C2006/1324, Transcript of Proceedings [2006] AIRCTrans 567 (6 April 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 14599-1

COMMISSIONER DANGERFIELD

C2006/1324

COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA
AND
QUEEN ELIZABETH HOSPITAL
s.99 - Notification of an industrial dispute
(C2006/1324)

ADELAIDE

11.10AM, WEDNESDAY, 22 MARCH 2006

PN1

MR W DEAKIN: I appear on behalf of the CEPU Electrical Division.

PN2

MS M SJOBERG: I appear on behalf of the Queen in the Right of the State of South Australia and the Department of Health, and with me is MS V WOLF.

PN3

THE COMMISSIONER: Now, this is a notification of a dispute pursuant to section 99 of the Act by way of a letter from you, Mr Deakin, filed in the Commission on 17 March. My usual process with these matters is to enable the parties just to put some basic details on the record and then we'll go into conference as soon as we can. But I thought just for the sake of the record we'll get something down.

PN4

MR DEAKIN: If I may, Commissioner, I just realised after speaking with Ms Sjoberg that it was agreed late last year that we would look at a section 111AA on this matter instead of a section 99, and just made me aware of that, and it was agreed at the time that's what we would do. So if it's possible we would like to have this matter come before you under a section 111AA.

PN5

THE COMMISSIONER: Okay. Ms Sjoberg, what do you say to that?

PN6

MS SJOBERG: I think for the purposes of the matter today we would support Mr Deakin putting on the record the facts and any evidence that the union seeks to bring to resolve this dispute. We are most anxious to obtain a resolution before the end of this week. We're a little unclear as to how the Commission may continue to have as far as section 111AA, or even section 99 for that matter, into the future. So we would be happy to proceed under the section 99 on the basis that both parties are willing to adhere to whatever recommendations or determinations that come out of it.

PN7

We would also accept any guidance from the Commission if you believed in the circumstances a 111AA would assist us to reach that point more effectively, bearing in mind we would want to get it done before the end of the week.

PN8

THE COMMISSIONER: All right. Can I just indicate to both of you that of course none of us have actually looked at the new regulations in any huge detail. I can tell you for sure though that in regard to any section 99 matter, if that is not finalised by midnight on Sunday then it lapses, it's as simple as that. So under section 99 all the Commission can do is make recommendations.

PN9

MR DEAKIN: After that period of time?

PN10

THE COMMISSIONER: No. My understanding of the regulations - I actually don't have them with me, I should have brought them in on the Bench. I was only reading this morning, it's quite clear to me from the regulations that all section 99 matters, to the extent that they're not finalised by midnight on Sunday they just lapse and the Commission cannot deal with any further matter. Now, I think I saw something in the regulations this morning, in fact I'm sure I did, about section 111AA, and I cannot recall what I saw.

PN11

I have a sneaking suspicion that might be the same as section 99, but I have to get the regulations to have a look. So in other words, well, subject to confirmation, and we can do that when we get off the record in a moment, but I think we then have a window of opportunity between now and midnight on Sunday, I think. Do you want to just put on the record though, Mr Deakin, what is this about? I know it's been an ongoing issue and various recommendations and statements and so on over some years now, but just where are we at today?

PN12

MR DEAKIN: Well, where we're up to today is the notice of the dispute actually identifies most of the issues. There is another one issue that's outstanding that we forgot to put on, on there, would be the issue of John Dolman who is classified as a handyman, and instead of being classified as a trade assistant. If we just take that one first because it's not identified on our notice of dispute. John Dolman actually does dowsing on the air conditioning plants and actually works from the mechanical workshops where the guys are.

PN13

That scope of that work that he does falls into the plumbing and the metal industries awards. That's the Plumbers and Gasfitters SA Award, and the Metal Trades South Australian Government Department and Instrumentalities Award 1985, that scope of work. However this matter has arisen out of a number of hospitals where we've identified that there's been classification used for people at other hospitals such as Glenside, where they've used them as a handyman and they've now seen the errors of their ways and we've classified them as trades assistants.

PN14

There is the issue in Lyell McEwen where this classification originated from. They're now back at trades assistants. However we still have a dispute down at QEH. We've notified the hospital on a number of occasions that the classification of John Dolman should be a trade assistant.

PN15

THE COMMISSIONER: Under what award?

PN16

MR DEAKIN: Under the Government Instrumentalities Award. The Metal Trades South Australian Government Departments and Instrumentalities Award 1985, and the Plumbers and Gasfitters SA Award. Simply because if you look at the scope of work under both those awards it covers the work that he does. We've had no - from the hospital we've had no response as to what they were going to do about that classification.

