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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 8071
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
COMMISSIONER RAFFAELLI
C No 75644 of 1998
SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION
and
$2 AND UNDER AND OTHERS
Notification pursuant to section 99 of the Act
of a dispute re log of claims - roping in award
MELBOURNE
10.56 AM, FRIDAY, 22 JUNE 2001
Continued from 9.3.01
PN515
MR J. RYAN: I appear on behalf of the Shop, Distributive and Allied Employees Association, together with MR J. HEWAT.
PN516
MR L. BLIGNAUT: I appear on behalf of VECCI, together with MR D. GREGORY. I also appear on behalf of the Nursery Industry Association of Victoria, the National Footwear Retailers Association, the Victorian Authorised Newsagents Association, the Jewellers Association of Australia Victoria-Tasmanian Branch.
PN517
MS V. PAUL: I appear on behalf of the Australian Retailers Association of Victoria, together with MS S. WHITE. So we represent members of the Australian Retailers Association of Victoria, as well as some members of the Australian Retailers Association in New South Wales. We will provide a list in electronic form to your associate.
PN518
MR P. McDERMOTT: I seek to leave on behalf of Willow Confectionary, a named respondent to the finding.
PN519
MR E. COLE: I appear on behalf of the Minister for Employment, Workplace Relations and Small Business, together with MS H. HAUSLER. We did give advice of our intended appearance to the Industrial Registrar, and I think we forwarded a copy of that advice also to you, Commissioner. The purpose of our appearance is a very specific one; to exercise the statutory right that the Minister has under section 107, to seek referral of a matter to a Full Bench. And at the appropriate time, with your leave, I will speak to that application. If the Commission pleases.
PN520
THE COMMISSIONER: Mr Cole, correct me, but leave does not have to be granted for you to appear in order for the 107 application to be triggered, does it?
PN521
MR COLE: No. That is our understanding of the Act, Commissioner.
PN522
THE COMMISSIONER: You could just write to the President if you wanted to, or the Registrar.
PN523
MR COLE: Yes, as well we could. But as a matter of courtesy, obviously, we seek your indulgence to hear us, but the Act does provide the Minister that right to make an application, and that is what we would be seeking to do at the appropriate time this morning.
PN524
THE COMMISSIONER: Yes, thank you.
PN525
MR A. O'BRIEN: I appear on behalf of the Liquor Stores Association of Victoria.
PN526
MS L. YILMAZ: I appear on behalf of the Automobile Chamber of Commerce.
PN527
MS A. MESSER: I appear on behalf of Louis Vuitton.
PN528
MR P. HARRIS: I seek leave to appear on behalf of those members of the Master Grocers Association of Victoria who are contained within schedule A to the award.
PN529
MS E. WATT: I appear on behalf of the Hardware Association of Victoria. I seek leave to appear on behalf of the members of the HAV who are involved in this matter, together with MR I. NICHOLSON.
PN530
MR T. KLEMIS: I appear on behalf of the Bread Manufacturers Industrial Association of Australia, and I seek leave to appear on behalf of the Baking Industry Association of Victoria.
PN531
MS F. FIELD: I appear on behalf of the Australian Industry Group on behalf of members served with the application before the Commission.
PN532
MS W. LAKE: I appear on behalf of the Restaurant and Catering Association of Victoria.
PN533
MS P. MURDOCK: I appear on behalf of the Victorian Farmers Federation, and I appear on behalf of our members, H.K and C. Wilson, Blue Dandenong Bulb Farm, D.S and D.M. Alexander Pty Limited, Ideal Grain, Duralite Horticultural Suppliers, Kieran Fitzgerald, and Des Beattie Farm Machinery Equipment and Sales.
PN534
THE COMMISSIONER: Thank you. Any other appearances? No, okay. Mr Ryan, what do you want to do?
PN535
MR RYAN: Well, if the Commission pleases, it is obvious that we are going to have applications being run almost immediately by the employers and the government in relation to section 107. I take the opportunity, first of all, of at least putting some basic material to the Commission in relation to, sort of, the technical aspects of this matter. I would like to tender a copy of the mail receipt for the mailing out of the notice of listing in relation to this matter.
PN536
THE COMMISSIONER: We might make this SDA/22/1, 22 being the date of today. They are the same copy, are they?
PN537
PN538
PN539
MR RYAN: Commissioner, as a result of the mailing out of 19,339 letters to the employers, as has been the case since this matter first started, with the service of the original letter of demand and log of claims in 1997, there is obviously a decline or a change-over in some businesses. As a result of that, the Association has had a number of letters returned. We have also had discussions with a number of employer organisations who have been contacted by their respective membership since the notice of today's hearing went out.
