C2004/3600, Transcript of Proceedings [2005] AIRCTrans 1602 (25 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12242-1

SENIOR DEPUTY PRESIDENT ACTON
DEPUTY PRESIDENT HAMILTON
COMMISSIONER CRIBB

C2004/3600 C2004/5202

APPEAL BY WILSON PATIENT TRANSPORT PTY LTD AND OTHERS
s.45 Appeal to Full Bench
(C2004/3600)

APPEAL BY METROPOLITAN AMBULANCE SERVICE AND ANOTHER
s.45 Appeal to Full Bench
(C2004/5202)

MELBOURNE

10.03AM, FRIDAY, 15 JULY 2005

Continued from 17/02/2005

Reserved for Decision

PN1

MR W FRIEND: I continue my appearance for the LHMU.

PN2

MR J ZEEMAN: I continue my appearance as well.

PN3

MS S ZEITZ: I am not sure if I am continuing so I appear with MR P MCRON and MR E QUIGLEY for the .....

PN4

SENIOR DEPUTY PRESIDENT ACTON: Thank you. You should have all received a report which was prepared by myself for the Bench, which in essence attaches the submissions of the parties to the issues that were required to be addressed by the Full Bench. In addition, yesterday I received documentation from EMA Consulting on behalf of those they represent. Ms Zeitz, do you intend to go to that at the appropriate time?

PN5

MS ZEITZ: Yes, I do, your Honour. And can I just indicate that part of what we intended to send through and doesn't appear to have been included was, you will see that that revised table that it includes servicing components as one of the columns in that document. We have also prepared a document that leaves those out for purposes of my submissions if I could file that at an appropriate time.

PN6

SENIOR DEPUTY PRESIDENT ACTON: Very well.

PN7

MS ZEITZ: We have an undertaking as well that their but the intent ..... I understand, Commissioner.

PN8

SENIOR DEPUTY PRESIDENT ACTON: So the purpose of today is to give you the opportunity to highlight any points you wish to in the submission you have put in respect of the issues that are required to be dealt with by the
Full Bench and for us to ask you some questions. Mr Friend?

PN9

MR FRIEND: If the Commission pleases. As we understand the matters, there are two issues before the Full Bench now. The first is the question of the minimum rates and classifications for all of the classifications in the award. And the second is a more straight forward question concerning the standby clause. We have prepared a summary of the parties' positions. What I have tried to do is prepare something which is not tendentious but rather actually just sets out what the parties' positions are because it takes a little time to pick up all the different threads in the number of submissions that we have. I will hand that up to the Commission.

PN10

SENIOR DEPUTY PRESIDENT ACTON: Thank you.

EXHIBIT #LHMU5 SUMMARY OF ISSUES PREPARED BY THE LHMU DATED 15/07/2005

PN11

MR FRIEND: You will see there that it commences by summarising the LHMUs submissions on minimum rates. The first point is the benchmark classification which we say is ambulance officer at C5 which is what Commissioner Holmes found. It is our position that there should only be one benchmark classification of that, except in an exceptional circumstance, that is the way that this process should be undertaken. And that from that benchmark classification, internal relativities should be maintained. And I will go in a minute to how we say that all works just to clarify that part of the submission. The other issues under minimum rates are rates for fleet maintenance officers and communications call takers and how to deal with the clerical classifications.

PN12

There are also issues regarding the two new classifications which are to be inserted, which have been inserted into the award have never had rates, that of ambulance attendant and patient transport officer. We then set out the suggestions of the private sector providers provided by EMA Legal. They essentially say there should be two benchmark classifications that the clerical - and, I think in subsequent submissions, they assert that the benchmark for ambulance officers should be C7 based upon what they, really for the first time, have asserted very late in the proceeding was the position in 1994 when the interim order was made. We don't accept that.

PN13

DEPUTY PRESIDENT HAMILTON: Were they correct about that?

PN14

MR FRIEND: I am sorry, your Honour?

PN15

DEPUTY PRESIDENT HAMILTON: Is that a correct stating of the position in 1994?

PN16

MR FRIEND: That was C7. No, we don't accept that at all. We have gone to that in our submissions.

PN17

DEPUTY PRESIDENT HAMILTON: Surely it's a matter of simply looking at a particular award rate at a particular time and associated material.

PN18

MR FRIEND: No.

PN19

DEPUTY PRESIDENT HAMILTON: It's not?

PN20

MR FRIEND: You need to look at the work and that has not been done. I mean the award rate was simply a transfer of the state award rate. There was nothing special about it.

PN21

DEPUTY PRESIDENT HAMILTON: Was it comparable to C7 or was it very different to C7? In terms of the award rate.

PN22

MR FRIEND: I can't answer that directly, your Honour but - - -

PN23

DEPUTY PRESIDENT HAMILTON: Fair enough. It's just that it may be it's relevant, that's why I ask.

PN24

MR FRIEND: Yes, I think it was similar to C7 at that time

PN25

DEPUTY PRESIDENT HAMILTON: It was similar.

PN26

MR FRIEND: But that doesn't mean that that is the appropriately fixed minimum rate and Commissioner, the whole exercise that took place before Commissioner Holmes was an examination of work and an assessment of what was the appropriate rate for ambulance officers. And he said C5. Now, that was a matter that was fairly - it wasn't completely common ground but it was very close to it in the initial proceedings. Does the Commission have the submissions, the written submissions that were filed in relation to the appeal?

PN27

SENIOR DEPUTY PRESIDENT ACTON: We will somewhere.

PN28

MR FRIEND: Well, rather than take up time getting the Commission to read them now. I direct your attention to the summary of the evidence in relation to this point which is in the union's written submissions in response to those hired by Wilson Patient Transport and the other private employers at page 9 and following. That is the second set of union submissions because there was a set in response to each of the others. Now, the private - - -

PN29

DEPUTY PRESIDENT HAMILTON: Sorry. Just to make this clear. You are saying that the 1994 annuals of officer rate was similar to C7 but it wasn't properly fixed. Is that what you are saying?

PN30

MR FRIEND: Yes.

PN31

DEPUTY PRESIDENT HAMILTON: And that Commissioner Holmes did properly fix the rate.

PN32

MR FRIEND: Commissioner Holmes examined things and he said C5 is right. Then he made an error which the Full Bench identified of setting the C5 rate of 130 per cent of the current fitters rate instead of 122 per cent which is what it should have been because of the compression caused by safety net adjustments. And we say that that is the appropriate starting place for this matter. The private sector providers don't make any submissions about the rates for communications call takers and the fleet maintenance officers and they make a submission about clerical employees that all of the existing classifications should be removed from the award and they should be replaced with classifications and rates found in the Clerical and Administrative Employees Victoria Award 1999.

PN33

And that is a new proposition that hasn't come up before. Now, what we say in relation to the way this matter should be considered, as a starting point is the pay rates review decision. I will hand up to the Commission copies of that. Because the exercise that is being conducted is the review under item number 51 of the WROLA Act and this is how the Full Bench said it should be done in relation to this type of matter. And if we turn, this is from the industrial reports, it's 1998 volume 123, set 4, at page 255, the Full Bench deals with this issue under the heading Relativities. And they say the approach involves identifying the key classification in the award, striking the appropriate work value relativity between that classification and the ..... in the Metals Award.