PN17

THE COMMISSIONER: Now, is he covered by this MX award made by the Full Bench?

PN18

MR DEAKIN: No, he isn't, not at the moment.

PN19

THE COMMISSIONER: Okay. All right, so that's an extra issue. And then what are these other issues?

PN20

MS SJOBERG: The - - -

PN21

THE COMMISSIONER: Ms Sjoberg, yes?

PN22

MS SJOBERG: The section 170MX awards have been rescinded, which is for your information.

PN23

MR DEAKIN: Thank you very much, Ms Sjoberg. The other thing I need to put on is that following the dispute over the classification down at QEH it was agreed after further discussions that the fitters would be classified at level 5 instead of level 6 on the issue of the boiler work. It was agreed at that by the parties that an interim position of classification level 5 would be given to the guys and paid as such from there on in. But the issue of the 5A would come to the Commission, that we'd argue that here, the merits of the case of why they should be at level 5A.

PN24

The second part arising from that dispute was the issue of Mr Hollis as leading hand looking after both workshops because as a leading hand's rate of pay he had received a certain amount of money above and beyond everybody else. Now, that the other fitters are classified at level 5 that has diminished the rate of pay, the difference in rate of pay between both parties. We have continued and sought to have that corrected, and the hospital has refused to move either way on it. They say we'll give you - originally gave him a classification level of 5A when everybody else was on level 6. Now they've all moved at level 5 he's still on 5A, which now we're looking at the two workshops with diminishing the leading hand's rate of pay.

PN25

We are certain quite clearly there's only one way to move. You can either give him a classification which will accommodate that or you can give him the same monetary value that he had before. Now, if they - and the problem that arises out of the classification is that if he goes from level 5A to 4 there is no monetary increase in the value of the dollar. If he goes to level 3 then there is an increase, and that increase is more than what he was getting before. So it is a bit of a predicament as to what we should be doing. However giving him a classification of level 3 would accommodate the fact that the work that he's doing and would, we believe would fit the scenario better than anything else.

PN26

The other part is the dispute on the back pay. Now, when it was agreed that the guys would be back paid to July 2002, however, when they picked their back pay up in 2005 they were told that the back pay is at the first year increment and they would have to wait until 2006 to receive the second year increment. However what we're saying is that the back pay originating at 2002 should have picked up the year increment then simply because the guys have been doing the work, the hospital has paid them from that period of time, so we believe that from July 2002 to July 2003 that should have been the first year increment and then should have been the second year increment from there on in, being that there is only two year increments, there's only a first and second year increment, so that they would be on the full amount from July 2003.

PN27

We've had no joy when the guys have took that complaint to the hospital, the pay office, they said that's the instructions that they have received and as far as they're concerned they can't do anything more about it. The other one is the refrigeration mechanics. They have to have - refrigeration mechanics have to have two licences, and the two licences, although the government reimburses them through 22.12 of the award for the purchase of their licences, the reimbursement, the cost of renewal of the licence. However it is recognised by the reimbursement of the cost of renewing the licences they are still not paid for the use of that licence such as like electricians and the plumbers.

PN28

We believe that although the refrigeration mechanics in many cases hold an unrestricted V licence or a restricted V licence they also have to be registered nationally and licensed under the CFCs, which is specific only to the refrigeration mechanics, and we believe that they also should be in receipt of a licence allowance. The other point that we've got is that - and there was another one associated with that, is the classification of the refrigeration mechanics, and some of the other fitters too, were 117 points over the level 6. Now, the fitters - sorry, the refrigeration mechanics are at level 6 and they have 117 points over that, which would in normal situations give them a level 5. However because of the Mersey tab at that time it made it difficult to get them up, we believe that the changes have been made to the Mersey tab to accommodate some changes. What they are we don't know yet, but it is recognised that there is a problem in that area.

PN29

The problem we have is, if you take the decision from Senior Deputy President Williams, is that if they don't get paid for the work then they don't do the work, you can't call upon them to do the work. And that's a decision that's been handed down which was presented to the Commission before. So it is two matters associated with the refrigeration mechanics which really does need to be sorted out. It needs to be sorted out here not only for the QEH, but it might affect other matters elsewhere which, if the government is not careful and not pay these people this extra money they could limit the work that they are doing.

PN30

The other one is, the only people - there's the building trades one, we have an issue concerning the building trades. Out of all the people that have been assessed, the QEH, the building trades are the only ones it hasn't been done. Now, when I say the building trades there, the plumbers have been done, the metals have been done, it's just the carpenters and the painters that have not been done, and a commitment was given to us originally that they would be back paid the same as everybody else, and we got that in writing, and originally it was that the building trades would be done after the metal trades.

