C2004/6908, Transcript of Proceedings [2005] AIRCTrans 6 (4 January 2005)

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TRANSCRIPT OF PROCEEDINGS


O/N 9602

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C2004/6908

RESIDENTIAL AND SUPPORT SERVICES
(VICTORIA) AWARD 1999

Application pursuant to section 113 of the Act
by the Health Services Union of Australia to
vary the above award re safety net review wages
May 2004 decision

MELBOURNE

10.50 AM, THURSDAY, 23 DECEMBER 2004

PN1

MR B. LANGMEAD: I seek leave to appear for the Health Services Union in that matter.

PN2

MR P. EBERHARD: I am from the Victorian Employees Chamber of Commerce and Industry.

PN3

MR R. CORBOY: I am from VHIA, and I have no problem with Mr Langmead attending today.

PN4

THE DEPUTY PRESIDENT: Marvellous. Leave is granted. Okay, who would like to speak on this one?

PN5

MR LANGMEAD: Your Honour, I am instructed that an application and draft order has been filed in this matter, together with an affidavit of service which I was instructed was to be filed this morning. I don't know whether that has reached the Commission's file.

PN6

THE DEPUTY PRESIDENT: Yes, I have it in front of me.

PN7

MR LANGMEAD: The calculations have been undertaken in accordance with the Furnishing Trades case, and the union believes that the rates do reflect the appropriate changes. And the union also gives the undertaking.

PN8

THE DEPUTY PRESIDENT: Two questions: first of all, I will take you to adult employees classification, and then third year. It doesn't seem that the $19, standard $19 has been applied in the column. Have I missed something?

PN9

MR LANGMEAD: I am sorry, which one is it, your Honour?

PN10

THE DEPUTY PRESIDENT: Sorry. If you look at page 2 of the draft order, adult employee, part C, residential support services, half day model, adult employees.

PN11

MR LANGMEAD: Yes, your Honour.

PN12

THE DEPUTY PRESIDENT: There is a third column which is third year. The third column has been increased but not by the standard $19. I think that is correct. Is there a reason for that; have I got that wrong?

PN13

MR LANGMEAD: There may well be, your Honour, but I am not presently instructed as to that reason but I believe Mr Eberhard has - - -

PN14

MR EBERHARD: Your Honour, if you go to the first page and go to the part where residential support services other than half day model, and the classification structure there, you would see that there is four gradings, and then there is the supervisory. If you look at the minimum rate in the grade 1, $511.50. To actually get to the $716.10 which is the first year rate in the half day model, you actually multiply the $511.50 by 1.4 - or, I should say, you add 40 per cent on so you multiply by 1.4 and that then gets you to 716.10. The 40 per cent is a calculation within the award for various penalties. Mr Corboy will probably help me out here in the sense of - - -

PN15

THE DEPUTY PRESIDENT: I see. So it is an internal relativity.

PN16

MR EBERHARD: Yes, Saturday penalties, those sorts of things.

PN17

THE DEPUTY PRESIDENT: I understand. No, no, that is - I understand. So really what you have done is you have adjusted the first column and the rest flows from that. It is an internal - - -

PN18

MR EBERHARD: That is correct, yes.

PN19

THE DEPUTY PRESIDENT: I am allowed to do that, am I?

PN20

MR EBERHARD: Well, in terms of the process, that is how the - in terms of the structure of the award, that is how the award is structured in the sense that the half day model for those employees is a derivative of the weekly rate of the other than the half day model. And the adjustment has always been made on that basis, and I don't think it is not allowed in accordance with the principles because the principles talk about the adjustment of that. And we are adjusting it and we are then just adjusting the half day model in accordance with the award and the award's prescriptions.

PN21

THE DEPUTY PRESIDENT: So it is a sort of exception to the flattening of relativities occurring as a result of monetary amounts rather than percentages being applied.

PN22

MR EBERHARD: In a way, yes, but it is more about the fact that these are employees who work in a fairly unique environment in the methodology of how they work; and please don't ask me to explain it. But in terms of the payment, they don't receive penalties and that - - -

PN23

THE DEPUTY PRESIDENT: All right.

PN24

MR EBERHARD: And 40 per cent is the catch-all for the benefits, if you like, so that they miss out. That is where it is derived from.

PN25

THE DEPUTY PRESIDENT: Perfect. In the allowances, the allowances have been adjusted to reflect in part movements in the CPI, the expense related allowances; is that right? What was the CPI increase used?

PN26

MR EBERHARD: I have to - - -

PN27

THE DEPUTY PRESIDENT: I am sorry to ask questions but it is probably my job to do so.

