C2001/2145, Transcript of Proceedings [2001] AIRCTrans 1218 (21 June 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 7696

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2001/2145

CARPENTERS AND JOINERS AWARD 1967

Application under section 113 of the Act by
Shop, Distributive and Allied Employees
Association to vary award

MELBOURNE

12.05 PM, TUESDAY, 29 MAY 2001

PN1

MS S. BURNLEY: I appear on behalf of the Shop Distributive and Allied Employees Association.

PN2

MR T. HALLS: I appear for the Australian Industry Group.

PN3

THE COMMISSIONER: Thank you. Yes, Mrs Burnley.

PN4

MS BURNLEY: Yes, Commissioner. This is an application by the SDA to have the 2001 Safety Net Review Wages decision applied to the Mannequins and Models Award 1991. I would like to tender to the Commission our service notice that we served upon the parties regarding today's hearing, the applications and the draft order.

EXHIBIT #A1 SERVICE NOTICE

PN5

MS BURNLEY: Now, on 17 May, the SDA did notify the appropriate organisations that this matter was on for listing - was on for hearing today and we circulated to them a draft order which I would also tender to the Commission now.

EXHIBIT #A2 DRAFT ORDER

PN6

MS BURNLEY: With regards to the draft order at A2 the AIG has spoken to me this morning with a couple of queries regarding some figures in there and we are going to go away and have a further look at that and the AIG is going to do some recalculations as to whether those numbers are correct, and it is mainly due to some - what appears to be rounding, so it is only 20 and 10 cents that we are worried about at the moment, so it is not quite 100 per cent accurate, that order - that draft order, at this time, but we will - - -

PN7

THE COMMISSIONER: But these are all in the cents columns are they?

PN8

MS BURNLEY: Yes. The application was made in accordance with the safety net review wages decision which was issued on 2 May 2001 and contained in print PR002001 and the SDA would be seeking that it would apply to the Mannequins and Models Award and there is just one issue which we would alert the Commission to, and which the SDA today would be making a section 107 application for a Full Bench, because unfortunately there hasn't been agreement with the parties as to the operative date of the $13 increase to apply to the award. Last year the award was varied on 29 June 2000, because that was the first date that it was listed for hearing. The parties have not agreed that today should be the operative date of the increase.

PN9

THE COMMISSIONER: So the difference between you is whether it be today or 29 June?

PN10

MS BURNLEY: Yes, which is four weeks.

PN11

THE COMMISSIONER: And what happened last year, was there some delay in the actual hearing of the application?

PN12

MS BURNLEY: Yes, there was, Commissioner.

PN13

THE COMMISSIONER: What was the extent of the delay?

PN14

MS BURNLEY: The extent of the delay last year was that the SDA filed their applications on the day that the National Wage case was handed down. The matter wasn't listed until 29 June because the Commission was undermanned at that time. I will give to the Commission a letter that we did rely upon last year with respect to this matter and also the matter which is following, the hairdressers matter.

EXHIBIT #A3 LETTER TO COMMISSION DATED 05/06/00

PN15

MS BURNLEY: Now, this was a letter we sent to the Commission on 5 June, which was a day or two after we had actually been notified that the hearing was not to take place until 29 June last year, and we requested, if possible, to have the matter brought forward in some manner, or possibility of it, and we also at that stage explained the history, that we had filed the applications in a timely fashion, which we had always done with regard to this matter and also with the hairdressers matter, but the Commission was unable to deal with the matter last year any more speedily. And at that time we also raised the possibility, or foreshadowed that we would be making a section 107 application to try and have the safety net adjustment of last year implemented at an earlier date.

PN16

THE COMMISSIONER: So how did you make - foreshadow that?

PN17

MS BURNLEY: We foreshadowed it there with Senior Deputy President Polites and at the hearing before Commission Laing on 29 June we made the actual - - -

PN18

THE COMMISSIONER: And did you get any response about that from either of them?

PN19

MS BURNLEY: From Senior Deputy Polites we didn't; Commissioner Laing was sympathetic to our cause, however, the President denied our application for a 107 application last year on the grounds of public interest. So that was the end of the matter.

PN20

THE COMMISSIONER: And then it went back to single member?

PN21

MS BURNLEY: Now, because the single member had already granted the order, operative from 29 June, so at least it was implemented into the industry from that stage.

PN22

THE COMMISSIONER: So you are actually seeking some variation of that order?

PN23

MS BURNLEY: Yes.

