C2005/1725, Transcript of Proceedings [2005] AIRCTrans 569 (8 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10658

SENIOR DEPUTY PRESIDENT HAMBERGER

C2005/1725, C2005/1726

s.113 - application to vary an award

APPLICATION BY THE AUSTRALIAN WORKERS' UNION
(C2005/1725)
Energy Developments Limited - AWU - Hydrocarbons Gas and Energy (Engineers and Draftspersons) Award 2001

APPLICATION BY THE AUSTRALIAN WORKERS' UNION
(C2005/1726)
Energy Developments Limited - AWU Hydrocarbons, Gas and Energy Award 2001

SYDNEY

10.00AM, FRIDAY, 25 FEBRUARY 2005

PN1

MR G BEARD: I appear on behalf of the Australian Workers' Union. These two awards, your Honour, are being heard together because there is a single employer involved and it is in fact the only employer respondent to both awards. I understand, your Honour, that Energy Developments forwarded a letter through to your office on 22 February this year indicating that they had received the appropriate documentation from the union and also that the company agreed to the draft order proposed by the union.

PN2

The company, your Honour, is involved in the production of electric power through various methods, such as cold gas, methane, landfill gas, power generation and remote power generation. The company operates throughout the Commonwealth. The union and the company had a certified agreement ratified by Commissioner Hoffman on 14 December last year and the information contained within that statutory declaration attached to the application was that the company had 95 employees and they had one casual employee. I understand that the casual employee was engaged in October of last year.

PN3

THE SENIOR DEPUTY PRESIDENT: Sorry, when did you say the CA was - when was that?

PN4

MR BEARD: 14 December.

PN5

THE SENIOR DEPUTY PRESIDENT: Right. Just gone.

PN6

MR BEARD: I did have an AG number, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: That's okay.

PN8

MR BEARD: I was just referring to the information contained in the stat dec. I understand that those numbers have not changed. The application your Honour, seeks to vary the casual entitlements contained within the two awards. Currently they provide for a casual loading of 20 per cent and there is no capacity for long term casual employees to become some form of full-time employee.

PN9

The classification structure in the award covers operators, utility persons and administrative assistants. The operators, your Honour, are people with quite skilled and complex competencies in regards to handling electricity. They do require certificates associated with the capacity to handle that form of energy. The utility persons are usually involved in the construction work associated with the sites, where the company produces the energy, and the administrative assistants, there are in fact 10 of them, most of them being in the head office in Brisbane, but also there are four, I understand, who are out on the major sites around the country.

PN10

I give some detail in regards to the classifications, your Honour, because if those people were in fact covered by other federal awards, as they could be because of the nature of their duties and the nature of their skills, they would have already picked up the proposal that the company and the union have agreed to in that the National Building and Construction Industry Award has received the 25 per cent loading. The AWU Construction Maintenance Industry Award has received that loading and the various awards applying to clerks also have received that increase.

PN11

As I said, your Honour, the two parts to the agreed position relate to an increase to the casual loading from 20 to 25 per cent, and in that regard I take a quote from the Full Bench of the pastoral industry arbitration in regards to casual entitlements. At paragraph 67 from that decision, and I will hand to your Honour a list of references in regards to these particular matters that I am referring to and they are referring to a metal industry decision:

PN12

In our opinion the relevance of the metal industry casual case to the present matter ...(reads)... ought to be applied unless there is some clear distinguishing circumstance.

PN13

In regard to finding out whether there is a disadvantage currently for casuals as compared to the full-time employees under this award, I have prepared a document for your consideration, your Honour. I will hand that to you.

EXHIBIT #AWU1 DOCUMENT LISTING ENTITLEMENTS

PN14

MR BEARD: AWU1 seeks to list the entitlements in the award that full-time employees have that are not available to part-time employees. In fact apart from the long service leave provision contained in the award all the other provisions are exempted. They are named as being exempt to casual employees. I don't expect a response as such from your Honour in regard to this document at this particular point in time, but what I am putting, or what the parties are putting forward to you, is that the number of days per year that a full-time employee gets paid for and the casual doesn't, works out as a percentage of 25.87 per cent as compared with the number of working days, 260 over the year. That is a very simplistic view of the situation. However, I believe it does show that at this current particular point in time, when you compare the entitlements that a full-time employee has, that the casual does not have, it works out at that particular percentage.

PN15

As I said, the current percentage for a casual is 20 per cent and we believe that that does not provide an appropriate compensation in regards to the full-time employee and therefore the casual employee under the current award is disadvantaged compared to the full-time employee. This particular analysis, your Honour, obviously doesn't take in to other aspects of - you need to view other aspects of casual employment such as the lack of training, the travel areas between work, the lack of a career path, the unpredictability of income and future work, exclusion from the awards facility provisions. There's a greater likelihood of being retrenched without redundancy pay.

