptop or get on a PC at home and make some arrangements. So what's new about the technological argument, as I understood it, was not that the employee would be on stand by, but that the employee would have some different arrangements which need to be considered when they're actually required to work overtime as opposed to being on stand by.

PN5780

MS HEAP: Yes.

PN5781

THE COMMISSIONER: I don't see how that gets you to increase the stand by arrangements for those employees, because there's no change to the stand by arrangements for those people. It's only when they're required to work.

PN5782

MS HEAP: Well, we say to you this on that point, Commissioner, that all parties conceded in the hearing before you that there were new circumstances and that the overall amount, that the way that the stand by provision had operated was, historically, for people who were on stand by to go out and perform emergency work and these new circumstances for stand by are not that, and that you should set an appropriate rate for new circumstances for stand by for people who are not on call to go out and do emergency work and that you also should set provision for when they do that emergency work in remote circumstances.

PN5783

You will remember, Commissioner, that's the way that we explained to you the new circumstances was really because the stand by provisions for - the concept of stand by had substantially changed in those circumstances. People weren't required to be at home. They could be available on a mobile phone somewhere, so we introduced to you whole new sets of concepts within the award and we would suggest to you that you aren't restrained in dealing with those new sets of concepts in those new circumstances.

PN5784

So what we say to you is that you should decide, for people who are not restrained in the way the current provision stands, current award provision applies for emergency work, you should set a standard for stand by for people who are not required to be restrained in the way that the current award provides, and we say that that amount for remote access stand by should be set at $150 per week and we base that on - that is, in effect, the 75 per cent of what we claimed for other circumstances, but in addition, Commissioner, obviously, if you were setting a new entitlement would have to have regard for what is the appropriate minimum amount for entitlement. And we'd say to you this, that there was evidence before you in the proceedings about what complies in the industry to other employees in terms of what they get, in terms of the state based employees, and therefore when setting a new entitlement, which is for people who are not as disadvantaged, if you like, as those state based employees, that sets the outer limit that should apply and a proportion of that is what should be utilised for people who don't experience the same disability as the general stand by provision.

PN5785

So we ask you, basically, Commissioner, to consider the concept that you are able to set a stand by rate and new provisions for circumstances relates to what we call, remote access stand by, and that, even though you find yourself restrained on the issue of improving the allowance for general stand by, we say that when setting a new allowance provision in different circumstances, what applies within the industry in other awards is an appropriate thing to consider.

PN5786

Commissioner, we say then, in relation to your overall proposition to remove the current stand by for emergency work provision, that we understood before coming here today that the parties had an in-principle agreement about a new proposal to put to you in relation to that. It's now my understanding that the LGAQ has a different view about that and that they didn't agree that there was an in-principle agreement about a proposal to put before you on that. My instructions are basically that whilst we think the industry could benefit from an appropriately fixed stand by rate, we agree with your conclusion that the current stand by provision is not appropriate in terms of - it doesn't set an appropriate safety net standard. We accept that the course that you've taken is open to you on the basis of that conclusion that you come to for the current stand by provision.

PN5787

THE COMMISSIONER: Very well.

PN5788

MS HEAP: Commissioner, I take you now to the issue of casual loading and that is, I have provided you with - and Mr Watson - with an outline of a rationale and theory in relation to the application of the Full Bench principles with respect to this matter and I'd just like to take you through that, Commissioner, and basically before taking you to it, we say that based on the application of that principle, as I said in my submissions before you in the principle case, the ASU's view was that the 25 per cent was the appropriate loading and we made concessions in our application in relation to industry perspective, but we take on board what you're saying and that is that your responsibility here to set the appropriate casual loading provision based on fact and based on the application of principles established within this Commission.

PN5789

So we say that in terms of the provision, that our principle view that we held with you that we said in the principle case is the same, that we believe that the 25 per cent loading is the appropriate amount for those employees under the award who receive four weeks' annual leave. But however, as indicated in relation to - it's raised as an issue by the LGAQ and as picked up in your decision, there is an issue in relation to people who have more entitlements under the award and in fact under the award, in particular some employees receive five weeks' annual leave and applying the Metals calculation to this, we say that for those employees who under the award receive five weeks' annual leave, the appropriate general casual loading is 27 per cent.

PN5790

Now, we take you through therefore the rationale as to why we've reached that position. Commissioner, in the Metals decision the Full Bench considered the history of the development of the casuals' loading and changes to entitlements since the last move, and having done all that they construct a methodology that has been used by others in this Commission and which you yourself say you should apply in this case, and we agree with you.

PN5791

It's important to note that whilst there is a methodology the Full Bench decision also points out that there is an element of judgment involved. It's not a purely scientific process. There is an element of judgment involved and along the way I'll talk to you about the elements of judgement that have been made, but also that in the overall sense the Full Bench said also at the end of the day, once you've done this calculation, you should take into account what's happening within the industry and around the place in terms of other provisions that apply, and we apply that methodology to what we have before you today.

