C2003/2484, Transcript of Proceedings [2006] AIRCTrans 357 (16 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14321-1

SENIOR DEPUTY PRESIDENT DRAKE

C2003/2484

FINANCE SECTOR UNION OF AUSTRALIA
AND
COMSEC TRADING LIMITED
s.99 - Notification of an industrial dispute - Log of claims
(C2003/2484)

SYDNEY

9.35AM, THURSDAY, 23 FEBRUARY 2006

PN1

MS A GOOLEY: Thank you, Your Honour, I seek leave to appear on behalf of the Finance Sector Union.

PN2

MR D PERRY: If it please the Commission, I seek leave to appear for Comsec, with MR P HILL, MR M CARROLL, and MR D FLETCHER.

PN3

THE SENIOR DEPUTY PRESIDENT: Leave is granted and, MS S CADDIE, I note your appearance with Ms Gooley. Yes?

PN4

MR PERRY: Your Honour, we'll be asking the Commission to make an award by consent, this morning. Can I start by handing up two documents to Your Honour? The first is a draft order and the second is the record of findings of industrial dispute made by His Honour Vice President Lawler and Your Honour will see that in the draft order we propose, really, that two things be done.

PN5

The first is that the question of the existence and the ambit of the relevant industrial dispute be clarified by Your Honour, through a consent order made to that end. The second is, Your Honour, an order formally making the award an award of the Commission.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes.

PN7

MR PERRY: Subject to those matters and any response I need to make to what my friend may want to say this morning, we respectfully request that the Commission make orders in accordance with the draft that I have handed up to you.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN9

MR PERRY: Ms Gooley reminds me, Your Honour, there was a statement which the parties had agreed which we do wish to place on the record.

PN10

THE SENIOR DEPUTY PRESIDENT: Ms Gooley, you wish me to make the orders as sought by Mr Perry?

PN11

MS GOOLEY: Yes, Your Honour, but we do have some matters we'd like to put on the record.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes, but you consent to that matter? Yes, you do, yes.

PN13

MR PERRY: I think, Your Honour, we have an agreed statement we wish to put on the record, which I will do now, and my friend has some things to say, which I may need to respond to.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes.

PN15

MR PERRY: Comsec acknowledges, Your Honour, that employees currently employed in an associate adviser role, while they are not expressly referred to in the classification structure, will be allocated a classification of CS2. The parties have expressly agreed that this will in no way constitute a precedent or guide for the classification of any other roles which will be classified using the descriptors in Clause 8 of the proposed award.

PN16

MS GOOLEY: Thank you, Your Honour. As indicated, the Finance Sector Union consents to the making of the orders that are before you today, but there are just a number of matters that the Finance Sector Union wishes to place on the record.

PN17

On 16 December 2005, Justice Merkel, in the Federal Court, made the following order:

PN18

The first respondent -

PN19

which was the Commonwealth Bank of Australia -

PN20

be restrained from inducing or attempting to induce any of the relevant employees to take up employment with the second respondent -

PN21

which was Commonwealth Securities Limited -

PN22

which do not provide for minimum employment entitlements provided for in a certified agreement, Australian Workplace Agreement, or award made under the Workplace Relations Act 1996 (Cth) applicable to the employee as an employee of the first respondent, where such conduct is engaged in for a reason or reasons that include the reason that the employee is entitled to the benefit of a certified agreement, Australian Workplace Agreement, or an award.

PN23

The FSU, in making this consent award, states that the consent award does not provide for minimum entitlements equivalent to those applicable to employees of the CBA by reason of the awards and certified agreements to which the FSU and the CBA are parties.

PN24

Secondly, the FSU's consent to this award is not to be taken as an agreement by the FSU that the terms and conditions of the consent award are applicable for employees who are employed either by the CBA or any CBA subsidiary in any of the CBA's business units.

PN25

Three, the FSU expects that Comsec will review all existing employment contracts to ensure that they meet the minimum terms and conditions provided for in the consent award.

