PR926903 AW778994 PR926903 Download Word Document AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION Workplace Relations Act 1996 Review of award pursuant to Item 51 of Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (C No. 00282 of 1998) DELTA WEST CONSENT AWARD 1996 (ODN C No. 30212 of 1994) [Print M9684 [AW778994]] Various employees Pharmaceutical industry SENIOR DEPUTY PRESIDENT O'CALLAGHAN ADELAIDE, 22 JANUARY 2003 Award simplification. DECISION [1] This decision concludes a review of the Delta West Consent Award 1996 pursuant to Item 51 of the Workplace Relations and Other Legislation Amendment Act 1996 (`the WROLA Act'). [2] On 30 July 2002, I issued a decision [ PR920644 ] which incorporated a Draft Order for the consideration of the parties. Both parties indicated concerns relative to this Draft Order. However, neither party evidenced a significant desire to discuss the issue with the other party. [3] On 6 December 2002, I convened a hearing in Perth for the purpose of clarifying the respective views of the parties relative to this Draft Order and hearing any specific arguments relative to changes proposed for inclusion in the Draft Order. At that hearing Mr J Uphill from the Chamber of Commerce and Industry appeared with Mr M Morgan from Pharmacia (`the employer') and Mr T Pope appeared for the National Union of Workers (`the union'). [4] Prior to this hearing, both parties were made aware of my intention to adopt the following criteria relative to the disagreements over provisions which should be included in the simplified Award: · The simplification of the Award is directed towards its establishment as a fair safety net of wages and conditions which could, should the parties wish, be built upon by either individual or collective agreements. · The existing Award provisions form the basis for the review of the Award pursuant to the WROLA Act. · Award provisions which reflect standard test case provisions will generally be adopted, unless the parties can either separately, or collectively convince me of an alternative provision which should apply. · Where there is no agreement to the addition of a new Award provision, a separate section 113 application will generally be required. · The review of the Award conditions will take into account the provisions of section 89A of the WROLA Act. · In the absence of information which clearly establishes that the Award rates of pay reflect an approach consistent with the 1989 National Wage Case Decision , other Award rates of pay will be used for the purpose of determining properly fixed minimum rates of pay. Specific Issues. [5] I have outlined below the specific issues which the parties sought to debate relative to the Draft Order published on 30 July 2002, together with the position I have adopted in relation to each of these disputed matters. · Draft clause 4.1: the employer proposed an alternative definition of full-time employee which was founded on an average of 38-hours per week. Notwithstanding that the Rosters identified in the existing Award are no longer universally applicable, I am satisfied that it is appropriate to define full-time employment on the basis of an average number of hours per week. The employer proposed the inclusion of a new definition relating to "Limited Tenure Employment". This claim was based on the provisions of an agreement which the parties have proposed to the Commission for certification. Such a provision is not included in the existing Award and was not agreed with the union. Accordingly, I consider that should the employer wish to pursue such an addition, it should be the subject of a separate application to vary the Award. · Draft clause 4.4: the employer initially sought two amendments to this clause. The first amendment related to periods of casual employment. The employer did not proceed with this requested change. The second amendment requested was that unpaid leave should not break an employees' continuity of service, but should not be taken into account for the purpose of calculating leave entitlements. The employer relied upon the existing Award provisions in this respect. This claim was agreed with the union and I have proposed an Award provision which gives effect to such an arrangement. · Draft clause 4.4.1: the employer sought to have the provisions of this clause, relating to "retrenched" employees replaced with a reference to "redundant" employees. The union position was that the clause should be consistent with the relevant Long Service Leave Legislation, but that reference to redundant employees was preferred. I have adopted the change as requested as the Long Service Leave Legislation is differently phrased. · Draft clauses 4.5 - 4.9: the employer sought the adoption of revised Classification definitions so as to reflect the nature of the work now undertaken. These changes were ultimately endorsed by the union on the basis that the proposed new classification of "Pharmaceutical Operator - Warehouse" attracts the same rate of pay as that which applies to the "Pharmaceutical Operator - Specialty Products". I have adopted these changes as agreed, including necessary changes to the position titles in the wages provisions. · Draft clause 13.2: the employer proposed the adoption of a provision which provided the opportunity for the