PN5792

Effectively what the Full Bench has established is a principle which is related to a working day's pay comparison concept for trying to calculate the value that should be ascribed to a casual loading. The Bench takes the starting point a 52 week working year into five days. This means that employees would work 260 days per year and that's the starting point for comparison with casuals. The Bench takes into account 260 days. In this 260 days there are 10 public holidays due to full time employees who don't actually have to work, plus a certain amount of sick leave days that they take and get paid for.

PN5793

Since the casuals get neither the reduced number of days a casual gets paid for by the 10 annual leave days and the average sick leave usage to come up with the 244 paid days that a casual gets working the whole year.

PN5794

THE COMMISSIONER: Your reference there to 10 annual days, that's 10 public holidays, is it?

PN5795

MS HEAP: Yes, that's right. So the first calculation that they do is in relation to applying that to get a ratio between full time - they use the language - again we're back to this problem, Commissioner, they use the language full time as a definition of a category of employment, which they effectively mean ongoing, and casual. It's different. The first ratio is related to a calculation taking account of the public holidays and a component for sick leave that a casual doesn't get. Now, this is the first point where a judgment decision was made by the Full Bench in that matter and they in that matter had evidence about general patterns of sick leave within the industry and they decided that they'd make a calculation based on the average number of sick leave days within the industry and they decided in that case it was six days basically.

PN5796

What you do then is you actually get the first ratio by dividing the amount of days paid by a discount for casuals and those things and you come up with a ratio. If you do that in our award, Commissioner, you get the ratio that's at the table at ratio A, which is the 106.9 per cent. Now, that includes in this matter, Commissioner, a provision for an estimate of average sick leave taken of seven days. Now the reason for doing that, Commissioner, is this, that there wasn't any evidence before you about sick leave patterns in this matter and there isn't any evidence that we've been able to glean anywhere else in between times to find averages within the industry of sick leave patterns.

PN5797

The Metals Bench used an average of six days in the context of a scenario where people had ten days sick leave. In this award people have differential rates of sick leave dependent on whether they - in their first year of service to their second year of service. So in this award the value is 12 days in the first day, so a higher value in number of sick leave days, and 15 subsequently ignoring bereavement leave. So we've used an average of seven which we say is reasonable and possibly an underestimate for the purposes of this calculation.

PN5798

What happens then, Commissioner, is that the Bench then considers the value of annual leave in the scenario and uses the ratio to include the loss for casuals of annual leave and annual leave loading and you will see that in our table, Commissioner, that we've done the calculation based for the two different types of leave entitlement, one based on four weeks' leave and one based on five weeks' leave. So taking into account the ratio then at ratio B, then gets us up to a casual loading value of 116.67 per cent for people who receive four weeks' annual leave and 119.1 per cent for casuals who receive five weeks' annual leave.

PN5799

Going further then the Bench takes principles and methodologies and allow for what they call vested contingent benefits which is there they start to do some estimations around other entitlements in the award that are less tangible entitlements in terms of they accrue as paid days, but which also should be taken into account, and they include here a factor for accrued personal leave and a factor for long service leave. Now, in the Metals scenario the value of the contingent benefit for the long service leave was based on a scenario where it was 13 weeks after 15 years of service and in this case we've taken into account the fact that the long service leave applicable in this industry, and which the employees under this award are employed, 13 weeks after ten years of service.

PN5800

Commissioner, the accrued personal leave element that's taken into account in the Full Bench's methodology is the difference between the sick or personal leave taken and the sick or personal leave that they're entitled to, and that's how they come to that calculation. And we've done the same here on the basis of the concept of 15 days' sick or personal leave in this award for people with more than 12 months' service. Now we do that on the basis of this, Commissioner, that there was evidence before you that, even from the employers, a large number of casuals were effectively ongoing employees over a period of time and that's why you came to the conclusion that the casual conversion provision may be appropriate.

PN5801

So we say it's not inappropriate for us to use the 15 days as the standard, to presume that there are a large body of casuals who are at least into their second year of service with the organisation. The note to be taken into account in relation to long service leave is this, that the Full Bench in relation to this matter does not make a distinction between scenarios where casuals may, through regulatory entitlements, accrue long service leave. In fact in relation to the matter before it, the note from the Full Bench, particularly starting at paragraph 171 of their determinations is that in the context of an award that they had before them, there were different scenarios.

PN5802

Some scenarios where casuals got long service leave by legislative provision for casuals, and some scenarios where they didn't get it. So you don't take or discount this factor for long service leave, or the Full Bench didn't discount this factor for long service leave on the basis that as soon as a casual is within a regime where they could accrue long service leave, they don't get this taking into account in their loading because they effectively said what should be taken into account is the fact that a large number of casuals wouldn't qualify for and meet the service requirements for long service leave.