PN16

As I say, those issues all need to be taken into account also, but purely from a point of looking at what the current award has in regards to provisions for full timers that the casuals don't get, we believe that the 20 per cent doesn't provide an appropriate compensation. As I said, the union would like to be able to say that it should be slightly higher than 25 per cent, however we have taken what I believe to be a realistic position in regards to the casual loading. Fortunately at this particular point in time we have the benefit of being able to have a look at many decisions that have been made by various members of this Commission in regards to this issue. I have prepared a document, your Honour, which sets out some of the awards and some of the areas where the casual loading has been increased to 25 per cent. I will hand that document to your Honour. This may be AWU2 your Honour, thank you.

EXHIBIT #AWU2 DOCUMENT SETTING OUT VARIOUS AWARDS

PN17

MR BEARD: It's obvious it requires some clarity at some stage in the future, the documents we are referring to. Obviously the major decision in regards to this particular area was the Metal Industry Award that was handed down by a Full Bench back in 1999. And I am also very mindful of the fact that that particular decision did in fact state, that it wasn't a test case position, that parties do in fact need to satisfy the Commission that the increase is warranted and appropriate, and from that particular decision, which applied to a full industry, where they had thousands of companies to be able to be surveyed, and a whole host of information was able to be gathered over a long period of time. And the decision itself, your Honour, you are aware of about 74 or 75 pages, goes to the great detail of statistical matter and evidence that was subject to that particular decision.

PN18

Since that time there have been, as I say, various awards have been varied to take the casual loading to 25 per cent. A lot of those awards have been over an industry and major industries, such as the Pastoral Industry Award, such as the AWU Construction Maintenance Award, the Graphics Arts Award. In 2001 the Queensland Industrial Relations Commission handed down a test case in regards to the casual loading going from 19 to 23 per cent. It went to 23, your Honour, because casuals in Queensland are in fact able to access long service leave, so there was a discount for that particular matter. Also, your Honour, not just industry awards have been varied but a whole host of single company awards also.

PN19

The decisions relate from Full Benches to Vice Presidents to Senior Deputy Presidents and also to Commissioners and the list that I have provided in AWU2 your Honour, is not an exhaustive list. I haven't had the time to go through the decisions in the Commission's website to find out all of them, but I have highlighted what I believe are the key industry variations, and then also the particular variations for AWU awards. As you know the AWU is a multi industry union where we cover a whole host of different industries and a whole host of different classifications, and, the three and a bit pages of decisions there, I believe, provide some guidance in regards what is an appropriate casual loading. The document, as I said, sets out those matters, that have been subject to arbitration and also those matters that have been made by consent. You would note that the majority have been made by consent, that the parties have been able to discuss the matters, and been able to reach an agreed position.

PN20

The second part of the application, your Honour - - -

PN21

THE SENIOR DEPUTY PRESIDENT: Perhaps just before we go on to that if that's okay, as you might have guessed from what I said previously in the other matter - obviously you're talking about one relatively small company and you said that on the last information available they only had one casual. So obviously I am conscious of not asking you to do some mammoth research exercise on this one person's working patterns, so there may be more casuals than at the moment or have been in the past, obviously that was just at that point in time, but nevertheless I do consider that information about what casuals are used for - how does the employer under this award actually - when does the employer under this award use casuals, and what does the company use them for, would be of use to me.

PN22

MR BEARD: Does that actually matter, your Honour? We are looking at a safety net award and in that safety net award it has provision for the employer to engage people as casuals. I believe what we are looking at is saying, well, the current compensation for casuals, is it appropriate, if it isn't what should it be? Because we are, rather than looking at the past, what has happened there, I believe the award is looking at the future, what happens in the future. Somebody who is employed under the terms of this award as a casual at this particular stage, we believe, is being disadvantaged, compared with the full timer.

PN23

THE SENIOR DEPUTY PRESIDENT: Well, but that's a moot point. I mean there's no question that there are certain things that you don't get if you are a casual, that you do get if you are not a casual, but the relevance of those conditions depends on the facts and circumstances. Now I accept that it's an award and we can't deal with the individual circumstances of every individual employee.

PN24

MR BEARD: That's correct.

PN25

THE SENIOR DEPUTY PRESIDENT: I appreciate that. Nevertheless, for example, in your table, in your calculations of the benefits, you give a value of 10.25 days per year redundancy, but if you like this, arguably anyway, assumes that this person will be made redundant.

PN26

MR BEARD: Well what it means is that under the current terms of the award somebody in the future could work for that number of years - - -

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, but if you are providing a
loading- - -

PN28

MR BEARD:- - -and therefore they wouldn't pick up that particular entitlement because the award at this stage says they don't get it.

