PR950373 AW773032 PR950373 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 s.113 application for variation Australian Municipal, Administrative, Clerical and Services Union (C2004/5106) CLERICAL AND ADMINISTRATIVE EMPLOYEES (VICTORIA) AWARD 1999 (ODN C No. 34749 of 1995) [AW773032  Print S1367] Clerical industry SENIOR DEPUTY PRESIDENT WATSON MELBOURNE, 2 AUGUST 2004 Coverage of award. DECISION [1] This is an application by the Australian Municipal, Administrative, Clerical and Services Union (ASU), pursuant to s.113 of the Workplace Relations Act 1996 (the Act), to vary the Clerical and Administrative Employees (Victoria) Award 1999 [AW773032] in relation to coverage of the award (clause 5) and exemptions from coverage (clause 7). [2] The variation sought, as set out in exhibit ASU3, is in the following terms: "A. The Commission orders that the Clerical and Administrative Employees (Victorian) Award 1999 be varied as follows: 1. Clause 5 - Coverage of Award be deleted and the following clause inserted: `This award shall apply to the employment in any part of Victoria of employers bound by this award to the industry of the process, trade, business or occupation of a person or persons or classes or persons (by whatever name called) employed wholly or principally in clerical work which may include administrative duties of a clerical nature.' 2. Clause 7 of the Award be varied by inserting the following: ` 7.3 This award does not apply to a business in the contract call centre industry . A business in the contract call centre industry means any business whose principal function is supplying inbound or outbound customer contact services to a number of clients, on a contract basis, and whose business is independent of the client. The ASU and the Australian Industry Group will meet prior to 1 September 2005 to discuss and endeavour to reach agreement on the appropriate award coverage for clerical employees in the contract call centre industry.' 3. The `industry' and `case number' headings be deleted from the Schedule of Respondents". [3] The effects of the order are to: 1. alter clause 5 - Coverage, to express its application as being to the industry of clerical work in the state of Victoria, rather than to clerical work within specified industry sectors; and 2. to exempt from coverage in the award, businesses in the contract call industry as defined. [4] The ASU application arises out of changed circumstances, specifically changed legislative circumstances arising from s.493A of the Act, which extend the application of the common rule provisions of the Act in respect of Territories 1 to Victoria. [5] The application is directed to meeting concerns expressed by some employer organisations as to the scope of the award in respect of an ASU application to have the award declared a common rule award in Matter C2004/1831. Although those concerns are not shared by the ASU, the variation is sought to remove doubt. It is also directed to giving effect to an agreement with The Australian Industry Group (AIG), on behalf of members in the contract call industry, to exempt businesses in that sector in light of award regulation of that industry. [6] The application is not opposed by any employer organisation served with notice of the hearing and variation sought. Some employer organisations, who do not have as members any named respondents to the award, sought intervention and withdrew from the hearing upon clarification by the ASU that the award would not apply, if made a common rule award, to employers bound to other awards of the Commission, whether as named respondents or by virtue of their membership of the employer organisations. [7] The award is an occupational based award, in respect of clerical work across a large number of industries in the State of Victoria. The application arises in a history in which clerical work was subject to common rule regulation in the State of Victoria prior to the abolition of the Victorian System in the early 1990's, most recently through the (Victorian) Clerical and Administrative Employees Award. That award applied to "the process, trade, business or occupation of a person or persons or class of persons (by whatever name called) employed wholly or principally in clerical work and/or office administration" , subject to limited exemptions identified. Upon abolition of the Victorian system, the ASU sought and obtained a series of dispute findings, 2 on the basis of common logs of claims applicable generally to clerical employment, to which employers within particular sectors were party. In 1993, thirteen awards were made, in substantively identical terms, in part settlement of the disputes found, in relation to clerical employment within particular industry sectors. In 1995, the ASU successfully applied to consolidate the awards into a single award, 3 resulting in the current Clerical and Administrative Employees (Victoria) Award 1999 . DECISION [8] I am satisfied that the ASU has properly effected service in accordance with an order for substituted service of 21 July 2004. 4 [9] I am satisfied that the variation sought falls within the jurisdiction of the originating disputes upon which the award in its current consolidated form is founded and the predecessor awards were made. The award, as varied by the order sought, is relevant, reasonably incidental or appropriate to dispose of the questions arising out of those disputes. 5 [10] I am satisfied that the variation sought is justified in the context of the changed circumstances identified by the ASU. The variation has no immediate effect in that the award remains applicable only to the named respondents. In the changed legislative context relied upon by the ASU, the variation provides a proper basis for the uniformity of regulation of the industry of clerical work in Victoria and a fair and enforceable award safety net in respect of that industry. [11] The order will operate from 1 September 2004 and shall remain in force for a period of 12 months. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Appearances: A Bandt for the Australian Municipal, Administrative, Clerical and Services Union. P Eberhard for the Victorian Employers' Chamber of Commerce and Industry. L Stewart for The Australian Industry Group. J Hargrave for the Printing Industries Association of Australia. M Weldon for The Australian Retailers Association. G Johnston for the Australian Meat Industry Council (intervening). C Harris for Agribusiness (intervening). Hearing details: 2004. Melbourne: August 2. Printed by authority of the Commonwealth Government Printer <Price code A> 1 s.141 and 142. 2 ODN C Nos. 32021, 30632, 31011, 30747, 30629, 30752, 30630, 30750, 32478, 30634, 30634, 30748, 31265, 30749, 31266, 30631 and 32024 of 1993. 3 C Nos. 34749-34758 and 34764-34767 of 1995. 4 Exhibit ASU1. 5 PR945162 at paragraph 29.