PN5803

So in this scenario I understand that casuals under the legislative regime here could accrue long service leave in this industry. However, we say that that's not a reason to discount what we've included and in fact the Full Bench itself dealt with this matter and did not discount for the fact that some of the casuals would have accrued long service leave under those legislative regimes. So you see there at ratio C then in the context of this award applying this methodology where up to a casual loading of 122.6 per cent for those persons who are on four weeks' annual leave and 127.1 per cent for those people under the award who are on five weeks' annual leave - sorry, at ratio C, sorry, 122.6 for four weeks' leave and 125.1 per cent for five weeks' annual leave.

PN5804

Now the next factor that the Full Bench says should be taken into account is the notice of termination provisions and it's the same in this case as it was for the Metals and the contingent - in fact, I see a mistake in the calculation here, Commissioner, that in fact under the award in this award, the case of this award, what the Metals applied was the one week notice of payment and in effect under this award is a two weeks notice of payment in lieu factor, which means that we would in fact be looking at adjusting the amounts for the taking into account this factor to a higher casual loading taking that into account based on the methodology.

PN5805

But - and I'm not able to do those calculations on my feet now - but, Commissioner, taking into account what we did there we are at least at ratio
D, which is the 124.7 per cent loading for casuals in terms of four weeks' annual leave, and 127.1 per cent loading for casuals who have five weeks annual leave. Now, Commissioner, the Full Bench then did an alternative scenario in relation to this issue and they introduced a concept of the notion of short time work or paid hours, differential determinant. So what they basically said was, well, you could at this point rather than doing that final ratio D factor, you could at this point allow for the concept of the fact that employees who are casual generally work less hours than employees who are ongoing, and in fact the pattern in their industry was that they made an assessment based on the information before them was that, on average, most casuals worked 95 per cent of the hours of ongoing employees, and they introduced into this concept that the notion was that if you worked lesser hours, you got more in the loading.

PN5806

So, Commissioner, we haven't - and in fact it was on that basis, on the basis of the factor in ratio E, if you like, that the Full Bench made its decision to apply the 125 per cent. So it used the ratio E scenario. We say in this case, Commissioner, that we don't have enough evidence before you for you to make a determination on that alternative rationale that the Full Bench used in the case that it had, albeit that we believe from what was before you that most casuals were working in libraries and most casuals were effectively part time in libraries. It's not something we can take you directly to in relation to evidence, and so we haven't used that alternative rationale at E. Albeit we say that that would result - and we did the calculations on the basis of two scenarios, if the general trend was 95 per cent, the casual loading would be 128.5 or 131.16, or if they were working 90 per cent it would be 135.25 or 137.9.

PN5807

So in fact, you know, there is probably scope to, if we had that evidence before you, to look at a higher loading using that rationale. We are happy to rest with the rationale, the principle rationale rather than the alternative rationale that the Full Bench used in that case. So we say applying that in this case, Commissioner, that that takes us to our principle position that the general or starting point for casual loading within the award should be 25 per cent for four weeks' annual leave and 27 per cent for five weeks' annual leave.

PN5808

We say this in addition, Commissioner, on this question of the fact that - the point that the Full Bench went to, after they'd done this in-depth methodology, they also said - and we should also take - it's not a purely scientific factor - we should also take into account what applies within the industry generally and what applies in other like awards, and we say this to you, Commissioner. The evidence before you, and it's undisputed as I understand, is that within this industry the alternative casual loading that applies is a 23 per cent loading for state based employees. In fact, as you pointed out, based on the submissions and the evidence relied upon by the LGAQ in this matter, the entitlements for Federal award employees that a casual misses out on are greater in the Federal award than they are in terms of the entitlements that apply in the state award.

PN5809

So using this sort of - applying this last factor of an all-rounder system and given some knowledge of the industry, we say to you it's also reasonable for you to conclude that scientifically we've proven the basis of the casual loading at 25 per cent and 27 per cent and in any event this overall assessment would draw you to the conclusion that the amount should be higher in this award than the 23 per cent that applies in the state system as the appropriate determined casual loading, because of the factors or the entitlements that a casual misses out on in the Federal award compared to those that a casual misses out on in the state award.

PN5810

So you should, we say, feel very comfortable with the fact that our submission, and the matters we put to you today, leads you open to make the decision that we're asking you to. There's one other factor that I'd like to say on that, and another point I'd like to say on this factor, Commissioner, and that is that, and I pointed out in my written outline to you, and that is that the award in this instance applies occupational superannuation and requires it to be paid as per the Local Government Act and the Local Government Act in this industry, in this area, discriminates or makes a differential rate for superannuation, as we understand it, between casual and ongoing employees.

