C2004/6712, Transcript of Proceedings [2005] AIRCTrans 225 (2 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10138

COMMISSIONER GRAINGER

C2004/6712

s.113 - application to vary an award

APPLICATION BY ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS, AUSTRALIA, THE
(C2004/6712)
Quality Auditing and Assessment Award 1999

MELBOURNE

9.33AM, THURSDAY, 20 JANUARY 2005

PN1

MR M BUTLER: I appear on behalf of the Association of Professional Engineers, Scientists and Managers Australia. If the Commission pleases, this is an application to vary the Quality Auditing and Assessment Award 1999 in order to implement safety new review and test case decisions of the Commission. Firstly, Commissioner, if I could draw to your attention that there should be a statement of service on the Commission's file to the effect that the time, date and place of hearing and a copy of the application has been forwarded to the award respondents.

PN2

THE COMMISSIONER: Yes.

PN3

MR BUTLER: In addition, Commissioner, I have slightly amended the draft order which was amended to include a header and proposed operative dates was forwarded to the award respondents on 14 January. You wouldn't have a statement of service for that, but perhaps it would be good if I table the registered mail postal receipt.

PN4

THE COMMISSIONER: Yes, all right

EXHIBIT #A1 ORIGINALSTATEMENT OF SERVICE DATED 13/01/2004
EXHIBIT #A2 SECOND STATEMENT OF SERVICE

PN5

MR BUTLER: Thank you. Commissioner, the documents include a covering letter asking for the various parties to indicate their position on the application and the proposed draft order, so I will just table that.

PN6

THE COMMISSIONER: Yes, all right. Well, I note you are giving me a lot of original documents here, Mr Butler.

PN7

MR BUTLER: I have a copy.

PN8

THE COMMISSIONER: You are happy for me to have the originals?

PN9

MR BUTLER: Yes.

PN10

THE COMMISSIONER: Yes, all right, fine. Thanks very much.

EXHIBIT #A2 AUSTRALIA POST RECORD DATED 14/01/2005
EXHIBIT #A3 LETTER TO NATIONAL ASSOCIATION OF TESTING AUTHORITIES DATED 14/01/2005
EXHIBIT #A4 DRAFT ORDER

PN11

THE COMMISSIONER: Now, can I just ask, you have previously furnished that document to us, and that is the document we have been working with, is that correct?

PN12

MR BUTLER: Commissioner, I forwarded an electronic copy of this draft order with the header and the operative dates. I think it was either yesterday or the day before yesterday.

PN13

THE COMMISSIONER: We will just go off the record for a second.

<OFF THE RECORD

PN14

THE COMMISSIONER: Yes?

PN15

MR BUTLER: I have other copies here.

PN16

THE COMMISSIONER: Yes, thanks, Mr Butler. Yes, go on.

PN17

MR BUTLER: Thank you. The draft order, Commissioner, could be conveniently divided into three sections. The first section deals with implementation of safety net reviews, and then that is followed by the implementation of the working hours case decision, and finally the redundancy case decision. Now, perhaps if I should point out before going any further, Commissioner, that to date the Association has received responses from SGS International Pty Ltd and NCS International, which is the subsidiary of NATA, and both these responses - and I have correspondence which I can table.

PN18

THE COMMISSIONER: Why don't you do that, yes.

PN19

MR BUTLER: Okay.

PN20

THE COMMISSIONER: Since there are no appearances from respondents I am happy to have something from somebody who is a respondent on the file.

PN21

MR BUTLER: Okay. The first one, Commissioner, is an email sent to myself and to yourself from Mark Hammersley, Human Resources Manager for SGS Australia Pty Ltd.

EXHIBIT #A5 EMAIL FROM MARK HAMMERSLEY, SGS AUSTRALIA PTY LTD

PN22

MR BUTLER: And the next one is from NCS International, which is the subsidiary of NATA, the National Association of Testing Authorities.

EXHIBIT #A6 LETTER FROM NCS INTERNATIONAL

PN23

MR BUTLER: Now, Commissioner, the difficulty that we have is that with responses only from two of the award respondents who both consent, that is not all the award respondent says. There are one, two, three, four others who, you know, despite our best endeavours, have not responded

PN24

THE COMMISSIONER: But they have not put in any appearance today?

PN25

MR BUTLER: No

PN26

THE COMMISSIONER: And you have no indication that they object?

PN27

MR BUTLER: No.

PN28

THE COMMISSIONER: No. All right, that is fine. Yes, thanks.

PN29

MR BUTLER: Commissioner, if I could just refer to the draft order. Subclauses (a)(1) and (a)(2) seek to implement the May 2001, 2002, 2003 and 2004 safety net review decisions. The rates have been calculated and at least agreed by some of the respondents, and there is a clause which contains the absorption of safety net adjustment, and the Association gives the commitment that is required in accordance with the principles. That is all I would say insofar as the safety net review decision is concerned. Subclauses (a)(3) of the draft order on page two proposes a new clause for overtime Sunday and public holiday work, and that seeks to implement the working hours case.