PN540
And in particular, because we did provide not only the formal notice of listing, but clearly advised the employers of the intentions of the Association in terms of the contents of the award that we would seek to have made, that necessarily generated at least some interest on this occasion from employers. As a result of that, by taking off return mail, mail that had been marked by the Australian Post Office as the employer having left address, or out of business, we have sought to reduce the number of employers against whom we seek to have the award made.
PN541
When we filed the application in the Commission for the making of the roping-in award there were 19,339 names on it. The list is now down to just over 17,000. I will tender a copy to the Commission of the updated proposed respondency list. Not knowing how many employer organisations were likely to be here today, I haven't obviously produced copies for everyone. I certainly have for the major employer organisations who are obviously going to be making the major submissions. But to the extent that any other party at the bar table requires a copy of the amended list, we can have copies made available certainly by lunchtime today. We would seek to have this one marked as an exhibit, Commissioner.
PN542
PN543
MR RYAN: Commissioner, that is all I would seek to tender at the moment. I can indicate that even as a result of conversations as late as this morning, we have identified some further businesses which we would be intending to take off SDA/22/3. In particular, in relation to the Bakery Industry Association of Victoria, Mr Klemis has approached me with a further list of, it looks like about another 20 names of persons that he represents, and I have already given him an undertaking that I will remove those from the proposed respondency list. But they haven't yet been incorporated into SDA/22/3.
PN544
I have also had a conversation with Ms Paul in relation to members of the Australian Retailers Association, where she has clearly identified that there are a number of employers which will need to be taken off the list. And I have given her an indication that we would make further adjustments to the proposed list. I have not got that list finalised, although I have spoken to her prior to the commencement of the proceedings. It does also mean that in relation to exhibit SDA/22/3 I will need to make further adjustments in relation to the Australian Retailers Association.
PN545
I have been advised by your associate that there is a representative in the Commission proceedings today for Advanced Stationers, who are objecting to being roped into the award on the basis that they are members of a Christian Fellowship known as the Brethren. On that basis the approach adopted by the Association is that we will not be pressing the award application in relation to Advanced Stationers of 283 High Street, Melton, and to the extent necessary we will amend exhibit SDA/22/3 to delete that employer from the list.
PN546
I noted that when you took the appearances there was no formal appearance on behalf of them, but to the extent that we are aware that they are here, we make it clear that we will remove their name from the list of proposed respondents to the award. I also, in response to the appearance by Mr McDermott in relation to Willow Confectionery; Mr McDermott drew to my attention that when this matter was first before the Commission as part of the dispute finding process back in 1998, the Association gave an undertaking to Willow Confectionery to withdraw them from the dispute process, that we would not seek to have a dispute finding made against Willow Confectionery Pty Limited.
PN547
It appears that simply because of the sheer complexity of the case and the length of time it took, not before the Commission at first instance, but when it went on a 107 reference to the Full Bench, that by the time the dispute finding order was settled by the Commission by Commissioner Whelan, that Willow Confectionery Pty Limited were actually kept on the dispute finding list. The Association has made very clear that we have formally withdrawn the letter of demand and log of claims against Willow Confectionery Pty Limited, and on that basis we have indicated to Mr McDermott that we will consent to the Commission making a formal variation to the dispute finding so as to remove Willow Confectionery Pty Limited from the dispute finding list which was settled by Commissioner Whelan in December last year.
PN548
To the extent that Mr McDermott has the proposed order that he seeks the Commission to make to vary the dispute finding by revoking the dispute finding against Willow Confectionery, we consent to that. And it may very well be that because this case may have a momentum of its own and will continue dealing with the majority of the issues, that if the Commission can deal with the revocation of the dispute finding as part of the matters currently before you, it may at least ensure that Mr McDermott's concerns are properly and adequately addressed, and we don't overlook this matter any further into the future.
PN549
MR McDERMOTT: I thank my learned friend.
PN550
MR RYAN: Commissioner, that, I think - - -
PN551
THE COMMISSIONER: Well, just on that. Mr McDermott, you have made an application to have the revocation of the - - -
PN552
MR McDERMOTT: Yes, that is before the Commission, sir. I have seen the documentation with your associate.
PN553
THE COMMISSIONER: Yes. Well, I might indicate that we will deal with that in chambers, and an order, a variation order to the dispute finding will be issued.
PN554
MR McDERMOTT: If the Commission pleases.
PN555
THE COMMISSIONER: Given it wasn't me that made the order, whether it can be done in chambers. But either way, Mr McDermott and Mr Ryan, in respect of Willow, I take it that you need not trouble yourself with any further proceedings of this kind. There may be a short telephone hearing in respect of the Willow matter if I can't deal with it in chambers. I will have to think about that. But you will be advised about that, okay?
PN556
MR McDERMOTT: Thank you, Commissioner.