PN34

And so that is what Commissioner Holmes has done, and that hasn't really been challenged in the appeal in terms of that finding on the basis of the evidence with the manner of which it was undertaken. They then say, adjust the rate for the key classification if necessary and then adjust all of the rates in the award under the review to maintain the pre-existing relativities with the key classification. The Full Bench goes on, we understand that this may lead to differences in minimum rates of particular skill levels across the award system. Nevertheless, we think this approach is preferable to any other because it maintains the established relativities at the enterprise level. Now, they go on to say that most of these awards, paid rates awards, are enterprise awards and there may be different circumstances where they are multi-employer awards and we accept that the present award is a multi-employer award.

PN35

But even so, they say in regard to that, should there be awards which are not enterprise based but which apply to a number of employers, consideration might have to be given to setting aside such an award and create an enterprise specific award in order to implement the MRA principle without disrupting the relativities in the establishments concerned. So the question of relativities remains the same. Now, if we start with ambulance officer at C5, our submissions set out what the rate compared to the Metals Award now, that is. And they then preserve the relativities from the top to the bottom using the one benchmark. That, we submit is completely consistent with what your Honour just said here. There are two issues in relation to that. The first is that there are the two new classifications, one of those is the ambulance attendant which Commissioner Holmes, after inspecting the work and hearing the submissions, said was C6.

PN36

The other is the new classification to transport officer which at one part of his decision he described as C89, but he appears to have made a finding of C10 and we have referred to that in the submissions. The patient transport officer is clearly a - he also dealt with one of the existing classifications which is clinic transport officer, those people who don't have the same skills as patient transport officers. And he assessed that at C11. Now using the method of the Full Bench in the paid rates review as given us, the C11 rate for a clinic transport officer is above that of C11 rate in the Metals Award but it preserves the pre-existing relativities. The problem is that if you put in the patient transport officer which is a more skilled job at the C10 rate, it comes in below the clinic transport officer in this award.

PN37

So what we say is the appropriate approach and what ultimately was the order Commissioner Holmes made albeit based on the wrong figures, is to take the spread from C5, which we know, to C11, which we know, and assess where all of the proper classifications would be. And then you would have a C10 rate for this award which maintains relativities and a C6 rate which maintains relativities.

PN38

SENIOR DEPUTY PRESIDENT ACTON: So in other words, slot them in roughly where they should fit.

PN39

MR FRIEND: Yes. And there is a table in our submissions, perhaps I should take the Commission to it, which explains how that works. It's table 2 on page 7 of the first log of submissions.

PN40

SENIOR DEPUTY PRESIDENT ACTON: Just give us some time to bring that up. Yes.

PN41

MR FRIEND: And you will see there that the Metals relativities in the existing award are set out. So C5 is not as I said, 130 per cent which it was initially, it's 122.7 per cent because of compression. C10 is 100 per cent obviously. But if we know what C11 is because we know preserving the relativities that it is $583.55 and we know what C5 is, which is $665.40, then we know what all the intervening percentage points will be. We know that C10 - well, to do it this way. We have got a dollar figure, a dollar difference of some $80-odd and a percentage difference of 30 odd per cent between the top and the bottom if you divide that in an even way and you can identify where each point is. I want to make sure that I have conveyed this because it's obviously different people see things differently in terms of figures and mathematics and I may not be very good at explaining maths.

PN42

But it is really that we take the continuum and then divide up that, in accordance with percentages in the existing Metals Award. And that identifies what C10 is and what C6 is of this award maintaining relativities, which is what the
Full Bench has told us we should do. There is perhaps an alternative approach and EMA rely upon a decision which I think was given after the hearing of the appeal in a child care worker's case which involves having two benchmarks for the award and two 100 per cent rates and then lining them up. If you did that, in what they are proposing, and I will perhaps be able to address this better in reply, appears to be having C5 a one benchmark and everything above that maintained with that relativity. And using the new classification, PTO C10 as another benchmark and fixing relativities from that.

PN43

The difficulty with that is that it will lead to a very substantial reduction for clinic transport officers and their minimum rates. Now, the Full Bench in the child care worker's case did what if it did because it had maintained relativities on the one benchmark classification, it would have led to a very substantial increase for people of the lower ..... that was the work value case. As it was, by using two different benchmarks, those employees at the lower end got a much smaller increase but they still got an increase. We weren't talking about, in that case, substantial reductions in minimum rates but I may be able to assist the Commission better with this one than what Ms Zeitz has - - -

PN44

DEPUTY PRESIDENT HAMILTON: Just on the point of the clinical transport officer, what are the qualifications or requirements of that position? Is it driver's licence and St John's Ambulance first aid?

PN45

MR FRIEND: Driver's licence and - I think it is a bit more than St John's Ambulance first aid, it's a level 2 first aid certificate which is a substantial qualification. But there are going to be anomalies, your Honour, no matter which way you go.

PN46

DEPUTY PRESIDENT HAMILTON: Sorry, just on that point. So those are their qualifications or more specific requirements so there is two things.

PN47

MR FRIEND: Yes.

PN48

DEPUTY PRESIDENT HAMILTON: Terrific. Thank you very much for that. I think that is the point made, I think, in the private employer's submissions somewhere.

PN49

MR FRIEND: Yes. But the point that flows from that is they say there should be a reduction in the minimum rate.

PN50

DEPUTY PRESIDENT HAMILTON: Indeed. That's right.

PN51

MR FRIEND: That's a result of the minimum rates review which is not what the Full Bench paid rates review decision said. It said, maintain the relativities. And we know it's going to mean they are going to be different rates across different awards but maintain the relativities. And it doesn't say, except in certain circumstances. And our submission is that that is really what the Commission should do. The first of the other issues in relation to minimum rates is the question of what to do about the clerical and administrative staff. Our position is simple, it's follow the process that we have set out, maintain the relativities. You have got the benchmark rate for the award and just maintain the relativities with that position.

PN52

As I have said of EMA, is to get rid of the existing classifications and replace them with those from another award. Now, there has been no evidence about this and no evidence about the work or anything of that nature. We say that is really just an impossible proposition to put to the Full Bench in the absence of some examination of the work people do. It's much more appropriate to do what we suggest. The public sector employers appear to go along with this a little part of the way but they disagree with the EMA proposal, they say don't pick up the classifications and rates through the General Clerks Award. Instead let's have a conference and deal with it in the future. The difficulty we have in regard to that is that this matter has gone on for a very, very long time.

PN53

I think this issue about minimum rates adjustment was first raised in the middle of 2002 hearings in relation to setting a value of the work for ambulance attendants and patient transport officers were included in about October 2002 with Commissioner Holmes' decision in early 2004, the order a little after that. But in the meantime there are no rates and they have been stayed in respect of some employers. There are no rates to PTOs and ambulance attendants. This award hasn't been subject to the 2004 safety net adjustment because it is awaiting the outcome of this case and of course, the union has made the application. It also wants, in due course, to make the application for the 2005 safety net adjustment. That will have to be dealt with in due course. We submit that the matter should be dealt with to finality now.