PN5811

Now, I have copies of the relevant part of the Act for you. Commissioner, perhaps more correctly to say is what actually happens is in the Act, what's provided for is for permanent employees, see, even the Act recognises this notion of the primacy of permanency, at section 118(8)(ii) it sets out what the requirement is for permanent employees and you can see there that it sets out - there's a sliding scale over time increasing the amount and that the liability of local governments is to contribute currently as set out in (2)(b)(iii), 18 per cent of an employee's salary.

PN5812

It goes on at 118(8)(iii) to say that 18 per cent is made up of a permanent employee must provide 6 per cent of the employee's salary. So in fact the liability of councils under this provision is for the 18 per cent and the liability of the employees is to contribute 6 per cent, for permanent employees to contribute 6 per cent. Now, what we understand happens in relation to casual employees is that the councils only provide the nine per cent, the general legislative requirement in relation to superannuation of nine per cent for casual employees.

PN5813

So there is a substantial differential there in relation to another award benefit effectively in that occupational superannuation which has not been incorporated into the amount of loading that we've sought in our calculations. We've not included it on the basis that we want to provide for you an example based on a pure application of the Metals methodology. However, it is of concern to us that we should consider whether or not this amount should also be incorporated into the casual loading.

PN5814

We say, for example, if you took what we understand to be some people's interpretation of the Local Government Act, and that is that the 18 per cent is made up of 12 per cent employer contribution and 6 per cent employee contribution, although the Act doesn't say it that way, we say, well, if you took the worse case scenario for example in terms of inclusion, the difference between nine per cent and 12 per cent in terms of occupational superannuation is three per cent and that in fact in terms of this matter, that three per cent of the number of days that a person - the number of days, of working days paid is three per cent of 260 and that would include factoring into it an additional minimum amount of 7.8 days' pay that a full time employee gets - sorry, an ongoing employee gets compared to a casual employee.

PN5815

Now, we say this on this issue, Commissioner, we wanted to present to you, in light of your decision, a pure application of the Metals methodology, which didn't include occupational superannuation. We suspect because there was no differential between ongoing and casual employees in that industry for superannuation. We say, and so we come to the conclusion of the claim for 25 per cent and 27 per cent on the basis of - but we say to you this, that having taken on board this question that we think that there is an issue that we may need to turn our mind to, and that is that whether or not occupational superannuation differential has to be in this industry incorporated in to the factor, and in doing that, it actually adjusts the ratio slightly up in terms of what the loading should be.

PN5816

I apologise for the fact that I've dealt with this in my own mind overnight and thought that I should raise that issue with you and see what the response of the other side is in relation to that, and then consider whether or not we should be looking at a higher amount on this, we say, so that you can be convinced that you've appropriately fixed the minimum casual loading. But in any event, we say to you that we've substantiated at least the 25 per cent, and we've substantiated and made it clear that there has to be a differential for people who have higher amounts of annual leave. And just to make it clear to you, Commissioner, that higher amount is based on where you're working, the district or geographical location. So it's a direct comparison, ongoing employees in that regional district gets extra annual leave, casuals don't.

PN5817

So you can be clear about who gets it and who doesn't get the casual loading at the higher amount. We say as well, Commissioner, that that's our submission in relation to the base starting point for you on what the general casual loading should be. Now, you've raised - sorry, and we also say to you that we draw you to the fact that there was no evidence presented by the LGAQ or the respondents in this matter in relation to our claim being problematic for the industry. Now, we say this about the question that you've raised in your decision about the 6 per cent differential.

PN5818

So as we all understand it, currently the award says there's a general loading for employees working within the ordinary span of hours for everyone in the award and currently it's at 19 per cent. That's the amount that we say should be either 25 per cent or either 27 per cent, depending on that annual leave calculation. What the award then says is that casual employees can be required to work extended span of hours different to other employees under the award and it sets out that they have a different casual loading for that and the differential is 6 per cent.

PN5819

We say, on this point, Commissioner, that we've researched and been unable to find any case in relation to the history of this award which said why that differential was there. However, we understand, anecdotally, if you like, that the differential arises from the fact that there were originally provisions for library employees which, instead of actually having shift work provisions apply for libraries, what happened within the industry is, they determined, in order to staff libraries in the hours of opening that they did in terms of nights and weekends, that this 6 per cent component was introduced as, effectively, a loading. It may have been equivalent to the concept of a shift. They weren't put on shifts, so it wasn't a shift work provision, but it was a concept of compensating for the fact that the person could be required to work those hours and when they worked those hours instead of paying them overtime in accordance with the overtime provisions of the award.

PN5820

Now, historically, at some point, the libraries' awards - I think it's around about 1992 - the several awards came together and became the one award for the industry. And from the investigations that we've made, at that time there became this concept that was introduced as the general casual provision for employees. So it was something originating in the context of libraries. It was probably a quick fix in terms of instead of going through shift work provisions or establishing another regime, what was done was there was a loading added in that context. It was designed to compensate for the fact that they wouldn't be paid overtime in those hours and to encourage people to do it, and at that time what happened within the industry, casuals were employed absolutely to work those hours, and ongoing employees generally didn't work those hours, extended hours, largely because they would have been paid overtime if they did.

