C2004/3396, Transcript of Proceedings [2005] AIRCTrans 461 (23 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 10488

COMMISSIONER BACON

C2004/3396

s.113 - application to vary an award

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
(C2004/3396)
Queensland Local Government Officers' Award 1998

BRISBANE

10.41AM, FRIDAY, 11 FEBRUARY 2005

Continued from 10/2/2005

PN5267

THE COMMISSIONER: Ms Heap?

PN5268

MS HEAP: Thank you, Commissioner. Just taking off from where we left off yesterday, Commissioner I just would like, in relation to the question of casual loading, to just deal with a couple of particular matters I think need emphasise that I didn't deal with yesterday. As you know from what we have submitted to you Commissioner, we are suggesting to you that by application of the analysis of the Full Bench in the Metals case and using the formula that they have utilised in that area, that the ASU would calculate that the general casual loading, the base loading should be at 25 per cent. We have set out in our outline at paragraphs 96 onwards, our rationale for that. There are just a couple of additional things that I would like to draw your attention to.

PN5269

The first is that this is an award which is unusual in a sense for casual employees, for example compared to the state award employees employed in our local government in Queensland in that the ordinary time hours, spread of hours for these employees is significantly expanded, so these casual employees are employed by virtue of the application of 19.2.1 in the award. The ordinary hours of duty for casual officers shall not exceed seven and a quarter hours in any one day and shall be worked between the hours of 6 am and 9.30 pm Mondays to Fridays, both inclusive and between the hours of 6 am and 12 noon on Saturdays.

PN5270

We say that that is different from a concept which generally applies and which we understand applies in relation to the state award employees in local government whereby there is a concept of ordinary hours regulated the same as full-time or part-time employees, general employees under the award and the notion of overtime and a casual employee can be asked to work overtime and get paid overtime penalties for that. We say it is different and to be taken into account because these casual employees don't have the option that other employees would have in relation to the question of whether you accept or reject the overtime or how your general hours are set. So it is a much more flexible arrangement in this award in relation to casual employees, different from their colleagues who are part-time and full-time employees, and that is an element that needs to be factored into the compensation. So for these people, ordinary hours includes evenings, when other people under the award it doesn't include that and also it includes weekend work, a part of a weekend which can be characterised as ordinary hours, not the same for their part-time or full-time colleagues.

PN5271

The other point, I think to make, is that in relation to the fact that there is a component, in the analysis that we used as a component for long service leave in accordance with the Full Bench in the Metals case, the important point, I think, to emphasise which hasn't been emphasised in the outline that we have given you, is that in this industry, long service leave is portable for officers under the award, other than casual officers who don't receive long service leave. So, where the analysis of various Full Benches in relation to other casual, or individual commissioners, in relation to other casual loading questions may factor in a component for long service leave and they generally tend to talk about, well, what is the pattern of employment in terms of what could you expect a full-time employee to do, and they talk about what the qualification period is for long service leave and they make an assessment or a judgment that you put this factor in for that, usually because a lot of people don't get to that level anyway with an employer or anything like that. They don't give it too big a factor if you like, depending on the patterns of work within the industry. What we say needs to be taken into account in this case is that full-time or part-time employees have portability of long service leave across the industry and therefore that is an additional component which we take into account in our calculation in terms of would be valued more than what might normally be the analysis for casual employees when calculating the loading if you didn't have that portability.

PN5272

The other thing I think we need to emphasise, is the sense that both the Metals Bench and a decision that I understand Mr Watson is going to deal with, and that is in relation to the reasoning of Senior Deputy Cartwright in Re Glass Industry - Glass Production Award 1998, print 935981, is that this is a somewhat imprecise factoring of compensation for the loss of entitlements. We don't accept a view that - and the Full Bench in the Metals case didn't accept the view and Senior Deputy President Cartwright didn't accept the view, he reinforced the views of the Full Bench in the Metals case, that this can be seen as being, sort of formulaic and translated from one place to another. You actually have to take into account the factors within the industry that you are dealing with, and we do put to you that that is the way to deal with this case as well in terms of both the patterns of employment within the industry and the particular types of additional entitlements that local government employees have under this award need to be factored into the case, and also the general security that exists in terms of employment within local government needs to be factored in as a component of comparison for casual employees, vis-à-vis their full-time and part-time employees.

PN5273

We say that we have done all of that in relation to our calculation and the other factor that you can take into account, is of course what other standards apply within the industry and we did that when we reduced what we thought was the calculation from 25 per cent to 23 per cent, to take account of the fact that that was another standard already applying and that would assist with the administrative responsibility, the administrative work associated with calculated and casual pay for councils.

PN5274

Having said that, Commissioner, I just wanted to address you very briefly on the question of probation and that is to say I understand from advice from Mr Watson that there is no issue between the parties on the question that they accept the ASUs draft probation provision and all I would therefore wish to say to you, is that we have set out in our written outline of submission, the rationale for you making that change and we believe that that rationale therefore would justify you making the change that we are seeking in relation to that provision.

PN5275

Commissioner, before concluding, I just want to address you on the question of remedy in relation to our application. Obviously we ask that you accept the ASUs submissions and agree and make order that the award be varied for the variations that we have made in our application. I would like to go to those things individually and just deal with them very quickly. Commissioner, we ask that you accept the remedy that we proposed in relation to the classification and
re-classification proposals within the award as an important remedial step to give true effect to the classification structure within the award and to deal with the fact that without particular information or without the requirements set out in our application there, it would be difficult for people to understand and to process their concerns about whether or not they are being paid the correct rate of pay under the award.

PN5276

In relation to standby in performance of work, Commissioner, we ask that you recognise the change that is occurring within the industry in relation to the way that work is being performed outside of ordinary hours, and also the different standards or the different scenarios that now exist in relation to the types of availability that people within the industry have. We therefore then ask that you agree to amend the award to put in place new provisions that will take account of those changes that are going on and set out the appropriate new standards for those new ways of working.

PN5277

Commissioner, we say that you can do that in accordance with principle 11 of the wage fixing principles and in particular, we emphasise the fact that you can do that as part of your general obligation under the Act to ensure that the safety net is a fair setting of the appropriate minimum standards, that is, that you are maintaining the relevance of the safety net award. If we are wrong on the application of principle 11, Commissioner, we say that our application would stand also under principle 6, work value changes, and that you could also utilise that.

PN5278

Commissioner, in relation to overtime, we ask and it is not contested that you import with into the award, provisions which give effect to the test case standard for reasonable hours. We also say that we ask you to make changes to the provisions for the taking of the time in lieu, taking of time in lieu of overtime payments. In order to give effect to the important principle that employees should not be asked to work, to perform work and work hours of work without compensation and that if they are, that would, in effect undermine the safety net because it is an effective reduction of their rates of pay.

PN5279

Commissioner, if you are not minded to go down the path that the ASU has sought in relation to the variation on that matter, we ask that you at least direct a statement to the industry in relation to this question which includes that important principle, that if employees have worked for and provided service to the organisation, they should be compensated either time in lieu or by the payment of hours worked for that time. Commissioner, in relation to the method of engagement provisions, obviously what the ASU is seeking to do is to ensure that the foundation of types of employment, which give effect to the rest of the award entitlements if you like, are set out clearly and we propose the variation, the way that we would go about doing that.

PN5280

Commissioner, I have already stated in submission that if you are not minded to go down the path that we are proposing in relation to this overall sense of amending the method of engagement provision, we ask, given that the concerns that we particularly pointed out in relation to the inadequacies of the award dealing with temporary project and term based employment, we ask that you direct the parties into further conciliation for the consideration of appropriate solutions to the problems raised in these proceedings, so I suppose in that respect we are asking for a finding that, if you are not minded to go down the route that we seek in terms of the absolute variations, we ask that you provide a mechanism to address the concerns that have been brought forward in these proceedings.

PN5281

Commissioner, in relation to casual loading - sorry, I will deal with first, casual conversion. It has been presented to you that there is an issue with long serving casuals within the industry and that the industry itself acknowledges, or at least some of the industry itself, acknowledges that it needs to get its head around this concept of casuals. In light of the evidence about the fact that there are long serving casuals and in fact that the industry has adopted its own, in some respects, casual conversion type arrangements, we ask that you incorporate within the award, casual conversion provisions which we know are not a test case in that sense, that there wasn't a test case around them which have got authority because of the Full Bench determinations with respect to this matter. We say, if you are not minded to accept the ASUs version of the proposal that we have put in place for casual conversion, then the alternative is to go back to the drafting that arises out of the Full Bench and Munro J's drafting, to ensure that the appropriate safety net and safeguards are incorporated into a casual conversion provision.

PN5282

In relation to casual loading, we ask that you accept our submissions that the casual loading of 19 per cent is both inappropriate and inadequate to compensate for the lost entitlements of employees compared to their full-time colleagues and that then in determining what would be then the appropriate amount, you accept the pragmatic approach that the ASU has taken in this matter, and that is as long as you are comfortable that the 23 per cent was more than adequate compensation, and we say to you it isn't, our calculation is 25, then as long as you are satisfied that the 23 per cent is not more than what would adequately compensate, that you take the pragmatic approach that we have taken and say that within the industry, there are benefits from having from these sorts of matters, some regularity between the two types of workers and particularly, in terms of the administration of these matters, you set the same rate as that which applies for other employees in local government in Queensland.

PN5283

Again, in relation to the question of our application around fixed term employment, we say to you that there is a need within the award to regulate term employment and as I have already said, if you are not minded to pick up the full proposal that the ASU puts forward, then it would be useful for the parties to have some assistance in coming to a view about how that would be appropriately regulated within the award, so that is our concept of having further conciliation around those matters.

PN5284

Commissioner, we say our application has merit, that it is being justified to you on the basis of the evidence that you have had in these proceedings, that it involves important provision amendments to the award which will help to promote stability and clarity in the way that the award will apply within the industry and that in particular contrasts very greatly with the LGAQs proposals which are radical and proposes substantial reduction of the safety net to the detriment of the employee. Commissioner, we say that nothing that we have asked you to do goes beyond your obligations under the Act and nothing that we have asked you to do is unallowable. Everything that we have asked you to do accords with your requirements under the wage fixing principles.

PN5285

Commissioner, the evidence is before the Commission that bargaining does occur within this industry. We don't deny that. In fact we say importantly, that that is why you shouldn't grant some of the LGAQ applications because they are matters which could clearly be resolved at the local - which are much better resolved at the local level, in which they acknowledge themselves, they have facility to resolve that through the enterprise bargaining process. We do say however, Commissioner, that on important issues about the way the award applies or standards which should apply across the industry, it is your responsibility to ensure that the award is a relevant, fair setting out of the minimum conditions of employment, and that is why we have sought to pursue these matters by award variation. As we say, they are of that character, that they are not better dealt with individually on a local level and that they are of the character of needing to ensure the safety net of the award is protected and that is why we bring them forward to you in these proceedings.

PN5286

We also ask, Commissioner, which is contrasted to the LGAQ's approach, which is that you don't put anything into an award if you can see it somewhere else, effectively in relation to - if it is in the Act, you shouldn't have it in the award. We do say to you Commissioner, that awards do have a very important promotional role and that has been the basis of why we have many things in awards, particularly that it is recognised that it is important to have an instrument that people at the local level can go to, that they can become more familiar with, that they can see a setting out in layperson's terms, their entitlements in the workplace and to suggest that things are in Acts of Parliament that people might not even know how to look for them, is problematic and it doesn't recognise the fact that awards do have an important promotional role within our community and that they signal to the industry the needs and requirements in a civilised environment and that that is why there is an important need to make sure that they maintain their relevance. We therefore ask that our application be supported, Commissioner.

PN5287

THE COMMISSIONER: Very well, thank you Ms Heap. Ms King?

PN5288

MS KING: Thank you Commissioner. The association supports the application made by the ASU, and it supports the submissions made by Ms Heap.

PN5289

THE COMMISSIONER: Very well, thank you Ms King. Mr Watson?

PN5290

MR WATSON: May it please the Commission, before I commence my submissions, I might ask Mr Beer to address you on that matter you raised with me yesterday in relation to the overtime requirement for part-time employees and mutual agreement in relation to counting those as ordinary hours.

PN5291

THE COMMISSIONER: Very well, thank you. Mr Beer?

