C2005/2679, Transcript of Proceedings [2005] AIRCTrans 1284 (9 June 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11700-1

DEPUTY PRESIDENT HAMILTON

C2005/2679

APPLICATION BY FINANCE SECTOR UNION OF AUSTRALIA
s.113 - Application to vary an Award
(C2005/2679)

MELBOURNE

10.16AM, THURSDAY, 26 MAY 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MS M MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN2

MR B MORITZ: I appear for WorkCover Corporation South Australia.

PN3

MR K SMITH: I appear for the Community and Public Sector Union Staff, Public Services Federation.

PN4

THE DEPUTY PRESIDENT: Terrific. Right. Who would like to start?

PN5

MS MALONEY: Your Honour, I might start if I can. The matter that is before you today is an application made by the Finance Sector Union of Australia pursuant to section 113 of the Workplace Relations Act 1996 to vary the WorkCover Corporations South Australia Award 1998. The application which is dated 29 April 2005 and signed by Paul Schroeder, the national secretary, seeks vary the award by varying the termination of employment provisions in the award to insert redundancy provisions into the award to insert a redundancy disputes procedure into the award, to be a ..... clause also applies to eligible casual employees, and to insert a provision into the award which will confer a right on the employee to refuse to work overtime in circumstances where the working of such overtime would result in the employee working unreasonable hours.

PN6

Sir, upon receipt of the notice of the listing of the time, date and place of today's hearing, we did forge the corporation a copy of the application and the notice of listing which I will tender to the Commission. However, sir, I need to apologise and I apologise on transcript, that we failed to forward a copy of the application and the notice for listing to the Public Service Union. It is an oversight on our part. I undertake to provide the union today with a copy of the application and the draft order that we have forwarded to the employer. So I do make that apology to the Commission and to the Public Service Union. It was a complete omission on our part. Sir, if I could hand up a service of notice in respect to the WorkCover Corporation and I will provide copies of the documents that I hand up today, sir, to both the union, the Public Service Union, and the Corporation.

PN7

THE DEPUTY PRESIDENT: All right.

EXHIBIT #FSU1 LETTER ADDRESSED TO MR ROD REED

PN8

MS MALONEY: Sir, FSU1 is a letter addressed to Mr Rod Reed, the executive director of EMA Consulting who has been appearing on behalf of the WorkCover Corporation South Australia. It is dated 9 May 2005. Attached to the letter is a copy of the section 113 application to vary and attached there also is a copy of the notice of listing advising of today's hearing. Also, sir, attached is a copy of the transmission receipt confirming that the application and notice of listing had been correctly transmitted through on the facsimile. Sir, in accordance with your directions - before I go to that I should say that the grounds on which we make this application, and they are set out in the application to vary, but the grounds in support is that we are seeking to give effect to the Full Bench decision in the redundancy case decision PR032004 and a redundancy case supplementary decision, PR 062004. The application also seeks to give effect to the Full Bench decision in the parental leave application casual employee PR904631 and also seeks to give effect to the Full Bench decision in the working hours case of 23 July 2002, PR072002.

PN9

THE DEPUTY PRESIDENT: So in every respect the orders you are seeking are the model clauses progressing from those test case decisions, is that right?

PN10

MS MALONEY: Yes, sir. Now, there is an issue which I will explain but - - -

PN11

THE DEPUTY PRESIDENT: Except for redundancy disputes procedure.

PN12

MS MALONEY: No, that's not this one, sir. No, that's another company. Sir, as part of the redundancy variations, as your Honour is aware, there needs to be a definition of continuous service for the purpose of calculation of service redundancy and calculation of service of termination employment. The draft orders which I will be tendering which we forwarded to the employer in accordance with your directions, we forwarded a draft order to the employer on 13 May. We also provided a copy of that draft order to the Commission. That draft order has a definition of continuous service which the parties are still discussing. If the Commission requires I can provide a service of draft order testifying that we did serve the draft order in accordance with your Honour's directions on 13 May if that is required. Once again, I will provide a copy of that document to the two parties in South Australia.

EXHIBIT #FSU2 DRAFT ORDER OF CHANGES

PN13

FSU2 is the draft order served in accordance with your directions and it contains the various changes we are seeking. We have had discussions with the WorkCover Corporation of South Australia.

PN14

THE DEPUTY PRESIDENT: Look, I will ask you again.

PN15

MS MALONEY: Yes, sir.

PN16

THE DEPUTY PRESIDENT: Is this order in every respect the model clauses sought in the test case decisions?

PN17

MS MALONEY: It is in every respect with the exception of the definition of calculation of service. We had to put in a definition because the award didn't have one. That is what I meant, sir. Yes.

PN18

THE DEPUTY PRESIDENT: Sorry. Just let me get this straight. So your paragraph 2 and 3 of that draft order are not the model clauses. They are additional clauses, are they?

PN19

MS MALONEY: Well, 2 inters the calculation of service and 3 is redundancy disputes procedure that was contained in the Full Bench decision.

PN20

THE DEPUTY PRESIDENT: Right.

PN21

MS MALONEY: Yes. But the calculation of service is a new clause which was required to be inserted for the purposes of the termination provision and the redundancy provision.

PN22

THE DEPUTY PRESIDENT: Yes. So the redundancy disputes part is in the test case model clause, is it?

PN23

MS MALONEY: It is in the test case decision at the supplementary decision. Sorry, not the supplementary decision. It is in paragraph 31 of the supplementary decision of 8 June 2004.