PN54

And if someone wants to mount a case to change the existing classifications in relation to clerical and administrative employees well then that can be done in due course. But one of the problems with this matter is that members of the Bench who have sat on appeal can see that different applications kept getting added as it went along. There was a geriatric application for this and another application for that and it just kept getting bigger and bigger and we say it's time to stop. We are down to two issues and we can hopefully focus on those, bring it to an end, it doesn't disturb people's rights in the future to make substantive changes and have a whole new system occurring ..... if they wanted. But at the moment we should deal with just what is before the Commission now.

PN55

SENIOR DEPUTY PRESIDENT ACTON: But Mr Friend, the clerical administrative classifications in the - I will call them for short, Victorian Clerks Award, are quite generic.

PN56

MR FRIEND: Yes.

PN57

SENIOR DEPUTY PRESIDENT ACTON: On the face of it and exercising translating clerical administrative classifications in the Ambulance Award under those generic classifications were done quite quickly, weren't they?

PN58

MR FRIEND: Well, maybe, your Honour. One would have thought you would want to consider it and probably have some evidence about it. There may be issues that relate to that and to the particular nature of the work in some ways. I just say it is an inappropriate time to raise such a large, new topic.

PN59

SENIOR DEPUTY PRESIDENT ACTON: One of the difficulties in the clerical administrative classifications in the Ambulance Award is there is no definitions on what they do.

PN60

MR FRIEND: Yes.

PN61

SENIOR DEPUTY PRESIDENT ACTON: One can guess by the titles but I presume there is some sort of job descriptions behind the titles in reality but you are inviting us to set rates for a work value level we have no idea of.

PN62

MR FRIEND: Well, except, your Honour, that it follows maintaining your relativities. I mean, people are working under those classifications presumably.

PN63

SENIOR DEPUTY PRESIDENT ACTON: But do we know whether those relativities were initially set, having regard to the operational grounds?

PN64

MR FRIEND: We don't, your Honour, but we don't - it's not what the paid rates review decision says we should do. It's not a work vetting of the whole award. We have had a work vetting of two, perhaps three classifications, if we were doing it for the whole award we would never get it done. Then no one would get a safety net adjustment.

PN65

SENIOR DEPUTY PRESIDENT ACTON: Well, I am not sure the inefficiencies of a whole range of people involved should be a reason why a proper task shouldn't be undertaken.

PN66

MR FRIEND: It's not a question inefficiencies of anyone involved, your Honour. It's a question of how long the process takes of necessity and there has never been the suggestion that one should have an examination of each classification in an award. It is part of this process. And to raise it now - I mean there is an issue about people's rates never being set. Patient transport officers don't have an award rate and really it is something that has to be dealt with.

PN67

SENIOR DEPUTY PRESIDENT ACTON: Yes. And I understand one could make a meal out of setting the clerical admin rates if one wanted to but equally one could do it quite quickly it seems to me. Look at what their job descriptions are, look at the definitions in the Clerk's Award and see where they slot in.

PN68

MR FRIEND: Well, your Honour, it's often easy to see things like that but often they don't occur in that way.

PN69

DEPUTY PRESIDENT HAMILTON: I understand the procedural objections you have raised but apart from procedural objections, is there anything of a substantive nature that you can point to now that is a problem with the Victorian award. There is nothing, is there?

PN70

MR FRIEND: The delay is the issue.

PN71

DEPUTY PRESIDENT HAMILTON: Yes. Again that's procedural. Putting aside the procedural issues, is there anything of a substantive nature you want to raise?

PN72

MR FRIEND: No, your Honour. We would need to obviously consider the evidentiary position and what - the conduct of the case. Obviously in due course we could do that. I can tell the Commission that due to the conduct of the recent MX arbitration, we had I think almost every job description that was put up to witnesses from RAV and MAS was described as being out of date and inaccurate. It is not just a question of pulling them and using that to look at the award. That's the fear.

PN73

SENIOR DEPUTY PRESIDENT ACTON: How many people employed in the Clerical and Administrative classifications by MAS and RAV?

PN74

MR FRIEND: Probably about 250.

PN75

SENIOR DEPUTY PRESIDENT ACTON: All right. And how many - - -

PN76

MR FRIEND: And of course they would be covered by the certified agreement.

PN77

SENIOR DEPUTY PRESIDENT ACTON: Sorry?

PN78

MR FRIEND: They wouldn't be covered by the certified agreement or in due course, one assumes, the MX award.

PN79

SENIOR DEPUTY PRESIDENT ACTON: And how many in the private sector?

PN80

MR FRIEND: I don't know. Not many.

PN81

SENIOR DEPUTY PRESIDENT ACTON: So we are talking, what, 250 people?

PN82

MR FRIEND: Probably so, probably about.

PN83

SENIOR DEPUTY PRESIDENT ACTON: Yes, okay.

PN84

MR FRIEND: Your Honour, the point I am trying to get across is I don't want the whole process to be delayed by another proceeding.

PN85

SENIOR DEPUTY PRESIDENT ACTON: I understand that.

PN86

MR FRIEND: And that is the fear that we have, because there are other people's interests involved as well.

PN87

SENIOR DEPUTY PRESIDENT ACTON: Other people's interests involved?

PN88

MR FRIEND: Other employees covered by different classifications, not ..... If what the Commission does is says, well, yes, we will take all that on board and now we will have conferences, as it is invited to do in relation to ..... without making final orders in relation to the patient transport officers in particular and the ambulance attendants, then there will be another year out of whack potentially. Your Honour smiles and if we could get it down to a month we would be delighted. And we would cooperate in any expedited process and we will comply with timelines but we would want it to be all parties complying with timelines.

PN89

SENIOR DEPUTY PRESIDENT ACTON: It does raise an issue though which you might not wish to address at this point but which isn't addressed in any of the submissions so far as I can see which is the issue of operative date.

PN90

MR FRIEND: I was going to raise that, your Honour, and we would be seeking some retrospectivity particularly in regard, well, I suppose it only needs to be in regard to those parts of the award which have been stayed. Yes, it only needs to be in regard to those parts of the award that have been stayed. It would seem appropriate that the rates that are fixed be made retrospective to the date of Commissioner Holmes' order. It seems, if I could put it this way, fair, and I don't seek to go any further than that but there is obviously a lengthy queue leading up to that and that's the way things happen sometimes. In regard to that, on of the observations that your Honour made in the stay application was that it would be difficult for employers to recoup money from the employees if they were owed because that is what we found with the other party.

PN91

It has got to be a two edged sword one would have thought. There should be some retrospectivity in relation to these rates. That takes some of, if there is, that obviously take some of the pressure off in relation to having the matter resolved as quickly as possible. But not all of it, because there is still uncertainty pending that time and that uncertainty affects a range of things, not just ..... additions. It also affects bargaining in the industry because if you don't know what you are bargaining above, it's that much harder to bargain. There is a particular position with regard to fleet maintenance officers and communications call takers. The issue in relation to them in the appeal was whether they should be retained in the operation of the stream rather than the administrative stream. The Full Bench decided they should stay in the operational separate classifications. Commissioner Holmes, I think indicated that he was not clear what rates he should set in relation to those.

