C2005/4356, Transcript of Proceedings [2005] AIRCTrans 2205 (21 October 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13076-1

COMMISSIONER SPENCER

C2005/4356

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
s.113 - Application to vary an Award
(C2005/4356)

BRISBANE

10.09AM, FRIDAY, 07 OCTOBER 2005

PN1

MR R CURTIS: I appear on behalf of the Brisbane City Council.

PN2

MS C COLLYER: I appear on behalf of the Australian Services Union, Central and Southern Queensland Branch.

PN3

MR R TARNAWSKI: I appear on behalf of the ASU Services Branch.

PN4

MR B DEVLIN: I appear on behalf of the Australian Manufacturing Workers Union.

PN5

THE COMMISSIONER: I've received the submissions in response to the directions that have been set, specifically in relation to the meal allowance. Mr Tarnawski, effectively, that is your application and I think in fact you filed separately an application or was it just submissions that you filed?

PN6

MR TARNAWSKI: Just submissions.

PN7

MR CURTIS: Sorry, Commissioner, there was a separate application filed.

PN8

THE COMMISSIONER: Yes, you're right.

PN9

MR TARNAWSKI: Yes, I did, sorry, yes.

PN10

THE COMMISSIONER: It's a separate application, it's C2005/4356 and for the purposes of the record, as my associate has alluded, this is in some way being heard jointly with C2004/6535 which is in fact the overriding application by the Brisbane City Council to vary the Brisbane City Council Salaried Staff Award 2002. Effectively from those submissions, and there have been some conferences with the parties between the original hearings in the award matter whereby, as you have summarised, Mr Tarnawski, in your submissions, the parties became aware that there was a difference of opinion that had emerged through discrepancies in negotiations, if I can term it that way, whereby the union has filed this separate application in relation to meal allowance. Did you wish to talk to those submissions at all, Mr Tarnawski?

PN11

MR TARNAWSKI: No, Commissioner.

PN12

THE COMMISSIONER: Mr Curtis, did you have any submissions that you wanted to make in relation to the meal allowance? I understand, if I could say probably in relation because the Brisbane City Council staff award matter has been awaiting finalisation for the finalisation of the meal allowance award. As I understand it, there is consent between all parties to all of the variations in the Brisbane City Council Salaried Staff Award. That's the case, isn't it? Mr Tarnawski, on behalf of the unions, would you like to confirm that for the record?

PN13

MR TARNAWSKI: That's correct.

PN14

THE COMMISSIONER: Mr Curtis, that's the case except for the meal allowance issue.

PN15

MR CURTIS: Correct, Commissioner. There was an amended application filed on 4 August and that highlighted four agreed variations to the original draft and the fifth variation was the $9.60 meal allowance that led to the ASU filing their separate amendment to increase that. My understanding is that, yes, all four amendments to our original application are being consented to and the only issue that is outstanding is the rate for the meal allowance.

PN16

THE COMMISSIONER: With respect to the meal allowance, it's fair to say that Mr Tarnawski relies on the original decision of the Commission in 1992, I think, and 1994 in terms of the principle that was set or the rationale that was set at that stage for applying or increasing the allowance.

PN17

MR TARNAWSKI: And subsequent decisions.

PN18

THE COMMISSIONER: In response to that, Mr Curtis, the union is opposing that particular decision and the fall-back position, as I understand it, is that if the Commission is minded to increase that allowance, then you are seeking that the increase, and I'm a little bit confused here, but the increase would only apply from June 2003?

PN19

MR CURTIS: No, that's not entirely correct, Commissioner. Unfortunately in the rush to get down here I didn't bring my submissions with me. If I could possibly get a copy back to refresh my memory. I understand the original argument was well argued by the ASU those many years ago, but I'm under instructions - - -

PN20

THE COMMISSIONER: Any compliment to yours truly, Mr Curtis?

PN21

MR CURTIS: Mere coincidence, I think, Commissioner.

PN22

THE COMMISSIONER: Overcome such brilliant submissions now.

PN23

MR CURTIS: I've been a sacrificial lamb once before but I think on this occasion I'm well and truly hung out to dry - off the record of course, yes. My instructions are that the matter boils down to a couple of things that we had negotiations in the original variation with the award. We came up with a figure based on a formula, we couldn't use that formula in the variation because we took into account EBA rates as opposed to award rates. Council's first submission was, well, that was the figure that we agreed to, that should be it.

PN24

The second submission was that the award came into effect in 2002 so any adjustments should be from 2002, not the operative date, so it was adjustments from that date as opposed to the ASUs submissions to go back to 1992, I believe.

PN25

THE COMMISSIONER: Any adjustment. I'm just not quite following that submission.

PN26

MR CURTIS: Any calculations.

PN27

THE COMMISSIONER: Any calculations should come from 1992 because that was the original inception of that particular award.

PN28

MR CURTIS: The ASU is submitting that the calculations should apply from when the award was last varied, which was 1992. The council's second submission is that, well, the award came into effect in July 2002 so the calculations should only apply from 2002 which would obviously reduce the amount.

PN29

THE COMMISSIONER: Yes, but certainly if you look at the precedent in terms of the rationale for an increase in the meal allowance, the manner in which the process is adopted is that you take, as I understand when the allowance was last increased, the CPI figure at that time and you adjust it using the most current figure and the difference between those two.

PN30

MR CURTIS: Was the formula, correct.

PN31

THE COMMISSIONER: Is council suggesting that I should step away from that formula?

PN32

MR CURTIS: My instructions are that council believes that on this occasion the formula should be re-examined, yes.

