C2008/2894, Transcript of Proceedings [2008] AIRCTrans 736 (17 November 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19329-1

COMMISSIONER SMITH

C2008/2894

s.553(1) - Application for variation of award (maintain minimum safety net entitlements)

Application by Finance Sector Union of Australia
(C2008/2894)
Unisys Payment Services Limited Award 2000

(ODN C31154/00)
[AP819791 Print ]]




Melbourne

9:17AM, TUESDAY, 30 SEPTEMBER 2008

PN1

MS M MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN2

THE COMMISSIONER: Thank you, Ms Maloney. Now, would you like to speak to your application?

PN3

MS MALONEY: Yes. Commissioner, the matters that are before you today are applications by the Finance Sector Union of Australia that are made pursuant to section 553(1) of the Workplace Relations Act. I've handed up a list of all the applications that are before the Commission. I won't go through each of them. These are pre reform awards. The applications seek to vary the allowances contained in the award and in so doing maintain the minimum safety entitlements under the award. Now, sir, upon receipt of the notice of listing of the time, date and place for today's hearing we did forward to the respondents to the awards a copy of the application to vary, a copy of the notice of listing, a draft order and a work sheet setting out the method of calculation for the allowances. I'd like to hand up the service of notice of listing.

PN4

THE COMMISSIONER: Thank you.

PN5

MS MALONEY: I'm hoping it's in the order of the list that I gave you to make it a bit easier.

EXHIBIT #FSU1 NOTICE OF LISTING

PN6

MS MALONEY: Attached to each of those service of notice of listings for each of the awards, sir, is a copy of the transmission receipts confirming successful transmission of the documentation to each of the respondents. Now, I do not that in respect to the Trustee Industry Award, the company known as Tower Trust has been taken over by the Australian Executive Trustees. We have a copy of the ASIC search if you need that, and once we ascertain that - - -

PN7

THE COMMISSIONER: If I vary that award it will apply to them, will it?

PN8

MS MALONEY: That's right, and once we found out we corrected the service and we forwarded to the Australian Executive Trustees who we'd found out.

PN9

THE COMMISSIONER: Sure.

PN10

MS MALONEY: Sir, the grounds upon which these applications are made is to give effect to the Wages and Allowance Review 2008 decision of the Full Bench of the Commission found in 2008 AIRC 635. Of course, that decision follows the decision by the Australian Fair Pay Commission to increase the standard Federal minimum wage by $21.66 per week or adult pay scales by $21.66 per week. Of course in the Full Bench decision the Full Bench decided to increase the minimum weekly rates in transitional awards by $21.70 per week and determined that wage related allowances in transitional and pre reform awards would be increased proportionately in accordance with the Commission's normal principles and the variation to operate from the first pay period to commence on or after 1 October 2008. That can be found at paragraph 14 of the Full Bench decision.

PN11

We submit that the applications are consistent with the objects of the Act, in particular section 3(c) and 3(g) which are aimed at ensuring that the safety net minimum wages and conditions of employment are maintained. We also submit they are consistent with the objects of part 10 division 1 of the Act which is also aimed at ensuring the maintenance of minimum safety net entitlements are protected. As the applications seek to vary allowances, allowances are an allowable matter under part 10 subdivision (a) and in particular section 513(1)(h). We also say that the applications are also consistent with the decision of the Australian Fair Pay Commission as at July 2008.

PN12

Sir, we have prepared draft orders. I've forwarded a set of draft orders to your associate yesterday. It was brought to our attention there was one that needed amending in respect to the Western Australian Credit Union Award.

PN13

THE COMMISSIONER: Just to indicate to you we pay attention to what you say.

PN14

MS MALONEY: And, sir, we forwarded the amended draft order this morning by email.

PN15

THE COMMISSIONER: Thank you.

PN16

MS MALONEY: I have a hard copy if you wish to have a hard copy handed up.

PN17

THE COMMISSIONER: That's all right.