PN5292

MR BEER: Thank you, Commissioner. The provision that is referred to is 17.6 which is a counterproposal put by LGAQ in relation to hours that might be worked by part-time employees. I might preface my comments by indicating that the time last year, and I don't recall the dates exactly, where we were invited to put counterproposals, we actually conducted a series of consultations with our membership about what might go into those counterproposals and one of the suggestions that came forward from one of our members involved further flexibility in relation to part-time employees and I am the officer in the organisation who is responsible for the drafting of the suggestion, which is what you see there as the counterproposal 17.6 of part-time employees.

PN5293

The objective in drafting the provision in the way that you see it was very much to get out a situation, if I can put it to you, from a management perspective where a manager may have additional hours come available, firstly perhaps on the short term or unpredictable, or without notice type basis, and that manager would then have to make a decision about whether those part-time or those hours would be allocated to a part-time employee or to an employee who might be engaged on a casual basis. The suggestion that was made to us was that it would be convenient in the award to have the flexibility available to offer on a mutually agreed basis, to a part-time employee, those additional hours rather than co-opt or employ a casual to perform those hours and I think you touched on that issue yesterday when you queried us as to whether this clause would application, principally in the area of a situation where the hours would be unforeseen, or ad hoc, I think was the term you used. And yes, to answer that question, yes that is very much the direction and objective of that provision.

PN5294

Although, it would have application in the way it has been drafted and the way we would see it operating, it would have application in circumstances where the hours may be, there may be some predictability or those hours may be foreseen some time into the future as occurring and therefore there might be a situation arise where those hours could be offered to part-time employees. And I use that in the plural sense because there might be a situation, as was explained to me by a member, where those hours become available, but there might be a range of part-time employees who could fit the bill so to speak, who could be offered those hours and for different reasons and arrangements that employees get themselves into. It may not be determinable well in advance, which of the part-time employees would avail themselves of those hours. One member actually indicated to me that there would be perhaps some voluntary arrangement where the hours would be advertised to staff and the staff could volunteer to perform those additional part-time hours.

PN5295

So that would be a second situation where that clause would have application and provide some greater flexibility. We are aware that, at least I am personally aware, of at least three agreements in local government that contain a clause for part-time employment to allow part-time employees to work additional hours virtually on a weekly basis, where for example, that agreement might provide for part-time hours in the range of say, 15 to 20 hours per week and with the exact number of hours to be determined locally and by agreement between a team leader and the individual employee, certainly in that range. What we seek in the provision that has been drafted for the award is simply to build and reflect on that sort of flexibility that we know is available through the enterprise bargaining process. I think that they are about the only submissions I would make on that clause, Commissioner.

PN5296

Commissioner, I would indicate that it was corrected yesterday that the second part of that provision, the proviso, which operates for hours not exceeding 36 and a quarter should be amended to include "And seven and a quarter per day". It was always the intention not to move this sort of flexibility beyond the sort of hours limitations that already exist in the award for part-time employees working normal hours or full-time employees for that matter. Thank you, Commissioner.

PN5297

THE COMMISSIONER: Very well, thank you. Mr Watson?

PN5298

MR WATSON: I might hand up to you a copy of my written submissions here and copies of the cases relied upon in those submissions. Before I go to the submissions can I just make one point because it is fresh in my mind and really is responsive to what my learned friend said shortly before I rose about the role of awards. We would refute the notion that awards have a so called promotional role. Awards have a regulatory role, they set out reciprocal rights and obligations in relation to employers and employees in that cover. The fact that you might find something in an award doesn't detract from something you find in a regulation. The fact that you might find something in a regulation doesn't detract from what you might find in an award. There is no reason to make an award when it is already covered in a regulation. It is simply asking the Commission to carry out a redundant exercise and that is our submission in relation to - and it is covered, the regulation point, it is covered in the submissions and I will come to it.

PN5299

The first point that we want to make is that none of the matters sought by the Australian Services Union involves matters which can't be the subject of enterprise bargaining, between individual respondents and the ASU. Forgive me if I use the acronym ASU throughout, we know who we are talking about. I might also say with all due respect to Ms King, that when I say the ASU of course, I also include APESMA in this. But since the ASU have really led the charge, of course I use the ASU in the submissions.

PN5300

We would submit that it has been conceded by the ASU in its evidence, that matters such as the standby allowance to be paid have been the subject to certified agreements. Of course that list is appended to Mr Smith's evidence, as well as in exhibit ASU14, you might recall that was the log of claims or the matter involving Johnson Shire Council dealt with matters such as the casual loading, position descriptions, reasonable overtime and standby allowance. We find it rather curious that our learned friend should say that on the one hand, the things that the LGAQ are seeking in its proposal, and that is the subject of enterprise bargaining, yet are silent when of course it comes to their application in relation to what they are seeking. Of course these matters can be the subject of enterprise bargaining, and they should be the subject of enterprise bargaining.

PN5301

We say that particularly in relation to standby allowance, because through enterprise bargaining, it allows the reality of the work situation to be taken into account in matters such as the incidents of call outs and their payment, which according to Mr Faigneiz in the evidence that I have detailed there, he demonstrated or his evidence was that on present rates of call outs, that is taking the actual incidents of call outs, federal award employees were better off than state award employees, notwithstanding the fact that the state award employees have a higher loading, so far as I should say a higher allowance, so far as call out is concerned.

PN5302

I refer to section 88B. I don't need to take the Commission to it, I am sure the Commission is well aware of it, of the Workplace Relations Act which requires the Commission to perform its functions in a way which furthers the objects of the Act. And, of course, one of the prime objects of the Act is ensuring the primary responsibility for determining matters affecting the relationship between employers and employees rest with the employer and employees of the workplace or enterprise level.

PN5303

In our submission it can't be denied that the prime focus of the federal act is on enterprise bargaining, not on award making. Succeeding in obtaining significant increases at the award level in items such as standby allowances will inhibit bargaining, because gains in those areas will already have been achieved. It was acknowledged by Mr Smith in his evidence of course that if you increase the standby allowance for those certified agreements that have a less standby allowance, they are going to obviously during the currency of these certified agreements not be paying what the award requirement is but what the certified agreement requirement is. That can't be a good situation in my submission.

PN5304

THE COMMISSIONER: Why do you say that it can't be a good situation? I mean, it is contemplated by the legislation, it happens all the time.

PN5305

MR WATSON: No, it is contemplated - well, in my respectful submission, it is contemplated that you can have an inconsistency between a certified agreement and an award, but that is usually the situation where you have got the award and you do something which is different to the award. Not the situation where you have a certified agreement and an award which then comes later on. Otherwise, what you are doing, is you are interrupting - you are undermining the bargaining process, because you are bargaining a certified agreement against the situation as it presently is, not as it might be in the future in terms of what the award might be.

PN5306

THE COMMISSIONER: But isn't that so with even something as, dare I say it, simple as safety net adjustments where a certified agreement when it comes for certification, passes the no disadvantage test and you know that a decision may be handed down in the next few days, the result of which would be that the agreement wouldn't pass the no disadvantage test because the wage rates would be behind what the award will be as a result of the safety net adjustment.

PN5307

MR WATSON: As a matter of principle, the Commission is quite correct, but here we have a situation where the application is to go from $40.42 to $200.00.

PN5308

THE COMMISSIONER: Yes, I understand that.

PN5309

MR WATSON: Now, that is not a situation which is encompassed in when you think of our safety net adjustments, that is the difficulty here. We would submit that awards and their variations are meant to act as minimum awards and as a safety net. I won't dwell upon what a safety net is and I am sure the Commission understands what that means as a matter of .common parlance.

PN5310

We do, of course, compare that with the current Queensland legislation which doesn't have the same concept of a safety net. The current Queensland legislation only requires the Commission to provide for fair standards in relation to living standards prevailing in the community. There the accent is on fairness, whereas under the federal legislation the accent is on what we would submit, is a safety net concept. Now, we say of course it is appropriate to refer to the Queensland legislation because in a couple of instances it is Queensland commissioned precedence that are driving this application in relation to standby and casual loading.

PN5311

We want to emphasise this point, that the Commission, we would submit, is engaged in a two phased process here in this way. The application has to be looked at, that is the application by the Australian Services Union, has to be looked at on its merit, on its own merit. In other words, it is looked at - the Commission is required, in my submission, to look at the application on its own. If it accepts the application, then you move to the - sorry, I will put it another way. If you prima facie accept the ASUs application, then you move to the LGAQ's application and look at what the LGAQ says in relation to what its proposal is. I am talking about those matters which of course match the ASU. Therefore it is not a case of looking at the ASU application and the LGAQ proposal and say, well, which is the best. It is a case of the ASU has to make out its own case first in relation to its application, before you move to the LGAQ proposal.

PN5312

Now, as a matter of practicalities, it may not, at the end of the day mean a lot, but it is a distinction which needs to be borne in mind by the Commission in my submission because the onus is on, it is their application, the onus is on the ASU to demonstrate that their application should be accepted. I did say before that my submissions dealt with the question of the regulations and that is dealt with in paragraphs 5 and 6 of the outline. I make the point in paragraph 6 that any disagreements, that is presently any disagreements which might arise in relation to the lack of or whether or not a person is appropriately classified, can be dealt with under the current, and have been dealt with on the evidence, under the current award disputes procedures.

PN5313

Now we would submit that any alleged inconvenience, the not having a position description in an individual case to that employee, must be weighed against the inconvenience across the industry that the application clause, if granted, would entail and if you have a look at, for example, on the question of inconvenience which I address in paragraph 7, what Mr Holsher has said at paragraph 3799 is instructive. Let me read it to you, to remind the Commission what Mr Holsher has said. His answer was:

PN5314

I believe that it would encourage people to apply for a position -

PN5315

The question is about proposed clause 8.2, so I will read it again:

PN5316

I believe that it would encourage people to apply for a position of valuation on an annual basis anyway, as a matter of course. Everyone would apply for a position evaluation, 650 per year -

PN5317

And that is obviously in relation to Redlines:

PN5318

- because it is like saying, well that is the time to apply. You should do it then. So everyone applies at that time. It would become a practice, I believe, that we would end up doing 650 position evaluations a year and I think that would create distinct expectations -

PN5319

This is the important thing:

PN5320

I think that would create distinct expectations in employees which in most cases you would have to say would not be fulfilled unless everything is changing completely every day which doesn't happen. So you know, a lot of those people would have unfulfilled expectations of getting a pay increase every year and I think that would be destabilising on employees and as well as that, would be extremely expensive and time consuming for council.

PN5321

And that is not the complete answer, but it suffices for my point. So there are two things there. There is the inconvenience to council, but there is the danger raised expectations by having such a clause in terms of employees and that is the inconvenience which we say, the Commission must weigh against, the situation that might occur, perhaps in a dozen, perhaps in a hundred cases where they don't have a position description. If you don't have a position description and that is a problem, under the disputes procedure, the simple step that a position description has, and it has apparently happened in the Commission, the position description be agreed first and then the matter goes on as to whether or not a person is properly classified.

PN5322

In paragraph 8 onwards I deal with the LGAQ's alternative position, and that is if the Commission is minded to adopt the position advocated by the ASU, then there should be the ability to allow for a positioning down in the schedule, that is according to schedule A, in responsibilities, should that occur in the review, because as you know from the ASUs application, it only contemplates movements upwards and not movements downwards. We would say that that shouldn't come as any surprise because if you have a look at what is already given in the award in clause 32.2, that in the cases of redundancy, that is where a position is being made redundant, the award does contemplate the person may be moved down.

PN5323

Commissioner, can I now move to the question of, the next question, salary increments and the issue here, we identify is one whether part-time and casual officers should complete the equivalent time that full-time officers perform before attracting a salary increment. We say that the Frierson decision to which my learned friend has referred is not analogous because of the difference in wording. We say that it is significant and I say this in paragraph 11 of my submissions, that if you have a look at the part-time clause in the award in clause 18.1.1, it is significant in that it says:

PN5324

Equivalent pay conditions to those of full-time officers who do the same kind of work.

PN5325

We say to allow a part-time officer to succeed to a partial increment on a yearly basis means they are receiving conditions not equivalent to a full-time officer, but better than a full-time officer. The reason for that is obvious. If you are a full-time officer, before you can get an increment increase, you have to perform or you have to have the full-time hours and it follows from the increase clause, whereas that is to get an increment at all. It is not a question of percentage. This is where the ASUs advocacy is shown, their submissions are wrong on this. Is not a question of percentage or amount.

