C2005/5093, Transcript of Proceedings [2005] AIRCTrans 2583 (30 December 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13711-1

COMMISSIONER BLAIR

C2005/5093

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
s.113 - Application to vary an Award
(C2005/5093)

MELBOURNE

9.37AM, MONDAY, 12 DECEMBER 2005

PN1

MR J NUCIFORA: I appear on behalf of the Australian Services Union.

PN2

MR J MORLEY: I seek leave to appear on behalf of the employer member respondent the Australian Business Industrial.

PN3

MR M COOPER: I appear from Employers First on behalf of the Australian Paint Manufacturers Federation and for respondent employers to the award who are members of Employers First.

PN4

THE COMMISSIONER: Thank you. Mr Nucifora do you have any objections to Mr Morley seeking leave?

PN5

MR NUCIFORA: No Commissioner.

PN6

THE COMMISSIONER: Thank you leave is granted. Yes Mr Nucifora.

PN7

MR NUCIFORA: Thank you Commissioner. Commissioner, this is an application to vary the Australian Paint Industry Clerical Officers Award 2001 for the family provisions – the decision of PR082005 handed down in August this year. Commissioner, before I take you to the substantive application, if I may by way of confirming service tender a bundle of documentation as an exhibit.

EXHIBIT # ASU1 BUNDLE OF DOCUMENTATION WITH A COVERING LETTER DATED 17 NOVEMBER

PN8

MR NUCIFORA: Thank you Commissioner. So Mr Cooper ought to have received a copy of this. It’s a covering letter ASU - exhibit ASU1 is a, as I mentioned earlier, is a bundle of documentation with a covering letter dated
17 November signed by myself. It includes in the covering letter a reference to the application being listed for hearing before you today. We were also seeking leave to amend the application to increase the supportive wage from $61 to $62 and we seek leave Commissioner, to do that. We will through the proceedings today – we’re seeking to take the opportunity to make sure this award is up to date.

PN9

Commissioner, we attach the hearing notice, the application to vary the award, of course there was an application that we’ve made for an order for substitutive service and an earlier draft order but that’s certainly not the draft order that we would seek to rely on today. I think there’s almost - I’ve only just started to become involved with the family provisions variation but there’s a couple of goes at trying to get orders right I’ve found, before we can get it right. So as after - sorry, the last page of exhibit ASU1 has a transmission report which confirms all of the employer organisations that would normally be notified of award variations to this award have been notified and are represented here today.

PN10

If I may tender a further exhibit Commissioner, a further bundle of documentation with a covering letter dated the December, by way of a further - in this case a further amendment to the earlier draft order. If I may tender that.

EXHIBIT # ASU2 BUNDLE OF DOCUMENTS WITH COVERING LETTER DATED 9 DECEMBER

PN11

MR NUCIFORA: Thank you Commissioner. ASU2 refers to the hearing once again and refers to some substantive changes that we made by removing bereavement leave, provisions from the personal leave provision, that was a structural change that we ought to have made arising out of the family provisions decision. There are still further changes to this, but they are not major changes as I understand it. I have spoken to Mr Cooper and I have received an email from Mr Morley about those amendments and they’re amendments of course as I mentioned that we made ourselves. This order here is getting a lot closer, probably 95 per cent of the way there. Maybe if I take you through this order here that the substantive issues Commissioner, in this order we refer to of course a new bereavement leave at clause 28A that we’ve added.

PN12

We inserted item A(2) a caring responsibilities for casual workers arising out of the decision. We have an item A(2) the postponement of annual leave if there was an existing provision in the award, so we have now extended that now to 24 months by agreement between the employer and the employee. Once again, it is coming out of the family provisions decision. We have deleted the whole personal leave clause and replaced it with a new standard clause that picks up the same entitlements. We now have sick leave in 28.2.2. Before I take you any further on that, the definition of immediate family is something that’s been expressed as a concern within our union, although we’ve put in the standard as per the model clauses of the decision. There is some concern that that may be discriminatory in certain states.

PN13

What we say though, is as part of the package deal that the ACTU and the employers negotiated in the appendix 2 of the decision there’s an agreed matters list and in 1.1 it talks about, if I may quote from that:

PN14

The existing definition of immediate family will be retained, within the next six months the parties will jointly review the definition to ascertain whether there are any discriminatory aspects.

PN15

We seek to put on the record that we look forward to that review and we hope and pray that this Commission has the opportunity to review that definition in that time, but it was something that was raised within our union. While we’ve put the standard agreed clause in we do raise that concern about whether it may be discriminatory in certain states. In 28.2 there is a reference Commissioner, of course to sick leave which now becomes personal leave. There have been some amendments proposed by Mr Cooper, I’ll let him go to that when he can speak, but they go to provisions in our existing award and in particular 28.3.5 - sorry, that’s in relation to workers compensation that should be referred to. In 28.2.2 where it reads 6.67 hours that is per completed month, per completed month should go into that.