PN24

THE COMMISSIONER: Do you have the decision from last year?

PN25

MS BURNLEY: I don't think I do, Commissioner.

PN26

THE COMMISSIONER: You said the President made a decision? Did he communicate that to you, he normally does communicate those reference decisions.

PN27

MS BURNLEY: Yes, he did. Unfortunately I was only aware of the employers position early this morning so I don't think I have brought the President's 107 statement that he made. But it was a one page statement just simply saying that in regards to this matter it was not in the public interest to grant a section 107 application.

PN28

THE COMMISSIONER: And then you didn't seek - did you make out the argument before - - -

PN29

MS BURNLEY: Yes, Commissioner Laing. We put our propositions to him - - -

PN30

THE COMMISSIONER: But he made an order notwithstanding the fact that you were seeking a reference?

PN31

MS BURNLEY: Yes, it was viewed that it was better at that time that there was actually an order going forward because there was nothing to stop that order going forward, and he had no power to back date the safety net adjustment.

PN32

THE COMMISSIONER: Well, he probably had the power but the real question was whether or not it would have been consistent with the principles .

PN33

MS BURNLEY: And it wasn't consistent with the principles.

PN34

THE COMMISSIONER: Yes. If the circumstances were perceived to be extraordinary the jurisdiction and power exists to award an operative date for the variation in relation to the safety net. But that power - the exercise of that power would have been inconsistent with the principle applicable at that time and would likewise be inconsistent with the principle on this occasion. So on this occasion you are saying, don't make the order, is that right? Don't make the order, ask for the reference?

PN35

MS BURNLEY: Yes, Commissioner. We think that is better this time, plus we have also got - - -

PN36

THE COMMISSIONER: Yes, because otherwise there would have needed to have been a variation of an existing order that had already been acted upon.

PN37

MS BURNLEY: Yes.

PN38

THE COMMISSIONER: How long after the order was made by Commissioner Laing was the application for the reference made, do you know?

PN39

MS BURNLEY: We made the application on the day of the hearing before Commissioner Laing, on 29 June.

PN40

THE COMMISSIONER: And when was it dealt with?

PN41

MS BURNLEY: I think we got a response back from the President, I think in August, but I can check that date, which was just the denial of the 107.

PN42

THE COMMISSIONER: Yes, all right. I just wanted to make sure that the decision wasn't made at the same time.

PN43

MS BURNLEY: No.

PN44

THE COMMISSIONER: It was made some time after?

PN45

MS BURNLEY: It was made some time after.

PN46

THE COMMISSIONER: After the hearing - after the order had come into effect?

PN47

MS BURNLEY: Yes.

PN48

THE COMMISSIONER: Right. So on this occasion, in order to avoid those obstacles to your interests, you were seeking the reference be considered by the President prior to the order?

PN49

MS BURNLEY: Yes, Commissioner.

PN50

THE COMMISSIONER: All right. Well, I can probably arrange for the application for the reference to be in the President's office today.

PN51

MS BURNLEY: That would be appreciated, Commissioner. Thank you.

PN52

THE COMMISSIONER: Very well. Yes, Mr Halls.

PN53

MR HALLS: If the Commission pleases, we have checked the rates and the additional rates that are contained in the draft order and for the most part they have been adjusted in accordance with the May 2001 safety net principles. However, we would request seven days just to double check on some rounding that has been done of those additional rates. There seems to be a slight discrepancy there.

PN54

THE COMMISSIONER: The difficulty I have with that is not great in this situation, but we are going to be going into this safety net adjustment sort of round in earnest in the next month or two I suspect. But the date of operation in most cases is likely to be the date of the hearing or the first full pay period commencing thereafter.

PN55

MR HALLS: Yes, Commissioner.

PN56

THE COMMISSIONER: And if employers are to receive timely advice, then taking seven days or in some cases people apply for longer to check orders and the like poses some problems because, strictly speaking, the date of operation of the order is meant to be the day that the award is varied.

PN57

MR HALLS: Yes, Commissioner.

PN58

THE COMMISSIONER: So in a way you are asking for a deferral of the operative date of the safety net adjustment for a week.

PN59

MR HALLS: Commissioner, I can appreciate your view there but in respect to this particular award, we would certainly have the view that the operative date for the increase should be 29 June 2001.

PN60

THE COMMISSIONER: Yes, I understand that. I said in this case it is a contentious matter but if the anniversary was, in fact, today you would be effectively asking for a later operative date.

PN61

MR HALLS: That is correct, Commissioner.