PN5326

It is a question of getting to the increment. How do you get to the increment? You get to the increment if you are full-time after a year of full-time service. You get to an increment, on their argument, you get to an increment as a part-time, after only part-time service. We say that is not right. That is not equivalent. Equivalent isn't about comparing the actual percentage or the money. It is about how you get to the increment and the clause doesn't contemplate a situation where you get to an increment only after so many hours or a percentage of what a full-time person does, because that is not equivalent. It becomes equivalent when you get the pro rata amount after you have done what a full-time officer has done.

PN5327

Can I say that even if Heerey J is correct in that analogous to the award situation in Queensland, it doesn't stop the Commission as presently constituted, from adopting a different view as to what the Commission thinks the award should be and hence, the LGAQ's application or proposal in relation to part-time and casual officers not getting an increment until after they have done the full-time hours and I refer to Brack's decision as authority for that proposition. Can I simply refer you to the fact that it is at page 126 and it is in the right hand column from about lines A to D. I won't read them out, but you will see them, Commissioner.

PN5328

We also say that the proposition that we are putting is not surprising and accords with authority and the first authority that I refer you to is the decision of Her Honour Deputy President Drake in the Tasmanian nurses decision, a copy of which I have given you, and at the last page, her Honour says this:

PN5329

Having regard to all the material referred to, and in particular to the approach adopted by Commissioners Smith and O'Shea, the incremental advancement for part-time employees cannot be divorced from skill acquisition. Historically, it would appear that both annual increments and experience payments have been linked to work value considerations. If this position is accepted, then a part-time employee is not entitled to an annual increment until the completion of one year full-time equivalent service.

PN5330

And we say that it also accords with something said by a Full Bench of the Queensland Industrial Relations Commission in a decision which I have also handed up to you in the QPSU v State of Queensland. And at page 38 of the print that I have handed up to the Commission, at the end of that page the following is said:

PN5331

To grant a part-time or casual employee who works a minimal number of average hours each week act as to an increment at the expiry of 12 calendar months, will be in conflict with the Commission's Wage Fixation Principles. Further, our consideration of the evidence leads us to conclude that such employees simply do not acquire sufficient additional knowledge or improve their operating efficiency to such a degree that an increment would be accessible, simply upon the expiry of the 12 calendar months. The performance of part-time casual employees who work 10, 20 and 30 average hours respectively per week is generally markedly different after a given period of time.

PN5332

Now, we submit in the absence of any evidence from the ASU that a time served approach is warranted, then access to increments should be based upon skills acquired and the award position be clarified as sought by the LGAQ in its proposal. Curiously, the ASU has pointed to the pay rates review decision as a counter to our proposal and Commissioner, can I hand up to you the relevant excerpt from that decision, together with a copy of the increment clauses presently pertained in the award. I have got the complete decision if the Commission requires it, but just as a matter - because it deals with a lot of other things which don't seem to be germane to this, but the point we make is this about this decision.

PN5333

It is quite clear that rather than dealing with the difference between part-time and full-time employees and when part-time employees might secure an increase, what the Full Bench seems to be saying, is that unless you can demonstrate that service increment payments are linked to work value considerations, then those clauses shouldn't be in the award at all. So, in my submission, really what the ASU has opened up here, is really the question of whether this clause should be in the award at all, not the question - - -

PN5334

THE COMMISSIONER: But Mr Watson, my recollection of all of this is that a further Full Bench, I think of which the president was a presiding member, took this part of the paid rates review decision and either drafted or endorsed a draft and I might be wrong about this, it may have been nurses, and came up with the type of words that appear in this award. These words came after the paid rates review decision and are said to be an application of the paid rates review decision. Anyway, I just don't have the background to it, but I remember reading it.

PN5335

MR WATSON: This is a 1998 award. The present local government award preceded this decision.

PN5336

MS HEAP: The award was reviewed, it has been reviewed.

PN5337

MR WATSON: It was reviewed?

PN5338

MS HEAP: Yes. The award was reviewed in terms of allowable matters and matters have been found to be allowable. There was no contest - - -

PN5339

THE COMMISSIONER: It is not a matter of whether the matter, the provision is allowable, it is a matter of whether it is consistent with the paid rates review decision.

PN5340

MR WATSON: Yes. Well, that may be so - I will stand to be corrected on this, Commissioner - but I don't - my submission is this award hasn't been looked at, and when you look at the award - - -

PN5341

THE COMMISSIONER: It must have had the paid rates review minimum rates adjustment applied to it, otherwise I don't think there could be safety net flow on if it hasn't.

PN5342

MR WATSON: Well, Commissioner when you look at the award which says where a respondent chooses - this is in 8.2:

PN5343

Where a respondent chooses not to implement a staff development appraisal system, movement between salary points will occur at yearly intervals.

PN5344

That, in my respectful submission, couldn't be consistent with the paid rates decision, because that is allowing for automatic increases on yearly increments. Commissioner, either the Full Bench decision says something differently, but on my reading of what the paid rates review decisions says, that can't be allowed because that is exactly what they say.

PN5345

THE COMMISSIONER: I haven't done this exercise, but I think you will find that all those award that used to have incremental payments in them and which have, through either the minimum rates adjustment and the award simplification process, converted them, they use words identical to or similar to the ones in this award, that is that an employer - it is as if an employer - I can't recall the reasoning of the Full Bench when they accepted these words, but it seemed to be on the basis that an employer can't avoid the increments by not having a process in place, that if the employer chooses not to have the process to ensure that the work value criteria are met, then the fallback is that there is a movement after 12 months. Now that is all from memory and I must say, it is about 12 months or more since I looked at this.

PN5346

MR WATSON: Be that as it may, in my respectful submission, of course it doesn't cut across what our primary submission is, that you link the part-time performance to the full-time - - -

PN5347

THE COMMISSIONER: Yes, I understand that and I don't think this impacts that. I will get these references though, to be fair to you Mr Watson, I will try and get the references in one of the breaks today so that both of you can have a look at them. It may be the subject of further written submissions on the fine point, if you want to make any, to make sure that if you have what the Commission might have regard to in dealing with your submission.

PN5348

MR WATSON: Yes. I must say that I was responding to the fact that that decision, that is the decision a part of which I have handed up, was referred to by my learned friend. When I read that, it just seemed to me it was totally inconsistent with the whole notion of what was in this award. Now what you might be saying Commissioner, may be right.

PN5349

THE COMMISSIONER: Well maybe, it may be wrong, I accept that. It is all from memory, but that is my recollection of it, and on reading this decision and then the subsequent decision, it seemed to me on reading this, that incremental payments just had to go, full stop.

PN5350

MR WATSON: Yes, but you are telling me that didn't happen.

PN5351

MS HEAP: Logic prevailed.

PN5352

THE COMMISSIONER: I think that is right. It didn't happen. Not in effect. Well, it is not that it didn't happen, it is that it wasn't an automatic adjustment related solely to the passing of time. The employer was entitled to put these criteria in place and if a person didn't meet the criteria, then they didn't get moved, but if they didn't have the criteria, I don't have the clause in front of me but if they didn't have the objectives put in place, then there is this safety net sentence that says, but the employer has got the option, if you put this in place and the objectives aren't met, the person doesn't move.

PN5353

MR WATSON: Commissioner, can I also make this point, so far as LGAQ's position is concerned, it is not to be thought that the LGAQ is asking the Commission to deny part-time employees an access to an increment after 12 months if the have in fact got the equivalent skills, I mean for example, if they work half the year, using 50 per cent, and they have acquired 50 per cent of the skills and the employer assesses them as such, there is no reason why and it would be wrong to deny that employee that. But that is not the point. The point is this, that in the absence of such an assessment that you then automatically - - -

PN5354

MS HEAP: Commissioner, I am very loathe to interrupt Mr Watson in his submission, but I am concerned about the concept that you raised of further submissions or written submissions in relation to this matter. I would just like to point out, Commissioner that this is not something that the LGAQ has contended in terms of the structure of the award in its contentions or filed in these proceedings and it is not something they have applied to have dealt with in this matter and I would be really concerned if what the LGAQ is inviting you to do, I mean I have got no concern that we can justify our argument, my memory accords with your memory Commissioner, of the way this matter has panned out in relation to these things and in fact there are a number of awards that now have these provisions exactly the same in them and they have been contested sometimes and not been contested.

PN5355

THE COMMISSIONER: The first of my recollection was nurses, I can't remember in which statement, I am sure it was in nurses.

PN5356

MS HEAP: And there have been public sector awards since then that have
all - - -

PN5357

THE COMMISSIONER: It may have even been in the section 109 reviews, I just can't recall.

PN5358

MS HEAP: My point for rising is that we really would have a concern if this is now going to go off onto a tangent because really, the idea behind directions and contentions was that we actually contained the type of matters we are dealing with, and I would have concerns with that, if that went off.

PN5359

MR WATSON: Can I allay my learned friend's concerns in relation to that, we are not seeking that as of now, so to speak, I mean if you were to agree and accept my submissions that suddenly you would make an award variation in that clause, I mean that would not be proper of course. That matter hasn't been a matter of contention. And the union parties would want the opportunity to put forward a reason why it should. And there were, for example, work value considerations. I am not suggesting that at all. I am saying that they have raised the case, now it is a question of well, what is the requirement of the Commission and if the Commission accords, is in accord with what I am submitting, then it is going to be faced with a situation that it will need to obviously move on that matter. But if what has fallen from the bench and from what my learned friend has corrected, it may well be that that isn't required.

PN5360

Can I now move to what we say about standby and performance of emergency work. We submit the increase is not warranted on the evidence and we refer to LGAQ16 paragraph 8. We say that even having regard to the certified agreements attached to Mr Smith's statement at BCS5, there is simply, and that is even if the Commission is allowed to look at those agreements or the affect of those agreements which we say is proscribed anyway by section 95 of the Act unless the conditions in section 95 are set out. In any event, we say the amounts demonstrate such a disparity that any amount would be no more than guess work on the part of the Commission.

PN5361

The Commission is not informed as to what matters were taken into account by the respondent party to those agreements, but any such considerations would be overridden where the amounts are less than $200 if the application was to succeed. What I mean by that, is that course while the agreement is operative, then the agreement provision will apply. But you know, as night follows day, that once the agreement ceases to be operative and there is a new round of bargaining, the ceiling suddenly goes to $200 and that is the point at which bargaining is going to be taking place. Whatever allowed or whatever drove the respondent local government authority to say in the case of one of them, I can't remember which one, I think was $50 was the allowance, to set the amount of $50, suddenly that is going to be overtaken by what the award provision is.

PN5362

To justify their position, of course they must work in accordance or the application must be one that meets the Wage Fixation Principles, and of course one of those principles is the Work Value Principle and in our submission, there is a flaw in the ASUs submissions in that regard, because you will recall yesterday and it is in fact in my learned friend's written contentions, on the one hand they say or party base their claim on technology. They say, well technology, there is new technology here, so therefore that in part justifies our claim, but yet they discount that, that is for the very technology which allows employees not to attend at a workplace when called out. Now they say the rate should be 75 per cent. Well, where is the evidence? Where is the evidence which demonstrates that the 25 per cent is a differential for that technology? There is none.

PN5363

We would submit that any standby allowance should be devisable, that is it should be a daily rate otherwise it discriminates against those employees who are required to be on standby for more than one day in a week. If all employees were on a seven day standby and you got a weekly allowance, well that would be fine, but if employees are on standby for only one day, why should they get the same allowance that a person who is required to go on standby for two or three days or even seven days? And that what a weekly allowance would be, because they are required to be on - because that is what the application calls for.

PN5364

Of course that would also overcome the problem in relation to persons who refuse - part of the LGAQ's application or proposed, I should say is that they who refuse overtime be disentitled to the standby allowance. I do address this in my submissions. In fact, I address it at paragraph 19. It does seem inequitable that a respondent employer should have to pay the standby allowance when it doesn't achieve the reason for the employee being on standby, namely the performance of work. The words, that the person can claim the allowance for being on standby, yet when push comes to shove and they are asked to actually go out and do the work, they refuse the overtime.