PN16

I’ll come back to how we send these changes on to your office Commissioner. 28.2.3 we seek to add that in, that refers to the 28.3.2(b) of the existing award relates to the taking of sick leave in those first three months. So they’re things that are in the existing award because we went to the template orders that were issued by – as test case orders from the test case decision, there's a few things that we need to double back on and ensure that the - that existing entitlements are not missed in the current award and that they do go in. There are likely to be other changes, I know my friend Mr Morley has a few cross referencing changes. What I was going to suggest Commissioner, is that the employers and the union be given a further, if not until the end of this week, a further seven days to finalise what I would say is about five percent. I don’t believe there are substantive issues that are outstanding now.

PN17

But to fix those up and have the final consent order - I sent through an electronic copy on Friday to your office so these changes would be made to that. Once we’ve double checked all of that then we would send that through to your office and would seek to have approval in principle today. Commissioner, just to go through the rest of that, we do have in 28A bereavement leave now being - now sitting alone as an entitlement. Parental leave is a standard parental leave clause that we picked up from the decision. There are some issues that are not clear from the decision that came up in hearings last week such as the definition of child.

PN18

We know from the settlement of the test case orders that the definition of child in 29.1 does go to employees under school age and not the old - sorry child under school age - child of the employee not the employee. Child of the employee under school age, whereas it did read under one year of age or 12 months. That change isn’t clear in the decision but it is clear in the test case orders that have been issued. I refer to the, I’m aware of the business equipment - sorry the Business Equipment Technical Officers Award that was issued. Sorry I don’t have the print number here Commissioner, but the test case orders make that definition clear it was part of the if you like what was conciliated after the decision, but it isn’t clear to anyone who either wasn’t at those conciliation conferences or were not aware of the orders that were issued.

PN19

So I’d ask my friends to, just to double check with those test case orders that have been issued and we find that the rest of that, as I say that parental leave clause ought to be as per the standard including our communication during parental leave. Of course the important right to request further leave for another 12 months so there is actually 24 months of parental leave available. In item B of the draft order I mentioned before that we would seek leave to vary our application to include a variation to the supportive wage system bringing that up to date now $62 as a result of the decision in August this year in PR961623.

PN20

Commissioner, we seek an operative date from today’s date if there is, if you like, consent in principle, but Commissioner, if you believe that ought to be from the day that you have a final consent order and we would suggest the next seven days or before the end of the week we would have no problem with that. Otherwise Commissioner, subject to what my friends might say we seek to have that order approved subject to a final draft order, consent order being sent to your office, if the Commission pleases.

PN21

THE COMMISSIONER: Thank you. Mr Morley.

PN22

MR MORLEY: Thank you Commissioner. We’ve reviewed an earlier version of this draft order and would want to double check the order - the terms of the order and have at least several days to do that in. So, subject to that review we have no objection to the granting of the order in the terms sought by the order. In terms of the date from which the order should take effect, we think once the final order is passed through to the Commission it should take effect from that day onwards.

PN23

THE COMMISSIONER: Right. Do you - does your organisation object to the application to amend the supportive wage system minimum?

PN24

MR MORLEY: No. No we do not object Commissioner to that application.

PN25

THE COMMISSIONER: Okay thank you. Mr Cooper.

PN26

MR COOPER: Thank you Commissioner. We’re in a similar situation to my friend Mr Morley, whilst we don’t object in principle the award being varied to give effect to the family provisions decision and to increase the supported wage, we would appreciate a period of some days just to confirm the draft order. There are some clause references which appear to be in error and some other minor amendments which would need to be made before we were in a position to consent to the award being varied. We would seek a period of seven days to do that if it pleases, Commissioner.

PN27

THE COMMISSIONER: Okay thanks Mr Cooper. All right in regards to firstly the application to seeking leave to amend the supportive wage system rates from $61 to $62, that’s granted. In regards to the request by all parties for a further period of time to review the draft order, the Commission is more than happy to allow the parties until close of business, that is 5 pm on Tuesday 20 December, to review those draft orders and to make any amendments that they deem necessary in order for the order to be correct. Once the Commission is advised that the order is agreed to, then the variation shall apply from the date in which the Commission varies the award. The order shall remain in force for a period of 6 months from that date.

PN28

The Commission would not deem it necessary to reconvene if the award provides - sorry, if the draft provided to the Commission is one by consent of all parties. They could just advise the Commission accordingly, and it will vary it on the paperwork. Okay, thank you very much the Commission wishes you all a good morning and stands adjourned.

<ADJOURNED INDEFINITELY [9.50AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT # ASU1 BUNDLE OF DOCUMENTATION WITH A COVERING LETTER DATED 17 NOVEMBER PN7
EXHIBIT # ASU2 BUNDLE OF DOCUMENTS WITH COVERING LETTER DATED 9 DECEMBER PN10