C2005/4583, Transcript of Proceedings [2005] AIRCTrans 2506 (12 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13573-1

COMMISSIONER SMITH

C2005/4583

APPLICATION BY FINANCE SECTOR UNION OF AUSTRALIA
s.113 - Application to vary an Award
(C2005/4583)

MELBOURNE

12.26PM, MONDAY, 28 NOVEMBER 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 D CRONIN: I seek leave to appear on behalf of Bank West.

PN3

MS MALONEY: We don't object, sir.

PN4

THE COMMISSIONER: Yes, Mr Cronin. Ms Maloney?

PN5

MS MALONEY: Sir, the application before you, if I could refer to C2005/4583, this application seeks to vary the Bank West Trust West Award 1998 by giving effect to the decision of the Full Bench of 8 August 2005 in the Family Divisions decision. It also seeks to increase the supported wage rate to $52 per week in accordance with the decision of Commissioner Gay of 19 August 2005. Sir, I do hand up the Service of Notice in respect to both matters, if I can.

PN6

THE COMMISSIONER: Yes.

PN7

MS MALONEY: I will provide Mr Cronin with copies by mail, if that's acceptable.

EXHIBIT #FSU1 TWO SERVICE OF NOTICES

PN8

MS MALONEY: Sir, what I've handed up is a Service of Notice in respect to 4583 of 2005 and a Service of Notice in respect to 5195 of 2005. I've also provided an extract from the ABS catalogue in respect to the Consumer Price Index. Sir, in respect to 4583 of 2005 we did write to Bank West on 21 November 2005 advising that we would be seeking leave to amend our application in this matter to incorporate all the provisions of the final orders issued by the Full Bench in the Family Divisions decision and we'd also be asking a period of 14 days in which to provide the amended draft orders in respect to that matter.

PN9

THE COMMISSIONER: Any objection to that course, Mr Cronin?

PN10

MR CRONIN: The only objection we've got is that we don't consent to the award being varied for the parental leave part. We do for the supported wage part, and I was proposing to make some submissions in relation to the parental leave part.

PN11

THE COMMISSIONER: Very well. I'll grant leave to amend your application to bring it in line with the Full Bench order and, do you want me to hear now from Mr Cronin in relation to the parental leave part?

PN12

MS MALONEY: Well, sir, it's the first time that we're aware that they oppose it, so.

PN13

THE COMMISSIONER: All right. Yes, Mr Cronin?

PN14

MR CRONIN: Yes. No, my apologies for that and I would have brought to attention sooner, but I haven't had an opportunity.

PN15

THE COMMISSIONER: That's all right.

PN16

MR CRONIN: Look, we don't consent to the variation to incorporate the Full Bench's order which was issued a couple of weeks ago and our submissions in relation to this are based on the decision itself combined with the arrangements which are already in place at Bank West and if I could take you to, unfortunately it's a bit difficult here, but I'm not sure if you've got a copy of the Full Bench's decision in Print PR082005 which is the family provision decision, but if I could take you to paragraph 393 of that decision.

PN17

THE COMMISSIONER: Yes.

PN18

MR CRONIN: This is where, in section 8 of the decision where the Full Bench was setting out its conclusions on the various matters that have been put to it, at paragraph 393 the Full Bench said:

PN19

The first conclusion is that we should take a positive step by way of award provisions to assist employees to reconcile work and family responsibilities. We think it likely that most employees are sensitive to the family responsibilities of their employees and do their best to accommodate those needs by adopting a flexible approach to working hours, leave and other arrangements whenever they can.

PN20

Now, just pausing there, we would say that Bank West is an employer which is cognisant of its employees' family responsibilities and balancing those with their work arrangements, and not only are they conscious of it, they're putting in place specific steps to address that. Now, I'll take you to those specific steps shortly, but carrying on in paragraph 393, the Full Bench said:

PN21

There are some employers however who are unlikely to accommodate the family responsibilities of their employees, even where it is practical to do so. It is with those employers particularly in mind that we have concluded that the award should contain provisions which provide employees with a better opportunity than they now have to obtain their employees' agreement to change in working arrangements.