PN29

THE SENIOR DEPUTY PRESIDENT: That's right but at the same way, what you're saying, well you could be a non casual and work for 10 years for an employer, or 5 years or whatever, and then leave, not pick up any redundancy benefit, whereas for your casual, if you give a compensation in the loading you are actually paying out the value of redundancy whether they ever get made redundant or not.
THE SENIOR DEPUTY PRESIDENT: So there would have to be - - -

PN30

MR BEARD: It could happen, see that's the thing. We don't have a crystal ball.

PN31

THE SENIOR DEPUTY PRESIDENT: In terms of equity, though, it is not obvious that one - well, presumably, what we are trying to achieve here is equity between the casual and the non casual. It is not necessarily obvious, if I can put it that way, that guaranteeing that the casual be compensated for - the worst possible outcome is actually - but guaranteeing that he will be compensated for that whether that worst possible outcome happens or not is more equitable. And that's why issues like the take up of benefits under the award by non casuals is relevant and it is also why the working pattern of the casual or casuals under this award are relevant because if - and I accept that we don't know what will happen in the future. I understand that.

PN32

MR BEARD: That's the thing.

PN33

THE SENIOR DEPUTY PRESIDENT: However, one can, as has happened in a number of these cases and certainly happened in the metals case - now I know it was dealing with hundreds of thousands of employees and obviously the amount of research that could legitimately, you know, justifiably go into a case like that is very different from an award like this - but it did look at what the facts were about what actually operated in that industry as to the way casuals were used, what their working patterns were. And I don't see any reason why - I mean if it is too difficult to really - or too meaningless to look at this particular award, given that we are talking about one company and possibly, probably one employee, at least maybe you could give me some information about the industry in which this award operates. So we are not talking about people under this award as some separate group of people. We are talking about people in the hydrocarbon and gas industry. So that would be - - -

PN34

MR BEARD: I can certainly look to do that, your Honour, but as I said earlier, people who are engaged by the company as operators, utility persons and administrative officers, if they were engaged, employed by another company, they could in fact be engaged under the terms of other awards that do in fact have a loading of 25 per cent.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, that's why - I heard what you said there and I acknowledge that, but that's a separate issue from what I am saying. I am saying that I believe that these issues about working patterns and take up of benefits and the likelihood of a benefit being ever used, are relevant in assessing their value. That's what I think and therefore those - the issue you just raised about what if they worked in a - if they worked for somebody else then they would be covered by this other award saying 25 per cent. I am not saying that is irrelevant, but I am saying that is a different issue. I am saying what would be useful is information - if you cannot get information about the working patterns in this one particular company and I must say I sympathise, if I can put it that way. I think that's probably better. If you could provide me with some information about working patterns and take up rates of benefits, even if it is only your best estimate that apply in this industry, then that would certainly be of assistance to the Commission. So the sorts of things - I mean I actually - I don't know whether - we obviously had a separate hearing just prior to this matter being dealt with where I outlined the kind of information I was seeking in relation to that. I will release it again, but you will get the transcript.

PN36

MR BEARD: I don't think that's necessary, your Honour. Again we are dealing with a single company situation. The salt industry matter that was on before this particular one, I took a note of the issues that you raised there and I think it is unnecessary to go through those again.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN38

MR BEARD: That seems pretty straight forward what you are looking for.

PN39

THE SENIOR DEPUTY PRESIDENT: You can see my point.

PN40

MR BEARD: As I say sort of, I tend to have a view where I think, well, the award is for the future here and we don't know what is going to happen. An employee engaged as a casual under the award currently could work for 10 years as a casual.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MR BEARD: They could, that could happen. It probably won't, but it could and that's the idea, I believe, of the proper safety net. You are saying, well, we are providing legal situations that decide how your employment is going to be governed and you can't look at every situation. It's just not possible.

PN43

THE SENIOR DEPUTY PRESIDENT: No. I don't have a problem with you putting that submission, but nevertheless I suppose I have given you a very clear indication of those kinds of facts, if you can - - -

PN44

MR BEARD: I certainly will try, and because the nature of this particular agreement - of this particular situation being an agreed position between the employer and the union, I believe it will be easier to obtain that particular information. Obviously if you want to contest a situation you can - - -

PN45

THE SENIOR DEPUTY PRESIDENT: - - - yes, argue that.