PN557
MR RYAN: Now, Commissioner, that is as much as I can make in submissions in terms of just trying to tidy up the basic documentation and the paperwork before the Commission. Given that the Commonwealth Government and both VECCI and ARA have given us written advice that they intend immediately to move for a section 107 reference, I suspect that the proper course of action would be at least to allow those submissions to be put, to see whether or not the Commission is going to have carriage of this matter, or whether it will eventually be referred by the President to a Full Bench of the Commission. If the Commission pleases.
PN558
THE COMMISSIONER: Yes, thank you. Before we get to that, Mr Ryan, could I just ask you this. It might assist some individuals here. I notice in the list that you had earlier provided, which has now been exhibit 3 today, clarifies. There is some hairdressers in there. Remind me about the hairdressers. Do you remember them?
PN559
MR RYAN: Yes. Mr Hewat has also drawn that to my attention. That as we have been finalising this list there do appear to be some employers who are listed as hairdressers. We removed some 1800 hairdressers from the original dispute finding list, and they are the subject of a separate application which is currently before you, and which was adjourned awaiting the issuing of the simplified award by his Honour, the President. To the extent that they are - I have not actually cited the hairdressers that may be left in.
PN560
Given that this matter does not appear that it is going to be resolved today, I suspect that once I sit down with Mr Hewat and we go back through these and try and find which one of these names appear to be hairdressers, if they are hairdressers, and we will cross check that with the locations of the operations, if they are hairdressers then we would not proceed to have them roped into the Victorian Shops Award, and we would amend the application that we currently have before you for the roping in of hairdressers into the Hairdressers Award.
PN561
THE COMMISSIONER: Because they came out of the same dispute finding.
PN562
MR RYAN: Yes.
PN563
THE COMMISSIONER: But you want that crowd roped into the Hairdressing Award, whatever its real name is?
PN564
MR RYAN: Yes. All hairdressers should be roped into the proper industry award, which is the Hairdressing Award.
PN565
THE COMMISSIONER: And the President's award has been made.
PN566
MR RYAN: Yes, he has now issued a final order in relation to the - - -
PN567
THE COMMISSIONER: You will be writing to us?
PN568
MR RYAN: He has issued the final simplified order on the simplification of the - or the item 51 review of the Hairdressing Award. And on that basis the Association was going to write to you, but I was going to leave it until after today simply because of the work load for both the Commission and myself. But the Commission can expect that we will now activate that matter.
PN569
THE COMMISSIONER: Right.
PN570
MR RYAN: As a result of this discussion, sir, we would - or you may anticipate, and certainly the ARA, who represent the Hairdressing and Beauty Industry Association would anticipate that if there are hairdressers left on exhibit SDA/22/3, they would be removed from that list and be sought to be roped into the Hairdressing Industry Award.
PN571
THE COMMISSIONER: Yes, okay. Now, look, some other little matters. We have had a whole range of correspondence. I just thought I would deal with that before - well, I notice Ms Murdock here from the Victorian Farmers Federation. She has written to us and has sought certain people being excluded. Do you agree with that? Are you aware of this?
PN572
MR RYAN: We have excluded a number of employees represented by Victorian Farmers Federation. We have had correspondence from them, and on the basis that they have identified some farm machinery operations and some - the places that we were quite content would be not covered by the Victorian Shops Award we have deleted from the original list filed a number of employers. We received correspondence, and we have deleted, and these are not on exhibit SDA/22/3, the following companies.
PN573
H.K. and C. Wilson, Blue Dandenong Bulb Farm, D.S. and D.M. Alexander Pty Limited, and Duralite Horticultural Supplies. Now, I am not certain if that is the full list that Ms Murdock appeared for because I wasn't fast enough in writing the names down as she announced who she was appearing for.
PN574
THE COMMISSIONER: I notice that they had also sought, and I thought there was a letter from you in respect of Kieran Fitzgerald, Des Beattie Farm Machinery and Ideal Grain.
PN575
MR RYAN: Yes. Mr Hewat, who has prepared the list for me, also advises that Kieran Fitzgerald and Des Beattie Farm Machinery are not on SDA/22/3.
PN576
THE COMMISSIONER: And Ideal Grain?
PN577
MR RYAN: Yes. They are not on because they are the same company as Des Beattie Farm Machinery Pty Limited. Ideal Grain is off the list, Commissioner, thank you.
PN578
THE COMMISSIONER: Okay, thank you. Ms Murdock, what do you say about that?
[11.15am]
PN579
MS MURDOCK: Yes, that is correct. I have had discussions with Jim Hewat of the SDA, and he has agreed that our members are to be deleted from the list.
PN580
THE COMMISSIONER: So you don't have any further concerns about the application?
PN581
MS MURDOCK: Well, unless there is some member who doesn't realise that they have been served. And I have just made an agreement with Jim Hewat that we would discuss that further if that was the case, and a correction order might be given.
PN582
THE COMMISSIONER: Yes, thank you.
