AM2014/65, Transcript of Proceedings [2014] FWCTrans 718 (24 November 2014)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1050920-1

JUSTICE ROSS, PRESIDENT

AM2014/65

s.156 - 4 yearly review of modern awards

Four yearly review of modern awards
(AM2014/65)
Ambulance and Patient Transport Industry Award 2010

(ODN AM2008/76)
[MA000098 Print PR991064]]




Melbourne

2.17PM, THURSDAY, 13 NOVEMBER 2014

PN1

THE PRESIDENT: Can I have the appearances, please, firstly in Melbourne?

PN2

MS K. MINOGUE: I appear on behalf of the Australian Industry Group.

PN3

THE PRESIDENT: Thanks, Ms Minogue. In Sydney?

PN4

MR M. MCLEAY: I appear for the Health Services Union.

PN5

THE PRESIDENT: Thanks, Mr McLeay. No need to stand because you will move away from the microphone if you do.

PN6

MR S. BULL: I appear for United Voice.

PN7

THE PRESIDENT: Thank you. And in Perth?

PN8

MS B. POLE: I appear for Allion Legal on behalf of St John Ambulance (Western Australia) Limited.

PN9

THE PRESIDENT: Thank you. Just bear with me for a moment. There is no representative from the AWU, is that right?

PN10

MR MCLEAY: Not that I am aware of. They would normally appear in Sydney today, and I haven't heard from them today.

PN11

THE PRESIDENT: Well, can I begin with the issues they have raised and then I will go through the issues the other parties have raised. The AWU in their correspondence of 11 November raises five discrete matters. The first is about clause 2.2. That has really been considered as part of a general issue. This is the notice board matter. The second issue raised is clause 6.4. They say that it is not clear why the current clause at 10.4(c) has been omitted and they set out what that says. I do not think it has been omitted. I think it appears in clause 14.1, but the parties may wish to check that. The third matter is what they say is a typographical error in clause 8.1(a). I am not sure that there is a typographical error. I do not quite understand their point in relation to that.

PN12

In relation to 13.2, yes, that is a new provision and it has been inserted to clarify the interaction between the overtime and penalty rate entitlements. That is a provision which states that penalty rates are not payable for overtime hours worked. That is you do not get the penalty on the penalty. And the final issue they raise is a payment of accrued leave on termination which is the subject of a common claim by the ACTU. So, I think what we are left with is clause 13.2, it being a new provision, and I just wanted to ascertain what the views were of the other parties to the matter. Perhaps if we can begin in Sydney and then go to St John and AI Group. What do each of you think about it?

PN13

MR MCLEAY: Your Honour, I would think that (indistinct) and similar to what was said previously. I haven't had discussions with the AWU, so our union does not have a response to this matter either way.

PN14

MR BULL: I understand that that was - - -

PN15

THE PRESIDENT: I am sorry, can you speak up and into the microphone? I am just having trouble hearing you.

PN16

MR BULL: I understand that that point was the custom and practice in relation to overtime.

PN17

THE PRESIDENT: Look, I am sure that's right. But just as a matter of general industrial usage, you wouldn't get a penalty rate on an overtime rate. You would either get one or the other.

PN18

MR BULL: It would be nice to have both, but I think it is reflecting what is probably the appropriate practice.

PN19

THE PRESIDENT: Yes. Does anyone have a different view? If I can go to St John?

PN20

MS POLE: Thank you, Justice Ross. No, the St John Ambulance (WA), our position is that that clause is necessary and reasonable. We have no concerns with it being included in the new modern award.

PN21

THE PRESIDENT: AI Group?

PN22

MS MINOGUE: We would reflect the same, your Honour.

PN23

THE PRESIDENT: All right. It seems to me that the views that have been expressed are either in favour of the retention of 13.2, or ambivalent. That seems to canvass the matters raised by the AWU. Can I go to the HSU correspondence of 11 November. Now, I note that you had previously sought a definition of ordinary pay, but that is not pressed. So, it seems to me that the two main changes you are seeking, one is the inclusion of a training plan provision in the award and you say what you say about that, and the second is a provision that would provide that overtime performed on each day stands alone. Do you have any other issues that you want to raise, and was there anything you wanted to add to those two issues?

