C2005/5858, Transcript of Proceedings [2006] AIRCTrans 418 (23 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14453-1

COMMISSIONER GRAINGER

C2005/5858

APPLICATION BY AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
s.113 - Application to vary an Award
(C2005/5858)

MELBOURNE

2.33PM, WEDNESDAY, 08 MARCH 2006

Continued from 12/12/2005

Reserved for Decision

PN1

MR N HENDERSON: I appear for ASU.

PN2

MR S WILSON: I am from VECCI for the Brimbank City and with me I have MR G SMITH and MR J MONOHAN both from the City.

PN3

THE COMMISSIONER: Yes, Mr Henderson?

PN4

MR HENDERSON: Thank you. Commissioner, the ASU provided to the Commission an outline of submissions which I'd ask the Commission to mark.

PN5

THE COMMISSIONER: Yes, thank you.

EXHIBIT #A1 OUTLINE OF SUBMISSIONS

PN6

MR HENDERSON: Even though the documents and titles and outlined really the outline really sets the case.

PN7

THE COMMISSIONER: Yes.

PN8

MR HENDERSON: There's not a lot more to be said in relation to it.

PN9

THE COMMISSIONER: Well, you know I'm a great believer that you shouldn’t say more than you need to say, Mr Henderson.

PN10

MR HENDERSON: That’s right, I agree. So what I propose to do, Commissioner, is just to take you through the outline and highlight some of the attachments so that we have the picture and I've got a copy of a couple of the decisions that I'll refer to.

PN11

THE COMMISSIONER: Good, that's great, thank you.

PN12

MR HENDERSON: So, Commissioner, really what the argument between the parties is about is whether or not employees at the City of Brimbank who are employed under the terms of the City of Sunshine Award 2003 should be entitled to accrue annual leave and sick leave entitlements when they work their ordinary hours of work outside of the ordinary hours.

PN13

THE COMMISSIONER: Yes.

PN14

MR HENDERSON: Now, I've extracted for the Commission, starting at page 2 under the heading of history a copy of all the relevant provisions from the award and the antecedent awards that deal with the matter and I described on page 3 how the current provision has evolved from those earlier provisions. And I think coming up to the point at paragraph 20, that the 1992 award was the amalgamation of the 73 and the 80 awards and those awards were awards which deal with different parts of the workforce.

PN15

So the 1992 award brought that two different parts of the workforce to together under one award, a task which was a difficult task because of a number of the - some quite diversion conditions of employment that were enjoyed by the different parts of the workforce which were a consequence I suppose of many years of two different unions advocating perhaps with a different emphasis, different types of claims, but I might say it was a very exciting moment which that award was made, Commissioner. There was a garbage strike, all the things that you'd want and I can assure you - - -

PN16

THE COMMISSIONER: Well, I wouldn’t want a garbage strike, Mr Henderson.

PN17

MR HENDERSON: Deputy President McBean was thrilled with every minute of the hearing.

PN18

THE COMMISSIONER: Well, I'm glad that he was.

PN19

MR HENDERSON: So the 92 award was then made and we've extracted the clause that appeared in which was clause 15, the hours of duty and overtime provision and with the making of the award that provision then did not alter after the simplification of the award which was done Senior Deputy President Kauffman. So the provision that appeared in the 1992 award is the one which is currently before the Commission. Now, what we say there in paragraph 21 is that the 92 award confined the hours of work clause to full time employees.

PN20

I'll just take you to the particular provision. Yes, under page 4 of clause 15 there's a provision called, General Overtime Provisions, and it applies to all full time employees and specifically on that basis does not apply to part time employees. And then at the same time a provision came into existence which is the one in question, clause 12, which included a new proviso or past the proviso:

PN21

Where such part time employees employed at the time warrants overtime payment of the ordinary hourly rate shall be increased by the appropriate overtime penalty.

PN22

Now, at that point I just wanted to make the observation, Commissioner, that in the City of Sunshine unlike perhaps other workplaces or other awards, the way in which the penalty payment work after what we would call the ordinary hours as described is always described as overtime and we just simply make the observation that appears to be whether it's overtime or not. Meaning that an employee who was employed on a permanent basis between the hours of say 6.30 pm and 10 pm each weekday, under the terms of the City of Sunshine Award would be paid overtime for that work even though in other work places it may well be between described as an ordinary time payment with a penalty payment because it was outside the spread.