PN28

MR LANGMEAD: Your Honour - - -

PN29

THE DEPUTY PRESIDENT: I might be wrong about that.

PN30

MR LANGMEAD: I apologise for my lack of instructions. The officer of the union who had carriage of this has gone on maternity leave this week and the union office is closed so I was asked to come on that basis. Having said that, I am just - I think I am able to tell your Honour that it is 3.7. I don't do that with any great confidence.

PN31

THE DEPUTY PRESIDENT: Yes, all right. Well, if it is not correct, perhaps if you could advise me in writing.

PN32

MR LANGMEAD: Yes, your Honour.

PN33

THE DEPUTY PRESIDENT: Thank you. Now, as to the principles, can we go through the requirements of the principles. First of all, the operative date? Sorry, Mr Langmead. 8(a), principle 8(a).

PN34

MR LANGMEAD: The first pay period to commence on or after today, your Honour.

PN35

THE DEPUTY PRESIDENT: Right. Has 12 months elapsed since - when was the last safety net adjustment? Perhaps I have it here.

PN36

MR LANGMEAD: September 2003, your Honour.

PN37

THE DEPUTY PRESIDENT: Yes, so 12 months has been satisfied. Right. Commitment: is the union willing to give the requirement commitment, principle 8(d)?

PN38

MR LANGMEAD: It does, your Honour.

PN39

THE DEPUTY PRESIDENT: Thank you very much. I think that is it. Marvellous. Thank you very much.

PN40

MR LANGMEAD: Thank you, your Honour.

PN41

THE DEPUTY PRESIDENT: Who is next?

PN42

MR EBERHARD: Your Honour, we wouldn't be opposing the application here today but we would like the opportunity of finalising the - and confirming the draft order proposed by the HSUA. My problem is going to be is that, when the HSUA get back from leave, I will be on leave. But I think there is one matter that is at issue from - or two matters, I should say, from my point of view.

PN43

THE DEPUTY PRESIDENT: What are they?

PN44

MR EBERHARD: I can advise Mr Langmead. There is just a question as to whether or not, given that the actual CPI for private motoring decreased by 1.8 per cent, there is a question as to whether or not the travel allowances should increase. And it is a question of calculation of the sleep-over allowance which is contained in point 2 of the order at page 4. I believe it should be $30.80 rather than $30.85.

PN45

THE DEPUTY PRESIDENT: Yes.

PN46

MR EBERHARD: But I understand that VHIA believes that it should be 30.85 so, subject to discussion, we will settle those potential disagreements and we will advise the Commission and provide to the Commission an agreed draft order.

PN47

THE DEPUTY PRESIDENT: By when, do you think?

PN48

MR EBERHARD: Well, we would think that we would be able to get you something by the week ending, I think it is 14 February - 14 January, I should say.

PN49

THE DEPUTY PRESIDENT: 14 January.

PN50

MR EBERHARD: I am actually back on the Wednesday which is the 12th so if I was given a - if we were given it till the close of business on the 14th, Friday, the 14th, at least then I think we are all back at work then and we can confirm the order with the Commission chambers.

PN51

THE DEPUTY PRESIDENT: Yes, all right. And what is your view on the operative date, having regard to the - - -

PN52

MR EBERHARD: First pay period on or after today's date.

PN53

THE DEPUTY PRESIDENT: Thank you.

PN54

MR CORBOY: Thank you, your Honour. VHIA has checked the rates. We have some concerns with the rounding of the adult employees half day model. Rounding is governed by the award as to the nearest five cents so there will be a minor adjustment there. And Mr Eberhard has already referred to our disagreement over five cents which I am sure we can resolve; and agree on those orders and have them to you by close of business on the week ending January 14. Thank you, your Honour.

PN55

THE DEPUTY PRESIDENT: Thank you.

PN56

MR CORBOY: And we don't oppose the operative date.

PN57

THE DEPUTY PRESIDENT: Terrific. Thank you very much. On the basis of the submissions put and the documents filed, I am prepared to grant the application with an operative date of today's date. However, the exact terms of the variation are still to be resolved and the parties have advised me that they will provide an agreed or disagreed position by close of business - what was it?

PN58

MR EBERHARD: Friday, the 14th.

PN59

THE DEPUTY PRESIDENT: Friday, 14 January - not February - 2005. Should there be a difference, then the matter will be listed for hearing and at that stage I suppose the operative date may again come into question, I am not sure. All right. Well, thank you very - is there anything else we need to do? No? Thank you very much.

ADJOURNED INDEFINITELY [11.00am]