PN583
MR RYAN: Commissioner, if I can raise one other issue. Apart from Ms Paul formally today giving us a list of the parties that she seeks to represent at today's hearing, whilst we have had discussions with a number of employer organisations, the only other employer organisation which today has identified the named parties that appear has been Ms Murdock from the Farmers Federation. VECCI has sought to simply represent members without identifying any person on the list as being a member, or that there is any person on the list that they actually represent.
PN584
Now, because this is not a matter that involves VECCI or any employer organisation as an organisation, this is a letter of demand, a log of claims served on named employers, and we have sought to rope named employers into the award, I would have thought that courtesy would have required that there be proper lists of the employers that the respective employer organisations claim to represent in these proceedings. We have certainly got that from ARA, and we have certainly got it from the Victorian Farmers Federation. But I haven't yet seen any information today, certainly nothing has been offered to me this morning from any employer organisation saying who they purport to represent in these proceedings.
PN585
And until such time as there is a clear identification that there are persons on either the original list or exhibit SDA/22/3 which are members of an employer organisation, then the employer organisation can only be here if they are going to seek leave to intervene. If they are seeking to appear in the representative capacity as an employer organisation for a member they must, in our respectful submission, properly identify who they say they are appearing for as their members. And that has not been done.
PN586
I know in some other matters we may not necessarily take objection to the appearance of an employer organisation in roping in matters of dispute finding matters, but given the sheer size of this it is going to be necessary, in our view, for us to properly understand who these employer organisations claim to represent, especially if they are now moving to the stage of asking for matters to be referred to a Full Bench. We would certainly say we have the right to know who they say they appear for and who they say they represent, and what capacity they are representing those persons. If the Commission pleases.
PN587
THE COMMISSIONER: Mr Blignaut?
PN588
MR BLIGNAUT: As the Commission pleases. Commissioner, it is a bit of a quandary what comes first, the chicken or the egg. We originally asked the SDA to provide us with a list of respondents in the matter so that we could tie up the necessary authorities from our members. They provided us with a list of some 36,000 respondents per e-mail. That list has now been whittled down to 17,000. We have written to all our members who appeared on the original list, and we received back some 300 envelopes marked return to sender.
PN589
We have written to the SDA in respect of specific members who believed they should not be on that list. We haven't had the courtesy of a response to date, even though some of those letters have been written as far back as 21 May. We do represent basically all our members that have been involved in the finding of dispute, and we are in a position to give you a list of such members. We do, however, seek leave to confer with the union on which of those members are still included in the 17,000. But I can assure the Commission that we have proper authority from more than 400 employers to appear on their behalf today.
PN590
We also appear on behalf of a number of other employer associations who have not provided us with lists of the employees, or the list of employers they represent, and we would obviously need a bit of time to do that. So the first request I would really have is an opportunity to confer with the union in respect of the list of respondents, so that we can identify which employers we purport to represent or that we do represent, still needs representation in this matter. We do not know as of yet.
PN591
THE COMMISSIONER: You both seem to have lost me. I am not sure. You have got a list of the employers now, haven't you?
PN592
MR BLIGNAUT: Yes, I have a list.
PN593
THE COMMISSIONER: Right. So what else do you need?
PN594
MR BLIGNAUT: What I need to do is to see which of them is still on this list of 17,000.
PN595
THE COMMISSIONER: Yes.
PN596
MR BLIGNAUT: What I also need to do - - -
PN597
THE COMMISSIONER: Which employers in that amongst those 17,000 are members of yours and who object to being roped in; in short is that right?
PN598
MR BLIGNAUT: Yes, that is what I say there.
PN599
THE COMMISSIONER: Yes.
PN600
MR BLIGNAUT: So what I seek for is an opportunity to confer with the SDA to sort out the housekeeping related to the list of respondents.
PN601
THE COMMISSIONER: Yes, thank you, Mr Blignaut. What is wrong with that, Mr Ryan? I don't quite see your point.
PN602
MR RYAN: Well, Commissioner, first of all, in relation to VECCI, we certainly, as they indicate, we e-mailed them a copy of the original list, and that was so that they had it in the form that they could most easily search electronically. I mean, it is hard enough going through it in paper form, but at least with having it in Word format they were able to just use word searching to identify who they appear for. Even though we have reduced the list from the 19,000 that we sent out with the notice of listing down to just over 17,000, even with 2000 taken out, VECCI should have been able to produce at the commencement of the hearing today a list of the employers that they say they represent. It doesn't matter to us - - -
PN603
THE COMMISSIONER: Why do they need to do that?
PN604
MR RYAN: Well, do they represent anyone? We have got a broad assertion.
PN605
THE COMMISSIONER: Was VECCI parties to the dispute proceedings before Commissioner Whelan?