PN18

MS MALONEY: Now, in terms of correspondence there's a couple of issues. Obviously Mr Serong of Deacons has sent correspondence addressed to your associate, Kathy Bartlett, on 26 September confirming their consent to the various awards to which Mr Serong represents the respondent employers. Now, there's obviously the issue of the Bank of Queensland Agents Award. In the matters before you today, sir, we would obviously not be pressing for the draft order for the Bank of Queensland Agents Award because we have not complied with service. At this stage we understand that Mr Serong still has no instructions in respect to accepting service on behalf of those employers.

PN19

What we would intend to do, sir, obviously is to serve now, or issue those employers and we understand that has impact on the day of operation. There's not much I can do. It's the first time we've come across this, having done a number of applications to vary this award, so it does cause a bit of concern, but we will proceed to serve the application on the 17 respondents - I think it's 17 - to that award.

PN20

THE COMMISSIONER: That's the Bank of Queensland and Agents Award?

PN21

MS MALONEY: Yes, Bank of Queensland and Agents Award 2004.

PN22

THE COMMISSIONER: Yes.

PN23

MS MALONEY: I think it's 17 - - -

PN24

THE COMMISSIONER: 2919, yes.

PN25

MS MALONEY: 2919, and the order substitutes - no, actually I'm wrong with 17. I have another award. There's over 130 employer respondents in that award. That does make it a little bit more difficult. I might retract that submission.

PN26

THE COMMISSIONER: Yes. That's all right. You can attend to it in an appropriate way, make application if you wish to put an advertisement in the relevant publication in Queensland.

PN27

MS MALONEY: That's correct.

PN28

THE COMMISSIONER: As a way of substituted service, if you wish.

PN29

MS MALONEY: I seek your guidance. Do I need an order from the Commission to do that? I do, okay. All right, we'll effect it that way, sir. I'll probably also might have a further discussion with Mr Serong to see whether there's any further development on that one and we'll advise the Commission accordingly. Sir, the other award before you which I had hoped to have an amended draft order is the Finance Industry Finance Company Employees Award 2001. As sometimes happens in these cases, it came to my attention that clause 13(1) of that award which deals with the first aid allowance, it appears from our records that that allowance was not adjusted in 2006.

PN30

In 2006 there was a number of adjustments made to the award to pick up the 2002, 2003, 2004 and I think the 2005 safety net decisions and there were some other variations from test case decisions. It appears that that allowance was not picked up in that variation. Then we come to the next variation when the allowance was varied in 2006 following the Australian Fair Pay Commission process and the wages and allowance review, and then it seemed to be varied by the CPI. Now, my reading of the First Aid Allowance clause which states, at clause 13(1) of the Finance Industry Finance Company Employees Award 2001, it states:

PN31

An employee holding the current First Aid qualification from St John's Ambulance or similar body will be paid an allowance of $7 per week for each week they are appointed by the employer to perform First Aid duty provided that the employer will only appoint First Aid officers in work places of 20 or more employees.

PN32

Now, sir, my reading of that clause, it's a skill based qualification clause. It's a wage related - or what you call work related allowance and therefore it shouldn't never have been adjusted by CPI increase and so there needs to be just a process of readjusting, going back to what the rate was in 2002 and applying the appropriate percentages based on the increases to the safety net. I haven't had a chance to do that because it's obviously going to take a few years to look at that. So we don't seek the making - - -

PN33

THE COMMISSIONER: A few what?

PN34

MS MALONEY: There'll be a few years in the calculation, I meant to say.

PN35

THE COMMISSIONER: I see. That's all right.

PN36

MS MALONEY: Yes, it's amazing what other work commitments I've got at the moment are doing to the - but there's a few years involved in the calculation.

PN37

THE COMMISSIONER: Yes.

PN38

MS MALONEY: I'm hoping to have that done within the next week, so we will submit an amended draft order. As I say, it only came to our attention last week when the employer questioned the rounding up of the allowance.