PN92

Our position is that the same procedure should be followed. It has maintained the relativities of the existing rates. EMA Legal make no submissions about communications call takers and fleet maintenance officers. And MAS and RAV make the submission, and I am not sure that I understand this completely, that the EMA position should be adopted in relation to them. I think it might be the same procedure but I am not quite sure how that all works and I have to say at the conclusion in reply - the other issue before the Full Bench is the question of the standby clause. The real bone of contention it seems here, is that the union takes the position that if an employee is on standby, and they can be directed to be on standby at their place of work, then if that would be overtime hours, they should give overtime pay.

PN93

The employer's position is it should be single time pay. Now, standby is predominantly used by, I think only at the moment, used by MAS and RAV. And of course, that is subject to certified agreement and - - -

PN94

DEPUTY PRESIDENT HAMILTON: Sorry, I missed that, it is used by who?

PN95

MR FRIEND: MAS and RAV.

PN96

DEPUTY PRESIDENT HAMILTON: Right.

PN97

MR FRIEND: And that is subject to the certified agreement or ultimately the MX award and there are issues before the Full Bench in relation to that which I don't need to trouble you with, except to this extent, to say that we say that the Commission shouldn't have regard to the extract of submissions to the MX Full Bench which have been filed by MAS and RAV. They refer to parts of evidence, not the whole evidence. It is not in context, it's a different matter. It's not something the Commission can properly have regard to in this exercise. Our proposition is simple. If you wouldn't be paid overtime if you were working and you are required to be on standby then you should be paid overtime.

PN98

Obviously, if it wouldn't be overtime hours, then single time rates would apply. I don't think that would ever happen. But we could end up in the situation if our position is rejected as a minimum rate, where people could be required to stay at work after the finish of their shift on standby at single time rates. And so that is not appropriate.

PN99

SENIOR DEPUTY PRESIDENT ACTON: Mr Friend, the difficulty I had with the standby clause in the award as it currently stands is that it is so pared down compared to what it was several years ago that it is difficult to see, when one reads the standby clause, how it differs from the on call clause except that the rates are very different. And so I had a difficulty with understanding as a layperson what the difference was, when you would be entitled to standby and when you would be entitled to on call and where you were doing either. It is clauses 24 and 27 of the award.

PN100

MR FRIEND: Yes. 24.1 is rostered on call.

PN101

SENIOR DEPUTY PRESIDENT ACTON: You are rostered on duty.

PN102

MR FRIEND: Yes. There are two types of rosters predominantly used by MAS and RAV. There is a 10/14 roster where they work two 10 hour day shifts, two
14 hours night shifts and have four days off. Then there is the on call roster which tends to be worked at the peripheral urban branches and the country branches, and there the employee works 12 hours on duty, 10 hours on duty and 14 hours on call. So they go home and - but that's their roster.

PN103

SENIOR DEPUTY PRESIDENT ACTON: Yes, and when I - - -

PN104

MR FRIEND: Standby is something that the employer, under this provision, can ask of the employee outside that on call roster.

PN105

SENIOR DEPUTY PRESIDENT ACTON: And where do I - if I am on call, I can go home, I can go to the park so long as I am available if they call me in.

PN106

MR FRIEND: Yes. There are some limits about how far away you can go
and - - -

PN107

SENIOR DEPUTY PRESIDENT ACTON: I must say there is none in the award, is there?

PN108

MR FRIEND: I don't think so.

PN109

SENIOR DEPUTY PRESIDENT ACTON: So long as I have got my mobile phone and I am sitting in a café in Lygon Street - - -

PN110

MR FRIEND: Yes, that's something we bargained over on our base.

PN111

SENIOR DEPUTY PRESIDENT ACTON: Yes, okay. But as I understand it, you are reasonably free so long as you are contactable and if you are asked to come in, you come in because you are rostered. Standby clause at 27 says if you are required to standby for any period outside your ordinary hours, it is counted as time work. What am I doing, where am I standing by, what am I doing when I am standing by?

PN112

MR FRIEND: Under the award, it would appear that that can be - that implies direction. I want you to standby at the station, the branch or I want you to stand by at home. And as it works in practice under the enterprise agreement, the agreement is that people standby at home. They can go home. And the agreement, we say, because of that is that they get single time rates. But if they were required to standby at the branch, well, that's work. They also serve to understand and wait and it's a - - -

PN113

SENIOR DEPUTY PRESIDENT ACTON: So setting aside the standing by at the station or place of work, circumstances of rights where people are asked to standby at home, is that right?

PN114

MR FRIEND: Under the enterprise agreement, that's the agreement that has been reached in regard to that. Yes.

PN115

SENIOR DEPUTY PRESIDENT ACTON: Okay. The award doesn't say where you are standing by.

PN116

MR FRIEND: No.

PN117

SENIOR DEPUTY PRESIDENT ACTON: It doesn't say what you are doing. That's the difficulty I have with differentiating it from on call. One of the differentials, you say is the roster.

PN118

MR FRIEND: No, it is the differentiation - on calls are rostered, standby is outside ordinary hours.

PN119

SENIOR DEPUTY PRESIDENT ACTON: Yes. So is it only the roster that is now the differential?

PN120

MR FRIEND: I think so. Yes. That is the significant difference. The reason I was having that discussion, your Honours, is because under the enterprise agreement there is another thing called non-rostered on call but we don't need to worry about it because it is not in the award.

PN121

SENIOR DEPUTY PRESIDENT ACTON: Yes. Okay. So my concern that I have raised with you, or the concern I have raised with you, may be overcome by putting in something which explains its standby as unrostered, differs from on call because it is unrostered.

PN122

MR FRIEND: Yes, your Honour. I must say that I had understood the words, "outside the employee's ordinary hours" as meaning that because the ordinary hours are your rostered hours. But we wouldn't have a difficulty with that sort of clarification, your Honour, because it raised an issue in your Honour's mind, it is an issue that needs to be addressed. I put it that way.

PN123

SENIOR DEPUTY PRESIDENT ACTON: Because the on call that is rostered is also outside the employee's ordinary hours, is it not?

PN124

MR FRIEND: No, well - - -

PN125

SENIOR DEPUTY PRESIDENT ACTON: Well, it's a very low hourly rate if it is in their ordinary hours.

PN126

MR FRIEND: Yes. I suppose that's right. It's rostered work.

PN127

SENIOR DEPUTY PRESIDENT ACTON: Yes, so the difference is the roster.

PN128

MR FRIEND: It's better to refer to it as outside rostered hours.

PN129

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN130

MR FRIEND: And once you get outside rostered hours, then you are into overtime. That's our position.

PN131

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN132

DEPUTY PRESIDENT HAMILTON: What is the notice required for a roster, a fortnight?