PN5365

Now, I acknowledge the point that the Commission raised yesterday about health and safety. Perhaps the answer to that, I mean if that is the reason, perhaps the answer to that is they get a partial standby allowance. In other words, up until the time that they refuse, they be entitled to the allowance, but thereafter not, because even if they have got - I mean, it is okay to say, I won't work overtime, but then it seems inequitable that you then still get the allowance, even after that time when the requirement or when you are called upon to actually do what the standby is for, you don't. There does seem to be an element there of what I might call double dipping, as getting something for something and getting paid really for nothing. I mean, it is quite okay to say no, and that is allowable of course in the reason of overtime provision. It is quite okay, if you have got reason for doing it, to deny doing overtime, it is quite another thing to say, well, I exercise that right but I also want to be paid.

PN5366

We say of course that there are two additional issues which arise. I'm sorry, before I get to that, I have jumped ahead. In paragraph 18 of my submissions, I point out that in practice, on the evidence and Ms Heap referred to this yesterday in her submissions, that there are benefits which are accorded to employees such as the private use of cars and laptop computers and mobile phones. Mr Kennedy refers to that in fact in his evidence. However, contrary in my submission to the ASUs proposition or submissions, the packaging clause which is proposed is not a facility of arrangement. Indeed, in my submission it adds nothing new to that which is already in the award in relation to similar arrangements for executive officers and if you have a look at clause 6.1 of the award, it says:

PN5367

The salary rates prescribed herein for executive officers may be taken by means other than money by an arrangement that complies with current taxation rules, further terms and conditions of such package shall not, when viewed objectively, be less favourable than the entitlements otherwise available under this award and shall be subject to the following provisions.

PN5368

That concept is already in the award. It does seem to us somewhat paternalistic or patronising to say, well it is okay for executive officers to do it, but not for those who might otherwise get the allowance. Yes, a car and a mobile phone and a laptop computer may be the tool of the trade. It is only a tool of the trade when you use it for work purposes. It is not a tool of trade when you use it for private purposes and if the employer decides that they are going to allow an employee to use it for private purposes, then why shouldn't - and the employee sees the benefit of that - why shouldn't they be allow to package, to allow that private usage, otherwise to allow private usage would simply become gratuitous on the part of the employer.

PN5369

In paragraph 20 I submit that the allowance to be paid where the employer, sorry it should be where the employee does not have to attend the workplace, we submit is too high and fails to take into account the substantial cost for employer respondents in providing the necessary technology and I get the reference there to what Mr Gerahty has said. A similar issue arose in the case that I refer to, the RTO decision, the Transport Workers Long Distance Drivers Award, if I could just take you to paragraphs 38 and 39 and the issue here was an away from home allowance for long haul transport drivers where employers had provided sleeping cabins in the trucks and at paragraph 39 the Full Bench said:

PN5370

It may also be relevant that employers who have had modern sleeper cabins installed for the drivers may have incurred considerable expense in doing so.

PN5371

In other words, that is something that may be taken into account in terms of the allowance, that is, the rate of the allowance to be paid. Similarly, we say there is no reason why the fact that employer respondents under this award who have made an investment in technology shouldn't have that taken into account in the setting of the allowance. It is not simply just a question of convenience, it is a question also of, well to put it somewhat bluntly, it seems rather odd that the employer hasn't gone to the expense of making life easy if the employee should also have to pay for that, what we say is a high amount at 75 per cent, for that privilege.

PN5372

Can I move then to the question of the increase in part-time hours. We submit that the LGAQ's proposal that part-time employees be employed for extra hours up to 36 and a quarter without a penalty has merit and of course, Mr Beer has addressed you on that and I won't take the matter any further, save to say that we do accept the seven and a quarter per day amendment. Can I then to overtime. The wording of the clause suggested by the ASU obviously derives from the hours of work test case, and we accept that, although the LGAQ of course puts forward its proposed wording to take into account the proposals that it has put forward. Save for that, there is really no issue there. May it please the Commission.

PN5373

Time off in lieu, well there is a real issue here and it is acknowledged that there is a risk element associated with the clause as it presently stands. The risk from the employee's point of view is that they may lose the entitlement for time off in lieu unless they take appropriate action to claim it. Now of course if refused, that is within the time, they will be paid the overtime. The ASUs application seeks to remove any such risk from the employee. However, it is our submission that the risk was apparent in the wording of the clause at the time that the clause was inserted. It must have been so, because the play on words are to that effect.

PN5374

Indeed, it is somewhat surprising that my learned friend should have said yesterday, she submitted that it couldn't have been the intention that employees not be paid for, something to this effect, they don't get paid for the hours that they work. Well that is not what the clause says. What the clause says, it puts the onus upon the employee to make a claim within time. The only difficulty, the only difficulty that this clause can present is the question of knowledge, whether or not an employee knows about the award provision. This award has been around for 15 years. In my submission, it is not appropriate for the ASU to say, well we have had problems with employees or members making claims. Unless they can demonstrate, look, we have gone out there and we have done all this advertising, we have done all this information provision to members and yet, these problems are still around. There is no evidence to that effect. They simply come along to the Commission and say, we have had some problems and therefore the clause should be changed and changed quite differently to obviously what was the intention at the time.

PN5375

The words are playing on their meaning. They must have been playing at the time that they were inserted. Everyone, everyone must have known that there was a risk associated with the provision as inserted in the award. It has been around a long time. Mr Vincent says in his evidence that it was arrived at as a matter of compromise. If it is a matter of compromise, then the Commission in my submission should be very slow to upset that arrangement, unless there be good reason for doing it, and in my submission, there is simply not good reason here. It is instructive, you will recall that when I questioned Mr Smith about this and I refer to that at paragraph 1408, sorry that should be 1430, in paragraph 24, Commissioner, the reference should be 1430 not 1403. Can I take you to that where I said to Mr Smith in questioning that:

PN5376

If the employee knows that they have got to make that formal application ,then there shouldn't be a problem, should there?

PN5377

And he said:

PN5378

There shouldn't be, as long as once the application is made. It must be granted.

PN5379

And then at 1430, I said:

PN5380

I mean, for example, have you thought about approaching the LGAQ? This is a problem - if councils are actually adopting that sort of attitude, have you thought about approaching the LGAQ and saying, "Hey look, this isn't the way the clause operates, can we put out a joint statement or can you put out a statement to your members, saying this is the way in which the clause should operate"? That was the whole intention of the discussions that we had with the LGAQ in regard to the variation. I would have been quite prepared if that suggestion was put forward, but it wasn't.

PN5381

Now, with great respect, if there is a situation where the matter, that is the provisions of this award can be brought to the attention of members and employees, then that is the thing that should be followed, not what I would submit is a radical departure from the way in which the clause is presently worded, if you grant the ASUs application, because granting the ASUs application would fundamentally undermine the reason for the clause being there in the first place, and that is, to allow people - that is I should say, so that respondents have persons seeking to utilise time off in lieu rather than overtime payments.

PN5382

If the ASUs application is granted, what inevitably will happen, is that people will build up TOIL, they will build up their time off in lieu and they won't take it and they will simply claim the overtime payments. There is simply no risk to the employee. I mean, why would the employee even bother to go and start claiming for time off in lieu when they know, if they don't do anything, they are going to get paid anyway? I mean, what is the incentive? There is simply no incentive. Whereas under the present clause there is an incentive. There is an incentive that if they don't make the application, then they are going to lose it, so it takes away - you see, the ASUs application really undermines the primacy of taking time off in lieu rather than getting paid overtime. In Mr Hart's evidence - - -

PN5383

THE COMMISSIONER: What if the obligation was placed on the employer to ensure that these people had the time off?

PN5384

MR WATSON: I'm sorry, Commissioner, I am not quite with you as to how that would apply?

PN5385

THE COMMISSIONER: The employer would no doubt keep a record of the date on which, you see it is a rolling three months, so if you work overtime, three hours of overtime or a shift worth of overtime this week, as I understand the clause, you have got three months to take that - - -

PN5386

MR WATSON: To make application - - -

PN5387

THE COMMISSIONER: Correct, to make application to take it in the event that the application is not granted, but if the employer obviously keeps a record of that and dare I say it, with modern technology and as the three months approaches, computers can flag that? And the employer then is obligated within four weeks of that time, to agree on a date on which the person can take that shift off, and in the event that they don't reach an agreement about - no, the employer would be obligated to reach an agreement about a date. The difficulty with that proposal is that what happens if they don't reach an agreement about a date?

PN5388

MR WATSON: Can I say this, Commissioner. In my submission, it seems to be that the problem here perhaps is one of knowledge, of what people's obligations are in relation to making requests for the time off in lieu. You see, if you have a situation where the employee - I will step back a bit. If the prime reason for having this is so that it is time off in lieu, that is the benefit rather than the payment, then obviously any clause should be looking at the time off in lieu as being the thing which is to be the foremost in people's minds. Therefore, wouldn't you want to make sure that people are aware of that situation is so that, for example, to take your example with the modern technology that perhaps two or four weeks out of the expiry, the employee perhaps might get a reminder or something which says to the effect, unless you make application under the award, you are going to lose this. It seems to me, in my submission, Commissioner, that really, isn't that then putting it on the employee, where the clause obligation is at the present time, to make - I mean, it is the employee that makes the choice as to what is going to happen. If they have got a problem, if the employer has a problem about letting them go, they get paid out.

PN5389

THE COMMISSIONER: But you see, even the clause as it currently is, I mean, we always sit in these rooms and talk about these hypotheticals, but it seems to me that one of the options for people is the day on which you accrue a shift of TOIL for instance. You can make an application to have next Friday off and if Friday doesn't suit the employer and they knock it back, well then three months expires and you get paid. It is as simple as that. Everyone could just automatically apply for the very next day off, but practically, it is trying to get words and rules around what should be a practical issue at the council.

PN5390

MR WATSON: Yes. But also without, in my submission, diminishing what the effect of the clause is, in other words the clause at the moment, as I said, it carries a risk for the employee. Why isn't it responsible for mature adults to make a choice, "Am I going to take the TOIL or am I going to let it lapse?" If they don't apply for the TOIL and it lapses, well that is a consequence of the choice they have made. If they make the application and the employer says no, they get paid the time. And that is what the clause says. Aren't we in danger here, of really cotton wooling people, I mean we are talking about level six above, we are not talking about every employee in the council, we are talking about manager levels. I think there is a bit of a danger here that we are overlooking the fact that we are talking about, presumably, responsible employees who, on the ASUs application, don't have, they simply absolve are absolved of any responsibility, of what the clause requires at the present time.

PN5391

Now, granted, if it is a question of knowledge - and I can see the argument here - if you don't have knowledge, if you don't know what your award rights are, if you don't know what the situation is, then this can happen by default, but if the situation is that these persons, if you presume, or if you put in place a mechanism whereby people are allowed to make that choice, in other words, the responsibility is still upon them to make the application, as the clause is at the present time, how can they turn around and complain? They can't. It is their choice. It is achieving that of course, Commissioner, which is the conundrum. And I appreciate it is emotive argument to say people shouldn't work and not get paid for it. It is an emotive argument to say, if they have done the hours, they should get paid for it. Of course. But that is not what the clause denies. What the clause does is to put a particular responsibility upon the employee. That is what it does. And if they don't exercise that choice, then there are consequences. Now, if there be a deficiency, it may be a deficiency in that area so far as knowledge is concerned.

PN5392

Can I then turn now, Commissioner, to the question of casual employees. There is a major difference between the ASU and the LGAQ approach to this issue. The LGAQ approach, in its proposal, is to define casuals as they are already defined in the award, being persons who are employed as such. Now, we submit there is no circularity of definition when it comes to defining casuals in that way, because it emphasises, what I would submit, is the true point about casual employment, namely that with casual employment, there is no obligation upon an employer to offer work or any obligation upon a casual to accept any particular engagement. That is recently confirmed by an English decision, a copy of which I have handed up, I won't take you to it, but in my respectful submission it is authority for that proposition as outlined in my submissions.

PN5393

The ASUs proposed definition, in my submission, is fundamentally deficient in this way, that it really defines casuals from the circumstance that you might want to use casuals rather than what the casual relationship is. It is not to the point to talk about true casuals or full-time casuals or whatever. A casual, is a casual, is a casual. It is simply that. It is a relationship. It is an employment relationship which has been well recognised and it follows from the fact that neither the employer nor the employee have obligations to either provide or accept ongoing work and that is an end of the matter. Once you accept that, in my submission, everything else follows because then, you get the question of well, how many hours can a casual work, what are their working conditions as compared to full-time employees?