PN31

Well, we're in a process of dispute with government, and I think we've got the issue resolved in having everybody assessed and classified, we believe we might have that position sorted out. However for the building trades down at QEH it's very frustrating for the fact that they're still the only ones. A year after the other ones have been assessed and classified they're still the only ones that haven't been done, and we believe that needs to be sorted out pretty quickly. So that's the dispute that we have in place. Those are the issues that we have in dispute.

PN32

THE COMMISSIONER: And you want all this fixed by midnight on Sunday?

PN33

MR DEAKIN: Yes, Commissioner.

PN34

THE COMMISSIONER: Well, let me tell you that's not going to happen. It's not going to happen because I am absolutely flat chat at the moment in doing work in both the state Commission and the federal Commission. And these are not simple matters. If they were they might have been resolved. As I recall it this dispute has its origins going back to 2001, 2002.

PN35

MR DEAKIN: That's correct.

PN36

THE COMMISSIONER: Now, I might be good but I'm not that good to resolve it between now and midnight on Sunday. These are massive issues. When I say massive issues, they're issues that have been around for years. And if the Commission could resolve it by a magic wand within a matter of a couple of days, given everything else it's got on its plate, we would have done this ages ago, me or Senior Deputy President O'Callaghan or a Full Bench, or goodness knows what. So I say to both parties these issues - and I've got a whole heap of questions on the bagful of issues that you've just raised, Mr Deakin - but we're not going to fix these this side of midnight Sunday, I can assure you of that. So we're going to have to work out a process as to what we are going to do with this.

PN37

I guess the other thing, Mr Deakin, if - and it seems as though this was your original intention, to do a 111AA on all this. If we did a 111AA would the union be wanting the Commission to make recommendations that would effectively vary the award? You see, we're talking about the classification of - we're talking about the old thing about the licence allowance and whatever, which I made several recommendations over a long period of time, that's still around isn't it, by the sound of it, the whole licence allowance bit, the classifications and all that? I seem to recall, dredging in the back of my memory I seem to recall all of this going back to 2004, 2005. And it seems to me what you're saying is these issues are still out there, they're still up in the air, they haven't been pinned down, they're still unresolved.

PN38

Now, if you want the Commission to make recommendations to resolve - I've already made recommendations to resolve them on more than one occasion, and those recommendations obviously haven't done the trick, but you're wanting me to make further recommendations. Those further recommendations, would they have the effect of actually varying the award? You see, I mean, are you wanting me for example with the refrigeration mechanics to recommend the creation of a new allowance?

PN39

MR DEAKIN: Yes.

PN40

THE COMMISSIONER: Well, if I recommend that what status would my recommendation have apart from both of you saying, well, we'll abide by your recommendation, Commissioner? I can't vary the award.

PN41

MR DEAKIN: No.

PN42

THE COMMISSIONER: Can't vary the award. And even if I could do a 111AA, and I don't think I can beyond next week, but even if I could, I mean, I don't know what status that would have. It would just - I suppose the parties are saying, well, we would agree to set up a new classification that can't go in the award, but we'd all agree to do whatever you say. I mean, you've really come to the end of your tether by the sound of it, haven't you?

PN43

MR DEAKIN: Yes.

PN44

THE COMMISSIONER: There's nowhere else to go.

PN45

MR DEAKIN: That's right.

PN46

THE COMMISSIONER: Okay.

PN47

MR DEAKIN: The recommendations, you may recall, that have been acted upon actually, so both parties, although we had a bit of a dispute over its application, I think the recommendations that you made before, I think they have been adopted. It's only the outstanding issues that's progressed since then that the parties have met on a couple of occasions, and the outcome was for the fitters to be classified at level 5. However that created another problem because one of the things that was not mentioned in those recommendations was the issue of - you did make a passing comment in the Commission that if you're not going to pay the leading hands their appropriate rate nobody's going to want to be a leading hand.

PN48

Now, that situation now has arisen, when everyone went up to 5A the leading hand's rate of pay stayed the same, so it just took about $20-odd, $30 off his pay for him to do the work. So he caused a kafuffle, and there's nobody been around to actually make a recommendation as to what would be a fair outcome on that one. So although he says nobody has taken any notice of your recommendation, what the recommendation they did before we've adopted, both parties have adopted.