PN22

Now, I don't think there'd be any argument from the FSU that Bank West isn't one of those employees. So we would say, you know, particularly in the case of Bank West, including these provisions in the award is unwarranted and we'd also say it's premature.

PN23

THE COMMISSIONER: Why is it premature?

PN24

MR CRONIN: Well, if we turn to paragraph 399 of the Full Bench decision, at paragraph 400, the Full Bench said, they exercised particular caution in coming up with the conclusion they did, and I just note that all the awards which were under consideration in the parental leave decision were industry type awards and none of them were enterprise specific awards, so I think it's with that in mind that those comments in paragraph 393 about particular employers was made, but that paragraph 399, the Full Bench said that:

PN25

We intend that the new provisions should be allowed to operate for a reasonable period and then be subject to review. During that period there will be an opportunity to test the efficacy of the new provision in meeting the needs of employees and to assess any adverse affects on the ability of employers to manage their business efficiently. On application we shall review the operation of the provision and consider in light of the parties' submissions whether provision should be obtained, modified or set aside.

PN26

Then in paragraph 400 the Full Bench went on to say:

PN27

While we have adopted a particular procedure designed to improve employees' access to parental leave and part time work in certain circumstances, it would be premature to consider applying that procedure more broadly.

PN28

So with that in mind and taking into account Bank West's particular circumstances, that we say the application is premature, and also unwarranted. Now, Bank West has just concluded a certified agreement with the FSU which was only certified less than two weeks ago on 16 November and the agreement number is 844400, and that's at print number PR965241, and in that agreement Bank West has taken a number of steps to accommodate employees' family responsibilities with their obligations to Bank West.

PN29

Now, if I could just refer you to some examples of that. Bank West has paid parental leave which is addressed at clause 31.14 of the agreement, has eight weeks' paid parental leave, and this is not something that's new for Bank West. It's been in place I think at least since 2002. In addition, and importantly to this particular application, the agreement has a vision which is titled Career Breaks, and I don't know if you have the agreement with you, but if I could just take you to clause 33 of the agreement dealing with Career Breaks, they're defined at clause 33.1 and it says:

PN30

A career break is an extended period of leave without pay and is intended to provide eligible employees with an opportunity to obtain a break from their normal bank duties whilst retaining their link with Bank West with an ultimate view to their return to Bank West's service. This complements Bank West's objective of improved retention of trained employees who are without the option of a career break and have no option but to resign.

PN31

These comments sort of reflect back in what the Full Bench was saying at paragraph 393 about particular employers are sensitive to their needs, of the employees' family responsibilities. At clause 33.3 of Career Breaks it specifically says:

PN32

This clause is to allow for employees to apply for unpaid leave as a career break for genuine reasons such as -

PN33

and giving the example of, "family responsibilities", and then further down at clause 33.5, which is particularly relevant to this application, is the period of leave and it says:

PN34

The length of a career break may vary between six weeks and 36 months and when taken in conjunction with parental leave the total unpaid leave may be up to 48 months.

PN35

What this application is seeking to do is extend parental leave to two years. Well, Bank West has already put something in place which is allowing employees to effectively take four years off and retain their employment with the bank.

PN36

Could I also say that the length of the break also addresses the other aspect of the application which is the simultaneous parental leave of up to eight weeks. Well, that's clearly addressed by the Career Break provision in the certified agreement. I should also note that there's a Bank West policy which reflects the certified agreement for all those employees not covered by it and the policy applies equally to them. So the aspects of the application in relation to taking two years maternity leave or eight simultaneous weeks of parental leave with your spousal partner is already recognised by Bank West and addressed in the certified agreement.

PN37

In relation to the aspect on Return to Work, part time, well, Bank West already does that as a matter of course and it's actually reflected in clause 35.16 of the certified agreement. It provides this, that employees can return part time if agreed by the employer and it also is reflected in the Bank West award already. Now, admittedly it's only a two year extension to return part time. Whereas the application, I understand, deals with a return to part time until a child reaches school age. But while it's only two years, we'd submit that obligations relating to returning to work part time after maternity leave or relating to part time work more generally for family responsibilities is currently dictated to by the current state of anti-discrimination legislation and cases under the legislation where, regardless of what we put in the award, in our submission Bank West is obliged to consider applications genuinely for part time work for employees with family responsibilities and returning from maternity leave and can't refuse those without any genuine reasons.