PN24

MR MCLEAY: Thank you, your Honour. The only other issue that we weren't sure of, which was something that was raised initially from St John (NT), and that was about those additional classifications. Their submissions initially were that the additional classifications should be included. We have been supportive of that. I am not sure - - -

PN25

THE PRESIDENT: That's okay, we will find out in a minute. I understand that you support their position. I will come to them in a minute about whether or not they are pursuing that. But for the moment if we just focus on those - - -

PN26

MR MCLEAY: In terms of the training plan and the overtime. As you summarised it is how we seek it, your Honour.

PN27

THE PRESIDENT: Okay. Are there any other matters in the revised exposure draft, or any other changes to that that you are seeking?

PN28

MR MCLEAY: No, your Honour.

PN29

THE PRESIDENT: Can I canvass the views of the other parties about those two matters. Well, if we start with United Voice.

PN30

MR BULL: We are happy to support the HSU's proposal for training plan and their position in relation to overtime.

PN31

THE PRESIDENT: Okay. St John's.

PN32

MS POLE: Thank you, your Honour. St John Ambulance (WA) position is that in terms of the overtime provision and the proposal that a clause be included that each day standalone. We have no objection to that being included in the award. In terms of the additional employee classifications, we are not, I suppose, clear as to why it is necessary for those additional classifications to be included. But subject to sufficient reasoning being provided and the Full Bench being satisfied that the inclusion of those additional clauses are necessary, we have no significant objections to those clauses other than simply to note that in Western Australia that we do have different names for the different positions, but that is not, I don't think, too great of an issue.

PN33

We do object, however, to the inclusion of the proposal training plans clause as it has been drafted by the HSU.

PN34

THE PRESIDENT: All right. AI Group, I note your submission you object to the training plans as well.

PN35

MS MINOGUE: Yes, your Honour. AI Group are very opposed to the inclusion of the training plans in that they would actually pose a significant administrative burden on the employer and both in terms of enacting and monitoring. In addition to that, we have no objection to the overtime provision as proposed. In relation to the revised exposure draft, we actually submitted a letter to the Commission yesterday afternoon in relation to clause 7 wherein classifications and training plans - - -

PN36

THE PRESIDENT: Just one second. Yes, I've got that.

PN37

MS MINOGUE: Just insofar as the original existing award, we therefore propose that the words "and training plan" be removed from the heading in the revised draft.

PN38

THE PRESIDENT: Yes, I see. Because clause 7 does not actually deal with training plans, it only deals with classifications.

PN39

MS MINOGUE: Correct.

PN40

THE PRESIDENT: So, one you oppose the insertion of any provisions dealing with training plans for the reasons you have articulated, and secondly the heading to clause 7 should be amended to delete the words "and training plans" to better reflect the content of the clause.

PN41

MS MINOGUE: That's correct, your Honour, thank you.

PN42

THE PRESIDENT: On the basis of the propositions that have been put, it seems there is general agreement to insert a provision saying that overtime on each day stands alone. There is no agreement with respect to the issue of training plans. The union has made its submission in support of that issue. That submission is supported by United Voice and opposed by St John Ambulance (WA) and AI Group. Do I take it if I go to St John Ambulance in Western Australia, are your reasons for opposing this the same as those put by Australian Industry Group?

PN43

MS POLE: Yes they are, your Honour. We have made, I believe, extensive submissions on the reasons why consider that a training plans clause should not be included in the award and we have also put on a witness statement to that effect as well. Essentially, our position is that including the training plans clause would, as AI Group has identified, place a significant burden on St John Ambulance (WA) if it was to apply to them. Currently, St John Ambulance (WA) does provide training and in fact in compliance or, I suppose, in conjunction I should say, sorry, with Curtin University does provide some very significant training for new ambulance officers.

