C2006/1769, Transcript of Proceedings [2006] AIRCTrans 225 (27 February 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14159-1

COMMISSIONER CRIBB

C2006/1769

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
s.113 - Application to vary an Award
(C2006/1769)

MELBOURNE

9.48AM, WEDNESDAY, 08 FEBRUARY 2006

PN1

MR N HENDERSON: I appear for the ASU.

PN2

MR P EBERHARD: I appear for the Victorian Employers' Chamber of Commerce and Industry.

PN3

MR R BURROWS: I appear for Victorian Hospitals' Industrial Association.

PN4

MR C TRIFILETTI: I seek leave to appear on behalf of various respondents to this matter.

PN5

THE COMMISSIONER: Thank you. Mr Henderson?

PN6

MR HENDERSON: Commissioner, this is an application to vary the Social and Community Services Victoria Award in relation to long service leave. The application was served pursuant to an order for substituted service made by the Commission by way of email and I will hand up a copy of the email that was transmitted. There were no returns to those emails, Commissioner and in fact I think we have heard from everyone except Mr Russell, Mr Dawson Smith and ….. and SIAG.

PN7

THE COMMISSIONER: SIAGs representative.

PN8

MR HENDERSON: SIAGs representative, sorry. So it is only those three, Commissioner and of course there are representatives at the bar table and there are some messages from Jobs Australia which I think the Commission has. From Sue O'Connor at the Catholic Education Office and everyone else is represented here today so we would submit that service has been effected according to the rules, Commissioner. The application to vary the award comes following a little bit of history.

PN9

The union sought - made an application to vary the SACS award in relation to a number of matters including long service leave in 2004 in c20046221. During the course of those proceedings through 2005 the union abandoned the application insofar as it related to long service leave in the light of amendments to the Victorian Long Service Leave Act which were passed by the Victorian Parliament and due to come into operation and in fact did come into operation on 1 January this year.

PN10

Those amendments among other things provided opportunity for employees to access pro rata long service leave on termination of employment after seven years for any reason which was a significant improvement on what had previously applied. The union sought not to pursue its application because to the large part the application was designed to achieve the same ends and as a consequence withdrew that particular aspect.

PN11

During 2005 the ASU participated in a number of discussions with the Victorian Government particularly in relation to the health sector in relation to portability of long service leave and other matters but to date those discussions have not resulted in any real change to the situation consequently leaving members of the ASU covered by the SACS award in early 2006 in a position where their long service leave entitlements as provided by the award were in many respects less than what they would be entitled to had they been covered by the amended Victorian Long Service Leave Act.

PN12

So because of that the ASU decided that it was necessary to amend the award so as to enable employees covered by it to access the improved conditions made available by the Victorian Government. There were however a couple of matters which caused some difficulty in relation to that. Primarily a provision in the existing provision which relates to employees who had been employed by hospitals registered and subsidised by the Hospitals and Charities Commission of Victoria.

PN13

That institution, Commissioner, ceased operation I think in the early 70s but unfortunately lives on in the SACS award probably for the same reason that we seek to allow it to survive these proceedings and that is that when this provision was initially in the award it was an award of the Victorian Industrial Relations Commission and it continued to be an award of the Victorian Industrial Relations Commission I think from the early 1970s up until 1993 when the interim award was made by the Federal Commission following the demise of the Victorian Industrial Relations system.

PN14

As a consequence of that perhaps some lack of attention to detail which is probably entirely excusable by the parties, provisions such as this which really only have a purpose in a common rule award were included in the Federal award. However there are a number of - there were a number of respondents at that time which were in fact hospitals and looking back, be said to be the bodies referred to in the scope of that clause if not successors to those bodies and even today, Commissioner, there are some organisations respondent to the SACS award which are successors to hospitals and on that basis it is possible - possible I think is the highest way we put it, that there are some employees who are perhaps quite - or nearing retirement age - - -

PN15

THE COMMISSIONER: ….. going to phrase that, Mr Henderson?

PN16

MR HENDERSON: Who may have accrued some benefit under this clause and because of that the union is not prepared to simply submit that that whole clause should be removed, because while there is a potential for someone to have an entitlement and no one in a position to emphatically state that there is no entitlement, in our submission it would leave - it would cause no grief to anyone to leave the clause in as it is currently written given that it does provide a benefit substantially - a substantially enhanced benefit compared with the Commission's general approach to long service leave which is three months after 15 years which for the purpose of these proceedings is the same as the Victorian Act.

PN17

So what the union has done, Commissioner, is re-written the long service leave clause so as to preserve the existing provisions in identical terms as they relate to employees who may have a benefit as a consequence of working in a hospital as defined under the clause and to remove from the award any long service leave provisions which cover any other employees. The second purpose of the application, Commissioner, is with one eye on the Work Choices legislation which is due to be proclaimed imminently.