PN23

So, that leaves at the point, Commissioner, where the argument really commences. The City of Sunshine's contention as I understand it is that all such time worked outside of the spread of hours is overtime and overtime doesn’t accrue an entitlement to leave. The ASU argument is that the definition of part time employment and particularly in paragraph 2 of the clause 12 makes a specific provision:

PN24

That part time employees will receive pro rata payment for sick leave and annual leave and any public holidays which fall on the day employee will work.

PN25

There is no exclusions in clause 12 in relation to when the employees contracted hours fall outside the spread of hours. It simply states that each such hour will be remunerated at the rate of one thirty fifth and there will be a pro rata payment. Now, at that point, Commissioner, we could also contrast the situation at Brimbank in relation to these employees with the situation in relation to part time employees who are employed by awards which have a provision that entitles them to be paid overtime for work performed outside their contracted hours. There is no such provision is the Brimbank award. So we refer then, Commissioner, to a number of the authorities on the way in which an award should be interpreted and I'll hand up some copies of relevant parts of that in a moment.

PN26

In particular I'll hand up a copy of firstly a decision of Commission Mansfield in the AMRS Award.

PN27

THE COMMISSIONER: Thanks.

PN28

MR HENDERSON: This is print PR 960097. In this decision, Commissioner Mansfield, extracts a number of the decisions that I've referred to, the purpose this being to persuade the Commission that there is an ambiguity of uncertainty as such that the Commission should be disposed to remedy by varying the award. Basically the Commissioner in that matter tendered towards the view expressed by Isaac, acting Isaac CJ in the Pickard's case which is referred to on paragraph 33 and 34 in a quote from Gray J AFMEPKIU v Davies Brothers and basically that that approach is that if there's a dispute about the meaning of a clause then really that should be enough to attract the jurisdiction to consider whether or not an order ought be made to vary it.

PN29

It doesn’t require that it ought to be made but it simply takes us over the threshold and given that we appear to be in argument then in our submission we've satisfied that test and the Commission should be poised to vary the award if satisfied that there is sufficient uncertainty to warrant it. In choosing that course Commissioner Mansfield chose not to go down the path which is perhaps the English path which involves the 20 bishops argument.

PN30

THE COMMISSIONER: Sounds just the sort of thing I'm interested in,
Mr Henderson.

PN31

MR HENDERSON: Yes. The 20 bishops argument - - -

PN32

THE COMMISSIONER: More bishops the better.

PN33

MR HENDERSON: Yes. The 20 bishops argument was that in - paragraph 31, sorry, and it talks about what was the intention of the parties at the time of making the award which I think to some extent is an argument raised by the counsel. It really doesn’t matter what the parties intended in think it's saying and even if 20 bishops swore that they intended a different thing it really wouldn’t matter and we support that and we adopt that approach in this matter.

PN34

THE COMMISSIONER: Yes.

PN35

MR HENDERSON: Then another matter which we wanted to just refer you to is that approach to be taken in interpreting the award and what I've extracted is the Amcor decision there's some comments by both Kirby J and Kellerman J in which judges in that matter adopt the approach taken by the Federal Court in relation to interpretation. And in particular paragraph 96 which is on page 2 of the extract, this is Kirby J quotes with approval the judgement of Madgwick J in Cooks v CSR Limited and Kellerman J does the same later on in paragraph - - -

PN36

THE COMMISSIONER: Is it 130?

PN37

MR HENDERSON: Yes it is, 130, yes, and they make some comments about it but really they simply adopt the approach of Madgwick J that the approach to interpreting awards shouldn’t be narrow or pedantic and so on. I don’t want to read the whole quote to you.

PN38

THE COMMISSIONER: No, I can read it for myself.

PN39

MR HENDERSON: Yes, and they state in paragraph 26 of the submissions:

PN40

That the comment with meanings which avoid inconvenience or injustice may reasonably be strained for.

PN41

Now we don’t even submit that there's a need to strain for the approach that we've sought to have placed on the award. In our submission is the only available interpretation because to not give the award that interpretation would mean that part time employees would be in certain circumstances employed to work ordinary hours in which they are only rewarded for the inconvenience of the hours and not for the accrual of annual leave and sick leave which ought to also have attended the hours that they worked. And in our submission such a significant deficiency in the award should not be allowed to occur in circumstances where it's not specifically set out.