PN5821

So we say this about this. It's our position - and we understand it's the industry's position that no one seeks to disturb this 6 per cent differential for extended hours - so what we say then, is that the provision should be, if you agree with our position and you have enough evidence before you to adjust the casual loading to the higher amounts we seek, that you should maintain that 6 per cent differential as has applied.

PN5822

The alternative for you is to deal with what you think should be a standard provision for casuals, one rate for a casual loading, and then set about the process of working out what is the appropriate compensation for the extended spread for casuals. We say to you, you can't do one without the other. You can't say that you'll set one rate for casuals and not deal with this issue or the fact that there is an extended spread. So, you either say, the extended spread goes, and the general casual loading is this. Or, you say, there should be one casual loading rate and we have to explore what should be the differential, or, as we put to you, and as we understand what is the industry position, you accept that that's been determined to be the appropriate differential for those expanded hours, and the task for you is just to determine what is the appropriate base that you start from, and then move the other amounts by that. And we understand, although there's disagreement between us on what the appropriate base should be, there is no disagreement between us on that 6 per cent differential context.

PN5823

In relation to the two items that I needed to address you in, in-principle submission, that is the casual loading and the stand by provisions, I have nothing further to say. I will say something to you about the 10 per cent part time loading in reply to what Mr Watson has to say.

PN5824

THE COMMISSIONER: Very well, thank you. Mr Watson?

PN5825

MR WATSON: May it please the Commission. Insofar as the stand by provision is concerned, I don't want to address that at length, save to say that my clients accept the provisional decision made in relation to the removal of the stand by loading. That's all I want to say about that.

PN5826

THE COMMISSIONER: Very well.

PN5827

MR WATSON: Insofar as the casual loading is concerned, it was apparent when this matter was last before you in February for submissions, there was a defect in the case presented by the ASU in the sense that no schedule as profit has been set out in the Metal Trades' case and the Glass Industry case to which you've referred to in your decision. It is abundantly clear that there are provisions in the award which are not enjoyed by casuals, annual leave, sick leave, to take two, access to personal carer's leave.

PN5828

The problem that we have with the schedule which has been put up is this, that there are a number of assumptions which are made by the ASU in this schedule, a number of assumptions for the basis for the assumptions are extrapolations from the Metal Trades' case, and we need to be abundantly clear about this. The Metal Trades' case was not a test case standard. It wasn't setting down a standard for the rest of employees governed by Federal awards. It was for the Metal Trades Industry, and that's clear in the decision itself and it's clear from what SDP Cartwright said in the Glass Industry case.

PN5829

Therefore it would be wrong to take assumptions and findings or decisions made in that case and extrapolate them to this case unless of course there's evidence to back them up. Now, the simple fact is, and really it's acknowledged by my learned friend, that there isn't that evidence to back up in this case. I mean, for example, if one takes the issue of the usage of sick leave and personal leave, which on her analysis or formula that she's handed up, amount to 15 days, there is simply no evidence before you as to the usage of personal or sick leave in the Local Government industry.

PN5830

Well, really, an invitation is being made to the Commission to guess that there's an average or - based on the Metal Trades case that there's an average or that this is the incidence of usage. Again, with respect to long service leave, there is no evidence before you as to the incidence of the taking of long service leave in this industry, but it also fails to take into account in my submission the fact that long service leave is available to casuals in this industry. Now, this isn't something which comes about by way of legislation. It comes about from the award itself which, as I, in my original submissions, pointed out to you, did not seek to disentitle casuals from long service leave.

PN5831

Again, for example, in the ratio E that my learned friend went to, and I know, I accept that this is not an issue that my learned friend pushed terribly hard, but again it was something which is based on an assumption which derives from the Metal Trades' case, not an assumption which is based upon the evidence in this case. Finally, can I say that the occupational superannuation is a red herring for this reason. That, firstly it's a creature of the Queensland legislation, although of course the award does recognise those amounts, but secondly, what would appear to be the case is that, I would submit, would underlie what was being said by the legislation is that local government is being treated as a career industry.

PN5832

In other words, that those who are in it as permanent employees get recognised for being in a career industry, not something which one would associate with casual employment. So in my submission that's an explanation or a reason why that differential might be there so far as the permanent employees referred to in legislation are concerned. That's all I want to say about the amount - I did want to say, with respect to the 6 per cent, we do accept that the differential of 6 per cent is to take into account the spread of hours for casuals.

PN5833

Can I then turn to our main submission which deals with the 10 per cent loading. Our research has revealed that the wage rates with respect to part time employees have not been scrutinised by this Commission in accordance with the approach laid down with the paid rates review decision. That's not something which has occurred - it didn't occur before the paid rates review decision, and hasn't occurred subsequently. If one looks at clause 18.1.1, in my submission this is made clear by the wording itself which says that part time officers receive, and I think this may be taken up in your decision, may it please the Commission, on a pro rata basis, equivalent pay and conditions to those of full time officers.