PN133

MR FRIEND: A roster change?

PN134

DEPUTY PRESIDENT HAMILTON: Under the award.

PN135

MR FRIEND: Under the award. That was a matter that was dealt with by the Full Bench. I think it's 28 days.

PN136

DEPUTY PRESIDENT HAMILTON: 28 days.

PN137

MR FRIEND: Yes.

PN138

DEPUTY PRESIDENT HAMILTON: So there is a significant difference there. a roster is a significant difference there.

PN139

MR FRIEND: I am not quite sure I understand your Honour's point.

PN140

DEPUTY PRESIDENT HAMILTON: Well, in practice a month's notice of change of roster is a very significant difference to a standby which is a rally ..... or a direction on a day, on the same day.

PN141

MR FRIEND: Yes. Although change of roster can be done by agreement in whilst it is but can obviously ..... and it often happens that way.

PN142

DEPUTY PRESIDENT HAMILTON: Then that can be the same day, can it?

PN143

MR FRIEND: Well, it could be done - yes, they can be changed on shorter notice for unforseen circumstances.

PN144

DEPUTY PRESIDENT HAMILTON: Right.

PN145

MR FRIEND: I am trying to - there are two existing sets of descriptions, of course, there is the MX Award descriptions and then these ones.

PN146

DEPUTY PRESIDENT HAMILTON: Yes, what descriptions?

PN147

MR FRIEND: Just making sure I have got them here. Pardon me a moment. Yes, the other thing I ought to say in regard to minimum rates which I omitted, and I think it is in the written submissions but I ought to just highlight this. If, as I understand it, the EMA proposal were adopted then the patient transport officers who do a course and have significant qualifications and the clinic transport officers would both get less than a student level 1. Now, a student level 1 just walks in and starts the job without any qualifications at all and we say you can't have those sorts of relativities. Unless there is anything further, those are the submissions I wish to make.

PN148

SENIOR DEPUTY PRESIDENT ACTON: Can I just ask you some - - -

PN149

MR FRIEND: Yes.

PN150

SENIOR DEPUTY PRESIDENT ACTON: The patient transport officer now requires a level 3 certificate?

PN151

MR FRIEND: Yes.

PN152

SENIOR DEPUTY PRESIDENT ACTON: So the definition in the award should be updated as well, should it?

PN153

MR FRIEND: Yes, your Honour.

PN154

SENIOR DEPUTY PRESIDENT ACTON: And in one of your submissions, it's the submission of 11 March at page 8, you make a calculation of the CEP and meal allowance. I will just see if I can turn it up for you in report. Yes, it's page 18 of the report to the Full Bench.

PN155

MR FRIEND: It is on 18.

PN156

SENIOR DEPUTY PRESIDENT ACTON: And it's the second last paragraph on page 18, or page 8 of your 11 March submission.

PN157

MR FRIEND: Yes. In November 1997 the pay rate for an ......

PN158

SENIOR DEPUTY PRESIDENT ACTON: Yes. After disaggregating 10 of gaining $558 less CEP and the allowance is $36.25. I just wonder where that $36.25 came from.

PN159

MR FRIEND: That's the sum of the CEP and the meal allowances. Yes.

PN160

SENIOR DEPUTY PRESIDENT ACTON: Yes, I understand that but where the actual figures came - - -

PN161

MR FRIEND: Okay. CEP is Continuing Education Program and their additional rates paid on the basis of additional qualifications surrounding these officers.

PN162

SENIOR DEPUTY PRESIDENT ACTON: Again, that is not my question.

PN163

MR FRIEND: No.

PN164

SENIOR DEPUTY PRESIDENT ACTON: I know what they are. I am wondering what is the source of the actual figure of $36.25 as opposed to the - one way you might have calculated it is, what is the difference between the rate they put in for the mechanic and the ambulance officer. And because you are working on an assumption, which may well be correct, that the mechanic didn't have the CEP and meal allowance included in the rate that Commissioner O'Shea set. So the difference is $36.25 that's what that must have been. Then maybe there is another source of those actual figures. I am looking for the documentary source.

PN165

MR FRIEND: I will just take instructions. What I am instructed is that the $36.25 is five times the meal allowance as $7.25.

PN166

SENIOR DEPUTY PRESIDENT ACTON: Right.

PN167

MR FRIEND: The CEP was already out of that figure because the CEP is always added on, I think, on top of the figure. So the $558 is no CEP allowances and it is a deduction from the included meal allowances of five times $7.25.

PN168

SENIOR DEPUTY PRESIDENT ACTON: Right. Because Commissioner O'Shea's order is so far as I can see, the first time a mechanic actually goes into the operational structure.

PN169

MR FRIEND: Yes. They weren't in the award before that.

PN170

SENIOR DEPUTY PRESIDENT ACTON: No. And then they don't go in again until Commissioner Holmes' order of 2004.

PN171

MR FRIEND: Yes. They were always in a separate part of the award, I am instructed.

PN172

SENIOR DEPUTY PRESIDENT ACTON: Okay. The communications call taker, should the certificate level 3 requirement be included in the definition?

PN173

MR FRIEND: Yes, it should if your Honour pleases.

PN174

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Mr Friend

PN175

MR FRIEND: Sure.

PN176

SENIOR DEPUTY PRESIDENT ACTON: Who is next? Ms Zeitz?

PN177

MS ZEITZ: Perhaps in, your Honour, the discussion you just have with Mr Friend about the clerical and administrative employees, or the clerical employees. May I just indicate to the Full Bench that our purpose in identifying the Victorian Clerical Award was simply that the decision of Commissioner Holmes for third parties further discussions, there has actually been no exercise taken to carry that particular part of the award forwards. And we took the view and prepared our submissions simply on the basis that there is an existing award of the Commission and that has undergone the appropriate award simplification and minimum rates adjustments as far as we can tell. That is a generic award having broad application in the state of Victoria and it seems to us an appropriate, I hope my friend doesn't take this the wrong way, short cut to try and reach some sort of classification structure in a relatively short period of time. So that was our purpose in raising it. There was no intention on our part to undercut or undermine existing terms and conditions. I won't address that any further I think, but that's been - clarified that.

PN178

DEPUTY PRESIDENT HAMILTON: Does the Clerical Award presently apply in any area of the health sector in Victoria?

PN179

MS ZEITZ: I would only imagine it would have application in what we would call the the private health sector to the extent it hasn't been picked up by a generic certified agreement arrangements or where it doesn't come out of the old public sector classification structure. I am not aware of it having being formally adopted into the traditional public sector structure. Following on from the decision of the Full Bench, I am not proposing to go into great detail to the submissions. I hope they are reasonably clear. The only thing I would like to take the Bench to in some detail is how we have reached the proposal we have in terms of the wage rates classification structure.

PN180

As I indicated at the outset, the tables that were forwarded through to the Commission yesterday didn't reflect what occurs if the service increment payments are taken out. I just tender that. And also we have revised table 5 of our submissions, we repeat those changes as well as provide copies of those to the Commission. Now, I don't know if you want to mark those, your Honour.