PN49

I mean, we've come back to you to expand on them, the meaning and whatever, and those final outcomes you did last time we took away and adopted. Now, I mean, it would be difficult for you to make orders right now, but the recommendations that we see is because there is different views, now we're miles apart I believe anyhow, on the resolution to resolve these matters, and they need to be resolved. They really need to be resolved so we can move on and whatever. But the issue of the back pay is, if the back pay the guys were back paid to 2002, and the government has a first year service increment and a second year service increment, then that first year service increment should apply to the first year of that back pay, thereafter that it should be second year and so on, on the grounds that the people have been doing the work.

PN50

So it's as if everything has been in place and been done, or whatever, and so it should apply, the back pay should apply for the first year, the first year increments, and the second year of 2003 would have been the second year of increments and thereon. Whereas what has happened is, when they paid them under 2005 they paid them the money, the back pay, it was at a first year increment. Also they had to do another year on that level to accrue the second year increment. So the guys have lost quite a bit of money on the back pay although the work had been done.

PN51

So we're saying now is, if you've got it in, which is like any other condition, is if you're getting paid that's the first year increment, you've been doing the work, it should have applied from then, not in 2005. So that's what I believe can be resolved and should be resolved here today. The other thing on the issue of the refrigeration mechanics is if - and that really needs to be resolved. Now, there might be a solution to that, there might be a recommendation that these guys get another classification instead of payment for licence even though they're 117 points over the classification. I can't see the difficulty without abusing the Mersey tab or anything like that to accommodate that problem.

PN52

So I think the recommendations, that you can give recommendations today, Commissioner. That could go a long way to resolving the dispute. And even if
so - - -

PN53

THE COMMISSIONER: Well, I understand each party will see the issues as being very black and white because you've been concentrating on these issues for a long time, bearing in mind that I've been coming in and out of these issues over several years now and I have not really applied myself to these issues further until just coming in on the Bench here at the moment. And believe it or not I can't actually recall - the parties might find this difficult - but it's very difficult to recall everything that was said in conferences one year, two years, three years ago. I can't recall.

PN54

Normally with a section 111AA the normal thing for this is that dates are set for hearing, there is evidence. I mean, the last 111AA I did I think the CEPU was involved in. It involved the Submarine Corporation. You weren't involved, Mr Deakin, but that was in January of this year, and I think we had three days of hearing and, you know, half a dozen witnesses and 1000 pages of transcript, and a decision was issued all in good time, you know, six weeks or whatever after that. But that's the normal thing for a 111AA.

PN55

What I'm being asked to do now is just quickly hear some stuff here and make some quick and dirty recommendations, get them out today and fix this all up. And it's not the way I operate. But I understand from your point of view and your members' point of view. I mean, you're on top of these issues, you've been eating and drinking and sleeping them for years, and I've got to sort of refresh my memory here, all in the context of having I think, you know, half a dozen state agreements to approve this afternoon and several federal award variations tomorrow and a few more federal agreement things to approve, and goodness knows what between now and Friday, close of play.

PN56

And that's why I'm saying that's the position I'm in at the moment. If I sound frustrated I probably am.

PN57

MR DEAKIN: I mean, so simplify the thing maybe the section 99 initial notification, listening to what you're saying now, would have been probably where to go.

PN58

THE COMMISSIONER: I think what we need to do is get off record in a moment and just discuss procedure here and the best way forward. But at this stage I understand - well, I don't understand fully the issues, but I hear what you say, it's on record. Perhaps if I just hear from Ms Sjoberg, and then we'll go off the record and have a talk about where to from here.

PN59

MR DEAKIN: Thank you, Commissioner.

PN60

THE COMMISSIONER: Ms Sjoberg?

PN61

MS SJOBERG: Thank you, Commissioner. As the Commission has noted, this is a matter that has been going on for a considerable period of time. For the sake of brevity I will address the matters that have been raised as those mattes of dispute and perhaps provide a couple of documents to the Commission to assist in refreshing your memory. I accept the Commission's concerns that this matter is unlikely to be able to be resolved by Sunday, and I would put on the record from the point of view of the employer that should any of these matters get to a point where we have the ability to obtain some recommendations we would expect that the union brings forward some appropriate evidence and factual documentation to support their assertions.

PN62

The facts of the matter are that by and large the issues that went to the reclassification of the federal metal trades employees at the Queen Elizabeth Hospital were resolved. We had an exchange of correspondence between the parties on a number of occasions in 2005, and the most recent of those, which I will provide to the Commission for your information, was the outcome of extensive meetings between all the parties and the person who undertook the assessments of the employees through the Mersey tab process.