PN5394

I make the point in paragraph 27 that the support for the casual loading is sought to be derived from the Queensland Award and Local Government, however as Mr Smith acknowledged in his evidence, there are significant differences between the Federal Award, that is more beneficial provisions in the Federal Award than the Queensland Award.

PN5395

Further, any exercise in securing an increase in the loading, we submit, should use a methodology of comparing benefits foregone as a casual compared to those given to full-time and part-time employees under the award, and I refer to the Glass Industry decision. I won't go to it, except to say this. In that decision, his Honour, Senior Deputy President Cartwright carried out the same analysis as the Full Bench did and looked at days worked and days paid for not working, and came down to a ratio. Now, no similar analysis has been done in the sense of a tabular form by the ASU and the ASU says, well, we have done the figures, we have done the analysis, but they haven't actually produced what they say is that tabular form as set out by both his Honour Senior Deputy President Cartwright and the Full Bench in the Metal Trades case.

PN5396

But there is a really good reason for that, in my submission, and that comes to this. You see, on Mr Clough's evidence, most casuals in local government are working part-time hours, in other words, working less than full-time hours. He says that in his evidence, so really the comparison should be between casuals and part-time employees, and what are casuals getting as compared to part-time employees, because part-time employees are being paid on a pro rata basis, equivalent to full-time employees under this award, except for one thing. They get a 10 per cent loading. Once you take into account the 10 per cent loading for part-time employees, it just throws the comparison completely out, because if you were to convert those casuals as the award presently stands, if you were to convert those casuals on their hours into part-time employees, they are not missing out. They are not missing out on the 19 per cent, what they are missing out on is in fact 9 per cent and they are picking up pro rata annual leave and long service leave - well I should say under this award, my learned friend in my submission, is wrong. Casuals do get long service leave under this award, because if you have a look at the casual provision, clause 19.6, it says and it enumerates the clauses, you will see it says:

PN5397

24 and 26 of the award shall apply.

PN5398

The long service provision is in clause 25. So it is not a case of saying that that is a benefit foregone by casuals with respect to this award, because that is not right. Anyway, putting that to one side, my central point is this. With that 10 per cent loading, in fact as it presently stands, it is just wrong to say because this is an analysis which was done in the Queensland casual loading phase. Unless you take that 10 per cent into account, then you are just not comparing it correctly, you are not making a correct comparison. Now it is all very well for the ASU to say, "well, we have done the figures and this is what we say the situation is. With respect, they really should set out in tabular form what they say, what the comparison is.

PN5399

Of course, the LGAQ's position anyway is that the 10 per cent loading for part-time employees should be removed. We acknowledge that so far as present part-time employees are concerned, that those persons should have their present loading absorbed against future wage increases. I mean, it would be wrong to adopt, if you were to remove the part-time loading, it would be wrong to adopt the ASUs position which is those people to be, as I understand the proposition that my learned friend put yesterday, that present employees, part-time employees who receive the 10 per cent loading, would continue to get the 10 per cent loading and that only new employees would not get the 10 per cent loading. That obviously immediately would present problems in the workplace between new employees and old employees, if I could use that term. But also it just means that for those employees, that 10 per cent just keeps on going, it would not be an equitable situation, neither from, as I say, the new employee's point of view nor the employer's point of view. The better situation, of course, which we submit, which is to absorb.

PN5400

On casual conversion, paragraph 31, I say that the evidence would demonstrate the use of casuals in local government appears to be static, and of course I am referring to Mr Clough's evidence in relation to that. There is no particular evidence of any exploitation although it is conceded that there are incidents of casuals who apparently have been employed as such for lengthy periods of time. We make the point that the Metal Trades case from which the clause being sought by the ASU is derived, the result was arrived at in that case, having regard to the incidents of casual employment in that industry. It is my submission that conversion, that is a right to convert without any input from the employer is not warranted and that seems to be the point which was made by a Full Bench of the South Australian Industrial Relations Commission in the case, I think my learned friend may have referred to, but it is certainly in the bundle of cases that I have handed up reported 2001 SAIRCOM7 at page 37 of the decision, right at the end, paragraph 106, the Full Bench said as follows:

PN5401

However, the variation that grants a casual clerk the unfettered right to elect to become a permanent employee upon meeting certain criteria without granting the employer any right to object, no matter what its circumstances are, is in our view, unjust.

PN5402

Of course, that is what was apparently allowed in the Metal Trades case. We say here, that the incidents of casual employment would appear not to be the same as was portrayed in the evidence in that case, hence that the Commission, that is you, Mr Commissioner, would pay more regard to the Clerk South Australian Award decision which I referred to. We note that ultimately there was a conversion right put in the South Australian Clerks' Award and I refer to the appeal case which I have also handed up, but that right was, we submit, as can be seen from that case, heavily qualified. We submit that there is an internal inconsistency with the definition of casual as proposed by the ASU and it arises in this way, and I went through it with Mr Smith.

PN5403

If you were to adopt the definitions as advocated by the ASU and the position as put forward in their application that a local authority responded to the award must employ an employee in one of four categories, full-time, part-time, casual or fixed term, in accordance with those definitions and you adopt the casual conversion clause, you would never get a situation where the casual conversion clause would ever be used, for this reason, that the casual definition requires a casual only be employed, according to the definition and again off the top of my head, something like intermittent or unexpected circumstances.

PN5404

Now you could never have a pattern of work. You could never have a pattern of work in that situation, because it is always going to be unexpected or intermittent. So you are only ever going to be calling upon a casual in those circumstances, so you are never going to, because otherwise if you are building up a pattern of work, it not unexpected and it is not intermittent. The two are just mutually exclusive, in my submission. So you would never get a situation where the casual conversion clause would ever be used. Something, in my submission if you are going to adopt that position, something has got to give, otherwise it just makes the whole thing nonsense, and it is all very well for my learned friend to say, well, there are casuals and there are casuals, but you have got to apply the award definition, not some other notion, in other words, unless the conversion, the casual conversion clause says something along the lines of, the casuals referred to in this clause and not the casuals as defined, something like that, otherwise it is just not going to make sense. There is that inconsistency and it just seems, in our submission, based upon what they have submitted, insurmountable, unless you change, unless you change for example, the definition of casual.

PN5405

So far as the use of the two hour minimum for libraries, we would submit the evidence as we pointed out, would demonstrate that more students would be used if there was that minimum and we would urge the Commission, the Commission's attention to sections 88(a) and 88(b) subsection (3) with respect to promoting youth employment. We would submit that the proposal to work casuals five out of seven days has merit and is comparable with what occurs with full-time officers as set out in clause 13.1 of the award. We would submit that it is also supported by the evidence. It seems, with respect to the submissions advanced to the contrary, it seems rather illogical that full-time employees can be worked five out of any seven days, but casuals can't. What is the purpose of that? Why differentiate between full-time and casual employees, given that casual employees are getting a loading, why differentiate in that way?

PN5406

Finally, may it please the Commission, can I turn to the question of fixed term employment. We would submit that the fixed term employment clause, in part as presently drafted, is not allowable. The particular part that I am referring to is the proviso in 17.25 which says:

PN5407

Provided that an officer shall not be employed on a fixed term basis to fill an ongoing position or to carry out work associated with the ongoing functions within the organisation or a position previously held by a permanent employee except when employees replace an employee in the circumstances specified in (b) and (d) above.

PN5408

That, in my submission, conflicts with section 89(a)(4) in this way. 89(a)(4) says this:

PN5409

The Commission's power to make or vary an award in relation to matters covered by paragraph 2(r) -

PN5410

And that is the paragraph in subsection 2 of 89(a) which says type of employment et cetera as being allowable employment -

PN5411

- does not include the power to limit the number or proportion of employees that an employer may employ in a particular type of employment.

PN5412

So, simply put it is this. If you have 40 ongoing positions and you want to employ, even if you have no fixed term employees, but if you have one fixed term employee and you want to convert that ongoing position into a fixed term employment position, you can't, unless it meets (a) and (d). But if you are in a situation that doesn't meet (a) and (d) as set out in the ASU application, there is a limit. You can't do it.

PN5413

We would submit that the evidence does not disclose any widespread abuse or indeed any abuse that the fettering of the choice by employer respondents to the award to offer maximum duration employment should be interfered with. It is not, with great respect to my learned friend's submission, it is not a question of nomenclature, it is not a question of what terms are used. It is the question of what is required by the application. Here, it doesn't matter whether we call it term employment, fixed term employment, whatever. Whatever you describe it, however you describe it, I should say, it doesn't matter. It is the effect of the clause. The effect of the clause is very descriptive. It basically says you cannot use fixed term employment - sorry, you can only use four categories of employment which I have referred to, full-time employment, part-time, casual or fixed term employment.

PN5414

Once you want to get into a situation of offering employment that will end at a particular point of time, you have to as a respondent, if you adopt the ASUs application you have to employ them on that basis. When you employ them on that basis, you are in effect requiring a respondent to employ a person without the ability to terminate them before that term expires, unless they are guilty of basically misconduct, so you can't, for whatever the reason, you can't bring their employment to an end because if you do, the consequence is either you may be in breach of the award or you are certainly going to be liable for damages for terminating the contractual relationship before the expiry of the term.

PN5415

On the evidence of Mr Vincent, as I referred to in paragraph 37, such a contract is not used in local government in Queensland at the present time. I dare say that if this was adopted, fixed term employment in that sense would never be used, because in the bargaining situation that occurs, as Mr Kennedy gave evidence about, in the bargaining situation between employee and employer, what is the employer going to take into account? If it is going to offer increased enhanced benefits because of such a contract, isn't the employer also going to be looking at the situation, well what if I need to terminate this person, perhaps for performance reasons, perhaps for reasons that don't amount to misconduct? Perhaps because of redundancy, I don't know, but what am I going to offer this person? Why should I enter into this arrangement if I am not going to get something in return? Why should I give them fixed term employment if I am not going to get something like the ability to terminate them earlier than the time we may have agreed on, if that need arises?

PN5416

Also, the problem about this is that the ASUs application here is really looking at it from the wrong point of view. It is almost looking at it from the point of view of assuming that employers are employing people who are going to fail. Why would the Commission make that assumption? Why would the Commission assume that employer respondents in local government are entering into these arrangements, hoping, thinking or whatever that these people are going to fail and therefore I won't have to re-employ them? I would have thought, it is more likely that the reason you are entering into these arrangements, is not that people are going to fail, but because you have other reasons why you are entering into these arrangements, and Mr Vincent referred to some of them, but not from a performance point of view.

PN5417

Now, we have no evidence, no evidence before you about any of these things done on a rolling basis from a performance point of view. No evidence about, well, we have entered into this arrangement on the basis that well, at some stage, we might get rid of it. Now, Ms McLennan gave evidence in relation to her situation. Putting aside the issue as to whether that was allowed under the Service Unit Agreement, but there was never any question of, well, this was done because of performance. As I understand the evidence, it was done because of the up in the air situation of whether or not the Albany Creek Leisure Centre was going to be maintained by the Pine Rivers Shire Council.

PN5418

I did raise this with Mr Smith as you would probably recall, and I don't say this obviously in any sense of an interorum type of submission, but it does seem rather inevitable that if you are a local authority and you are a constitutional corporation, that if you want to enter into an arrangement which gives you a maximum duration length but not the type being sought by the ASU, that you would be looking at using an Australian workplace agreement. In my submission, the Commission, before it would entertain such an application, would need to be convinced that there was such a problem out there in the industry that it needs to be rectified by adopting such a provision, even knowing that it can be diluted or side-stepped through another mechanism allowed for under the Act.

PN5419

In my respectful submission, it is an important point because although as I have said in paragraph 37 of my submissions, that local government is competing for services of particular types of employees with private employers, they actually have been given statutory rights and those rights do come from the Local Government Act and I have referred you to the relevant section which does say that:

PN5420

The terms of employment of a local government's employees are to be decided by it.

PN5421

That is in subsection (5), I acknowledge that subsection (6) says:

PN5422

However, subsection(5) has effect subject to any relevant industrial award or agreement.

PN5423

What the ASU in this application is asking you to do is to in effect, override what is given to the councils by subsection (5). It is asking you to interfere with that management prerogative in determining what the terms and conditions are that they are going to be offering their employees in terms of maximum duration contracts. The type of contract which has been referred to in the evidence. A constraint which is not applied to private employers, and the Commission in my submission, would have to ask itself, "Well, why should I take that step, why should I constrain the industry in that way"?