PN181

SENIOR DEPUTY PRESIDENT ACTON: Are these, at least the first one, is that intended to replace the Revised Rates Payable 2, is that intended to replace what was sent through yesterday or is?

PN182

MS ZEITZ: I think perhaps it can be read alongside. One includes the service internet payments and one has them deleted so, as I said at the outset they are really for information and assistance rather than ..... other.

EXHIBIT #WPT4 REVISED TABLE 2, 14/07/2005
EXHIBIT #WPT5 REVISED RATES TABLE 2
EXHIBIT #WPT6 REVISED TABLE 5

PN183

MR ZEEMAN: Sorry, your Honour. That last exhibit, can I just seek clarification, sorry.

PN184

MS ZEITZ: My apologies.

PN185

MR ZEEMAN: Thank you.

PN186

MS ZEITZ: Now the only other thing I wish to hand up and it has been referred to in our submissions is the childcare industry decision of the Full Bench and we rely on that decision because it informs the methodology which we say is appropriate. I don't intend to take the Commission to any great details unless there are any questions about it, but this involved an extensive examination of awards operating in the childcare industry and the Full Bench there was called on to look at the difficulty of a parent in trying to deal with these minimum rates adjustments in the context of historical - in the context of historical ..... in the award.

PN187

One of the difficulties which, in our submission the Bench and the parties are faced is that the award was made in 1994 by consent and attention was actually paid to the relativities minimum rates and testing those rates against the established standards of the federal Commission at the time. The approach that the Full Bench took in the childcare centres' case was to adopt the process mandated by the pay rates review decision. They endorsed that approach and that is set out at paragraphs 152 to 155 of their decision.

PN188

They then entered into a discussion at paragraph 157 of their decision noting the compression relativities that has occurred since the minimum rates adjustment process occurred and in fact note at 158 that the last percentage adjustment to rates occurred in 1991. What they then embarked upon was an exercise where they went back to the rates in 1991, determined what the key classification was at that point, determined the relativities that that key classification had to the other classifications in existence at that time, and then applied the safety net adjustments to all of those classifications equally to bring forward to the current time. We say that that is an appropriate way upon which the relativities that were set in 1994 can be maintained and that the Commission can then set the new rates and classifications or insert the new rates and classifications that Commissioner Holmes identified in his decision in April 2004.

PN189

This is, as my friend, this has been going on for so long to date. The Full Bench in the childcare case at 162 sets out the, endorses the methodology from the Clark's Breweries case and that is the one that I have just outlined and that is the basis upon which we have approached the matter. So if I take the Commission to what is WPT5 we go back to the March 1994 date, we look at the ambulance officer classification which has been identified as the key classification. That at that time had a base rate of $432.70 plus service increments payments of $57.20. That totalled $489.90. The nearest applicable rate out of the Metals Award at that time was the C7 classification and we say that that is entirely appropriate for that period in time.

PN190

What Commissioner Holmes did in 2004 was to determine the change in work value that had occurred between 1994 and 2004 and to determine at that point that is 2004, that the ambulance officer had achieved through work value, education and qualification changes and the requirements of the position, an increase in work value that justified a new classification which he set at C5. We say that the methodology to be approached at that point is to first of all just to carry forward the relativities and we have noted the relativities in the column there as at March 1994. To determine on the basis of those relativities what properly fixed minimum wages would have been at that time. To add the safety net increase and then to achieve a minimum rate as at April 2004 and they appear in the last column of WPT5.

PN191

DEPUTY PRESIDENT HAMILTON: So do I understand you to say this, it seems that the LHMU said that the 1994 ambulance officer rate wasn't properly fixed?

PN192

MS ZEITZ: Yes.

PN193

DEPUTY PRESIDENT HAMILTON: Okay. But the 2004 ambulance officer rate was properly fixed. You say that it was only fixed by measuring the change between the two, between 1994 and 2004 and it wasn't in any way revision of the 1994 position. Is that right?

PN194

MS ZEITZ: Yes I do. And in fact, if one reads the decision, the decision of the Commission goes at some length to examine what have been the changes in the work value performed with respect to ambulance officers during the course of recent history.

PN195

DEPUTY PRESIDENT HAMILTON: Well that is the principle of - - -

PN196

MS ZEITZ: Yes.

PN197

DEPUTY PRESIDENT HAMILTON: Yes. So the LHMU submission is based on a rate which is not properly fixed either. Is that what you are saying?

PN198

MS ZEITZ: Yes, well in - - -

PN199

DEPUTY PRESIDENT HAMILTON: In a sense.

PN200

MS ZEITZ: Yes.

PN201

DEPUTY PRESIDENT HAMILTON: If the logic follows through.

PN202

MS ZEITZ: Yes. In 1994 the ambulance officer qualification was a certificate 4 qualification. It is now a diploma and that was one of the key items he identified as a significant change in what was required. So when we went back to look at the exercise taking into account the approach of the childcare Full Bench we approached not only the basis but what we really had to do was in a sense go back to the beginning, try and work out as best one could where it slotted in at the time and then make the appropriate adjustments on the way through.

PN203

In effect that ambulance officer classification and that is why we have left that last bit blank in the bottom of that table, no longer applies because as at 2004 Commissioner Holmes has decided that is truly a C5 classification or rate and that rate is properly, I think the current rate, sorry the rate in 2004 not the current rate, for a C5 is $665.40. So again consistently with the approach of the Childcare Full Bench which said you then set the new rate. That would lift or place the C5 ambulance officer in the station officer branch ..... classification it being the nearest, give or take 20 cents. It being the nearest classification within the existing relativity structure.

PN204

So what we say is that that approach maintains the relativities that were established in 1994 but recognises the work value change then places the classification at the appropriate level in the existing classification structure while not compromising the original relativities.

PN205

SENIOR DEPUTY PRESIDENT ACTON: So what do we set, the ambulance officer at $665.40?

PN206

MS ZEITZ: Or 20 - - -

PN207

SENIOR DEPUTY PRESIDENT ACTON: Whatever?

PN208

MS ZEITZ: For the sake of 20 cents we actually just identified that the station officer - - -

PN209

SENIOR DEPUTY PRESIDENT ACTON: 665 and some cents.

PN210

MS ZEITZ: And some cents.

PN211

SENIOR DEPUTY PRESIDENT ACTON: And we set the senior station officer at $737.10 do we?

PN212

MS ZEITZ: Yes.

PN213

SENIOR DEPUTY PRESIDENT ACTON: And we compress the relativities between the ambulance officer and the senior station officer?

PN214

MS ZEITZ: And that is a necessary consequence of the safety net adjustment process.

PN215

SENIOR DEPUTY PRESIDENT ACTON: No it is not, it is more than the safety net adjustment process.

PN216

MS ZEITZ: Sorry and it is also a work .....

PN217

SENIOR DEPUTY PRESIDENT ACTON: And yet a senior station officer has to be an ambulance officer.

PN218

MS ZEITZ: We recognise that and that was one of the issues that was debated before Commissioner Holmes. The difficulty with this is that Commissioner Holmes has determined that the ambulance officer is at a C5 level.