PN62

THE COMMISSIONER: Yes. Really what I am just drawing to your attention is if you can sort of check the rates and if there appear to be discrepancies, why not settle the issue there and then and produce an alternative order?

PN63

MR HALLS: Yes, Commissioner.

PN64

THE COMMISSIONER: Rather than going back and doing it again seven days later.

PN65

MR HALLS: Certainly, Commissioner, I can appreciate that. Unfortunately, with this particular order we just have not had the time to do that.

PN66

THE COMMISSIONER: All right. Well, as I say, in this case it is - well, there are some contentious about what the date should be and there is an issue of reference. So it is not quite as straightforward then. I just make that observation because there may be in one of those companies another application of this kind.

PN67

MR HALLS: Thank you, Commissioner. Commissioner, as far as the rates that we have checked, they have been adjusted in accordance with the May 2001 safety net principles and, subject to your requesting that seven days, we would consent to the union application. But we would also ask the Commissioner to consider item 152 of the statement of principles for the May 2001 safety net review in respect of the operative date. If the Commission pleases.

PN68

THE COMMISSIONER: Sorry, what do you say? I am not quite sure I am with you on that. What do you mean?

PN69

MR HALLS: Commissioner, referring to item 152 of the May 2001 safety net principles which explains the lapse of time required between increased days.

PN70

THE COMMISSIONER: That is paragraph 152 of the decision, as opposed to the statement of principles. That is at page 48 of the Commissioner's judgment.

PN71

MR HALLS: That is correct, Commissioner.

PN72

THE COMMISSIONER: Yes, I think that applies to multiple safety net adjustments being concertinaed into one award variation.

PN73

MR HALLS: Commissioner, I was also on the understanding that that would apply for standard safety reviews also and that - - -

PN74

THE COMMISSIONER: Yes. Well, the principles make it clear that there is to be an anniversary.

PN75

MR HALLS: That is correct.

PN76

THE COMMISSIONER: That is what you are referring to.

PN77

MR HALLS: That is right.

PN78

THE COMMISSIONER: Yes. Well, there is no doubt about that.

PN79

MR HALLS: Certainly. I was just drawing your attention to that.

PN80

THE COMMISSIONER: Right. I think what you are talking about there is that in paragraph 152 of the decision what is being stated there is that there will be a new provision for the concertinaing of more than one safety net adjustment - - -

PN81

MR HALLS: That is correct.

PN82

THE COMMISSIONER: - - - into an award variation on particular conditions which are set out. I think that is what that paragraph deals with.

PN83

MR HALLS: Right.

PN84

THE COMMISSIONER: I don't think it interferes with the long-standing principle that there should be an anniversary.

PN85

MR HALLS: Sure, Commissioner. I thought it was only worth raising just in respect that the union may make an application to have the operative date being today.

PN86

THE COMMISSIONER: Yes, yes. Well, they have sought a reference of that matter. They haven't sought that I make an order of that kind; not yet at least anyway. And I presume, therefore, that we are going to have something to say about what should be done if the reference is refused in due course.

PN87

MR HALLS: Thank you, Commissioner.

PN88

THE COMMISSIONER: Yes, well, it is simply a matter, is it not, Ms Burnley of referring the matter to the President for the time being?

PN89

MS BURNLEY: Yes, it is, Commissioner.

PN90

THE COMMISSIONER: Could I just make this observation, and it is by no means critical. The application for the reference could have been made prior to today, if the situation arises again.

PN91

MS BURNLEY: Yes, Commissioner. We had been hopeful that we would have agreement that today could have been the operative date but we weren't - - -

PN92

THE COMMISSIONER: I see, right. Yes. Well, I am just sort of making the observation for other situations if any of this kind arise in light of those circumstances that you alluded to last year, if there are issues of, you know, any erosion of the anniversary by delays then - and references are sought, then there is no need to wait for the day of hearing in order to make the application for the reference. It can be made in writing with or shortly after an application is filed.

PN93

Yes, well, I will refer the matter to the President for his consideration as to whether or not a Full Bench should be formed to hear the issue of the operative date of the matter as a special case. Thank you. And I will adjourn the proceedings in that matter and advise - well, the President's office will advise the parties what the result of that application actually is.

ADJOURNED INDEFINITELY [12.21pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 SERVICE NOTICE PN5
EXHIBIT #A2 DRAFT ORDER PN6
EXHIBIT #A3 LETTER TO COMMISSION DATED 05/06/00 PN15