C2007/3214, Transcript of Proceedings [2007] AIRCTrans 549 (11 October 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 17512-1

COMMISSIONER WHELAN

C2007/3214 C2007/3552

s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
Application by Australian Municipal, Administrative, Clerical and Services Union
(C2007/3214)

MELBOURNE

11.49AM, TUESDAY, 25 SEPTEMBER 2007

PN1

MR A MCNAB: I seek leave to appear on behalf of the Victorian Off-Course Agents Association.

PN2

MS S SANCHEZ: I appear on behalf of the Australian Services Union.

PN3

THE COMMISSIONER: I have two different applications before me, the first is an application to vary the Off-Course Agency Employees Award to implement the outcome of the 2007 Wages and Allowances Review. The second application is to vary the award in relation to essentially two matters, one is respondency and the second is some particular clauses of that award in relation to the rate of pay for casual employees. I'll deal first of all with the application insofar as it seeks to implement the Wages and Allowances Review 2007. Ms Sanchez.

PN4

MS SANCHEZ: If the Commission pleases, here is an application to vary the pre-reform award Off-Course Agency Employees Award 2001 in accordance with the Wages and Allowances Review 2007 in decision print PR2007 handed down by the Full Bench on 16 August 2007. The application was lodged with the Industrial Registrar under correspondence dated 17 August 2007.

PN5

The employers were notified of today's hearing by way of registered post which included copies of the notice of hearing, draft orders, calculation sheets and substituted service. Your Honour, I have registered post declarations. This document confirms that all parties are aware of the application of being notified in accordance with the Commission's rules. I'll just submit this to you, your Honour.

PN6

THE COMMISSIONER: Thank you.

PN7

MS SANCHEZ: Your Honour, the application to vary the pre-reform award before you is pursuant to section 553 of the Workplace Relations Act. The proposed variations are consistent with the principles determined by the Full Bench in the Wages and Allowances Review 2007. In respect to allowances contained in the pre-reform award, the expense related allowances have been adjusted in accordance with the relevant change in the consumer price index and the work related allowances have been adjusted in line with the Furnishing and Glass decision, print N9675.

PN8

The ASU asks that the variation takes effect from the first pay period on or after
1 October 2007. The ASU believes that there is consent to the draft orders.

PN9

MR MCNAB: There is.

PN10

THE COMMISSIONER: There is, Mr McNab, thank you.

PN11

MS SANCHEZ: The ASU relies on the registered post declaration and believes that the employer was properly notified in accordance with the Commission's rules. The ASU requests, if the Commission is satisfied, to make orders along the lines submitted. If the Commission pleases.

PN12

THE COMMISSIONER: I'm satisfied that the application in this matter has been served in accordance with the Commission's rules. I've also been notified by Mr McNab that there is consent to the variation as sought. The variation seeks to amend various allowances consistent with the decision of the Commission in the Wages and Allowances Review 2007 and it appears to me that there's no difficulty in granting that application.

PN13

I'll now proceed to deal with the application that you're here for, Mr McNab.

PN14

MR MCNAB: Thank you. I have some minutes of consent orders, if I could hand those up to you, Commissioner. They're not signed but I understand they're agreed to by my friends.

PN15

THE COMMISSIONER: Can I just ask you, Mr McNab, which particular provision you're relying on here? I understand that the - I just need to have it clarified for me.

PN16

MR MCNAB: I appreciate that. Section 554 deals with variation of awards on the grounds of ambiguity.

PN17

THE COMMISSIONER: Yes.

PN18

MR MCNAB: We say there's a degree of ambiguity in relation to the order 3 of the draft there because there was, in effect, when you read the award on one reading there could be a double dipping in respect of particular employees, and the amendment has been made to remove that ambiguity.

PN19

THE COMMISSIONER: Okay, so that's just to clarify what are the circumstances in which the various allowances and penalty rates will apply?

PN20

MR MCNAB: Correct.

PN21

THE COMMISSIONER: Okay.