PN33

THE COMMISSIONER: Your submission is that you simply pick the 2002 figure - what's your rationale for that again?

PN34

MR CURTIS: When the current award applied from July 2002 so the calculations should be from the date of when the current award came into operation.

PN35

THE COMMISSIONER: When that current award came into operation, just refresh my memory, the meal allowance was taken and the meal allowance was the one that had not been adjusted since 92, as per Mr Tarnawski's submissions. Is that correct?

PN36

MR CURTIS: That's correct, yes.

PN37

THE COMMISSIONER: That is the basis on which in fact, if the increase is granted in the form that Mr Tarnawski has set out in his submissions, if it was granted, council consider that it should be operative from when?

PN38

MR CURTIS: Any operative date would be from whenever we have the award processed. Our argument is more along the lines of what the amount should be, not the operative date.

PN39

THE COMMISSIONER: It's just that you have a paragraph, as I understand, in your submissions on the last page that indicates:

PN40

As these submissions are based on calculations from March 92, council submits that it should be based on an increase calculated from the time of the new award.

PN41

I understand what you're referring to is that you're saying the operative date for the Brisbane City Council Salaried Staff Award should be June 2003. Is that correct? Is that how I should be reading that?

PN42

MR CURTIS: I'm afraid that's the ASUs submissions. No wonder I couldn't find it. May I have a quick look at the council's submissions, if possible please, to refresh my memory? Sorry for that, Commissioner.

PN43

THE COMMISSIONER: I suppose the simple question is, what operative date do you consider that the meal allowance should be applicable?

PN44

MR CURTIS: The calculation?

PN45

THE COMMISSIONER: Not the calculation but the operative date. The rationale, as I understand it, in terms of council's submissions, I understand the difficulty of your position, but there really is nothing that at this stage particularly would dissuade me from utilising that particular precedent that was put up and has been accepted as the formula for increasing the meal allowance. I think both parties concede that it meets the wage fixing principles and it has been used as the appropriate adjustment for the meal allowance. In fact, there doesn't seem to be anything in the rationale that you would move away from this formula of taking the CPI index at the time of the adjustment of the meal allowance and comparing it with the last adjustment. What is the operative date the parties are seeking, not only for this, but I suppose for the whole award because it would be the approach, as I understand, that all variations would be moving with the consistent date.

PN46

MR CURTIS: That's correct.

PN47

MR TARNAWSKI: We do agree with the council with 1 July operative date, Commissioner.

PN48

THE COMMISSIONER: 1 July 2005?

PN49

MR TARNAWSKI: That's correct.

PN50

MR CURTIS: May I disagree on that for a minute, for a slight reason and that is that the - and I think we' had some discussions that might have been off record before.

PN51

THE COMMISSIONER: You have. That's why I'm asking you. We might just go off the record at this point.

PN52

MR TARNAWSKI: That would be easier.

<SHORT ADJOURNMENT [10.20AM]
<RESUMED [10.27AM]

PN53

THE COMMISSIONER: Mr Curtis, Mr Tarnawski, Ms Collyer and Mr Devlin, I just ask you to confirm for the record what operative date is being sought, firstly, Mr Tarnawski.

PN54

MR TARNAWSKI: 25 June is the agreed date.

PN55

MS COLLYER: Starts on the Saturday.

PN56

THE COMMISSIONER: My understanding was that we just had discussions that the prospective date for the operative date for the award would be a prospective date sometime next week when the order was released in relation to the award and the meal allowance, that the parties are agreeable to that. Is that correct, Mr Curtis?

PN57

MR CURTIS: Now I'm confused.

PN58

THE COMMISSIONER: We might just go off the record then.

PN59

MR CURTIS: Sorry, Commissioner.

<SHORT ADJOURNMENT [10.28AM]
<RESUMED [10.29AM]

PN60

THE COMMISSIONER: Mr Curtis, I just ask you what council and the parties are seeking in relation to the operative date for the variations to the Brisbane City Council Salaried Staff Award and in fact the meal allowance, whatever the outcome of that variation may be?

PN61

MR CURTIS: Commissioner, the parties have had some detailed discussions about the operative date of the award variations and all amendments to the award should apply from Saturday, 25 June 2005. The reason why the parties have picked that date is, that was the date of the implementation of our new payroll system and we have incorporated the amendments into our pay system so we would require the order being issued from that date.

PN62

THE COMMISSIONER: Thank you. Are the other parties in agreement with that? Mr Tarnawski?

PN63

MR TARNAWSKI: We confirm that.

PN64

THE COMMISSIONER: Thank you. Ms Collyer?

PN65

MS COLLYER: I confirm that date.

PN66

THE COMMISSIONER: Mr Devlin?

PN67

MR DEVLIN: I confirm that.

PN68

THE COMMISSIONER: Thank you. Are there any other issues at this stage? I understand that on 27 April at PN52 there was a specific detailed summary of all the variations that are being sought under that award variation and they are being put on a consent basis. The only outstanding issue in terms of a determination is
the meal allowance and I would seek to reserve my decision but have it out fairly quickly in relation to all of these particular matters. Nothing else at this point, Mr Curtis?

PN69

MR CURTIS: No. I think we've covered everything three times, thank you, Commissioner.

PN70

THE COMMISSIONER: Nothing else from the other parties?

PN71

MR TARNAWSKI: No.

PN72

MS COLLYER: No, thank you, Commissioner.

PN73

THE COMMISSIONER: On that basis we will adjourn.

<ADJOURNED INDEFINITELY [10.31AM]