PN5424

Can I refer Commissioner, to the last case in the bundle I have handed up, which is the Higher Education Contract of Employment decision, and without reading it, I just ask you to note the decision and also to note what was said in the conclusions from paragraph 25 onwards. The fact in paragraph 26, the Commission said:

PN5425

To accede to the NTEUs application, which asks the Commission to regulate a management discretion, it must be satisfied that unjust or unreasonable demands are being made of the employees.

PN5426

I would submit here that the evidence is scant, if any, of any such unreasonableness on the part of employers in local government in Queensland. I might add that that case came after the Higher Education case that my learned friend refers to in her submissions.

PN5427

Finally, I do want to make a point that it should not be overlooked that for certain services, as said by Mr Kennedy in his evidence, and I have given the paragraph numbers there, that local government in Queensland is competing with private employers. Why would the Commission inhibit that competitive position by acceding to the ASUs application? As I said before, if you accede to what the ASU wants, those contracts aren't being used in the local government at the moment, they would never be used and yet the capacity to enter into limited term contracts would be denied to local government, because they would have to employ permanent full-time people or fixed term people on the arrangements as set out in the ASU application, that is the consequence, or if they are a constitutional corporation, they would be forced to go to an AWA. They are my submissions.

PN5428

THE COMMISSIONER: Mr Watson, could I ask for your view about, and it is in the context of this maximum duration concept, what is the difference between that and a temporary employee?

PN5429

MR WATSON: You mean a temporary employee as presently under the award?

PN5430

THE COMMISSIONER: Not necessarily the terms and - well, perhaps I might qualify what I asked, yes, in a general sense. I mean I understand - - -

PN5431

MR WATSON: I don't think there is a difference. Can I say this, Commissioner, in my submission, there are certain consequences that if you, as a respondent to this award, enter into term employment which synonymous with temporary employment, then there are certain things that you have to do and it seems to me on the award, one of the things that you have to do is notify the ASU. As I read the clause as it presently stands in the award, that is only if you are having a period in excess of six months.

PN5432

Can I just say in relation to that, I suppose to put it simplistically, the view that I am submitting is that on that clause as it presently stands, if you want to employ somebody for more than six months, for example, if you wanted to employ someone - sorry, a term employment contract for five years, it seems that you are obliged to inform the relevant union whether it is the ASU or APESMA of that fact stating the reasons why you are doing so. Now, if that is being ignored by the industry, it is not a reason for putting in the application, or to grant the application as advocated by the ASU. If they are in breach of the award, of course there is certain consequences which follow.

PN5433

Some people might say that temporary there means something of a short duration, not something of a long duration, therefore clause 22 doesn't apply. The difficulty with that submission Commissioner, is this. As I read the award, there is a distinction drawn between permanent employees and temporary employees and the ordinary definition of the word temporary is limited by time, so if you have got a contract that says that the contract is to go for three or four years, then that seems to me, is limited by time.

PN5434

THE COMMISSIONER: I run into this all the time. It is almost an oxymoron to say that someone has permanent employment but they can be terminated on a week's notice. The use of the word permanent to describe the employment as opposed to a full-time employee - - -

PN5435

MR WATSON: Permanent is not used in the sense of permanency of tenure and that is what the ASU, I think originally once said, that this is a tenured award. It is not a tenured award, it can never be a tenured award, whilst you have got a provision such as clause 31, which allows employees to be terminated or a provision which says that the minimum notice period is whatever the notice period as set out in the award is. It is permanent as I understand, permanent as in is of indefinite duration.

PN5436

THE COMMISSIONER: But there is no definition of what is temporary.

PN5437

MR WATSON: I think that is right, Commissioner. I don't think there is a definition of what is temporary. I think you have got to take it - now, I would think that this particular usage has been around for some time and I would think, I can't say for certain, but I would suspect that you probably would find if you went back to the 1983 award that similar terms were probably used as temporary employees and permanent employees. I don't think this is something new that came about with the 1992 and 1998 award.

PN5438

THE COMMISSIONER: No. It is just, even on your proposal to retain it, what concerns me about it is there is no provision as to what is a temporary employee, and if there is a provision about that, I am not sure what it is, that is why I ask the question and if what the difference is between a temporary employee who is presumed, knows their employment is going to end at some time, because otherwise you could hardly describe it as temporary and someone who is for instance, on a term contract and just what the difference is between those two.

PN5439

MR WATSON: I don't think there is any difference.

PN5440

THE COMMISSIONER: Yes, I know. That is why I asked the question, I wanted to know your view on it.

PN5441

MR WATSON: I don't think there is a difference in that I think we are just talking about perhaps periods of time - - -

PN5442

THE COMMISSIONER: Except that conceptually, what might your view of what might be temporary, ie. a three year contract, because there is no definition in the award? The union might have a totally different view about what might constitute a temporary employment relationship or a temporary contract, or how one even - I mean temporary doesn't necessarily - there is no obligation in a temporary employee actually know the date on which their temporary engagement will come to an end.

PN5443

MR WATSON: Why do you say that, Commissioner, because I disagree with you?

PN5444

THE COMMISSIONER: Well, it has been my experience that, Bill has been injured at the workplace and we need a temporary replacement for Bill. Bill is on workers' compensation and we are not quite sure when Bill is coming back, but when Bill does come back, then the temporary employee will lose their engagement, but it could be three months, it could be five months.

PN5445

MR WATSON: Yes, I am sorry. Can I respectfully say, I think there is a confusion there as to the ability to say in advance what the period of time is rather than the determining event. In other words, a determining event such as Bill coming back, if it was Bill that was the one who was injured, the person coming back, that is the determining event, and it may not be able to be predictive with certainty in advance as compared to a contract which says you are employed only for five years or whatever. But there is still an ability. You can say there is a determining event and that makes it not indefinite, because you know that upon that event arising that is when it comes to an end, so the period is defined once that event crystalises and it is at that point you can say, yes, well, in fact it was - - -

PN5446

THE COMMISSIONER: But, you see, that then differentiates a temporary employee - - -

PN5447

MR WATSON: From a term employee.

PN5448

THE COMMISSIONER: - - - from a term employee, because one is dependent solely on the effluxion of time. The other could be time based or it could be event based.

PN5449

MR WATSON: Yes, but in my respectful submission they would still both be temporary employees. But can I also say - - -

PN5450

THE COMMISSIONER: Yes, as two different subsets of the term.

PN5451

MR WATSON: No, two incidences or two scenarios.

PN5452

THE COMMISSIONER: I am not looking at the scenario, I am trying to look at what might be a definition for the two terms. One is different from the other in that one is known to be solely dependent on the effluxion of time. A temporary employee could be a person who is dependent upon the effluxion of time or the occurrence of an event. See what I mean? If you go and try and define the two there could be different definitions for the two.

PN5453

MR WATSON: Yes, I quite agree. But aren't they both emanating from the fact that they are for a period of time, although one may not be able to be defined in advance?

PN5454

THE COMMISSIONER: Then one might ask, well, what is the difference between that and anybody who is in permanent, dare I use the term, ongoing employment when you come to define it? It is not defined in advance. The difference being is that there is an expectation of ongoing indefinite period of employment versus the temporary we have discussed, where this event is probably going to occur at some time or the employee is no longer a temporary, because Bill is not coming back for whatever reason, and the person may be then made a permanent employee, made an ongoing employee.

PN5455

MR WATSON: Yes. Can I say this. That is not quite right, with respect, Commissioner, because you do know what the period is in advance with Bill coming back. You just can't say it with any certainty. You know it is going to be a definite period of time, you just can't define exactly what that period is.

PN5456

THE COMMISSIONER: But a definite period of time is a definite period. It is a specific date, you must know the date in advance, where this is an event that you think will happen about this time.

PN5457

MR WATSON: No, I appreciate that. But I am talking about - one, we are talking about a period of time which is certain, and the other is a period of time we just can't say with any definition what that time is. But a person who is in indefinite arrangement you can never say - I mean there is no event, it is simply until - - -

PN5458

THE COMMISSIONER: I understand there is three groups there, I don't think there is two, is my point.

PN5459

MR WATSON: Obviously this is not something that I particularly turn my mind to. Can I say this. I am aware of decisions which talk about temporary in the sense of not limited to a particular period of time, but of short duration, something of short duration and I think they come - the one I have in mind, it is in the Australian Law Reports and I think it is Wilcox J, but I think it was to do with migration or something like that, as to a visa or something, talking about a temporary visa and whether you need to actually state a period of time or whether it was within - you have to look at that within the legislative context, and as I said here, I mean, I think context is very important in this award. It would be a very interesting discussion, if it may please the Commission. I don't have any further submissions.

PN5460

THE COMMISSIONER: Very well, thank you. Ms Heap, do you intend to be long do you think? No? You want to go home, is that what you are trying to tell me?

PN5461

MS HEAP: Commissioner, you are not looking confident when I say that. Are you saying that I am verbose or something?

PN5462

THE COMMISSIONER: No, definitely not.

PN5463

MS HEAP: I don't intend to be long and I think I could probably deal with things quite expeditiously.

PN5464

THE COMMISSIONER: Very well, we will continue to sit unless anyone - - -

PN5465

MS HEAP: No rumbling stomachs? Sorry. Commissioner, just dealing in relation to reply to what Mr Watson had to say, and working through basically his outline as the basis for that. The first point to be raised I think is the difference between us on the question of what is appropriate for the enterprise bargaining process and what is appropriate for the award process.

PN5466

Commissioner, we don't accept the emphasis that Mr Watson puts on this issue that the prime focus of what you do has to be about enterprise bargaining. We do accept that in the context of the Act there is an obligation on you to facilitate enterprise bargaining, but we also accept that there is other responsibilities for you under the Act. One of them is to make the appropriate safety net and make sure that it is relevant and the emphasis that he puts on primacy in this context is not what we would say should be there, but also that it shouldn't be taken that primacy for enterprise bargaining, if you accepted his view, can't be taken away from the concept that you need to actually be sure there is some relevance into the safety net, and the Act accepts that as well. So what we are doing here is really about the relevancy of the safety net. Matters that are about that relevancy of the safety net or what we call remedial or ancillary to the operation of the provisions of the award and which make the operation more effective and make sure that the safety net can operate as intended, are particularly important and part of what you should be doing under the Act.

PN5467

We also say, Commissioner, that we don't agree with what Mr Watson says about the difference between the Federal Act and the Queensland Act. I am not sure quite that I understand why the emphasis he is putting on this, but in any event, we say that if you look at - he says that the issue of fairness is not in the Federal Act in the way that it is in the Queensland Act and that what you are limited to is the question of the emphasis of the safety net rather than the emphasis of unfairness.

PN5468

Commissioner, it is not true. Section 88(a) and section 88(b) both have within them, the provisions that include at 88(a)(b) Awards Act as a safety net of fair minimum wages and conditions of employment, so your obligation of fairness is there, just like it is under the Queensland Act as well, and also under 88(b)(2) that in performing its functions under this part the Commission must ensure that a safety net of fair minimum wages and conditions of employment is established and maintained, having regard to a variety of factors, and that variety of factors includes the need to provide fair minimum standards for employees in the context of living standards generally prevailing in the Australian community et cetera. For whatever reason he makes the distinction, and that is not clear we submit, on what he has put, we do not accept that the obligation that you have under the Act is not one to deal with the fairness concept in the context of the safety net, and we reinforce that point.

PN5469

Just to go back to the issue of the difference between enterprise bargaining and the award safety net, Mr Watson made the point that we shouldn't, particularly in relation to standby, we shouldn't be seeking to import enterprise bargaining standards into the award framework, and he referred to section 95 of the Act, it specifically disallows that. We say to you that is not what we are doing, and I will address you on that in a bit more detail in a moment. But we also say it was exactly Mr Beer's submission this morning in relation to the need to introduce within the award flexible provisions for part-time work, that he said, and he used the words, what they were hoping to do was build the flexibility that has been achieved by enterprise bargaining into the award.