PN219

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN220

MS ZEITZ: Because of an increase in work value. There is no similar work value ..... with respect to senior station officer so.

PN221

SENIOR DEPUTY PRESIDENT ACTON: This is an necessary implication. If the ambulance officer now is a C5 then the ambulance officer who is a station officer, who is in fact a superior, has that work value plus the additional duties that make up the senior station duties.

PN222

MS ZEITZ: I think the, from our perspective if an outcome of that process is that other classifications subsequently need to be looked at that that is a matter that has occurred. I don't know that it is a necessary implication that follows. It certainly wasn't something that Commissioner Holmes considered as a separate issue with his reasons.

PN223

SENIOR DEPUTY PRESIDENT ACTON: It is a mathematical thing isn't it? The ambulance officer component is worth this and the senior station component is worth that. That is what makes up the total rate. If you increase that component you must increase the total rate. It relatively remains the same doesn't it?

PN224

MS ZEITZ: Well the difficulty I have with that your Honour is that there was no consideration given at the time that the C5 was attributed to the ambulance officer classification about what implications that had for relativities in so far as any increases in work value duties et cetera that may attach to the senior station officer or the station officer. The absolute consequence of work valuing that classification was that it was going to shift from the classification structure. It simply had to leave and it was, the consequences of that, we say as a result of the ..... that the Commission entered into were never really looked at in that way.

PN225

The view we took with respect to the classification structure was that given that the C7 classification has effectively disappeared as a result of Commissioner Holmes' decision it was then appropriate to look to how the key classification structure should work in the award, and our submission is that the approach adopted in the childcare centres case is an appropriate way in which to follow that and there the childcare centre, there the Full Bench identified different key classifications. One for diploma based classifications and we say that that applies to ...... of training and all those classifications up to the top of the classification structure and the certificate level qualifications and below usefully attach to the C10 which is the patient transport officer.

PN226

The Commissioner found that the patient transport officer is a C10. That is a very well understood and established classification across many awards of the Commission. The level of training, the certificate level of whatever equates broadly with the metal industries structure and we say that it is an appropriate basis upon which to simply recognise that it is a new classification going into the award. It is identified as C10, it is convenient in C10 and should reflect the C10 rate.

PN227

There is no good or strong basis or differential that was identified by the Commission for setting a rate in excess of the C10 rate for the purposes of this award. Indeed the Full Bench in the childcare case noted the necessity to be mindful of external relativities when setting rates across awards, and this is in our submission is a classic example where there has been no identification of a rate, of a reason why the C10 new classification should be differentiated from the rate that is held in the Metal Industry Award. That does create some difficulties for the clinical transport officer classification, we recognise that but when one looks at that classification it requires a driver's license and it requires a, I think it is 38 hours of training, sorry 16 hours of training.

PN228

DEPUTY PRESIDENT HAMILTON: Sorry which classification is this?

PN229

MS ZEITZ: That is the clinical transfer, the transport officer.

PN230

DEPUTY PRESIDENT HAMILTON: ..... be a problem for the PTO.

PN231

MS ZEITZ: No, yes that is right.

PN232

DEPUTY PRESIDENT HAMILTON: Yes.

PN233

MS ZEITZ: Yes. The - - -

PN234

SENIOR DEPUTY PRESIDENT ACTON: Is the 16 hours of training right or is that a St Johns?

PN235

MS ZEITZ: That was certainly my reading of it but I thought my friend said it was a certificate 2.

PN236

SENIOR DEPUTY PRESIDENT ACTON: Yes.

PN237

MS ZEITZ: If it is a certificate 2 then under the metal industries classification that would be a C11 classification and that doesn't - annexure 3 to the childcare decision which is found at page 128 of this decision actually sets out minimum training requirements for various classifications. I am sure your Honour knows them very well so I won't go to them in any detail but it is apparently certificate 3 is a C10 and that is where we say the patient transport officer properly is, there is no argument between the parties that that is a certificate 3 position. The clinical transport officer is a certificate 2 and that is properly a C11 rate.

PN238

Now that results in significant changes in the classification structure and the rates, we accept that. We also say that the minimum rate should be established without service ..... payments and that issue has been put on a number of occasions. There is, we submit, plenty of precent in the Commission where the actual rates, actual award rates are in excess of the appropriately fixed minimum rates for orders made to reflect those differentials and preserve existing employees terms and conditions of employment and those sorts of things.

PN239

So in our submission those issues can be any issues of reduction that arise from setting appropriate fixed minimum rates can in our view, be dealt with in terms of existing employees. But we say that in order to, for the parties to have an appropriate basis to go forward we shouldn't be resiling from the fact that this is our opportunity to try and get the classification structure properly reflecting minimum rates adjustment process. And if we follow the childcare centre's approach, given that the patient transport officer is a convenient C10 classification as recognised, given the qualifications of the clinical transport officer, given I think that the ambulance attendant who has 12 months training has been classified by Commissioner Holmes as a C6, all of those are generic classifications that are easily recognised.

PN240

They have the history and benefit of the metal industry exercise and approach. And the approach that we are contending for in our submission, is consistent with that that was followed by the Full Bench in the childcare centres case and doesn't cut across any of the fundamental principles upon which this Commission approaches such matters. Just on that the document which is WPT6, again we have not included the service payment in that. It is simply a matter of time and getting this ready for today, but the Commission will see there that on our proposal there are some reductions in ..... rates and that is what I was talking about before. That would involve, we recognise that some consequential orders to deal with those matters and we certainly don't resile from the need for such orders to be made.

PN241

DEPUTY PRESIDENT HAMILTON: Sorry, where are the reductions?

PN242

MS ZEITZ: In the final column, increase is perhaps the wrong word.

PN243

DEPUTY PRESIDENT HAMILTON: Yes.

PN244

MS ZEITZ: The brackets represent the amount of the change down in the weekly rate as a result.

PN245

DEPUTY PRESIDENT HAMILTON: All right.

PN246

MS ZEITZ: Having said that the ambulance officer of course has achieved ..... as a result of work value re classification but the ambulance attendant which is the new classification obviously isn't in fact, at patient transport officer in the new classification. The glaring and most difficult one is the attendant transport officer and we recognise that.

PN247

SENIOR DEPUTY PRESIDENT ACTON: There is none of those in the private sector is there?

PN248

MS ZEITZ: No, there aren't in the private sector. The patient transport officers, ambulance attendants and ..... that is what the principle ..... Unless there are any questions on that I don't have anything further to say with respect to the classification structures and wage rates. The only other matter to mention briefly is I can indicate in the private sector standby is not used. Our submissions do address it briefly and it was really just put forward as a possible, again, aid to the parties and to the Commission. I am not going to address it any further but - - -

PN249

SENIOR DEPUTY PRESIDENT ACTON: Do you want to say anything on operative date?