PN30

As you can see, Commissioner, there is an overtime clause in the Quality Auditing and Assessment Award, which is a precondition, as you would be aware, for the implementation of this decision. There is one amendment to the test case clause which has been a feature of most of APESMAs private sector awards. And if I could draw your attention to clause 24.1.2, which outlines the circumstances under which an employee can refuse to work time in excess of ordinary hours. And if I could take you down to 24.1.2(v) which says that employees' compensation, and that is an additional subclause to what is in the test case decision. And the origin of that was that when the Association first sought to vary our major private sector awards, including such awards as the Technical Services Professional Engineers General Industries Award 1998, the Mining and Manufacturing Professional Engineers Award, and our private sector awards.

PN31

The employers argued at that time that one of the factors that should be taken into account when, you know, determining whether or not a person is justified in refusing to work overtime, is whether or not they have already been paid for working a certain amount of overtime. So the Association agreed, and Senior Deputy President Kaufman, being a decision on the transcript on 17 December of 1983.

PN32

THE COMMISSIONER: It can't have been 1983. Senior Deputy President Kaufman?

PN33

MR BUTLER: Yes.

PN34

THE COMMISSIONER: He has only been here two years. 2003?

PN35

MR BUTLER: Sorry, yes. He approved - - -

PN36

THE COMMISSIONER: Have you got a print number for that decision?

PN37

MR BUTLER: Yes, I have the transcript, but I also have a copy of the variation for the Technical Services Professional Engineers General Industries Award 1998, which is our major private sector award.

PN38

THE COMMISSIONER: Yes. Well, just give me the print number of SDP Kaufman's decision on the transcript just to start off with. It should be up in the corner.

PN39

MR BUTLER: It's not. It's just an Auscript - - -

PN40

THE COMMISSIONER: Yes, okay, sorry. It is just a decision on transcript.

PN41

MR BUTLER: Yes.

PN42

THE COMMISSIONER: What is the matter number, what is the case number?

PN43

MR BUTLER: The case number was C2002/5015.

PN44

THE COMMISSIONER: And it was what date? It should be on the face of the transcript, shouldn't it?

PN45

MR BUTLER: Yes. It was Tuesday, 17 December 2002.

PN46

THE COMMISSIONER: Yes, thank you.

PN47

MR BUTLER: And I can table the variation that was approved to this award, which is contained in print number 926511, and perhaps if I could just - - -

PN48

THE COMMISSIONER: So PR926511, is that correct?

PN49

MR BUTLER: Yes.

PN50

THE COMMISSIONER: Yes, thank you.

PN51

MR BUTLER: And on page two of this order, Commissioner, under clause 15A.2.5, it mentions the employees' compensation - - -

PN52

THE COMMISSIONER: Yes.

PN53

MR BUTLER: I just thought it was important to give the background as to why there was a deviation from the test case decision.

PN54

THE COMMISSIONER: Yes. Well, the fact of the matter is, if there is any dispute with regard to the implementation of that clause the matter will come to the Commission for determination, it will be decided in accordance with the established law and precedent. Is that not right, Mr Butler?

PN55

MR BUTLER: Yes.

PN56

THE COMMISSIONER: Yes, thank you.

PN57

MR BUTLER: Finally, the next variation is the implementation of the redundancy case decision and redundancy case supplementary decision, and that is outlined in clauses A(4) and (5), which include a new clause 3, termination of employment and a new clause 14, redundancy. These clauses incorporate the model clauses in the redundancy case supplementary decision, with the exception and which has been the case in all our awards, that in clause 13.1, notice of termination of employment, the standard award provision for professional employees is one month's notice and, or course, that has been retained. There has been no reduction in the time.

PN58

THE COMMISSIONER: Yes.

PN59

MR BUTLER: But in other respects these clauses reflect the model as they are set out in the redundancy case supplementary decision. Commissioner, the proposed operative dates for the variations is set out in clause B on page nine. Clause 1 and 2, which is safety net reviews, to take effect from the first full pay period on or after 20 January 2005, and clauses 3, 4 and 5 of this order shall take effect from 20 January 2000. If the Commission pleases, that would conclude my submissions.

PN60

THE COMMISSIONER: Yes, thank you very much, Mr Butler. I note that there are no other appearances today from any employer organisation, and I note that a number of employers have actually - well, Mr Butler has educed evidence of consent to the orders, and I am satisfied that it is appropriate for the Commission to issue the orders in the form sought, and accordingly I do make these orders today, 20 January 2005, in relation to the Quality Auditing and Assessment Award 1999, and they will issue after these proceedings. Thank you very much for your submissions and assistance, Mr Butler. I will now adjourn.

<ADJOURNED INDEFINITELY [9.48AM]

PN61

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 ORIGINAL STATEMENT OF SERVICE DATED 13/01/2004 PN4
EXHIBIT #A2 SECOND STATEMENT OF SERVICE PN4
EXHIBIT #A2 AUSTRALIA POST RECORD DATED 14/01/2005 PN10
EXHIBIT #A3 LETTER TO NATIONAL ASSOCIATION OF TESTING AUTHORITIES DATED 14/01/2005 PN10
EXHIBIT #A4 DRAFT ORDER PN10
EXHIBIT #A5 EMAIL FROM MARK HAMMERSLEY, SGS AUSTRALIA PTY LTD PN21
EXHIBIT #A6 LETTER FROM NCS INTERNATIONAL PN22