PN5470

Now, I say to you Commissioner, you can't have your cake and eat it too. You can't say there are provisions that you want to include, that you want to rely on, what has been achieved in enterprise bargaining and with the ones that you don't want to include. You can't. We also say there is a real difference between our application, the matters that we are seeking and the matters that the LGAQ are seeking in this context of, should they be dealt within enterprise bargaining or not. The context that you should look at that in, is the context within which the evidence has been given, and that is that on those matters where their witnesses gave specific evidence about what they needed, things like the casual minimum engagement in libraries or more flexibility of casuals, they had in their mind the context of particular parts of the organisation which would be useful and they also had enterprise agreements within which they acknowledge they could actually pursue those matters.

PN5471

That is a very big difference. The matters that we are seeking to look at are really global matters, they go to the operation of the award or the relevance of the safety net and they are not matters which are best determined, we say, at the enterprise level. This issue of Mr Watson's approach to these proceedings and what he calls the two phase process of your determination, Mr Watson used that two phase process to emphasise the fact that what the ASU needs to do was to prove its case, and then he went on to say, "The ASU has proved its case or proved a principle issue, you then should look at the LGAQ's applications in that context. Well, Commissioner, the LGAQ has to prove its case, as well, as a principle on the matters that they seek to pursue in the award. If what the are saying is in fact they don't prosecute their matters, unless you think that there is an issue, well that is good, that is fine, but we understood that they were coming here to prosecute those matters and they haven't proven their case, we say, and the onus is not just on the ASU to prove its case, that if the LGAQ wants to get any of its variations into the award, it has to prove its case as well.

PN5472

I refer to the promotional role of award, and Mr Watson took an issue with that. It is perhaps better to think about it and maybe promotional was the wrong word to use, but what I was concerned with and talking about, Commissioner, was the concept of the educative functions of awards. It is not just simply enough, awards aren't just their setting out rights and entitlements, that is their principle responsibility, but they don't do that in isolation. If they are not available for people to know about, if people can't readily see what those entitlements are, it is a problem. People in HR departments, I would submit - assert from the bar table, don't regularly look at the regulations of the Workplace Relations Act. So to say that they would readily be involved with the award, and that is the difference, to say that something is then in the Act is all well and good for all of us who spend our time here, but there is a function that comes in terms of educating people where it is in your award and you have access to it within the workplace.

PN5473

In relation to this question of whether the regulations actually do actually contain the detail for in lieu of the ASU's application on classification and re-classification, we say they don't. Commissioner, I made this point, I think in my opening submissions or part of my submissions, that it is really hard with generic banded awards to determine a pay rate. The regulations actually set out those sorts of things that are required, but they don't require the employer to have sort of classification or something like that, but they don't actually give the detailed information that employees or anybody would need or require the employer to maintain that detailed information, to give life or effect to the way a banded generic structure like ours works, and we say that is all we are seeking to do in application, to just give some more information to people to make that clearer for them. Those aren't the details which are required under regulation 131L(1) for the employers to maintain under that regulation. They are, what we say, is really vital to a person to be able to determine what their appropriate classification is.

PN5474

Mr Watson says that Mr Smith conceded at his paragraph 6, that Mr Smith conceded in his evidence that the provision of the information that we sought would not eliminate the disputation within the industry. I think it is important to note that what is more an accurate description of what happened in relation to that dialogue with Mr Smith in cross-examination, is that he actually stated that he believed that it would reduce the amount of disruption and assist the parties. We note also that many of the LGAQ's witnesses actually said that they believe that provision of the information was the basis of any commencement of evaluation process, so I think it is an important point to note.

PN5475

The other thing that Mr Watson said was that there is evidence that, in his paragraph 7, there was evidence that this process that the ASU is putting in place would cause maximum, would cause disruption to the industry. On that point, we say this Commissioner. That Mr Watson referred to Mr Holsher for that point, but in fact other witnesses for the LGAQ, including Mr Kennedy at paragraph 3893 stated in cross-examination, in answer to a question about this matter, that he didn't believe that in fact this would cause disruption. The question was:

PN5476

And in your experience of the annual review process that occurs at the council, does that normally result in a wholesale attempt by employees to see themselves re-classified to the highest level?

PN5477

And he says in reply:

PN5478

Generally no, on the basis that they are only minor changes or very small changes to their position description and the actual, the process to ensure that what the position description is saying, is an accurate representation of the duties performed and that generally applies, it is only in small instances, a small number of instances that there is significant changes.

PN5479

So, really this is a furphyious notion that the ASUs applications are going to cause maximum disruption within the industry. We say that any views that any of those witnesses had about that were based on confusion, that they thought the ASU application did something that it didn't do that came out in cross-examination and secondly that they all conceded when we went through the process, that at their workplace level, their organisation applies a process similar or the same as that put forward by the ASU in its application, and in fact more rigorous because they do it on an annual basis, whereas the ASU is only asking for the application of information on a two yearly cycle, so I think it is a furphy to run that argument and it is not what really the evidence actually, the evidence doesn't actually stack up for the LGAQ on that submission.

PN5480

Now, in relation to call-out, Commissioner, we say this. Mr Watson in his submission makes something of the fact that what you actually have to do and what one of the witnesses did, was do the overall amount that a person would earn in the context of their call-outs and looked at that compared to what state award employees would earn and that they were better off. Commissioner, this just confuses the issue. There are two distinct issues here. You are provided under the current award with a standby allowance for the disruption to you of being available outside as a contact point, outside of working hours. You then, if you perform work, receive a call-out, an amount associated with that. Now, there are two distinct things, and whilst we say to you that our application in any event is for a new provision wholesale, we say that this argument, that what you have got to do is package the whole thing up, and that in certain circumstances certain people wouldn't be worse off to then compare to their colleagues under the state award, confuses the concept that those two things sit together and also doesn't provide for a genuine basis upon which you actually strike a proper standby rate.

PN5481

We pick up the point that you made, Commissioner, in relation to the submission of Mr Watson that this process that we are proposing somehow infringes the Act or is problematic because by setting an amount, a new amount in the award, you would undermine or have an affect on enterprise bargaining, we pick up the comment that you made, "Well, that happens all of the time in relation to award variations that occur after agreements have been certified", is not a valid reason not to make the change that we are seeking and as you relatively point out, that it happens all the time, particularly in relation to safety net adjustments, but there are all sorts of other matters that also happen, that have that effect.

PN5482

We also say this in relation to what Mr Watson has said, we did not introduce the evidence about what was happening in relation to enterprise bargaining for call-out, sorry for standby. We did not seek to introduce that evidence to demonstrate, that is what in enterprise agreements, therefore that is what should be in the award. We introduced that evidence because we thought that, our argument was for a new provision, a new provision and that in all of the things that you should have in your disposal when you are trying to determine what, if you weren't minded to grant the application for a new provision, what was available, it is useful to know what is actually going on in the industry and that is why that is presented to you. I think Mr Watson has put the wrong emphasis on what we were seeking to do in providing that information.

PN5483

Can I also take you to the question of the decision that Mr Watson relied on in relation to the ARTIO decision. We understand that Mr Watson is relying on this decision in support for the proposition that, or said a similar issue was raised by the Full Bench in the ARTIO case and that is if the amount is too high and it fails to take into account the substantial cost for employer respondents in providing the necessary technology. Well, we say this on that matter, very quickly Commissioner, that this case has no relevance. This was a case about an allowance for reimbursement of expenditure, this is not what a standby allowance is actually about and it was a case whereby, an appeal case whereby originally what a Commissioner had determined was that an amount would be struck and paid to the employees for reimbursement of expenditure regardless of whether or not they, and the provision within the award was written in such a way that it didn't take regard of whether or not they expended that. So where the employer provided alternative arrangements, the employees still got it and that is the context of the reasoning in this decision and we say that decision has no application in this matter.

PN5484

Mr Watson goes to the fact that the rates should be devisable, the daily rate for standby should be devisable and we make the note - he makes the submission that it should be devisable because it is unfair for somebody to get the weekly rate if they haven't been on as many nights as somebody else. We say to you this, Commissioner, that the current provision in the award is for a weekly amount, so in terms of the current safety net, what the LGAQ is proposing in introducing devisable amount in this way in the context of the amounts that they have set, is another reduction in the safety net for people, who currently get the weekly amount and we don't understand whether they are making an application to make the current rate devisable regardless of what is currently occurring and they don't seem to have addressed the issue there about how they substantiate their need for the reduction in the safety net in that way. We have made comments to you about that, the question of divisibility in the context of our new application, Commissioner, and we have already addressed you on what might be suitable in response to your question there.

PN5485

Now, the other submission made is in relation to this contracting out provision within the proposal of the LGAQ and reference is made back to 6.1 of the award for executive officers and saying, "Well, it is in the award for executive officers and why shouldn't it be in the award now in relation to the standby provision". Well, exactly the problem that we had at the time when these provisions were sought by the LGAQ to be put into the award, that we had concerns that what was going to start happening was this notion that you could now start introducing an over-arching contracting out provision within the award with no consideration of the effect that that has on the award as a minimum safety net, particularly in the context of a no disadvantage test in the enterprise bargaining arena. How does the award, if it was varied in this way, maintain its status as a safety net, if you can't actually at any point in time, pin down what would be the appropriate conditions that would attach? So this over-arching principle that says, "Well, you can contract over awards, in principle, is problematic". We also say that the introduction of the provision was opposed by the union, opposed for some of the same reasons as we are saying now, it is problematic, but very different to say that executive officers who are in control of the overall budgets of the organisation, and that they have some ability to insert the circumstances, negotiate some entitlements, very different to start saying you should flow that through to all award employees in this case.

PN5486

Time in lieu of overtime. First thing to say is that Mr Watson said that Mr Smith has made concessions in relation to this matter. We say to you that the references there are not concessions by Mr Smith at all and that Mr Watson has failed to take you to the overall context of the dialogue that was going on at the time that those questions were asked. If you start, rather than where Mr Watson takes you, if you start back and you look at what is going on, the context is this. At paragraph 1407, Mr Watson says to Mr Smith:

PN5487

Now, would the system work if there was a problem with the system? The system would work wouldn't it, if in fact employees knew that they were at risk or that the time off in lieu might be forfeited, lapsed and wasn't taken.

PN5488

He says:

PN5489

No, not necessarily, no, I don't - you know, some of the issues that we have identified, I suppose, it depends on the employer and the work pressures that are within the environment. There is a difference between making a formal application for TOIL you know, but when you say I want to take this TOIL and keep talking to your supervisor, when am I going to get this TOIL off and you just get to the point where you can't take it.

PN5490

And he goes on then to say in effect:

PN5491

But if the employee knows that they have got to make the formal application, then there shouldn't be a problem should there?---There shouldn't be, but as long as once the application is made, it must be granted.

PN5492

Now, Mr Smith, in the context of the paragraph above, is saying, yes, it shouldn't be a problem. But it is a problem and the way that it is paraphrased or referred to you in the outline by Mr Watson is just not - we don't accept that it is a concession and it should be read in context. In addition to that, we say to you,
Mr Watson said there was no evidence about this in relation to, there was no evidence - sorry I withdraw that. The evidence before you of Mr Hart was exactly the problem that Mr Watson says doesn't occur.

PN5493

Mr Watson's emphasis is on this question of knowledge, well if people will know, then it is not a problem. Well, in fact Mr Hart knew, he knew what he thought his entitlement was in the enterprise agreement, he also knew the award provisions, he made application, he had his overtime and supervisor sign, he knew what was going on and still the employer was saying to him, because he hadn't taken it in the three month period, you lose it. Now, in that context, that is the very problem we are seeking to address. The context where the organisation takes no responsibility for managing work, no somebody is actually doing all these extended hours, and then waits and uses the excuse of the award to say you can't have it.

PN5494

Now, Mr Hart's evidence was, he just couldn't take it because they didn't replace employees around him and he had a workload. So it is not just this question of knowledge. It is the question about the way the industry goes about, the thought that the industry has about this. Do people have an entitlement to be compensated for the hours that they work? Some people in the industry don't seem to have that view, they are using the award as the excuse. Mr Vincent, in giving evidence in this matter, and I refer you to paragraphs 1091 to 1093, he skirts around this issue in the sense of what was the intention of the parties at the time when the award was introduced. In fact, what he ends up saying is at 1093:

PN5495

You have given evidence that you didn't intend to reduce the hourly rate of pay under the award when that provision went in, is that correct?

PN5496

And he says in response:

PN5497

It didn't cross our minds.