PN22

MR MCNAB: The grounds in 1 and 2 are essentially grounds under section 552, in particular the ground 552(1)(e), and that gives the Commission the power to make an order varying an award to bind additional employers, employees or organisations in accordance with section 557. Now, filed with the application was an affidavit of Mr Grobbie.

PN23

THE COMMISSIONER: Yes, I have that.

PN24

MR MCNAB: Which outlines the difficulty that has arisen where the various agencies are sold, then there's no automatic upkeeping of the schedule.

PN25

THE COMMISSIONER: Of the schedule, yes.

PN26

MR MCNAB: And it becomes a question of who is or who is not a respondent. Now, we thought this was - the association thought that this was a convenient way of dealing with the problem of respondency and it was convenient for the association and for the employees and the union.

PN27

THE COMMISSIONER: I understand that. The application that's made is in relation to the pre reform award. There is no application in relation to the transitional award. Am I to assume that there are not going to be any employers who would be covered by the transitional rather than the pre reform award, or is that a matter which may need to be dealt with?

PN28

MR MCNAB: It may need to be dealt with.

PN29

THE COMMISSIONER: It's just that obviously the transitional - I haven't turned my mind to the issues in relation to the transitional award, but there was a question in my mind as to whether some, given the nature of these businesses, whether some of them may in fact not be constitutional corporations.

PN30

MR MCNAB: Yes. I would have thought most of them are.

PN31

THE COMMISSIONER: I would have thought that most of them, but it may be an issue that perhaps the association might want to just have a look at.

PN32

MR MCNAB: Yes.

PN33

THE COMMISSIONER: I don't think we need to deal with it today, but it may be an issue that the association might want to have a look at because there may be some respondents to this award who are not constitutional corporations, and the question is what happens with them, that's all, because they are bound by the transitional award rather than the pre reform award. But I understand that the intention in relation to both of these variations, the first one is to clarify who are respondents to the award in terms of the coverage, and the second one is to remove any ambiguity insofar as the application of various allowances and penalties apply to employees in a particular classification.

PN34

MR MCNAB: And my reading of the Act is that those matters fall within section 553 of the Act.

PN35

THE COMMISSIONER: I've got no problem with the 554, removal of the ambiguity, that seems to me to be fairly straightforward. The only issue that raised to me, that as I said to you that raised in my mind in relation to the respondency, as to whether some of the respondents may in fact by transitional employers rather than employers bound by the - - -

PN36

MR MCNAB: Yes. If we can just proceed to the application as it is?

PN37

THE COMMISSIONER: Yes.

PN38

MR MCNAB: If there is any difficulty arising from it then - - -

PN39

THE COMMISSIONER: Perhaps the association can talk to the union and we can try and sort that out at a later date.

PN40

MR MCNAB: That would be our preference, thank you.

PN41

THE COMMISSIONER: Okay, thank you, Mr McNab. Ms Sanchez?

PN42

MS SANCHEZ: I'm quite happy to support the proposed order to avoid any potential for confusion in the future. I just want to say on the record that it's only for that reason, it's not to remove any rights.

PN43

THE COMMISSIONER: I'm sorry?

PN44

MS SANCHEZ: It's not to remove any rights.

PN45

THE COMMISSIONER: No, I understand that. I understand that the purpose was to remove any ambiguity in relation to when various things applied, yes. Yes, all right, thank you. All right, thank you very much. Well, on the basis of the submissions that have been made concerning the orders being sought by the, of course, agency, Agents Association, I am satisfied that the application is consistent with the provisions of section 552 and the provisions of section 554 of the Act, in particular 554(1), and that the intention of these applications is to clarify any issues concerning respondency and, secondly, to clarify the situation where various allowances and penalty rates apply to an employee engaged as a casual agency senior clerk.

PN46

On the basis of the submissions and on the basis of the fact that these orders are sought by consent the application will be granted, and the award will be varied to incorporate both the 2007 wages and allowances review and also the variations to clause 4.2 and 4.3 and clause 13.1. Thank you.

<ADJOURNED INDEFINITELY [11.56AM]