C2005/5204, Transcript of Proceedings [2006] AIRCTrans 60 (9 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

COMMISSIONER DEEGAN

C2005/5204

APPLICATION BY THE AUSTRALIAN SERVICES UNION
s.113 - Application to vary an Award
(C2005/5204)

CANBERRA

9.32AM, MONDAY, 14 NOVEMBER 2005

Hearing continuing

PN1

MS C TUTTY: I am from the Australian Services Union.

PN2

MR F GILLINGHAM: I appear for the Master Builders, Construction, and Housing Association of the ACT.

PN3

THE COMMISSIONER: Thank you, Mr Gillingham. Ms Tutty?

PN4

MS TUTTY: Thank you, Commissioner. I've been asked to appear today in this matter as the ASUs industrial officer is not available. I originally asked our industrial officer to set this award aside and my reasons were that it became apparent to me over the last few years that most employees were not aware of this award. In every case that I've dealt with involving long service leave the employer has referred to the Act and not to the award. In the last eighteen months the Industrial Relations Minister in the ACT has made some important amendments to the Act, which makes both the accessing and taking of long service easier for workers in the ACT.

PN5

Two of the amendments are, the availability of pro-rata after seven years' service and public holidays falling during a period of leave not being counted as leave. They are important amendments, yet clerks in the ACT are not able to access the amendments, because the award is overriding. The Clerk's Long Service Leave Award is, I believe, anachronistic in its interpretation that fifteen years of work must be accrued before long service leave is payable, and there's no pro-rata at all.

PN6

Most people, especially in the private sector, don't stay in a job for fifteen years, these days, to enable them to gain the long service leave prescribed in this award. There is also the fact that the accrual of long service leave under both the award and the Long Service Leave Act is the same, 0.86 or just over four days per year. The ability to access long service leave at seven years instead of fifteen would be a major change. There's also no mention of long service leave in the Clerks ACT Award 1998.

PN7

Long service leave is one of the express items to be deleted in the now twenty allowable matters under the proposed IR changes and the long service leave provision will revert to federal and state legislation, so the union feels that the express long service leave award will diminish let alone one as such as this one. Thanks Commissioner.

PN8

THE COMMISSIONER: Ms Tutty, have you got any service documents to show?

PN9

MS TUTTY: No, Commissioner, I haven't. As I said, I only found out on Friday that I was appearing in this matter, because the - - -

PN10

THE COMMISSIONER: The industrial officer didn't forward any service documents?

PN11

MS TUTTY: No, he hasn't. I asked for all the papers to be forwarded to me, but I haven't been in to the office this morning, but at this stage I haven't got anything else apart from what he's told me, so I apologise for that.

PN12

THE COMMISSIONER: All right, thank you. Mr Gillingham?

PN13

MR GILLINGHAM: Commissioner, we only received this application on or about 2 November and, because of other matters and executives not meeting until December, I've not received instructions on the matter. Until today, I was only aware that the application seeks to set aside the Clerks Long Service Leave Award. Therefore, I would seek an adjournment of the matter on the grounds of, one, the federal government's work choices bill legislation has not passed both houses, two, notwithstanding what my friend on the right has said, we are not certain that the government intends to exclude long service leave.

PN14

In the minister's speech he said, and we believe it's also contained in the explanatory document attached to the bill itself, that the single national system, while employers and employees covered by work choices will not be subject to regulation by state employment laws, state laws will continue to cover such matters as OH&S, workers' compensation, trading hours, and public holidays. There was no mention of long service leave; however, and further, if there is to be any abolition of certain provisions or awards, whether it's through the simplification process, our understanding is that the Commission itself will take that on board and as of yet nothing has been announced in terms of how that process will proceed.

PN15

Finally, we have not considered, nor has the union put to us as the applicant, what transmission arrangement if it is the intention of the federal government that this be one of the provisions which is no longer a matter to be determined by award as one of the five or six or whatever that is left, in awards. What transmission arrangements would be put in place for those employees in the Australian Capital Territory and our membership, some just over 1,000 employers who in one form or another employ clerical people, what transmissions arrangement from this award, if it does go to the legislation, are put in place in order to protect our membership from observing the current award to the legislation and my friend has already put some of the differences which are contained, so, for those reasons, we'd seek an adjournment at this stage, Commissioner. I note, also, that there's no other common rule party.

PN16

THE COMMISSIONER: Well, no other respondent to the award, which is why I asked. The common rule parties were certainly notified of the listing, but apart from common rule parties, the Master Builders, Comfat, and one other whose name escapes me, are respondents in their own right to the award, so I am surprised Comfat hasn't bothered to turn up and that's why I asked Ms Tutty for the service documents.

PN17

Well, obviously the application can't be by consent, so I'm not going to deal with it today. I will adjourn it, but I'm not going to deal with this application on the basis of a piece of legislation that may or may not go through the parliament. Whether this award should be set aside will be dealt with on the basis of the legislation as it currently stands today. So, if there's an argument that the territory legislation is more beneficial and, therefore, this award should be set aside then Ms Tutty's organisation is going to have to make that argument and you're going to have to oppose it if that's your choice, Mr Gillingham, of course you have to take into account the equity between the other employees of your members as well as their clerical staff.

PN18

MR GILLINGHAM: Yes, Commissioner, no, I appreciate that.

PN19

THE COMMISSIONER: And all the other employees in the ACT. I mean, maybe it would appear to be odd if the clerks in the ACT are the only category of employees who are precluded from accessing the more beneficial long service leave provisions. As I understand it, it's only a matter of getting access to them, it's not an additional long service leave, even if pro rata's available. Pro rata's available in certain circumstances under this act, but not just on the basis of service. All right, well, what we will do is, Mr Gillingham, I am reluctant to leave it too fair into December, I mean, it's 14 November, when does your executive meet?

PN20

MR GILLINGHAM: On the 28th and 29th, I think, we've got a meeting on with the minister. I think it's in the first week of December.

PN21

THE COMMISSIONER: All right, well, nothing much is going to happen in the next few weeks. What I'll do is I'll adjourn the matter and re-list it for - yes, I'm going to have to list it for 9 December, because I don't have any choice. So, I'll re-list it for 10 o'clock on 9 December and Ms Tutty will need service documents to show that the application was forwarded together with the notice of the new hearing to the respondents to the award and that they are clear about what the application is for to set aside the award. I'll deal with the matter at that time and I now adjourn the Commission.

<ADJOURNED UNTIL FRIDAY 9 DECEMBER 2005 [9.42AM]