PN46

MR BEARD: It can be harder getting that definitive type of information. However, I was aware obviously, your Honour, of how you wanted to proceed in this particular matter. I wanted to put a few things before you just so that you are aware of where the company and the union are coming from and something for you to consider in regards to this application. I am aware of some further detail that you would like to have in regards to how casuals are actually engaged and operate at this particular point in time and I will endeavour to do that. After these submissions if there are further matters that you wish to be addressed on I would appreciate being advised.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes, I will let you know. So if you could get me some - if you want to supplement submissions you have put this morning with some further written material addressing whatever you feel is appropriate. But certainly I would be grateful if you could try and address some of the issues I have raised, factual issues. I leave it up to you how long it takes you to do that, it is your application. I guess the sooner you get to me the better, but rather than try and hold you to a timetable, I think it is up to you. I leave it with you how soon you do it and if I feel I need further information or we need to have another hearing we will contact you about that at that point, but it may not be necessary. So again what we might do is adjourn the matter and - - -

PN48

MR BEARD: Yes, well, I was just going to say, your Honour, that the second part of the application is in regard to the confusion.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry, I jumped that.

PN50

MR BEARD: That's all right and I will be quite brief here in that you would be aware that the capacity for long term casual employees to convert to some form of full time employment under the metal industry is six months minimum. The parties in this particular matter have agreed that six months is too limiting on the company's operations or what they believe could operate in the future.

PN51

An agreement has been reached for 12 months. We believe that this provision, a long term casual with an opportunity of some form of security for their future and if only the basis of the casual employee wanting to take up that option. The proposal we have put forward to you is that, if the company wants to continue the employment of a casual after the 12 months, then that casual has the opportunity to say well, I want to become some form of full time employee. If the casual employee had been engaged on a 38 hour week, then they would become a regular full time employee. If it was less than 38 hours they would become a permanent part time or part time employee, but it is on the election of the employee.

PN52

There is a disputes process there if there are problems that do occur in regards to the processing of that particular situation. As I say, it means that the casual then has the opportunity of deciding that they will forsake whatever percentage the loading is from the casual loading, to become a full time employee and it might be that they believe that is warranted because going to full time employment means that they have security of employment which may mean getting a bank loan. Whereas being casual it is very difficult because of the instability of the employment.

PN53

Again, your Honour, we believe it is in the best interests of the parties to have those particular provisions in the award. We believe that it is - it has been referred to in the Award Simplification Test Case where it is stated that employees should be forwarded an opportunity to agree on the terms of the nature of their employment and we say essentially it is again wording that has been accepted by various members of this Commission.

PN54

Again if there is further information that you would wish to have in regard to that second part of the application, I would be only too happy to gather that information and forward it through to you.

PN55

THE SENIOR DEPUTY PRESIDENT: I think the sort of information I was seeking in relation to the first part, I don't think I need any additional information on that matter.

PN56

MR BEARD: Well, at this stage - my voice has just about had it - I will complete my submissions.

PN57

THE SENIOR DEPUTY PRESIDENT: So we will adjourn and I will await your further written submissions and then on receipt of those I will either issue a decision, if I feel I have got sufficient information, or I will be in touch to seek further information or if we need a hearing then - if you feel that you - I can't imagine why you would, but if you felt that you needed a hearing, obviously please - a further hearing of this matter in addition to any written submissions, then obviously if you did, then please contact my chambers, but I cannot envisage that you would necessarily want to.

PN58

MR BEARD: I understand what you are saying, your Honour, that if you did not agree with the position that the parties are putting to you we would have a chance to submit further information to you?

PN59

THE SENIOR DEPUTY PRESIDENT: Well, if you want. I mean if - - -

PN60

MR BEARD: I understand that, yes, but I'm going to - - -

PN61

THE SENIOR DEPUTY PRESIDENT: That's not what I actually said.

PN62

MR BEARD: I'm going to provide further information to you. I think sort of what I was thinking then, well, are you going to issue a decision at that time, which a decision either means acceptance or rejection. If it is rejected, well, the only way we can address that is to appear or do you see that we would have another opportunity to address concerns that you have.

PN63

THE SENIOR DEPUTY PRESIDENT: Well, obviously it is hypothetical because I don't know what my decision would be but would you like that?

PN64

MR BEARD: Yes.

PN65

THE SENIOR DEPUTY PRESIDENT: Okay. Well, I mean I am happy to - I mean if I feel that you have not persuaded me at that point then I am happy to give you another opportunity to have another go if you like.

PN66

MR BEARD: Another bite at the apple. Yes, your Honour, appreciate that.

PN67

THE SENIOR DEPUTY PRESIDENT: So I will give that undertaking. No, that is fair enough. I am not saying it will happen but yes, it is a - no, because I hadn't actually meant to say - I hadn't said that. I hadn't meant that necessarily would be the case, but I'm happy to do that. Thanks very much.

<ADJOURNED INDEFINITELY [10.32AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 DOCUMENT LISTING ENTITLEMENTS PN13
EXHIBIT #AWU2 DOCUMENT SETTING OUT VARIOUS AWARDS PN16