PN42

In our submission if that was the intention of the award even from the time at which the award was originally made it would have been specifically spelt out and given the approach take by various Benches in the award simplification exercises if that was the intention of the simplified award once more we would submit that would have been specifically set out having regard to the approach taken in relation to part time employees otherwise in the simplification process. So, that’s really the argument, Commissioner.

PN43

THE COMMISSIONER: Well, where have outlined the precise variation that you're seeking to the award?

PN44

MR HENDERSON: I think it's - well, it’s in the application.

PN45

THE COMMISSIONER: So it's as in the application?

PN46

MR HENDERSON: Yes, the application seeks to insert a new sub-clause that states:

PN47

Provided where a part time employee is employed outside wholly or partly -

PN48

THE COMMISSIONER: Fine, yes. Good.

PN49

MR HENDERSON: I think that really - - -

PN50

THE COMMISSIONER: In your submissions at A1 I might just note that it's in accordance with - in the terms outlined in the original application?

PN51

MR HENDERSON: Yes, Commissioner, yes. I won't respond to Mr Wilson's submissions at this point and that they are the submissions of the applicant. If the Commission pleases.

PN52

THE COMMISSIONER: Thank you very much, Mr Henderson. Yes,
Mr Wilson?

PN53

MR WILSON: Yes, thank you Commissioner. Commissioner, similarly to the ASU we have provided an outline of submissions of the respondent.

PN54

THE COMMISSIONER: Would you like to tender that?

PN55

MR WILSON: Yes, if the Commission pleases?

EXHIBIT #R1 OUTLINE OF SUBMISSIONS

PN56

THE COMMISSIONER: Yes, thank you.

PN57

MR WILSON: Commissioner, a bit like Mr Henderson even though it is entitled, Outline of Submissions, it really says what we wanted to say about the matter.

PN58

THE COMMISSIONER: Do you say there is no ambiguity?

PN59

MR WILSON: Yes, that's essentially right, Commissioner. I hear what
Mr Henderson says in terms of some of the cases that he's provided that if there is a disagreement therefore there must be an ambiguity. I think it goes something along those lines but we would say, Commissioner, that this award as simplified in 2003 it did not have the provision in it that Mr Henderson was seeking, is seeking now, and we would say that contrary to his view that the absence of that provision assists us in our view of the interpretation of how the award should have been.

PN60

That is to say, for part time employees and indeed for full time employees, yes, but if they are working outside the spread of hours as contained the award then it is overtime, they're being recompensed by the appropriate overtime penalty rates and as a standard provisions of, I would think, almost all awards and any interpretation that overtime does not attract any extra entitlements such as annual leave, sick leave, et cetera, and this really the basis of our submission, Commissioner. I think it's also - - -

PN61

THE COMMISSIONER: So, sorry, Mr Wilson, so what you say is that I should simply look at the City of Sunshine Award 2003, clauses - - -

PN62

MR WILSON: Particularly clause 8.3, Commissioner.

PN63

THE COMMISSIONER: Yes, clause 8.3, and find no ambiguity and therefore because it says as you say - this is, I'm only - Mr Henderson, I'm only asking him to make clear his submission which I think is clear.

PN64

MR WILSON: That's true, yes.

PN65

THE COMMISSIONER: And because there's no ambiguity there is therefore no need to consider varying the award.

PN66

MR WILSON: That's correct, Commissioner, that's what we say, yes.

PN67

THE COMMISSIONER: Good, and thank you for making that so clear.

PN68

MR WILSON: Yes. And we also say, Commissioner, that as we've indicated in our submission, there is only a relatively small number in total terms of people employed under the City of Sunshine Award.

PN69

THE COMMISSIONER: Was it 99?

PN70

MR WILSON: 99, that's correct and 62 of them are full time and 37 are part time. Now, I'm just not aware of how many of those part timers would be working overtime or as Mr Henderson puts it, ordinary hours but being paid penalty rates. I think you can reasonably assume it's not all that many but nevertheless there would be obviously a cost to Council in that. And we say, Commissioner, and to be absolutely honest it was one of the arguments, I guess, in the matter that was before with the nine day fortnight that there are differences between the employment conditions of people employed by or under the City of Sunshine award as opposed to those and the majority of whom are employed under the Victorian Local Authorities Award.