PN5834

Clause 18.3 addresses the pay aspect so far as part time officers are concerned, but adds a rate, a loading, as it's described, of 10 per cent. Now, in my submission there is nothing in the context of that clause or in the award as a whole that would suggest that the pay for full time officers is other than at a proper minimum rate, and if that be the case and given what is set out in clause 18.3, the question then is, well, what is the 10 per cent for. Now, given, as I said, the context of the clause, it can't be suggested, that is, for the exigencies, of part time work because if that were the case, then in effect it would put them ahead of full time officers and a simple example suffices to demonstrate this.

PN5835

A part time officer who is engaged for 35 hours with the 10 per cent loading is in effect paid for 38.5 hours, which puts the part time officer ahead of the full time officer who's on thirty-six and a quarter, in effect for doing less work, but getting more. In my submission this highlights the penalty aspect of the loading, because there's on rationale for distinguishing someone who's working 35 hours and someone who's working thirty-six and a quarter.

PN5836

Further, if the orders are made as proposed by the Commission, then the removing of the job share clause, and thus putting those persons into the part time clause, in effect would give those persons a 10 per cent wage increase, because they will be paid according to part time hours plus 10 per cent, which they don't get at the present time as a job share. Now, the LGAQ, or the respondents are not seeking to disadvantage those part time employees who presently receive the 10 per cent loading. What it proposes is that that 10 per cent remain for those employees, but of course, it be absorbed over time. In other words that any increases in rates would be absorbed into that 10 per cent loading. But of course new employees, that is, new part time employees, would not attract a 10 per cent loading. They are our submissions.

PN5837

THE COMMISSIONER: Mr Watson, I just want to be clear about this. You say that the wage rates in this award have never been adjusted as is required by minimum - - -

PN5838

MR WATSON: No, not the wage rates themselves. In relation to the part time.

PN5839

THE COMMISSIONER: So you say that that wasn't taken into account, paid rates review?

PN5840

MR WATSON: Yes, yes, yes. Well, can I put it another way, may it please the Commission, that the rates which had been the rates set out in the award, in terms of setting out minimum have, as I understand it, been accepted by the parties as being minimum rates.

PN5841

THE COMMISSIONER: Yes, but paid rates review require much more than that.

PN5842

MR WATSON: Well, insofar as - and I'm dealing here with the regular part time employees - insofar as their rates are concerned, they are inextricably linked to those of the full time officers and it must be so, because that's what the clause says. They get a rate which is based upon - it's an hourly rate based upon that which the full time officer gets. In terms of, and this is where we understand your decision went to, in terms of that 10 per cent, you - - -

PN5843

THE COMMISSIONER: Yes, you're right.

PN5844

MR WATSON: Sorry?

PN5845

THE COMMISSIONER: You're right. The issue is, if the paid rates review decision, or at least minimum rates adjustment has been made to the rates, how did this 10 per cent survive, is the question.

PN5846

MR WATSON: Yes. Because it was never looked at is the answer. I don't know
how anyone - - -

PN5847

THE COMMISSIONER: So the wage rates as such were considered, you say, and properly fixed, became properly fixed minimum rates - - -

PN5848

MR WATSON: So far as full time officers are concerned?

PN5849

THE COMMISSIONER: The wage rates that appear in the award, leave aside for anybody - there's only one schedule of rates.

PN5850

MR WATSON: Yes, yes.

PN5851

THE COMMISSIONER: And those rates were in accordance with the paid rates review decision were properly fixed by taking the Metal Industry rate, doing all those things that's required, but you say the 10 per cent issue wasn't considered at the time and it just wasn't considered.

PN5852

MR WATSON: I can say yes to the second. As to the first, that's something I'd have to get instructions on because I certainly sought instructions in relation to the 10 per cent, but not to the former. The reason I'm saying this, Commissioner, is that I don't know, I don't have instructions, the ASU might have a different view, but - - -

PN5853

THE COMMISSIONER: The decision is clear. I think you've made your case out that something needs to be done here, but for reasons I explained, I'm not prepared to do something which is the outcome of properly fixing minimum rates in accordance with the paid rates review decision because it would be wrong. If it survived that process and if it came under scrutiny in that process and survived, then it's a work value consideration.

PN5854

MR WATSON: I agree. Commissioner, I understand. The difficulty, I mean, as I said, I can answer the second part which is, my instructions are that wasn't ever looked at. That really deals with the question of the part time, but you're really asking me, well, what about full time rates, I mean, the rate for full time officers? Was that ever reviewed in accordance with the paid rates review decision? I'll have to get instructions on that.