PN606
MR RYAN: They were certainly - well, they were party to the proceedings before the Full Bench in the making of the dispute finding.
PN607
THE COMMISSIONER: Right. Well, their representation continues, doesn't it, their status as a party to proceed continues. Presumably they represented somebody then, or leave was granted, but they are in, aren't they?
PN608
MR RYAN: Just because they were in at an earlier stage of the proceedings doesn't necessarily mean they have any continuing representation rights if they don't have people or employers who are specifically on the application. Remembering that the list that was made, the dispute finding list that was made by Commissioner Whelan was close to 26,000-odd, we have split that up already by having some 1800 hairdressers taken out, we have taken out some 2000 food or fast food shops which we intend to apply to be roped into the National Fast Food Retail Award.
PN609
We have taken out a couple of hundred hardware shops which we will seek to have roped into the National Retail Hardware Award. What is here today is only the residual list for roping into the Victorian Shops Award. Now, because this is only part of the matter that was originally before the Full Bench, and certainly before Commissioner Whelan, in my submission if an employer organisation is going to come to the proceedings, and they are coming to ostensibly represent the interests of employers who we seek to rope into the award, then they should be required to identify which employers they represent.
PN610
And it is not as if there hasn't been sufficient time since we lodged the application to the Commission for the making of a roping in award, and nor is it a case that there hasn't been sufficient time since we e-mailed to VECCI information. To the extent that VECCI say that they wanted to have discussions with us, we received a phone call from VECCI early this week asking if they could meet with us during this week. I indicated I had a day available. They said they would get back in touch with us, and never did.
PN611
And then we come here today, and not only is the representation for and on behalf of VECCI, but there are other employer organisations, not registered organisations, but other employer organisations which they appear for, and according to the submissions just made to you on behalf of VECCI, they have no indication as to whether or not those other organisations have named employers as members, because they haven't been provided with any list whatsoever.
PN612
Just because VANA, the newsagents body, says to VECCI, please go along and represent our interests, doesn't mean that they have the right to be here. At no stage was any application made by VECCI to seek leave to intervene on the basis that they may have interests or their members have interest. They have actually sought to be represented as, or sought to appear solely as a representative of named employers.
PN613
I have no objection with that, and obviously we don't challenge any part of the right of an employer organisation to appear on behalf of its members, but we do challenge the employer organisation to say, show us that you actually have members who are on the list. I suggest that VECCI takes a liberty with an expectation that because it is VECCI it will simply be granted a right to appear at the bar table without ever having to worry about producing lists of its members in terms of the lists, or a list of employers who are party to these proceedings, and for whom it has authority to represent.
PN614
The comment from VECCI that they sent out a letter to their members and got 300 returned mail, may indicate that they have got a lousy membership record and they don't keep their membership records up to date. But that has got nothing to do with the proceedings before the Commission. If anything, it fills me with dread that maybe they have a membership list which is so out of date that they don't even have proper authorities from employers to appear in these proceedings.
PN615
And I make those comments not only in relation to VECCI, but I make those comments in relation to each organisation that has not sought leave to intervene, but has sought to appear in a representative capacity for named employers without telling us or the Commission who those named employers are. And given that this is obviously a matter that has attracted sufficient interest on the employer organisations to have everyone front up today with applications for section 107 references, I would certainly like to know who I am actually dealing with and on whose behalf submissions are actually being made.
PN616
If they are the submissions of VECCI then they should be identified as being the submissions of VECCI as an intervener in the proceedings. If they are the submissions on behalf of employers named in the proceedings then they should be identified by having the employer identified. If the Commission pleases.
PN617
THE COMMISSIONER: Mr Blignaut, what is the difficulty? I mean, do you have any one employer that you know that you are representing here today?
PN618
MR BLIGNAUT: Yes, a number. I will start off by just referring Mr Ryan to a letter I wrote to him on 21 May. We address you at the instance of Windaring Adult Training and Support Services which conducts business at Windaring, A Maze N Herbs, 48 Mollison, Kyneton. You have served an application on it under the name of A Maze N Herbs. A number of those letters were sent to Mr Ryan, and I am somewhat at a loss to understand how he can allege that we do not represent anybody in these proceedings. These are one of the letters, as I have stated before, to which we haven't had - - -
PN619
THE COMMISSIONER: What is this company called?
PN620
MR BLIGNAUT: I think they are on this list of 17,000, under the name A Maze N Herbs.
PN621
THE COMMISSIONER: Yes. That is in Mollison Street, some place, Kyneton.
PN622
MR BLIGNAUT: The point I am really trying to make is - - -
PN623
THE COMMISSIONER: Mr Ryan, that is it, isn't it? He is representing at least one party.
PN624
MR RYAN: Yes.
PN625
THE COMMISSIONER: Well, given that he has done that, I mean, if you want to make something of his - thank you, Mr Blignaut.