employer to extend a three-month probationary employment period by a further three-months as an alternative to the termination of an employee's employment. The union position was that this change was agreed, provided the extension was limited to cases where employees had been requested to undertake new tasks. Consequently, I have included a provision to this effect. · Draft clause 13.3: the employer sought a change to the devisor for the purpose of determining the casual rate. This change was based on the capacity, within the current Award, to work Rosters which average 38, 40 or 42 hours per week. The union position was that the 38 hour week is the basis of the current Award working arrangements and accordingly should remain as the determinant of the casual hourly rate. I have not been persuaded that the Draft clause should be changed so as to deviate from a standard 38 hour week arrangement. · Draft clause 17.1: the union sought that the wage rates set out in the Draft Order be replaced by rates established by adding safety net adjustments since the inception of the Award in 1996. The union also advocated that the May 2002 Safety Net Adjustment should be incorporated in the rates of pay to be included in the simplified Award. The union argued that the storeman employee rate from the Shop and Warehouse (Wholesale and Retail Establishments) State Award was used as the basis for the establishment or appropriate rates of pay in 1996. The employer proposed the adoption of the rates set out in the Draft Order and opposed the inclusion of the May 2002 Safety Net Adjustment. In my decision of 30 July 2002, I addressed the rationale used to establish the rates of pay included in the Draft Order as properly fixed minimum rates of pay. I consider this approach to be appropriate, as I have not been persuaded that the rates of pay incorporated in this Award, at the time of its inception in 1996, meet the pre requisites set out in the Paid Rates Review Decision such that they form a valid foundation for the establishment of properly fixed minimum rates of pay. In the absence of an agreed position relative to the inclusion of the May 2002 Safety Net Adjustment, the rates of pay in the Order reflecting this Decision recognise safety net adjustments up to and including May 2001. A separate application, in accordance with the Principles of Wage Fixation, will need to be made for the May 2002 increase. In this respect I note that the parties have proposed the certification of a new Agreement which may require consideration of this Award in the context of the "no disadvantage" test. · Draft clause 19.1: the employer sought that the higher duties provision be changed to reflect a flat 25% loading. This position was opposed by the union. The clause included in the Draft Order was based on the existing Award provision. I am not persuaded that the change sought by the employer is consistent with the requirements of the WROLA Act and have also modified the proposed provision to ensure consistency with the Act. · Draft clause 20 - Meal Money: the employer opposed the proposed meal reimbursement allowance of $9.52 and argued that either the current award provision of $7.50 should be retained or alternatively, the amount of $8.60 should be included on the basis that the Agreement which the parties proposed be certified, provided for a reimbursement amount on this basis. The union proposed that the current Award allowance be retained for the purposes of the simplification of the Award and foreshadowed that a separate application would be made to update this amount. I propose to change the reimbursement allowance specified in the Draft Order at clause 20 so as to reflect the existing Award provision. The onus is then on the parties to seek to vary the Award so as to update this allowance provision. · Draft clause 21: having initially requested some changes to the draft Uniforms and Protective Clothing clause, at the hearing on 6 December 2002, the employer agreed to the retention of the draft clause. · Draft clause 22: the employer requested the reference to the fortnightly payment of wages in 22.3 be deleted. Based upon the existing Award provisions, I decline to made any changes to the draft Order. · Draft clause 23.1.2: the union requested that the spread of hours proposed in the Draft Order be reduced from 6:00am to 6:00pm Monday to Friday, to 7:15am to 5:15pm Monday to Friday on the basis of the provisions of the Manufacturing Chemists Award which was a precursor to the current Award. The current Award provides the capacity for ordinary hours to be worked from 6:00am to 6:00pm Monday to Friday as part of a number of rostering configurations. The employer proposed the adoption of a provision drawn from the Agreement proposed for certification or, alternatively, the adoption of the provisions contained in the Draft Order. I consider that the Hours provisions contained in the Draft Order, which are fundamentally drawn from the Metals, Engineering and Associated Industries Award represent a proven safety net arrangement which is generally consistent with the extremely complex and now outdated provisions of the current Award. In the absence of agreement, I am not persuaded that there should be any change to the provision proposed in the Draft Order. · Draft clause 