PN24

THE DEPUTY PRESIDENT: Bear with me for a moment. All right. Just take me through paragraph 31.

PN25

MS MALONEY: Sir, paragraph 31 is in the supplementary decision of the Full Bench decision. It deals with the issue of redundancy disputes procedure. As part of the conciliations that took place between the ACTU and the various employer organisations including the ACCI, they became agreed on a disputes settling procedure in respect to redundancy disputes. One of the outstanding issues that went to arbitration to the Full Bench was whether that procedure would apply to companies that employed less than 15 employees. The ACTU submitted it should, the employers said it shouldn't and that was the issue that was arbitrated. The Full Bench decided that the procedure would not apply to employers with less than 15.

PN26

It was also, and I will refer to paragraph 31, the ACTU submitted that it was not necessary that the model clauses, that is the model clauses that is contained in attachment A, include a redundancy disputes procedure which is set out in the March decision. The ACCI did not have a different view. We suggested that there should be some reference to it in this decision and so the redundancy disputes procedure was put in its final form in the body of the decision. I understand the rationale for that was the view was put by the employers that the redundancy disputes procedure where it is included in an award should be included as part of the general disputes settlement procedure in that award as opposed to the redundancy clause or the termination of employment clause.

PN27

THE DEPUTY PRESIDENT: Yes. Is that what you are doing here?

PN28

MS MALONEY: Yes, sir. The new 8.5 is the disputes settlement procedure in the award. Yes. The grievance procedure in the award in clause 8.

PN29

THE DEPUTY PRESIDENT: Right.

PN30

MS MALONEY: But the definition of calculation of service, the model clause required reference to the calculation of service in both the notice of termination and in the redundancy provision. The award as it currently stands doesn't have a definition of continuous services for the purposes of termination or redundancy so we drafted a clause and it is that issue that has been the subject of discussion between ourselves and the corporation. I don't think we are far apart but, your Honour, subject to the Commission's agreement, we have agreed with the Corporation to try and finalise that issue within the next seven days. Subject to that to then submit, hopefully, a final agreed draft order to vary the award. So that is what I was putting today, sir, in terms of how to proceed subject to the - - -

PN31

THE DEPUTY PRESIDENT: So what you are saying is this that I hold off granting until you advise me that you are in agreement which you expect to do within seven days. If you are not in agreement then we will see where we go from there.

PN32

MS MALONEY: That is correct, sir, but we are hoping that we will be agreed. We just didn't have sufficient time to finalise the matter before today's proceedings.

PN33

THE DEPUTY PRESIDENT: All right. So that is the full order. It doesn't go ahead until that - - -

PN34

MS MALONEY: That is correct, sir. We would ask, if it is our objective to have it, we obviously would like to have it finalised within the next seven days to wrap it up. Yes. If the Commission pleases.

PN35

THE DEPUTY PRESIDENT: Of course. Thank you very much. Who is next? No one? Marvellous. Go on.

PN36

MR SMITH: Yes, Ken Smith from the Community and Public Sector Union. I just would like at this stage to, given the circumstances, we are at this point around at the beginning from the Finance Services Union. We only became aware of this matter this morning. Given that the FSU have requested that this finalisation of the clause be dealt with over the next seven days, obviously we would appreciate the opportunity to consider the papers that will be proceeding from the FSU and that will give us, if the Commission is agreeable, the opportunity to consider that further before the orders are finalised. I should stress that I don't see any of this being controversial given the nature of the application however.

PN37

THE DEPUTY PRESIDENT: Are you a party to the award?

PN38

MR SMITH: Yes, we are.

PN39

THE DEPUTY PRESIDENT: Right. I wasn't sure of that. Thank you. All right. Thank you very much.

PN40

MR MORITZ: Yes, thank you, sir. The WorkCover Corporation has indicated that it was prepared to consent to the application submitted for consideration today, with the exception that has been pointed out in relation to the calculation of service provision. I can confirm that and consent will be provided at such time as we are able to finalise the agreed wording for the calculation of service provision. As Mr Smith has mentioned, there is no controversial issues arising from this application. The parties as we understand it are agreed on the format and the substance of those provisions, all but for that exception that has been pointed out here.

PN41

THE DEPUTY PRESIDENT: It is your understanding that the application is in the form of the model clauses handed down in the test case decision with the exception of the calculation of service clause.

PN42

MR MORITZ: Yes, we have alleged so, sir. We have gone to some lengths and both parties have gone to some lengths to ensure that that is the case.

PN43

THE DEPUTY PRESIDENT: Terrific. Thank you very much. Nothing else?

PN44

MS MALONEY: No, your Honour.

PN45

THE DEPUTY PRESIDENT: Right. Then we leave it on this basis as I understand it. The parties will advise me within seven days, the parties being the FSU, the CPSU and the WorkCover authority whether they are in agreement, if they are in agreement. I am sure there will be no difficulty in me granting the application. Naturally I will look at the terms of the agreement. Secondly, if they are in disagreement I would ask that the matter will be need to re-listed to have the outstanding matter arbitrated or conciliated or both and we will deal with that if it occurs. But at this stage, we will leave it on that basis. Thank you very much for your submissions, this matter stands adjourned.

<ADJOURNED INDEFINITELY [10.31AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 LETTER ADDRESSED TO MR ROD REED PN7
EXHIBIT #FSU2 DRAFT ORDER OF CHANGES PN12