PN626
MR BLIGNAUT: If I can just add that we are prepared within seven days, a week from now, to provide the Commission and Mr Ryan with a full list of all the employers we do represent, and there is a substantial number of them.
PN627
THE COMMISSIONER: Okay. Happy with that, Mr Ryan? And do I take it also that if they seek a meeting with you, or with representatives of the Association to discuss possible exclusions from the proposed award, you are happy to sit down with them?
PN628
MR RYAN: We are happy to sit down with them. In relation to Windaring Adult Training and Support Services, they are not on the list. I note that A Maze N Herbs is. To the extent it is necessary, we would simply delete them from the list. I will do that orally now, give an indication that in relation to SDA/22/3 we seek to amend that list by deleting on page 4, as outlined in about line 20, the name A Maze N Herbs of 58 Mollison Street, Kyneton. They are deleted from the list. We don't seek a roping in award to be made against them. It still raises the issue, does VECCI represent anyone now currently in the proceedings before the Commission for the making of a roping-in award?
PN629
THE COMMISSIONER: What are you saying, every time they put up a name you will delete them to keep them out?
PN630
MR RYAN: No. We will delete that one because - maybe that is what they would want. But in relation to that I actually thought we had deleted A Maze N Herbs. I have got a copy of the letter from 21 May, and we actually noted that we had deleted it, because the reason for deletion of that is that they indicated that all of the staff are currently covered by the Disability Services Award, and on that basis we acceded to their request to remove that company from the list.
PN631
It is not, Commissioner, about an individual company such as A Maze N Herbs. It is, if they seek only to rely upon one company, that may be fine, but then the Commission must also accept that the submissions can only be made on behalf of one company. For example, if we didn't delete A Maze N Herbs, then the Commission should accept that the only submissions, or the only support for a section 107 reference made by VECCI is made by A Maze N Herbs.
PN632
THE COMMISSIONER: I appreciate that. And that is why in seven days they will provide you with many, many more people to give weight to what VECCI says. You didn't raise any objections initially, but now you may have; what is your attitude to the appearance of a number of organisations, principally those on the second table, second bar table?
PN633
MR RYAN: We have no - subject to those employer organisations identifying who they say they appear for, I am not going to continue objections against their appearance. I note that in relation to the MJV, they are represented by counsel. We don't object to the appearance of counsel in that matter, and there is good reason why that organisation should be represented by counsel in the proceedings. In relation to VFF, they have clearly identified with great particularity who they appear for.
PN634
For RCAV, Restaurant and Catering Association of Victoria, we don't know who they say their members who are on the list. We have had discussions with AIG over a number of members that they have raised queries with, but again we don't know all of the, or if and all there are members of AIG who are remaining on the list that they represent. I have got a fair idea in relation to Ms Fields' organisation, as to who they do represent, but it certainly has not been finalised.
PN635
Mr Klemis I have already made very particular mention of, on the basis that we have agreed to take further of his members off the list. HAV we have had discussions with. I suspect we may have satisfied all the HAV concerns, but I am not certain because I haven't seen today a list of the people they say they represent. Louis Vuitton, I wasn't certain whether that was an appearance by counsel or not. But to the extent that they approached us immediately before the hearing, I understand the nature of their appearance and I am not objecting. If it is an appearance by counsel I don't object to it. If it is an appearance by an employee then obviously it is a proper appearance and I can't object to it.
PN636
In relation to VACC, Ms Yilmaz did give me a list of names prior to the commencement of the hearing late into this matter. I am not certain of its status. I have no objection to VACC. And Mr O'Brien from the Liquor Stores Association, I have had conversations with him in relation to his interests, and I also have no objection. But in relation to those organisations I would require that they produce to us a list of the employers who are on this list so that I know about whom I am dealing when I deal with the representative of the respective organisations. If the Commission pleases.
PN637
THE COMMISSIONER: Yes. Look, we might just - there is some other correspondence by persons seeking to be excluded because they no longer have employees. But I think in the circumstances I think it might be appropriate that that be raised with the applicant in some other means than weigh down today. I have been informed in writing by the Commonwealth, or the Minister, by the ARA, by VECCI, and I think that is the only notification in writing, that they will make an application under 107 to have the matter dealt with further by a Full Bench. In respect of those applications, who wants to go first?
[11.45am]
PN638
MR BLIGNAUT: I will go first, Commissioner.
PN639
THE COMMISSIONER: Yes, Mr Blignaut.
PN640
MR BLIGNAUT: Now, if the Commission pleases, I have got a written format of my submission.
PN641
PN642
MR BLIGNAUT: Commissioner, I will confine myself largely to the written submission. What we do say on behalf of our members, the grounds of this application is as follows. We say it involves approximately 20,000 employers in the retail industry. What we say is, this represents about 50 per cent of all retail employers in Victoria, and then I refer to annexure 1, which is an extract from the Australian Bureau of Statistics, which gives a breakdown of inter alia the retail trade, the number of employers involved in that trade in Victoria. It also gives a breakdown of other employers in Victoria and the percentage of employers they represent.