PN63

So we did reach a stage where there was clarity and agreement on the outcomes that had been achieved, including, as Mr Deakin has pointed out, the level 5 for the fitters. The assessor as well as the group agreed that that was where the Mersey tab system took those employees. It was noted at that time back in August of 2005 that the Mersey tab system itself was under review, and if at some stage that system had any changes that would then inform the classification of those employees, the employer would be prepared to look at that.

PN64

As Mr Deakin has noted this morning, we're not yet aware of those changes. To that extent I think it is a big ask to expect the Commission to make some recommendations in respect to classification when we don't have the new criteria. So I just would like to provide this letter so that the Commission has some sense of where the parties got to. I know it's been frustrating but we have made some progress. So the position of the employer is - - -

PN65

THE COMMISSIONER: This is a letter of 9 September 2005 from Mr Brooks, Executive Director, Public Sector Work Force Relations to the Branch Secretary of the CEPU, Mr Geraghty. Okay.

PN66

MS SJOBERG: To that extent we believe the fitters were appropriately classified at level 5. If the CEPU wants to provide any evidence and documentation to support their suggestion that the employees should be at a higher level then we would accept tabling of such documents. The flow on from that is then to the leading hand, the fitter leading hand, which again the CEPU asserts should be - that employee should be reclassified on the basis of some needing to be paid at a greater level.

PN67

I'd point out that the leading hand fitter is currently classified at a level higher than the other fitter employees, and that's a fairly standard approach with leading hand. The award provides for people to be classified at one level higher. So that relativity is maintained at the moment. Should those fitters be reclassified in the future then we would be in a position to review that, but that doesn't stand at the moment.

PN68

Insofar as the allegations in relation to the back pay are concerned, with respect I'd suggest that the CEPU were mistaken. My advice from the Queen Elizabeth Hospital is that all employees were paid appropriately with their back pay in accordance with the way that payment is made at any classification level. That is, in the first year of an employee being allocated to a given classification level they're paid at step one, and subsequent years they are paid at the step two. All employees were paid in that manner for their back pay and any reclassifications that have occurred.

PN69

Should the Commission require it, the Queen Elizabeth Hospital could obtain all the payroll records to demonstrate that. I didn't bring them today but I am advised that that was the case. With respect to the licences, the fridge mechanics are reimbursed, as Mr Deakin has noted, are reimbursed for the payment of any licences. That claim for a licence allowance was the subject of arbitration before the Full Bench during the section 170MX proceedings, and that matter was not entertained. Subsequently the section 170MX awards, as I indicated, have been rescinded. The CEPU along with the Australian Workers Union and the Australian Manufacturing Workers Union entered into an enterprise agreement with the employer to provide conditions and terms of employment, wages and conditions for all of those employees. That agreement was certified in
November 2005. Again the matter of a licence for - - -

PN70

THE COMMISSIONER: Was the MX award rescinded as part of that process?

PN71

MS SJOBERG: It was rescinded as part of that process, that's correct. I think the order was the orders were rescinded and then the agreement was certified. It was consecutive hearings.

PN72

THE COMMISSIONER: So that would have been the Full Bench would have rescinded the MX, I think it would have to.

PN73

MS SJOBERG: That's correct, the Full Bench rescinded the MX.

PN74

THE COMMISSIONER: The agreement was approved - - -

PN75

MS SJOBERG: By Senior Deputy President O'Callaghan.

PN76

THE COMMISSIONER: Okay.

PN77

MS SJOBERG: There were some provisions in that enterprise agreement for different payments of allowances. That is a composite or an all purpose allowance of $50 a week which was being paid in lieu of certain other current award based allowances. Suffice to say our position is that any claim for an extra allowance for refrigeration mechanics would be in breach of the no extra claims provisions of the enterprise agreement. The additional matter that - couple of matters that Mr Deakin has raised, one went to a handyman, that's new information, to the notice of dispute.

PN78

However I am advised by the Queen Elizabeth Hospital that that employee is appropriately classified under one of our date weekly paid awards, that is the South Australian Government Health Ancillary Employees Award, which has a raft of classification criteria for various support staff in the health area, handymen being one of many categories. Should they wish to take that up they should speak directly to the Queen Elizabeth Hospital.

PN79

The final area that Mr Deakin has raised with respect to the building trades, I would point out to the Commission that the building trades employees are engaged pursuant to the South Australian Government Building Trades Award, an award of the Industrial Relations Commission of South Australian, and also the terms and conditions provided by the South Australian Government Wages Parity Weekly Paid Enterprise Agreement 2004, an agreement approved by the South Australian Industrial Relations Commission.