PN38

They're probably obliged under the cases, I would submit, that they should even trial these out before part time requests are rejected, and there are a number of cases - - -

PN39

THE COMMISSIONER: I'm surprised the Full Bench thought it necessary at all to make an order.

PN40

MR CRONIN: Yes.

PN41

THE COMMISSIONER: If that was the case in Western Australia, they could have conveniently dismissed the application as it being not necessary.

PN42

MR CRONIN: Well, Bank West certainly takes heed of cases under discrimination law and conducts its practice to comply with those and there are a number of cases where - - -

PN43

THE COMMISSIONER: No, no, I wasn't criticising you at all, Mr Cronin. I thought your proposition was that there were requirements that would be caught up by anti-discrimination law and that's why it's unnecessary for the Commission to act.

PN44

MR CRONIN: Yes, I guess this goes back to the Full Bench's point in paragraph 393 that, you know, a lot of employers wouldn't heed that anyway, they would disregard their obligations. There's always rogue employers out there who will disregard their obligations, despite the fact that they exist. They might not even know about them, but someone like Bank West is certainly aware of them and addresses those. Can I just say that the Bank has never had, as far as I'm aware, any issues, complaints or claims in relation to employees returning part time.

PN45

Also in the certified agreement there's generous carers' provisions for employers to take care of employees, and this is addressed at clause 30. Now, while employees get their five days' carer's leave, they can also take any sick leave entitlement that they have over 10 days for the purposes of carer's leave, and that's unlimited. The only limit is that they keep their 10 days' sick leave. There are also generous bereavement leave provisions, which is up to five days bereavement leave, and then after that employees can take sick leave entitlement, again in excess of 10 days for bereavement purposes, and again, there's no specific limit to that, and that's addressed at clause 30.3 of the certified agreement.

PN46

We would say that all these types of provisions contained in the certified agreement demonstrate Bank West's responsibility to their employees balancing and accommodating their family responsibilities. Other issues which we say should weigh against the making of or granting of the application are to note the relationship between the award and the certified agreement which has just been put in place. Clause 4 of the certified agreement provides that where there is inconsistency between the certified agreement and award, the certified agreement will prevail.

PN47

So including these provisions in the award we would say would be of no practical effect because they'll be inconsistent with the provisions of the EBA which has just been certified, and at present the certified agreement effectively mirrors the award apart from it includes paid parental leave as well, and I would also suggest that included in the award and having inconsistency then with the certified agreement will lead to confusion and complexity for those managers and employees trying to understand and administer what their rights and obligations are.

PN48

More generally we would say that granting the application at this point would be inconsistent with a couple of the objects of the Act and I'm specifically referring to the objects in section 3(d)(ii) and section 88A(a) which specifically provide for the objects in relation to variation of awards in part 6, and both those objects refer to ensuring that wages and conditions are protected by a system of enforceable awards. Now, including this provision in the award would not be enforceable for a large majority of employees covered by the certified agreement. We would also argue that section 88A(d) in part 6, also dealing with the Commission exercising its powers to vary awards, that the Commission should exercise those powers in a way which encourages agreement making and we would say that including this provision in the award would do absolutely nothing to encourage agreement making.

PN49

If I could just finally note that the Family Provisions decision was handed down in August. The certified agreement wasn't concluded until October and in our submission that's probably a process by which such specific arrangements as have been contemplated in this application should have been pursued. To my knowledge they weren't, and we would say that it is now not appropriate to grant the award and we would say it's premature in light of the Commission's decision and also unwarranted in the circumstances of Bank West specifically.

PN50

THE COMMISSIONER: Yes, thank you. Ms Maloney, do you want to consider the transcript and respond?