PN44

If the training plans clause that is proposed was to apply to St John Ambulance (WA), that would cause St John Ambulance (WA) to have to restructure its entire initial training and program and that would have quite a detrimental impact on a lot of current student ambulance officers who are going through the system at the moment. Certainly, St John Ambulance is not opposed to having some sort of clause in the award which indicates a preference that employers provide suitable training to staff. St John Ambulance (WA) currently does have an ongoing continuous education program, but certainly yes its position is that the terms of the training plans clause that have been put forward by the HSU is not something that could apply to all employers in the industry and therefore it is not appropriate to include it in the modern award.

PN45

THE PRESIDENT: All right, thank you. Can I go back to the HSU. St John (NT) is not here. The proposition they are advancing for the different classification levels does not seem to be very detailed at the moment. I think having heard the parties, that there is some support or at least no substantive opposition to the inclusion of additional classifications in the award, but of course the rates of pay would have to be assessed on a proper work value basis, we would need appropriate definitions, and you are probably looking at I would think, at least speaking for myself, you would need some evidence to support the classification structures that are proposed. At the moment, there is not a lot of detail about it.

PN46

Now, what we could do is reserve the rights of parties to seek to insert appropriate classifications into the award, but I think you would need to have some discussion amongst yourselves with the various employer parties as well in order to prosecute that proposition. Now, the fact that this first group of awards will hopefully be concluded before Christmas does not preclude you from coming back at some point next year and arguing for a particular classification structure. As we have mentioned on a number of occasions, the review of awards under a four yearly review will not be completed until all of the common issues are dealt with. So, whilst we will deal with the issues that have been raised to date in respect of this award, in the decision we issue prior to Christmas hopefully, that will not preclude either an employer party or employer with an interest, or one of the unions coming back at some point next year and saying we want a paramedic classification at this level for these reasons, and then that can be brought on and we can deal with that as a discrete issue. Okay?

PN47

So, I do not want you to think that this is your last opportunity to argue that, particularly in circumstances where there is some support for the idea, provided the level is appropriate and it can be justified. If you can take that on board. But on the basis of what we have got, we would not be inserting half a dozen new classifications without giving some further thought to whether they are appropriate and also the wage rates that might be applicable to them. Okay?

PN48

MR MCLEAY: Thank you, your Honour. We will take it on board.

PN49

THE PRESIDENT: I just don't want it to be a surprise to you when you see the final exposure draft that might be attached to any decision that we don't have the classifications, well that's the reason. It is not that we have rejected the idea, it is just that it has not really been the subject of much detail so we do not propose to do anything about it at this stage. Okay? Now, are there any other issues with the revised exposure draft that was republished on 6 November? Is there anything further that any party wants to say about that? Can I just begin in Melbourne, anything further you want to say about that?

PN50

MS MINOGUE: Nothing further, your Honour.

PN51

THE PRESIDENT: Anyone in Sydney want to raise anything further in relation to that exposure draft?

PN52

MR MCLEAY: No, your Honour.

PN53

THE PRESIDENT: In Western Australia?

PN54

MS POLE: No thank you, your Honour.

PN55

THE PRESIDENT: All right. It does seem to me that the issues then are fairly confined and largely agreed. The only substantial matter in contention is the training plans matter.

PN56

MR MCLEAY: I think that is the most succinct way of putting it.

PN57

THE PRESIDENT: I'm sorry, I cannot hear you, Mr McLeay?

PN58

MR MCLEAY: Your Honour, you describing it as the training plan issue is the only issue in contention I think is fair to say.

PN59

THE PRESIDENT: For some reason, we are not picking you up. Did you disagree with that proposition that the training plan issue is the major issue in contention?

PN60

MR MCLEAY: I agree, your Honour.

PN61

THE PRESIDENT: All right, thank you. All right, nothing further? Thank you very much for your assistance. As I say, we are working our way through the general issues that apply to all awards, including this one, the NES matters, and the award specific issues, and we are hoping to try and issue a decision in relation to each of those collection of matters by Christmas. If not then, then shortly thereafter. Thank you very much for your attendance and I will adjourn.

<ADJOURNED INDEFINITELY [2.37PM]