PN18

Under that legislation the government determined by way of amendment that long service leave provisions in awards would be preserved matters under section 117 of the Amendment Act and the consequence of that is that those provisions that relate to long service leave appear to be set in concrete by the legislation forevermore and it is a concern to the union that that would mean that regardless of the opportunity to change conditions relating to long service leave by consent with the employers party to the award or perhaps to by agreement decide to abandon the award provision in favour of the Victorian legislation we would be prevented from doing that by the operation of the Work Choices legislation.

PN19

So Commissioner as a consequence we have made the application and I understand that it is not opposed by the employers representative but they will tell you about that themselves shortly. In relation to the National Wage or - I don't think they are called National Wage principles anymore. In relation to the Safety Net principles as I indicated, Commissioner, the long service leave provisions were the subject of an application by the union in 2004 and among other things the union sought in that application to reduce the amount of service necessary for pro rata long service leave on termination and to significantly simplify access to long service leave in a number of other respects.

PN20

That matter was referred to his Honour, the President for consideration as to whether a Full Bench should be convened and his Honour determined initially on 11 November 2004 but then again on 25 May 2005 that in his view the application which concerned hours of work, overtime, shift work, public holidays, payment of annual leave loading, payment of annual leave, shift workers and long service leave provisions was able to be dealt with by Commissioner Simmonds. In our submission this application does not vary the award above or below the safety net.

PN21

It doesn't fit quite into the categories of matters set out by the Full Bench that can escape the operation of that clause but we would submit that given the nature of the application and the fact that there is obvious consent by the employers to the award and that it is on all fours with the application earlier considered by his Honour the President, that the Commission can be satisfied that it is not a matter that needs to be referred. It could be dealt with by the Commission as presently constituted.

PN22

Commissioner, I will hand up a hard copy of the draft order that has been circulated and request that the Commission determine to make an order along the lines of the draft to come into operation from the first pay period on or after today's date. Unless there are any matters the Commission wishes to raise that's the submission of the ASU.

PN23

THE COMMISSIONER: Thank you, Mr Henderson. Mr Eberhard?

PN24

MR EBERHARD: Commissioner, there's just two matters that I wanted to address the Commission on. Firstly VECCI would not be opposing the application here today. We have had the opportunity of reviewing the order proposed by the ASU and in our estimation the contents of the draft just provided to the Commission reflects save and except for about four or five words the provisions that exist within the award at the moment. There is one matter that we would like to raise with the Commission that I think is - in that in an abundance of caution I think that the Commission should refer the application to the President.

PN25

There could be a construction placed on the application that it is a claim for a - or it is an application for a claim above the safety net. We certainly wouldn't be saying that it needs to be referred to a Full Bench and we would say that the Commission should be - as currently constituted, should be able to deal with the matter and upon receipt of the confirmation from the President that that is the case should be able to then deal with the matter expeditiously from that point of view. That would be our submissions. If the Commission pleases.

PN26

THE COMMISSIONER: Thank you, Mr Eberhard. Mr Burrows?

PN27

MR BURROWS: Just simply support the submissions of Mr Eberhard.

PN28

THE COMMISSIONER: Thank you.

PN29

MR BURROWS: Sorry, we don't oppose the application in the content - - -

PN30

THE COMMISSIONER: In the context of the request to refer it to the President?

PN31

MR BURROWS: Yes.

PN32

THE COMMISSIONER: Thank you, Mr Burrows. Mr Trifiletti?

PN33

MR TRIFILETTI: If the Commission pleases. SIAG do not oppose the draft order and also ….. Mr Eberhard with regard to the draft order and the …..

PN34

THE COMMISSIONER: Thank you Mr Trifiletti. Mr Henderson, were you aware that the employer parties here today would be seeking a reference?

PN35

MR HENDERSON: No Commissioner but from our point of view we don't think a reference is necessary but if the Commission decides to refer it then we agree with Mr Eberhard's submissions.

PN36

THE COMMISSIONER: Okay.

PN37

MR HENDERSON: About how it should be dealt with.

PN38

THE COMMISSIONER: Fine. Thank you very much gentlemen. On the basis of the request from the employer representatives here today the Commission shall refer the matter to the President. This shall be done expeditiously. If the President is of a mind to remit the matter back to the Commission as currently constituted, let me make it clear that on the basis that the application is not opposed by the parties, the employer parties, that the agreed order that has - the order that has been agreed by all of the parties will be issued by the Commission and that the order - I understand there is a question about when the order shall come into force.

PN39

MR EBERHARD: I'm happy with the first pay period on or after the 8 February which is today.

PN40

MR BURROWS: So am I.

PN41

THE COMMISSIONER: Mr Trifiletti?

PN42

MR TRIFILETTI: I agree.

PN43

THE COMMISSIONER: Okay. Fine. All right. So that the order shall come into force from the beginning of the first pay period commencing on or after the 8 February 2006 and shall remain in force for a period of six months. The order shall be in the terms that the parties have agreed which is the draft order from the ASU. Having set those pegs in the ground I shall refer the matter extremely expeditiously to the President as requested by the employer parties. Thank you very much everybody. This matter is now adjourned.

<ADJOURNED INDEFINITELY [10.03AM]