24.2.1: the parties reached agreement in the course of the hearing of this matter such that the provisions of the Draft Order should be changed to reflect a 15 percent loading for afternoon shift and 20 percent loading for both permanent and rotating night shifts. This agreement was presumably based on an agreed interpretation of the arrangements which applied at the time of the inception of the Award. · Draft clause 24.2.2: the parties agreed that this draft clause should be deleted from the simplified Award, on the basis of the current agreement to, and existence of shifts of shorter duration. · Draft clause 25.3: the parties agreed that this provision should be deleted, given that where employees work a twelve hour shift arrangement, the requirement for optional shifts to be of not less than eight hours duration was overly onerous. Accordingly I have deleted this provision. · Draft clause 26.1: the parties agreed on the adoption of a number of provisions relative to Meal breaks contained in the current Award. These agreed provisions are: 19.1 All employees working more than 4 hours on any day shall be entitled to a 15 minute paid tea break. 19.2 All employees working 8 hours or more on any day shall be entitled to two, 15 minute paid tea breaks provided that employees working 12 hours or more on any day shall be entitled to three, 15 minute paid tea breaks. 19.3 All employees working more than 5 hours on any day shall be entitled to a 30 minute paid meal break, provided that, for employees working a roster comprising shifts of 8 ordinary hours or less, the meal break shall be unpaid. 19.4 No employee shall be required to work more than 5.5 hours without a break for a meal provided that an employee whose roster entails days of 12 ordinary hours may work no more than 6.5 hours without a break for a meal. These provisions will be inserted into the award in place of the Draft clause 26.1 and 26.2. · Draft clause 27: the employer sought the replacement of this draft clause with the provisions of the Agreement that the parties have proposed for certification. The union proposed the adoption of the provisions relative to overtime which are contained in the Manufacturing Chemists Award . As an alternative, the union indicated that it supported the draft clause 27. I have not been persuaded that I should change the draft clause 27, which I consider to be an appropriate safety net provision. I have however endorsed the agreement reached between the parties to include a new provision relating to casual employees, which provision is founded on provisions contained in the Agreement proposed by the parties for certification. As a matter of convenience, this provision has been inserted in clause 23. · Draft clause 29.3.7: the employer sought that this provision, relative to a salary insurance scheme, be deleted on the basis that such a provision is not an allowable matter pursuant to section 89A of the Workplace Relations Act . Alternatively, the employer sought a variation of this provision such that the detail of the scheme was able to be determined at the discretion of the employer. Notwithstanding that the Draft clause in this respect is derived from the existing Award provision, I do not consider the provision in its proposed form to be an allowable matter, and have deleted it. I refer to the Full Commission decision in Commonwealth Bank Officers Award 1990 (Print P1297). In that decision the Full Commission states: "We do not consider that, in the circumstances of this case, impairment insurance is incidental to an allowable award matter." The Commission then considered whether impairment insurance could be considered an exceptional matter for the purposes of section 89A of the Workplace Relations Act . It rejected this proposition. Accordingly, I have deleted this provision. · Draft clause 32.1.1 and 32.5.1: the employer sought the removal of Easter Saturday from the list of holidays prescribed by this clause on the basis that Easter Saturday was not prescribed in Western Australia as a public holiday. The union argued that Easter Saturday was accepted as a standard public holiday and that the Draft Order should not be changed. I have noted that the Western Australian Public and Bank Holidays Act 1972 does not prescribed Easter Saturday as a public holiday, but the existing Award does, and on that basis I consider it appropriate to retain this provision. Conclusion [6] For the foregoing reasons, together with the reasons outlined in my decision of 30 July 2002, I am satisfied that the Order reflecting this Decision meets the requirements of the WROLA Act such that the Award reflects a fair safety net of wages and conditions upon which the parties can build through either individual and/or collective Agreements. The Award could be further improved upon by cooperative discussions between the parties, so as to ensure that it remains relevant and current. This is clearly the prerogative of the parties, but will require substantially greater cooperation and goodwill than has been evidenced to date. [7] The Order [ PR926904 ] reflecting this Decision will come into effect from 3 February 2003 and will operate for a period of one (1) month. BY THE COMMISSION: SENIOR DEPUTY PRESIDENT Printed by authority of the Commonwealth Government Printer <Price code C>