PN80

Those employees - or sorry, the award is an award of the CFMEU and the Australian Workers Union. To that extent our office has had earlier discussions with the CFMEU in relation to those matters, and again I'd just like to table for the Commission's information a copy of correspondence that our office had with the Construction, Forestry, Mining and Energy Union about those issues, and confirming that those employees had been - attention had been paid to their classification, and that matter was dealt with in another forum.

PN81

I'd suggest that that's a matter that should be dealt with in the state industrial jurisdiction with the relevant parties. It would seem to me that the matters today that could be discussed would be how to progress any amendments to the Mersey tab system as they may relate to the classification of the fitters. It would be our view that all the other matters have been adequately dealt with.

PN82

THE COMMISSIONER: So has the Mersey tab system been amended?

PN83

MS SJOBERG: Commissioner, our advice last year when we met with Alex Fraser, who was the assessor for that process, advised us that it was under review. We have not received any advice that that review is complete at this date.

PN84

THE COMMISSIONER: Well, what we would be able to discuss today then if you don't know how the Mersey tab has changed or is likely to change, how could we handle that?

PN85

MS SJOBERG: Well, I guess all I'm putting on record is that we have made a commitment that we will review classifications if and when the Mersey tab system is changed and if that provides us with additional information. In the absence of that I'm not sure that we can do anything except reassert our commitment to do that.

PN86

THE COMMISSIONER: Okay. So it seems to me that - I lost count I think of the number of issues that have actually been put on the table today, but it seems that the union has got X number of issues that it would like the Commission to assist in resolving, and it seems that the employer on the other hand is saying that most of those issues you believe have been resolved in one form or another, except for this - well, there' really only one issue that you say has not been resolved.

PN87

MS SJOBERG: That's right, the fitters, the matter of the fitters.

PN88

THE COMMISSIONER: And that the issue of the fitters you're saying can only be resolved in the context of anything further that might come out of a review of the Mersey tab system, am I correct?

PN89

MS SJOBERG: Well, perhaps I'd expand that and also suggest if the CEPU had any other evidence to demonstrate the complexity of work that would fit with the current criteria which has not been brought to the table today.

PN90

THE COMMISSIONER: Well, Ms Sjoberg, if it wasn't for the Work Choices legislation coming down next week and all the issues that that raises, if we were in a normal situation here and you're faced with a request by the CEPU for a section 111AA recommendations on a whole range of issues that Mr Deakin has raised, what would your response be to that? This is a hypothetical question, but if it wasn't for Work Choices, the union wants a 111AA exercise done on the range of issues that it raised, what would your response be?

PN91

MS SJOBERG: Our response would be consistent with our earlier correspondence, that we would be willing to participate in such a process.

PN92

THE COMMISSIONER: On all of those issues?

PN93

MS SJOBERG: On all of those issues.

PN94

THE COMMISSIONER: Even though you say most of those issues have been resolved?

PN95

MS SJOBERG: Indeed. We would be through the hearing process of a section 111AA. We would be providing the documentation to support our assertions that those matters have been resolved.

PN96

THE COMMISSIONER: But as it turns out you're saying, well, of the issues that are raised given the difficulties with the changing of the legislation and so on, you think the only issue that - well, you're saying the only issue you're prepared today is the fitters issue?

PN97

MS SJOBERG: Well, we're saying that, yes, that's the only one that we don't believe is resolved.

PN98

THE COMMISSIONER: Has been pinned down.

PN99

MS SJOBERG: That's right.

PN100

THE COMMISSIONER: That's the only one you're saying hasn't been pinned down?

PN101

MS SJOBERG: Yes.

PN102

THE COMMISSIONER: But am I further hearing you correct in saying it hasn't been pinned down because the Mersey tab system which was going to be amended - well, you're not sure whether it has been amended, and until such time as you know the outcome of that you can't - - -

PN103

MS SJOBERG: We can't move.

PN104

THE COMMISSIONER: You haven't got anything further constructive to add. So all you've been talking about today would be a process for dealing with the fitters issue if and when the Mersey tab system is ever changed?

PN105

MS SJOBERG: That's correct.

PN106

THE COMMISSIONER: Okay. Mr Deakin, anything you want to put on the record further before we go off the record for discussion?

PN107

MR DEAKIN: Yes, I would. The issue of John Dolman is the government has said to you he's been quite correctly classified. Well, the issue of that is that the people that we're now referring to from the Health Commission don't understand the scope of work for trade assistants as a handyman. They've identified it came from some other award which as a party to that is the Miscellaneous Workers Union, and not the Metal Trades, not the other unions.