PN643
I also gives a breakdown of the size in terms of number of employees that work for those employers. So what we say is, that given that this application, well, now with 17,000 it is less than 50 per cent, but it is around about 50 per cent, that such a large number of employers, and complex economic and demographic factors significantly enhance the importance of the matter. Any negative impact on such a large number of employers will prejudice the economy of Victoria.
PN644
Now, instructions from VECCI members thus far who are affected by the roping in application indicate that operational costs of employers will increase significantly. The rostering flexibility will be sacrificed, especially in respect of Sundays. Employers are still coming to terms with increased operational costs incurred as a result of the introduction of GST, increased superannuation contributions for employees, increased WorkCover insurance premiums, and the impact of earlier interest rate rises, higher fuel prices, and a weaker Australian dollar.
PN645
We also say that trading - and these are our instructions - that trading circumstances in the retail industry have changed significantly over recent years. A major portion of business have moved to weekends. Many businesses have indicated to us that they trade during the week because of profitable trading circumstances during weekends, and the proposed roping in award will have an impact on such profitability.
PN646
Many employers have indicated to us that they will put new investment programs on hold. Many have indicated to us that they will close their businesses because it makes more sense to work for someone else. Many businesses, especially in the country areas, rely on tourism. The sole trading circumstances of those businesses in many cases are during weekends and at the back end of days when buses stop and people stay at accommodation establishments in these country towns.
PN647
Many businesses have indicated that they will close on Sundays. There is the added complication that some of the employers have lease agreements in shopping centres, which makes it obligatory for them to be open on Sundays. The majority of employers, and this includes about 60 per cent of those employers from whom we have taken instructions, have indicated that they will have to reduce their work force as a result of increased operational costs and reduced cash flow.
PN648
If one transposes this to all 17,000 employers mentioned in the list of respondents, the effect on employment will be massive. Employers will pass the increase in operational costs on to their customers, leading to higher inflation and reduced amount. A large majority of employers, about 69 per cent, have indicated that they will not be in a position to absorb costs. Bear in mind, Commissioner, that when we are talking about these employers, that about 26,000 employers in the retail industry employs five people or less.
PN649
Many employers have indicated that they have never traded under any award, and that their businesses function solely and have been established in Victoria when there has been no award in place. Most employers have never been approached by the SDA to negotiate terms and conditions of employment that applies to the employees. As a matter of fact, from the instructions we have taken, and this includes more than 400 employers, about five have indicated that they have received, other than the letter of demand and log of claims, an approach by the SDA.
PN650
Ongoing and regular surveys conducted by VECCIs economic department indicate that both the retail industry and the economy at large, their trading conditions remain weak, and that consumer demand is well below what it was 12 months ago. And then according to the Victorian Year Book 2001, published by the Australian Bureau of Statistics, an extract. The retail industry was the second largest employer by industry in Victoria in August 2000. It employed 316, 400,000 people. Only the manufacturing industry employed more people.
PN651
In the period August '95 to August 2000 employment in the retail industry increased by 6.1 per cent. It lists then the total over all industries, which was 10.3 per cent. And then finally, the possible introduction of the proposed award will focus on the interaction of the stated objectives and purposes of the Act, and the Commission will have to decide which of those objects will be given priority and how they will be weighted. And in this respect I refer to safety net, an appropriate safety net that has to be established, vis a vis, matters such as attaining high levels of employment, inflation and productivity.
PN652
THE COMMISSIONER: Yes, thank you. Ms Paul?
PN653
MS PAUL: Sir, there is a preliminary point we just want to have on the record, that we will be discussing with the SDA, and I concur with what they have said about the appropriate parties that will be included in our list. Further, sir, that the list that we have provided to the Commission to date, we reserve our rights to claim. Businesses are named under different titles. They may only give us one name. We reserve our right to raise that later.
PN654
THE COMMISSIONER: Yes.
PN655
MS PAUL: Sir, essentially, the grounds on which we rely upon a 107 application, firstly, public interest, or mainly public interest. The reasons why we believe that there is a public interest argument is, the SDAs application is to rope approximately 19,000 businesses into an award which currently has about 1300 respondents. This award reflects to some extent terms and conditions that only apply to 1300 businesses, and those businesses now may not apply those terms, but those businesses have the capabilities of applying those because of the size of those businesses.
PN656
With the advent of 19,000 businesses coming into being part of this application, we have a range of businesses from small micro businesses who don't have the infrastructure and capability to deal with some of the inflexibilities that exist the Victorian Retail Shops Award. We also have the position that some of these businesses have only ever operated under the schedule 1A processes. So essentially we are talking about different styles of businesses than those that exist under the Victorian Shops Award, and that is in general terms.