PN5855

I can't answer that. Look, so far as that issue is concerned, I can't take that any further. So far as the 10 per cent is concerned, I can, as I've already assented to.

PN5856

THE COMMISSIONER: Right, thank you.

PN5857

MR WATSON: And they're my submissions.

PN5858

THE COMMISSIONER: Thank you.

PN5859

MS HEAP: Can I take the last matter first, Commissioner, and can I just respond on this question about the rates in the award and give you a way of explaining why this 10 per cent has survived this process? And that is, that we do say that the rates in the award are appropriately fixed minimum rates and have been through appropriate processes, and we say also, Commissioner, and if need be, because this is the significant issue, we'd seek time to bring the evidence on this, but that the parties in these proceedings have on various occasions before the Commission represented to the Commission that these are appropriately fixed minimum rates within the award, including every time we do a safety net adjustment, uncontested. They've always been agreement, and we've had to give those undertakings each time we do that, and so we've been through the process with it.

PN5860

THE COMMISSIONER: There's certainly evidence that it has.

PN5861

MS HEAP: Yes, that's correct, and we say this, that the decision to simplify this award occurred prior to the paid rates review decision, that's correct. But in the processes of accepting that the rates of pay in the award are appropriately fixed and going through the processes that we have been since that time, we have accepted, and no one has challenged, that what was done at the time when the award was done, did not offend the principles I the paid rates review decision. So in time it wasn't a review done after the paid rates review decision, but it was done prior to, and no one has made application to say, well, since the paid rates review decision, we had to come back to the Commission and say all these things need to be fixed in the award to apply the paid rates review decision.

PN5862

Contrary to that in proceedings before you we have represented, all parties have represented that in fact the award sits as an appropriately simplified award. So it's important to put that point on the table. Now, in relation to therefore how does the 10 per cent survive this process? We say this, in a sense we agree that it was not considered in that process and we say this for this reason, we say that it, in the award historically, was not considered to be a rate, an amount associated with the rates of pay.

PN5863

It was a component similar to the way casual loading operates to compensate for things that part time employees didn't get, that full time employees got, and in particular we say - and we've done some research on this - again, historically, no one ever put anything on transcript about why these things were included or decisions didn't say why they were included, our understanding is that a component of why the 10 per cent was introduced was that the notions and patterns of part time work at the time were regular, working every day part time work and an element was associated with the fact that a part time employee was continuously going to work more frequently than a full time employee for less pay, and that they had things like uniforms that, in many cases, they had to purchase, which are purchased as a once-off cost, it doesn't matter how many times you use it, and that they were disadvantaged in that concept compared to a full time employee in terms of the remuneration that was received.

PN5864

Now, that was an element of why we understand the 10 per cent was introduced and to be honest with you, Commissioner, I understand also that historically it was the deterrent on part time employment as historically being seen as a negative thing, and we certainly are not making a submission here today that that's something that should be maintained in terms of the negative view of part time employment.

PN5865

So patterns of part time employment have changed, we understand that. It's now the case, for example, with job sharing, it's now - and one of the reasons why the 10 per cent didn't apply to job sharing arrangements, we understand it, is because there was the concept of days. You didn't come in every day of the week. You came for two days of the week and someone else did three days of the week. In most instances that was the way it worked. So there wasn't the same sort of detriment specifically in relation to travel.

PN5866

Now having said all of that, and I think we have asserted our principle position which you picked up in your decision which is absolutely yes, our case, that we think it should be maintained, we do understand it could be considered to be an historical anomaly and we do understand that you could need to turn your mind to how to address this issue. We say it's wrong to characterise it as something associated with the rates of pay and the minimum rates of pay and we say that it was never done that way and that's why it was never considered in terms of whether the award rates of pay were appropriately fixed minima.

PN5867

THE COMMISSIONER: So there's no work value considerations in here, is what you're saying, without saying it?

PN5868

MS HEAP: That's correct. Well, we say that it's been seen as a kind of loading or a compensatory amount or, you could use the word "allowance", but it's not the right word, but it's analogous to, for part time employees - originally based on two components. One was the concept of compensating them for things that they incurred that full time employees didn't incur, or they incurred more of, without the remuneration that the full time employee would get and yes, absolutely based, partly based on this concept of, you had to deter people from employing part timers because they were a bad species. Maybe it was also designed to try and keep women out. It probably had some element of that as well, but we won't go there. Commissioner, so - - -

PN5869

THE COMMISSIONER: A bit like Darth Vader, ultimately they turn good again.

PN5870

MS HEAP: That's right, Back to the Future, or - so. We say, separate it out in your mind, the right thing to do is to separate it out as, not associated with minimum rates of pay or anything to do with rates of pay, and consider whether or not, as in a loading or an allowance or a provision in the award that has applied is that something that's appropriate to continue, and has the LGAQ made out its case that something's changed, something's different, there's no rationale any more for the maintenance of the loading, and on that basis we say, we understand that if the patterns of part time work have changed and if part timers are generally getting all pro rata conditions of award, there may be an issue with the loading.