PN71

There are differences and we say that those differences are there and are good negotiated reasons as a historical matter and we say that it's not a question of cherry picking to decide, well, I think we better see if we can bring this particular provision up to another award's basis. So we say that in concept it's a wrong approach, Commissioner, quite apart from the fact that we say there is no ambiguity at all.

PN72

THE COMMISSIONER: Yes.

PN73

MR WILSON: So, we would rely on those submissions if the Commission pleases.

PN74

THE COMMISSIONER: Yes, thank you. Yes, Mr Henderson, where does this application sit vis-à-vis the implementation of the Work Choices legislation, I mean, only from a timing point of view?

PN75

MR HENDERSON: I don’t think it's affected. I don’t think this would be affected because I think this is still an allowable matter and that - - -

PN76

THE COMMISSIONER: So, that's your submission?

PN77

MR HENDERSON: Yes, I must say - - -

PN78

THE COMMISSIONER: I have no answer for you but I know I'm just concerned to make sure that if there's some fatal deadline running with regard to the implementation of Work Choices that I make a decisions not that I think it will forever to decide.

PN79

MR HENDERSON: Yes, I suppose when we wrote these submissions the Work Choices was a far way off.

PN80

THE COMMISSIONER: Well, there's still a lot - I have to say, still a lot of uncertainty about it.

PN81

MR HENDERSON: Yes. But if the Commission approaches - - -

PN82

THE COMMISSIONER: And no regulations.

PN83

MR HENDERSON: The task is the usual expedition, you know, I don’t think it will be a problem but I don’t think - I think overtime or rates of pay outside for work or hours of work and penalty rates aren’t affected.

PN84

THE COMMISSIONER: Yes.

PN85

MR HENDERSON: If it was an application about the hours of work it might be caught up in the 38 hour week provisions but I really don’t think its affected and in any event because we would submit the award already comprehends it it's not actually an application to improve or increase the entitlements.

PN86

THE COMMISSIONER: So, that your submission in regard to that.

PN87

MR HENDERSON: Yes.

PN88

THE COMMISSIONER: And is there anything further you want to state with regard - - -

PN89

MR HENDERSON: No, I think I've probably said it all now.

PN90

THE COMMISSIONER: No I think you have, Mr Henderson.

PN91

MR HENDERSON: It's a fairly stark argument.

PN92

THE COMMISSIONER: Either your right or he's right.

PN93

MR HENDERSON: Yes. I think all we could say, Commissioner, is that there was no intention in the application to entitle employees who are working genuine overtime to accrual of leave so I suppose to that extent the parties are in agreement. Genuine overtime in the normal course doesn’t attract an accrual but we are focusing on ordinary hours of work, what are ordinary hours for the employees concerned but worked outside the ordinary hours of other employees.

PN94

THE COMMISSIONER: Yes.

PN95

MR HENDERSON: If the Commission pleases.

PN96

THE COMMISSIONER: Good, thank you very much. Mr Wilson, did you have anything beyond that section 113 in relation to Work Choices?

PN97

MR WILSON: To be absolutely honest I think - I don’t know that I should put this on the record, Commissioner, but I don’t think I actually agree with
Mr Henderson in this interpretation of that. I wouldn’t think and there is a great deal of unknown of course but I wouldn’t have thought that this would be an issue that would be precluded by the Work Choices legislation.

PN98

THE COMMISSIONER: Yes.

PN99

MR WILSON: That's not to say we're supporting the decision that Mr Henderson is seeking.

PN100

THE COMMISSIONER: No, that's fine.

PN101

MR WILSON: We don’t think there's any impediment to making a decision.

PN102

THE COMMISSIONER: All right, okay, fine. It's just there are very various dates being mentioned for the implementation of the Work Choice legislation, one of which is the 20th which still seems amazing to me that could still be a realistic date. Another I've heard is the 27th, even that is, I think, looking difficult but if there was something fatal to this matter and caught up in Work Choices I'd want to make sure I issue an order. But in event I am going on leave at Easter so I certainly will able to conclude - happy to issue the decision actually well before I go on leave so hopefully the problem won't arise.

PN103

MR WILSON: Thank you.

PN104

THE COMMISSIONER: Good thank you very much, Mr Henderson and also Mr Wilson for your submissions. I know adjourn. I reserve my decisions.

<ADJOURNED INDEFINITELY [2.56PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 OUTLINE OF SUBMISSIONS PN5
EXHIBIT #R1 OUTLINE OF SUBMISSIONS PN55