PN26

I simply wish to place that on the record, Your Honour, but we do consent to the orders being sort.

PN27

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Perry, do you wish to respond?

PN28

MR PERRY: Yes, I do, Your Honour, if I may. My friend made some observations about the orders of the Federal Court and also the basis upon which the union has provided its consent.

PN29

The first observation I would like to make relates to the orders of Justice Merkel. We are obviously aware of those orders and what they say. They do apply to a limited group of employees who were employed in the premium financial services business unit in about September 2002. There is an appeal in respect of those orders and, subject to the outcome of that appeal, Comsec of course fully intends to comply with those orders and doesn't see any need to trouble Your Honour with a debate about what those orders are or what they might mean in the circumstances.

PN30

THE SENIOR DEPUTY PRESIDENT: Excellent.

PN31

MR PERRY: The second observation I'd like to make, Your Honour, relates to the statements my friend made about the basis upon which the union consents. From our perspective, this is an award which will apply to those workers employed by Comsec from time to time who perform work of the kind described in the classification structure. Comsec is simply not in a position to provide any commitment or undertaking as to who may be employed under the award at any time and doesn't consider that any undertaking would be appropriate.

PN32

Comsec will offer employment to employees covered by the award where that is consistent with business and employee needs and is the most appropriate option available under the act in all the circumstances. This needs to be considered, Your Honour, in the context of the Comsec business, which, as the Commission has been informed, through conciliation, is a successful and expanding one.

PN33

In summary, Your Honour, the point we seek to make is that employees may join Comsec from a variety of different places. They may come from the market, they may come from the bank, they may come from other subsidiaries of the bank. If they choose to do that they will be covered by the award if they perform that is described in the classification structure.

PN34

The final observation I wish to make, Your Honour, relates to my friend's comments about reviewing existing employment contracts. As Your Honour will be aware, the exemptions provided for in Clause 4.2, for packaged contracts, apply to existing employees of Comsec who are employed on such a contract, which was entered into before the date of this award and after the date of the award as well. One aspect of the exemption is that it doesn't apply where the employee is worse off on an overall basis when the terms under the contract are compared to the terms under the award.

PN35

Comsec is fully aware of its obligations under Clause 4.2 and will ensure that it complies with them. Having said that, consistent with what was put in conciliation, Comsec doesn't see the need for any formal review process or certainly a review process which needs to trouble Your Honour or my friend.

PN36

They are the observations I wish to put on the transcript this morning, Your Honour. The only other thing I'd like to say before inviting Your Honour to make the award is to thank the Commission for the significant assistance that it provided to the parties in resolving the dispute and assisting the parties to negotiate a position, if it please Your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything else, Ms Gooley?

PN38

MS GOOLEY: Only to echo Mr Perry's statements in regard to thanking the Commission for its assistance in achieving what, at the outset, looked like an impossible task.

PN39

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Perry, the draft order mentions an amendment, by deleting paragraph 3 of the order of Vice President Lawler, you mean the record of findings?

PN40

MR PERRY: Yes, I do, Your Honour, the record of finding.

PN41

THE SENIOR DEPUTY PRESIDENT: So, I should amend that to the record of findings.

PN42

MR PERRY: Yes, Your Honour, it's the record of finding dated 21 July 2005, which I handed up to Your Honour.

PN43

THE SENIOR DEPUTY PRESIDENT: So, I'll say the record of findings.

PN44

MR PERRY: If it please the Commission.

PN45

THE SENIOR DEPUTY PRESIDENT: It's very gracious of you both to thank the Commission, I also felt it might be an impossible task, but I think all the credit must go, in fact, to Mr Hill and Ms Caddie, who both adjusted their positions a huge amount in the course of these negotiations. It truly wouldn't have been possible had they not been willing to do that and I think Mr Perry's assistance in that regard was invaluable. It's the wrong time of the morning for champagne, as I promised you, and in any event I have a 10 o'clock, but I think we should make some effort at some future time. The Commission is adjourned.

<ADJOURNED ACCORDINGLY [9.45AM]