PN5498

Now, I think that is exactly the point, Commissioner. When the award provision was originally introduced, it was effectively what used to be known as the gentleperson's or the gentleman's, probably, agreement. Everyone at that table knew what was going to go on and it wasn't going to be used inappropriately within the industry, but we say now, that understanding is not what is going on in some cases. And that is why the award needs to be changed to reflect the responsibility that both the employer and the employee have.

PN5499

We also say that there was a lot of evidence from the employers, LGAQ's employers, that in fact they did pay, that they did honor the gentleperson's agreement and we shouldn't lose sight of the fact that for some people, the understanding is still there, but for some people the award isn't - able to use the award on its face as an excuse not to pay.

PN5500

The other point to be made, I think is that much is made of the fact these people are at level six and above and that is important because they are supposed to be somehow more in control of, you know, making decisions, well Mr Hart is at level six and above and it wasn't his experience, but in any event, we remind the Commission that in fact, this is a cascading down provision that he employee can apply to all employees within the workplace, utilising the provisions of the award, and that is why it is also doubly important to fix this up.

PN5501

Now, Commissioner, taking note of the dialogue or the discussion that you were having with Mr Watson at the time when you were looking at this issue and you asked him a number of questions, it struck me that if you weren't minded to accept the ASU's application, then what you could look at is this provision that talks about something along the lines of, well, if the employer knows that the work has been done, the time has been worked, so it should be the employer responsibly to enter into a dialogue about when that time should be taken, and which is where I think you started at, and If after a certain period of time, the time hasn't been taken or an agreement hasn't been reached, the employer can either decide to direct the person to take the time off or to pay them if that is the more convenient arrangement.

PN5502

Now, you could look at something along those lines, and we put that to you Commissioner, because it is contrary to the way, I think Mr Watson framed it. It is not our intention to undermine the time in lieu provision in the award and to say, well, what we are really here about, is to try and get overtime for all the time worked outside of ordinary hours. It is not our intention, we genuinely want this time in lieu provision to work, because we say it is better for our members to take the time off than to keep working extended overtime, but it has got to be much more of a sharing of the responsibility than currently exists in the award.

PN5503

The question of salary increments, can I say this, that the problem with Mr Watson's submissions and the way of the LGAQ's case in general, is that they are in fact, and that is the point I make and it is why we have the paid rights decision in our references, they are in fact looking at a time serving element, wanting to give precedence to the time serving element. Now, they say that there has been no evidence presented that the employer unreasonably denies part-time employees the annual increment if they met the performance criteria. Not so. One of their witnesses was specifically taken to this and I am trying to remember in my head which one, and I think I put it in my outline, specifically goes to that point and says, "Yes, regardless of whether or not they have met their performance objectives that were set down for the 12 months, they have to wait for full-time equivalent hours before they get their annual increment". So you know, really, it is not true what Mr Watson says that there was no evidence put about that.

PN5504

We also say this, that in relation to the cases relied upon by Mr Watson, the first one, the case of Senior Deputy President Drake and I think you rightly pointed out, we say has no relevance in this matter because it was determined prior to the paid rates review and it doesn't take account of the fact that it has now been accepted that you can have increments on the basis that they are existing in this award. We also then go to this question of the decision in the QPSU decision that Mr Watson referred to. What Mr Watson failed to take you to, Commissioner, was the final determinations at the end of the decision by the Full Bench in this matter. And that is that, first of all, let me say this. These two cases are distinguishable, this case before you and this one, on the basis that this award was an award that already had, or these awards were awards that already had provisions that said part-time employees had to work full-time equivalent hours to get their annual increment or their paypoint increase. So, that is the context of this award, this decision.

PN5505

What the unions do is they go and they make an application that the award be varied so that the provision says that they will get on - that part-time employees will get their paypoint at 12 month intervals. So, it is distinguishable on that basis in the sense that very different scenarios, both in terms of what currently existed in the award when this application was brought and the actual application itself, made by the unions, was not the same as this matter before you, because it was actually an application for a time served provision that said, "At the end of 12 months, you will get your annual increment", so very different from this, where the award has precedence for this notional, the staff development review process.

PN5506

We say this, the deliberations in this matter shouldn't be adopted in the sense that Mr Watson relies upon it, and the cases are distinguishable, but we also say this. If you are minded to think that there was some scope to go down this path, that even in this decision, what the bench does is recognise that it can't be related to time serving and that full-time equivalent hours is not the appropriate standard to have, and in fact that you have to relate it to the acquisition of skills, and they go onto say that - the paragraph numbering is really annoying, because they don't actually paragraph number in this matter, but it is on page 39 of the photocopy that you have been given, I think, and it is four paragraphs down, they say:

PN5507

We have decided after considering all of the evidence and all of the submissions that part-time and casual employees who work approximately an average of 3.5 days each week on a regular basis, acquire skills that at approximately the same rate as full-time employees and that they are expected to perform the work at the same level and to accept the same degree of responsibility as full-time employees and we have decided that the average weekly figure should be converted to an annual calculation.

PN5508

So they endorse the notion that in the context of what they had before them in terms of skills acquisition, that it wasn't a full-time equivalent criteria that could be applied and so we say on that basis as well, you should also reject the LGAQ's proposal. Just on this issue of casual employees, we say this. The industry says it needs to grapple with it and the union says it needs to grapple with it and the LGAQ in its submissions, says don't touch it, because it is fine. Well, we say to you, that there is a need for clarification, and the evidence before you is that there is a need to give clarification to the industry in terms of what is a casual in this context.

PN5509

In addition, in relation to the loading, can I say this. I don't intend to go anymore into what we have put to you, but to say, I think there is a problem with the argument that Mr Watson put to you related to the part-time concept of 10 per cent, because you must accept that the 10 per cent is currently in the award. No one has taken it out, no one might take it out. On that basis, Mr Watson's argument is what you have to do, is you have to compare casuals with part-time employees because he said the evidence from Mr Clough is that most casuals are part-time employees, although we would say that that evidence isn't absolutely clear.

PN5510

On that reasoning, however, the loading is even more deficient than what we have said, because in fact as a direct comparator, not only are casuals not getting all the entitlements that we have pointed out in our submission, but also not getting the 10 per cent loading that part-time employees get. The Metals case says, the comparator is within the award, what entitlements are lost within the award, and so I think it is a bit illogical or maybe Mr Watson has proved our case for us, that in fact well, maybe we should make an application for the casual loading to be even higher than what was applied because currently under the award, they are also missing out on that loading provision.

PN5511

In relation to casual conversion, we say that the federal standard is not one that it sets this notion of employer veto over the conversion. We do accept, as I think I have already said, the concept that wording should be introduced that makes it clear that the conversion happens if the position is ongoing, we don't accept the wording that the LGAQ has proposed on that point, but we do, and we certainly reject the notion that there should be an employer veto over it. The provision that came out of the South Australian case finally was that there was a provision that says the employer has a role in it, but the employee can't unreasonably refuse to convert, and there have been, as I understand, a number of cases now where employers have refused to convert and they have been taken forward. We prefer the federal standard, Commissioner, and we say that is the standard that you should turn your mind to in the context of this case.

PN5512

We also say that there is, in our view, whilst we won't say abuse, there is a problem with the industry not applying casual employment provisions appropriately and that is another reason why you shouldn't have this employer veto. Now, in relation to this argument about inconsistency in the drafting, we say this. Well, yes there is inconsistency and we have talked about that, I have taken you to that in my principle submissions, but the reality was the Full Bench were realists. They accepted the notion that whilst casual workers are meant to be intermittent, there are times where it doesn't pan out that way over time. It just is and they came up with the use of term, casual and irregular casual, to make the distinction between the two. Either way, they made the distinction and yes, it is illogical that if a person is a casual, they shouldn't be there for the qualifying period, but in fact, from a realist point of view, the Full Bench came in and made the decision to adopt the conversion provision because they understood that realistically it does happen and we say it is happening in this industry and that is why it should also be introduced.

PN5513

On this question of the two hour minimum engagement period for libraries in order to promote youth employment, we say this. Well, the LGAQ's application therefore should be that the two hour minimum engagement period could be applied in libraries in order to promote, for the purposes of engagement of school employees after school, full stop. Because really, it is ludicrous to shift the industry standard on something as important as minimum engagement for this argument, if they really were all about promoting youth employment, that is the way they should have approached it, they have come up with this argument after the fact, because what they really want to do is reduce the overall minimal standard for casual engagement.

PN5514

Now, in relation to the allowability of our fixed term provision and particularly at clause 17.25, we say this. Mr Watson is wrong in the way he characterises this matter as being a limit on the number of employees. We say it is not a limit on the number of employees which infringes section 89(a)(4), but is a definition of the circumstances within which fixed term is appropriate, and we think that is the distinction that should be made, and that is why we say it is allowable and that is why we say Mr Watson is not correct in relation to his approach to it.

PN5515

The other point in relation to fixed terms to be made is this, that Mr Watson in his submissions approaches the concept of fixed term employment by saying, why would we offer fixed term if the industry is not going to get something in return, as if it is some major boon for the employees of the industry that there are fixed term contracts at, our case is completely the reverse, that whilst the pattern for some senior people on fixed term contracts is that the contractual arrangements are beneficial in the sense that they get overall enhanced packages, that our concern is with the people who aren't in those senior positions, who are put on fixed term contract with no additional benefits and losing entitlements, as we have discussed during the course of the case.

PN5516

He starts from the point of saying, well, why would the industry offer it if they don't' get something in return? And we say, well, you are starting from the wrong way. I mean, the problem really is that this is not a good thing, these fixed term contracts are not a good thing if they are limiting employment and they are overriding award entitlements, and that is the reason for doing something about it. Now, the examples of gains for people are all in the context of senior executives or people in particular market positions where they have had the ability to negotiate, and we say that it is not the fixed term contract concept that allows that to happen, it is just really over-award bargaining they could do for that, if they wanted to, or they could have AWAs and they can have whatever they want for those additional entitlements.

PN5517

The argument that is run about the Local Government Act, that what you would be doing by making this application, is overriding the rights of local government under the Act, is just a furphy. I mean, the reality is, if that was the case, any time you made a change to the award, you would be, on these submissions, overriding rights under the Local Government Act. It is just not right. The local government, the emphasis is correct that the Local Government Act operates and has affect subject to the industrial award and agreement. I don't want to get into statutory interpretation of federal matters and state matters, but it is said on its face anyway within the context of the Local Government Act, that it says it makes provision for the fact that you will make determinations about what the award and industrial instruments are and that what councils do is subject to that. So the reversed interpretation is not correct.

PN5518

In relation to this question of contracting out and competition with private providers or private sector, we say this. The LGAQ has not run any evidence about this business case at all in this proceeding and that therefore, there is nothing before you which gives you anything upon which to consider this business case about the problem with fixed term contracts, vis-à-vis, or the problem with the ASUs application vis-à-vis competition with private companies and we say it is ludicrous anyway, that private companies - who knows what their award regulation provisions are, they could have the same provisions in their award, we don't know. This overall sense that it is bad and that they are not going to be able to compete, first there is no evidence for it and it can't necessarily be substantiated.

PN5519

We say, Commissioner, just in concluding, that this whole question of the dialogue that we have had about what is the difference between temporary employee and fixed term employee, just makes our case that something needs to be done within the award. Now, you may not come down to a side of saying, well what needs to be done is exactly what the ASU wants or as putting this variation, but in a sense, it is a real shame that these matters weren't able to be further developed in the context of conciliation so that we could deal with, put forward to you by consent, a suite of entitlements and types of employment that would really would make the award useful to the industry. That is what we were hoping to do in our application, it is really what we are trying to do, is to say, let's make this more useful now, now that we know there are different forms and different types of employment and we would hope that if you don't endorse our application, you at least facilitate the process of us doing something about it, because it is a mess and we all know that, really.

PN5520

The whole context that you can have a form of employment such as temporary employment in the award and not say what the circumstances are for temporary employment, for example, makes a furphy of the rest of the award because it means that - the other definitions of types of employment in the award, because you can never distinguish it, you can't distinguish one from the other and that is a real problem. Commissioner, I don't actually have anything further on those matters.

PN5521

THE COMMISSIONER: Very well, thank you. Well, I will reserve my decision in this matter. Before adjourning, just let me thank all the parties for the comprehensive material that has been put before me. It will take some time to get through it obviously, but nevertheless I will endeavor to have a written decision published as soon as I possibly can.

<ADJOURNED INDEFINITELY [1.53PM]