PN108

Now, the difference being is that a handyman's job is about landscaping and all of the issues. It doesn't talk about a person that actually works from a metal engineering workshop or the plumbing workshop or a refrigeration workshop, or whatever. And the scope of work that that person does dictates what it's classified as. Now, this handyman person was actually - and I sorted this out at Lyell McEwen Hospital - is because there was a decision by government that they weren't going to allow it to take on any more tradespeople, then what happened was, there was a manager there, an engineer there who has now passed away, he was killed in an accident, he and his assistant thought of a way around of getting a person to give them assistance, and they come up with a handyman, which there wasn't a hold on, so they created that position and put him in the workshops as a handyman, as a trade assistant, but called him a handyman.

PN109

Now, what happened is some of those people from that hospital went to other hospitals. One came to the QEH. And the problem with that is, is that now we've corrected the matters down at the QEH and the Glenside Hospital, identifying that the scope of work that these people are doing actually falls under the Metal Trades Award. It is not doing any work that is identified in those other awards. Now, we've got people here saying that the workshops he's doing dowsing on the air conditioning plants and such like comes under the Metal Trades Award and it comes under the Plumbers Award. It doesn't come under the Fitting Award.

PN110

Now, what we're saying is that we've made - and the other hospitals request that their people get classified properly under the correct award. So that's the issue. Now, whether Ms Sjoberg fully understands the arguments being presented to her, and I don't think they do, if I can pass the piece of paper here to read before going further. And the electricians and the fitters and the leading hand fitter here now is stating they also assist the tradespeople. Now, a handyman doesn't assist tradespeople. So the scope of work that he actually does is identified under the Metal Trades Award, and even under the Plumbers Award, but not the Miscellaneous, whatever you call it, Mercy Hospital - I don't know the name of the award.

PN111

So for them to sit here today to say that the guy has been properly classified simply because the industrial officer from the hospital says he has been, is incorrect because they have not taken the scope of the award into consideration when classifying him. The other issue of the leading hand, that has not been resolved. And the differential between the wage rates has diminished, it's not the same. It hasn't maintained that same relevance, because the difference in the wage rates prior to the last classification increase was $90 a week - $90 a fortnight. It is now down to $30 a fortnight. So the difference in the rates of pay is diminished. Now, that's what we're on about.

PN112

Now, if somebody says, well, it's maintained that difference, he hasn't. He was $45 a week ahead of the tradespeople for doing the work of a leading hand in that workshop. He is now down to $15 a week and is still doing the same duties and holds the same responsibilities as previously. So what we're saying is that's got to be corrected. Either the government comes up and says we're going to increase your leading hand allowance, or give a classification. But if they want him to do that work then they've got to maintain that difference in rate of pay.

PN113

We're not necessarily asking for any more, we're just saying maintain the difference that was there initially. So the points that Ms Sjoberg has made is not correct. The issue with the building trades, I notice in the letter said is that the award doesn't make any reference to awards or self assessment. Well, sorry, not self assessment, assessments, or independent assessments. Well, you've got to argue then, well, how are these people going to be assessed, how are they going to be classified if they're not assessed? The whole classification structures, whether it be in building trades or metal trades, identify that they will be assessed.

PN114

Now, Alex Fraser has just come across and done the assessment for the plumbing. Now, he didn't do it under the Mersey tab. We did it under the Mersey tab because a lot of the information that was pertaining to the mechanical side also pertains to - happens with the mechanical service plumber and the work that they do, so a lot of it he can do. But he also has the ability to go to the building trades and have a look at the plumbing trades because he has all the information on computer, he can do an assessment. The same assessment still applies, the same principles apply, it's just different scopes of work, may be different, which he actually then goes and picked them up. So Alex Fraser could have done it.

PN115

And I've spoken to Alex Fraser since, and he said, yes, I just need to draw a cross. He has all the training modules for the building trades. He wouldn't necessarily come under the Mersey tab, but although he does the Mersey tab he could still pick up that work. And what the governments don't understand it the plumbers and building trades originally don't come under the builder, don't come under Mersey tab, even in their assessments.

PN116

We agreed to the plumbing to come under the Mersey tab to speed the issues up, which was a mistake. Because if you look at the plumbing industry it doesn't come under Mersey tab. In fact it may even sit under the building trades, and any assessment, there is no discount in assessments under the plumbing industry and building trades assessments. But it doesn't mean that Alex Fraser can come and do it, because the point's there. But what we have done in the past is, if he wants to adopt some of the systems of discounting we have no problems with it, just let it go, just get it done quickly.