PN250

MS ZEITZ: The operative date is a difficult matter. I know that our, there was a considerable period of time between the date that the matter concluded and the handing up of a decision. Certainly I know both parties were anticipating for that decision to be handed down. The appeal was lodged, I think we almost filed too early because we had to wait for the order as I recall so there was certainly no delay in lodging appeals. It would depend on the order that the Commission ultimately makes arising from these proceedings. Certainly my instructions would be to oppose retrospectivity, simply because the delay has not been occasioned, certainly since the decision was reserved on the part of the private sector have generally met, as far as I am aware, the deadlines that they were required to in fact expeditiously. We do recognise ..... for a long time. If the Commission pleases.

PN251

DEPUTY PRESIDENT HAMILTON: The operative date of the orders was July 2004 wasn't it?

PN252

MS ZEITZ: Yes.

PN253

DEPUTY PRESIDENT HAMILTON: And that is what is sought in this matter?

PN254

MS ZEITZ: It is an extensive, for the patient transport officer which is a, which will result in a wage increase or have a significant impact on - - -

PN255

DEPUTY PRESIDENT HAMILTON: I mean that is .....

PN256

MS ZEITZ: Yes. Generally the Commission would need to be satisfied that there is exceptional reasons for awarding retrospectivity. Certainly my clients would oppose anything like 12 months.

PN257

SENIOR DEPUTY PRESIDENT ACTON: Thank you, Ms Zeitz. Mr Zeeman?

PN258

MR ZEEMAN: Thank you, your Honour. There have been a number of matters that have been raised which I would be asking for the matter to stand down very briefly to obtain instructions on. I would expect that it would be a very short adjournment and it may very much curtail my submissions. I am anticipating they are going to be very brief.

PN259

SENIOR DEPUTY PRESIDENT ACTON: 10 minutes?

PN260

MR ZEEMAN: Thank you, your Honour.

PN261

SENIOR DEPUTY PRESIDENT ACTON: We will adjourn for 10 minutes.

<SHORT ADJOURNMENT [11.20AM]
<RESUMED [11.44AM]

PN262

SENIOR DEPUTY PRESIDENT ACTON: Mr Zeeman?

PN263

MR ZEEMAN: Your Honour, thank you very much for that indulgence and I apologise it was longer than 10 minutes. Ms Zeitz informs me that she wishes to address the Full Bench on one minor matter, so.

PN264

MS ZEITZ: Just briefly, your Honour. In relation to the question of retrospectivity I have made some enquiries. My instructions are that the majority of our clients would in fact be directly impacted by retrospectivity because they are paying on the basis of award not certified agreement. So I just provide that advice to the Commission because I understand that my friend's client would be predominantly on a certified agreement. If the Commission pleases.

PN265

SENIOR DEPUTY PRESIDENT ACTON: Mr Zeeman?

PN266

MR ZEEMAN: Thank you, your Honour. On that point of operative date, both MAS and RAV join in the submission of Ms Zeitz and I have no further submissions on that point. My submissions will be brief. If I can first of all deal with the submission in respect to the clerical and administrative rates. The position of both MAS and RAV is that they are of the view that and this is set out in the submissions, there is no evidence at all dealing with those rates and that was the finding of Commissioner Holmes and the only appropriate course we say is therefore to refer it to conciliation.

PN267

During the break I have obtained instructions in respect to how that conciliation may proceed. Our view is that the clerical and admin award rates put forward by Ms Zeitz in fact would be the appropriate award and it would just be a matter of slotting or identifying the positions and slotting all employees into that existing award. So we say that that will save a lot of time and it is something that could be done very quickly. We also say that during that process and again this is set out in our submissions, the MX arbitration which was heard by the Commission which is waiting a decision, should also be taken into account when conducting the process.

PN268

As to the detail of that I am not in a position to make submissions until such time as a decision is handed down but certainly we amend our written submission to the extent that we say the matter should go to conciliation on that particular point but we say that, you know, that can be expedited by using the award put forward by Ms Zeitz and that should, to a certain extent, overcome the difficulty of time which has been put forward by the union. Unless there is anything else in the written submissions which the Full Bench would like me to address I don't propose to go any further in respect to that point.

PN269

In respect to standby, very briefly and this is set out in our submissions, we say that the clause as it currently exists is insufficient and the clause that has been put forward in the MX arbitration is in fact a clearer and more easily understandable clause and that is why we say that clause should be preferred to the existing clause. Again I would be only repeating what is in my written submission or the written submissions of RAV and MAS. On that point we simply say that that is a better clause and notwithstanding that it has been put forward in a separate proceeding we say it should be taken into account when the Full Bench look at what clause should be inserted in place if it is of this view.

PN270

If it is of the view that the clause needs amendment. That in fact is a better clause. Again we simply put forward the written submissions unless there is anything further. There is nothing that neither MAS nor RAV wish to put. If the Commission pleases.

PN271

SENIOR DEPUTY PRESIDENT ACTON: Mr Friend?

PN272

MR FRIEND: Thank you, your Honour. If I can say just a couple of things. Firstly Ms Zeitz indicated that there had been no discussions about the clerical and admin rates. My instructions are that there were and that is part of the reason for the gap between the decision and the order but those discussions were inconclusive. I don't know that that makes any difference to the underlying submissions that the parties have made. Of more importance is the assertion that has been made that there was some sort of work value claim in respect of ambulance officers before Commissioner Holmes.

PN273

There wasn't. In fact it was, a work value increase application was expressly disavowed and MAS and RAV came along to make sure that they heard me say it on transcript that we weren't making the work value application for ambulance officers, that is something that is proposed in the future. It seems that that arises in those submissions because of the - going back now for the first time to 1994 and saying that is a starting point, we'll look at that and line that up in some way with the metals classifications and we will see if it has changed. As I said in my submissions the ambulance officers' rate in 1994 came from the state award.

PN274

There was a work value claim for ambulance officers in the old state Commission in 1988. There hasn't been anything since then. What we - what the parties asked Commissioner Holmes to do was to conduct the MRA process. Ambulance officer was seen as the key classification and he lined it up. The union has foreshadowed the work value application for ambulance officers but it is not something that needs to trouble this Full Bench at the moment. It may be never, it depends on what happens in a couple of months. The only other thing is, the employers have opposed retrospectivity and it is being put that is because they didn't cause the delay.

PN275

The question is exceptional circumstances. We say there are exceptional circumstances. And one needs to take into account that there were orders made and there was a stay. So it is not as if they weren't in a position knowing that there was a likelihood that there would be an increase and ought to be able to prepare themselves. The stay was granted because it would be hard to get the money back from the employees, I understand that. The employer is in a position to protect themselves. In our submission there are exceptional circumstances in this case that warrant some retrospective. Unless there is anything else those are the matters in reply.

PN276

SENIOR DEPUTY PRESIDENT ACTON: Thank you. We will reserve our decision. We now adjourn.

<ADJOURNED INDEFINITELY [11.52 AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHMU5 SUMMARY OF ISSUES PREPARED BY THE LHMU DATED 15/7/2005 PN10
EXHIBIT #WPT4 REVISED TABLE 2, 14/07/2005 PN182
EXHIBIT #WPT5 REVISED RATES TABLE 2 PN182
EXHIBIT #WPT6 REVISED TABLE 5 PN182