PN51

MS MALONEY: Well, Commissioner, I would like to be given this opportunity, just to point you to the issue that despite the fact that we served this application in early November and as of 21 November we were advised we were going to vary our application and I have spoken to Mr Cronin in respect to the other applications before you. It is the first time we became aware of the opposition to us trying to insert the test case standard today. I would like to be given the opportunity to look at the transcript, but I'd just make the preliminary comment that what we're doing here is trying to ensure that this award continues as a safety net award in accordance with the statutory provisions of the Act.

PN52

There is no suggestion in this test case standard, or any other test case standard that I'm aware of that they are only confined to industry awards, and I would make the point that that is the test case where it was seeking, and the other argument that we'll put, we'll address, if we can, in more detail. But we reject the proposition that the award should not be varied because we have just certified a new enterprise agreement.

PN53

THE COMMISSIONER: Yes, very well. I'll give you a period of 14 days to respond. Do you want to have the matter re-listed to respond orally or do you want to respond in writing? What would you prefer?

PN54

MS MALONEY: Well, sir, I suppose it really depends on if the - we're prepared to respond in writing and have the matter determined accordingly.

PN55

THE COMMISSIONER: All right. If you would afford me a response in writing with a copy for Mr Cronin. Mr Cronin, you will have seven days after that to reply in writing. Now, the other aspect, the safety net review.

PN56

MS MALONEY: Sir, this application seeks to vary the rates of pay in the award to give effect to the 2005 safety net review decision of the Full Bench. It seeks to vary the work related allowances, the expense related allowances and, of course, the rates of pay by $17. In terms of the expense related allowances, I have handed up an extract from the CPI, the Consumer Price Index, as provided by the Australian Bureau of Statistics. Just to demonstrate, sir, it's contained in a copy of Table 2 from the Consumer Price Index catalogue, 6401.0 and that the CPI for June 2004 to June 2005 is 2.5. The expense related allowances have been varied by that amount in the award.

PN57

Sir, there has been discussion between ourselves and Bank West in respect to a draft order. I am able to table a draft order, but we have agreed, firstly, that Bank West seek to have 14 days in which to examine the rates of pay. Secondly, they're also seeking some amendments to what they say are typographical errors in the current award and they go to clauses 8.4.2 and 14.1.3b. We have not had an opportunity to examine what they say are typographical errors, so we have agreed to the 14 days. The draft order does seek to come into effect from 14 June 2006 which is 12 months since the award was last varied for the 2004 safety net review and that variation can be found in Print PR959659.

PN58

So, sir, I would seek your guidance. There may be some changes to the draft order, whether you wish me to hand up this draft order or wait until a final draft order within the 14 days and I can email that accordingly.

PN59

THE COMMISSIONER: No, I think it's appropriate that you wait. What's your view, Mr Cronin?

PN60

MR CRONIN: I'm quite happy for that not to be handed up and just provide a final draft once we have conferred with each other and I'll check the figures.

PN61

THE COMMISSIONER: All right. And you're content for the operative date to be 14 June 2006?

PN62

MR CRONIN: Yes. Look, our initial issue which was bought to the Commission's attention is in correspondence, was that we'd be concerned that some rates and allowances were getting ahead of - in the award, would get ahead of the EBA we have just concluded, but given that's now not going to be the case if the effective date is June 2006, we don't have any issue with that.

PN63

THE COMMISSIONER: Yes, very well. You agree with Mr Cronin in relation to the draft order and forward it to me and I'll make an order which is prospective in its operation.

PN64

MS MALONEY: Thank you, sir.

PN65

THE COMMISSIONER: Anything else, Mr Cronin?

PN66

MR CRONIN: Just that I did briefly foreshadow that we had no opposition to the supported wage amendment, so we do consent to that from 61 to 62 - - -

PN67

THE COMMISSIONER: All right, that's in 4583?

PN68

MR CRONIN: That's correct.

PN69

THE COMMISSIONER: All right. Thank you very much. I'll wait to receive the submissions of the parties. The matter is adjourned.

<ADJOURNED INDEFINITELY [12.49PM]

PN70

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 TWO SERVICE OF NOTICES PN7