PN117

However, we don't need to sit and wait till the cows come home to have the bloke for the building trades assessed. That's the difference. That's where we're up to. But every time we sit down we get to say, well, we'll sort it out and this is sorted out. It hasn't sorted out because we're not getting down to the details, we're not getting down to the nitty gritty issues. The issue of the fitters, all right, if you want to sit back and wait until Alex Fraser and the rest have done that, okay, but then you're still going to have another problem then with the leading hands. And the leading hand is losing money unless it's agreed that he will be back paid all the money that he's now lost in comparison with the other rates. You see, you just cant keep sitting waiting for - and put it somewhere else, because he's doing the duties, and his money compared to the tradespeople has been reduced by 30 bucks a week.

PN118

So that's why I'm saying it hasn't been maintained, although the government might think it's been maintained. They might be given information from the hospital that it's been maintained, but it hasn't. So these are the issues that we're saying we don't know how we can get past this barrier of knowledge and understanding of what it is we're talking about because we've been here that many times. The recommendations that we adopted, you handed out before, Commissioner, we adopted. We took it down, adopted it. So that's what I'd like to put on record.

PN119

THE COMMISSIONER: Can I just ask both of you. Your current agreement certified end of last year, that would have a disputes clause in it, a disputes procedure. Have you got a copy of that that I can have a look at, or get a copy of or something?

PN120

MR DEAKIN: I haven't got a wage parity. I've got an award with me, I haven't got a wage parity though.

PN121

MS SJOBERG: I'm sorry, I didn't bring it.

PN122

THE COMMISSIONER: Neither of you have got that agreement?

PN123

MS SJOBERG: Not with me.

PN124

THE COMMISSIONER: Can you recall what the disputes procedure says in there in terms of the Commission involvement in resolving any issues?

PN125

MS SJOBERG: Well, the parties may refer the matter to the Commission should it be deemed appropriate. There are no specific powers to - it doesn't give the Commission specific powers to conciliate or arbitrate.

PN126

THE COMMISSIONER: All right. Well, can I just say before we go off the record, and I want to have a look at the regulations in a moment just to confirm a couple of things. It seems to me that there is no agreement between the parties as to what issues are legitimately in dispute, neither is there any agreement as to the precise description of what issues might be in dispute, and that seems to me to be the first thing. The first thing here is that we - the parties I think need to agree, or we all need to agree amongst us, look, what are the precise issues in dispute and how can we explain them and describe them, and what questions would you submit to the Commission for resolution. All right, that's the first issue.

PN127

The second thing is we need to find a mechanism for dealing with this because, as I said, given the nature of all this today and the fact that the union wants me to make recommendations on a wide range of things and get it done quickly and whatever, so I'm just not prepared to do that because justice won't be done, it's as simple as that. I mean, I can toss a coin, I can, you know, close my eyes and put a pin in a bit of paper and come up with some recommendations, but that's not how you do things. I've got to consider this properly, and to do that, you know, justice has got to be done. We've got to consider this properly and try to get to the bottom of it. So we need to find a mechanism to allow the Commission to resolve this without the sort of pressure at the moment of new legislation coming in next week and so on.

PN128

And just while I'm talking about that, you see, my understanding of this new legislation, and I'd also say I don't even have a consolidated copy at the moment, I'm working off, like everyone else, off the Internet, and it's not easy trying to find out what my obligations are going to be as from midnight on Sunday. But my understanding of it is that the Commission will still be able to act according to disputes procedures in agreements and certified agreements, but or course we will be strictly limited to whatever those disputes procedures say we can do. If they say we can arbitrate, we can arbitrate. If they say we can conciliate, we can conciliate. If they leave it fairly open, I'm not quite sure what we can do, but if it just says the matter should be referred to the Commission for assistance, well, presumably the Commission can give whatever assistance it feels appropriate and can make recommendations.

PN129

So it does seem to me that that disputes procedure under your agreement that was certified towards the end of last year, that might provide the mechanism for dealing with this in a little more relaxed environment, if you know what I mean, timeframe. And in effect I'm saying you would be dealing with this under not a section 99 thing but what is currently a section 170LW application. Right now I don't know what that's going to be as from Monday next week, it's section something or other else, but that might be the mechanism to use.

PN130

And then thirdly, once we agree on that, once we define the issues in dispute, agree on a mechanism, then thirdly, we need to set out a process for getting that done in a bit of an orderly fashion. And as I'll explain when we go off the record shortly, there are some real problems with my diary at the moment, and that's probably best explained when we go off the record. We'll go off the record now, thank you.

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