PN5871

So we say, then, if you separate it out in this way as well, then the absorption principle should not apply. If you are convinced that it should be removed from the award, we say that the absorption principle should not apply because the effect of what the LGAQ, the respondents are asking you to do is, deal with it in the way the age fixing principles deals with minimum rates adjustments and deals with supplementary payments and absorb them over time. We say that's an inappropriate way of looking at it. We say as an allowance, an entitlement, a benefit that's there, it should be maintained for those people who have currently got it, and if you are convinced that the case has been made to take it out, it should not apply for future employees and should not be part of the safety net for future employees. But it is part of the safety net for current employees who receive the entitlement, and that's what we say about that.

PN5872

I just have one other thing to say, unless there's a question on that, Commissioner? No question?

PN5873

THE COMMISSIONER: No.

PN5874

MS HEAP: The other thing I'd like to say is in response to what Mr Watson said about the casual loading and we say this, that I think Mr Watson's submissions are a bit - based on we'd like to have our cake and eat it too in the sense that their submission all the way through this has been that you apply, effectively you apply the - you have to apply the Metals methodology. Then in the submissions today is but the Metals methodology doesn't really apply in these circumstances.

PN5875

Now, I say this about this. That the Metals methodology, the case that we've been referred to and has subsequently got currency in this Commission in relation to the way that these matters should be considered, and we say whilst we acknowledge it wasn't a test case, it is now the expected way the Commission goes about trying to determine the appropriate casual loading. We say that part of the decision and part of the task for you is to take into account the fact that there is the concept of a scientific methodology, plus some judgment that needs to be exercised and that comes very clearly through the Full Bench decision.

PN5876

What we say in relation to this matter is that you were right in terms of your responsibilities now that the matter is raised before you. You were right in terms of your responsibilities under the Act that you need to satisfy yourself now what is the appropriate casual loading in the award and so we say you're right to go about this task by asking for the information you've asked for. We say in relation to the assumptions that we've included in our analysis that - we don't accept that there was no evidence that before you about some of these matters. I mean, there was evidence in materials presented in witness statements and attachments to witness statements presented by the respondents in this matter about the acknowledgment that casuals were ongoing employees, long serving employees, so there is, say, for example, our assumption that the majority of casual employees are into that second year of service, is a reasonable one to make.

PN5877

So whilst we acknowledge that there are some - we have used some theoretical figures in this, there is some material upon which to base what we've said before you, and we say on this issue that now that you're responsibility is enlivened in relation to the requirements of the Act, if you are concerned by Mr Watson has said and that you need statistical data now on those elements that he has raised, then the issue would be that we have to go and get it, and we would say that the employers are in the best position to provide it and they should be required, if that is your concern to provide - to gather and provide information about these patterns within the industry.

PN5878

However, we say that on a whole the information before you is sufficient for you to make this decision. You apply to it that question of judgment and the other factors that the Full Bench took into account including the fact that, you know, casual loading in the industry is appropriately set minimum, is 23 per cent, and in other awards which don't have the same type of entitlements, and you can come to the conclusion that what we have put to you is a reasonable assessment of what the overall loading should be, the general loading should be.

PN5879

So we say that and we say in relation to the issue of occupational superannuation that we just reject, don't understand firstly and therefore reject this notion that there is some different way of characterising the question of occupational superannuation other than it's a benefit that employees get that's different between ongoing employees and casual employees and that there is nothing in what Mr Watson said today that means that you should treat it any differently. We have nothing further to add.

PN5880

THE COMMISSIONER: Thank you. Mr Watson?

PN5881

MR WATSON: Just two things in relation to the 10 per cent loading. Firstly, having been involved in the award simplification exercise that ultimately led to the 30 June decision 1998 by Commissioner Hodder, my recollection is not that there was any particular emphasis being placed upon minimum rates in the award. It was an award simplification exercise looking at what were allowable award matters and what were not allowable award matters, taking those out of the award. But that's my understanding of what happened, that was my understanding of the exercise.

PN5882

The second thing is, I terms of whether or not there was an element in there to compensate for travelling or for greater incidence for travelling or for uniforms or something like that, of course a 10 per cent loading is not the appropriate way of addressing that. An appropriate way of addressing that is either to have an allowance in the award itself, and that's not an uncommon feature, or of course to compensate for either the uniform or for the travel. To simply say everyone gets a 10 per cent loading, is not an appropriate way of dealing with those matters, whether it be historical or otherwise. They are my submissions.

PN5883

THE COMMISSIONER: Thank you, Mr Watson. Again I want to thank the parties for their assistance this morning. I'll obviously reserve my decision on the contested issues. I anticipate that decision will issue in due course and it is my intention that an order will attach to the decision. I adjourn the Commission.

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