PN39

THE COMMISSIONER: You ought to advise the employer that that's - - -

PN40

MS MALONEY: We have. We wrote to the employer representative. They raised the issue and I can provide copies of that correspondence.

PN41

THE COMMISSIONER: That's all right, you can do that.

PN42

MS MALONEY: They raised the issue of the rounding up of the allowance, rounded up the adjustment, and it was Teresa Grove from head of Industrial Relations GE Money and that's what - then she raised it. When I looked into the allowance and then I wrote back to her. I sent her an email on 25 September just going through that process explaining, well, now I've looked at it, it seems to me that the allowance has been adjusted incorrectly in the past and secondly, it hasn't been adjusted in 2002, and there's also a second allowance which I bought to her attention which is an oversight also, I think, on our part, on 13(2), there's a travelling expense allowance which has a rate of 50 cents per kilometre which does not appear to have been adjusted since 2002 at least.

PN43

So I bought that to her attention. In the last email she sent me she advised me that she's out of Australia until 5 October, as I understand it, but I will - - -

PN44

THE COMMISSIONER: You're making an application for a summons?

PN45

MS MALONEY: No, Commissioner. But what I intend to do, sir, she advised me on 25 September that she's out of the office, in fact out of Australia until 5 October, "Therefore could you please send any correspondence to this email address." So what I intend to do, sir, once I've worked out the method of adjustment I'll forward the amended draft order with the method of adjustment to yourself, cc Ms Grove for her consideration and then we will take it from there. But it just came to our attention once she bought that question, the rounding up process that we applied to - - -

PN46

THE COMMISSIONER: Well, if the employer consents, I'll make the necessary adjustments arising from these orders.

PN47

MS MALONEY: In respect to this award, yes.

PN48

THE COMMISSIONER: In respect to this award.

PN49

MS MALONEY: Yes, sir. On that basis, sir, with the exception I suppose of the Bank of Queensland Agents Award, which we do have to re-serve, we seek the variation of the awards in the terms of the draft orders that we have submitted and we would submit that the granting of the applications to vary the awards will be fair and equitable and consistent with the requirements of the Act.

PN50

THE COMMISSIONER: Thank you, Ms Maloney. These are applications to vary a number of awards to increase rates and allowances to reflect the decision of the Full Bench dated 27 August 2008 in print AIRC FB 635. The submission by the FSU is that the draft orders reflect an increase in the wages of $21.70 and a commensurate adjustment in wage related allowances in the awards. With the exception of the Finance Industry Finance Company Employees Award, to which I shall return, I will vary all of the awards before me to increase wages by $21.70 and make the necessary adjustment to allowances. Those variations will apply from the first full pay period to commence on or after 1 October 2008.

PN51

In relation to the Finance Industry Finance Company Employees Award there is an issue as to the proper calculation of allowances in two areas and that matter has been raised with the employer. In the event that the employer consents to the adjustment of the allowances to reflect their appropriate calculations, then I will also vary that award from the first full pay period to commence on or after 1 October 2008.

PN52

In the absence of consent, wages and all other allowances will be varied from 1 October 2008 and those two in question can be raised again in proceedings before the Commission. Ms Maloney?

PN53

MS MALONEY: Can I just seek clarification? The applications don't actually seek to vary the wages.

PN54

THE COMMISSIONER: Don't they?

PN55

MS MALONEY: These are pre reform awards. Not transitional.

PN56

THE COMMISSIONER: I see, I'm sorry.

PN57

MS MALONEY: That's okay, sir.

PN58

THE COMMISSIONER: I'll start again. These are applications to vary allowances in all of the awards. Defeated by the heading, I was.

PN59

MS MALONEY: Sorry, sir, yes.

PN60

THE COMMISSIONER: And the allowances will be varied in accordance with the 27 August 2008 decision and I thank Ms Maloney for drawing that small matter to my attention. The matter is adjourned.

<ADJOURNED INDEFINITELY [9.33AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 NOTICE OF LISTING PN5