PN657
Because of that we believe that this is a matter that the Full Bench needs to deal with in the public interest, to look at how it regulates what is effectively going to be an industry, and what terms and conditions should regulate that industry. But we highlight the problems with respect to why we feel these 19,000 businesses should not come under the Victorian Shops Award as it currently stands.
PN658
Firstly, we believe it will be a detrimental impact on Victorian retail businesses, namely, we view that there will be potentially greater casualisations on Sundays, which is undesirable in the interests of employees in the retail industry. We will invariably find the reduction of permanent hours in retail industry, create uncertainty for employers who currently trade on Sundays, affecting the ability of those businesses therefore to trade, discourage businesses from contemplating trading on Sundays, affect general shopping on Sundays if these businesses do not trade, and essentially will disadvantage small businesses against the advantages that larger businesses have.
PN659
And why is Sunday such a great issue? Because in this particular award, sir, employers are not able to require or roster someone to work on a Sunday. So they cannot roster their full-timers or part-timers to work on a Sunday. They have to rely on casuals or rely on employees volunteering to work on a Sunday. That in itself we say is a matter serious enough to go to the Full Bench to determine the issues about what is appropriate for the retail industry, and again, because of the size of retailers that we are talking about.
PN660
Now, if we look at the actual award there probably will be one or two small retailers, maybe 20 small retailers. But at the end of the day that doesn't reflect the fact that we now have 19,000, and we don't know why or how those small retailers have ended up in the federal Shops Award as it currently stands. We also believe, sir, that with respect to a decision by this Commission, print S3125, and it is by Commissioner Hingley, sir, in which there was a discussion about - I am sorry, I don't have copies for my friend at the bar table.
PN661
Essentially, sir, this decision dealt with the simplification of the Victorian Federal Shops Award. And the rationale and history behind the Victorian Federal Shops Award was that it originated with four state awards under the old state system, moved into three retail awards, and was simplified last year in March. In the simplification process and the consolidation process two of the federal awards, the Food and Liquor Award and the Booksellers Award, had a concept called class A exempt.
PN662
That class A exempt concept meant that small retailers were able to obtain advantages as far as rostering staff to work on Sunday, rostering staff to work on public holidays, and certain extensions of the night tradings. When these employers came into the consolidation process the Commission effectively said that the award in its form with the respondents in that award should only get the benefits that they existed at the time at which they were respondents. So those that were under the Food and Liquor and Booksellers retained those benefits.
PN663
Those under federal Shops, because they never had a class A exempt allegedly, shouldn't retain it, and therefore class A as a concept was deleted from the award. But because this application will bring in people that should be technically under, would have been under the Food and Liquor, had that existed, or would have been under the Booksellers, these employers will now only be able to raise the class A exempt benefits that they should get by merit argument.
PN664
Yet the very nature of deleting it from the award means that they have got to rely on historical merit argument, which makes it a lot harder for them. There is also some question in the very nature of the decision to raise that. This is an issue in which we have no guidelines as to what will amount to merit, and what the Commissioner felt should be dealt with. And, in fact, the Commissioner himself felt in that instance that he was not the appropriate person to deal with it.
PN665
And on that basis we believe that this issue is important, because out of that 19,000 that the union seeks to rope in, will include businesses that should maintain the class A exempt, or should be able to retain class A exempt status, and would have except for the consolidation process. The only other way is to bring individual arguments. We have got no indication of what those merit arguments would be. The appropriate course of action, we believe, is that for this matter to go to the Full Bench, and thereby determine, firstly, the issue of what is merit and what is not, and then look at the process within which these businesses can obtain these sort of advantages.
PN666
Or else we will be looking at the Commission being clogged with a fair few employers trying to raise this argument, to get the benefit that they really should have. That is the second element under the class A exempt status. The technical issues we believe that the Full Bench should deal with. We also believe, sir, that essentially there will be a negative economic impact with respect to the number of retailers who currently apply minimum conditions being forced to go into a federal award.
PN667
And that issue needs to be dealt with by the Full Bench to determine whether the negative impact, as we are talking of a large number of retailers, will make a difference to whether or not there should be an award, or the type of award that should be made, or if an award needs to be made. These are issues, sir, we believe that should lead to a conclusion by yourself today that the matter should be referred to a Full Bench. We are happy, sir, to provide you with written submissions to this effect within seven days, if you so wish.
PN668
THE COMMISSIONER: Yes. That is not necessary, Ms Paul, unless you want to send them. But since you are there, I will ask - you are the one that gets to answer the question. The making of the Shop Award, where you said there is currently 1300 respondents.
PN669
MS PAUL: Approximately, sir, yes.
PN670
THE COMMISSIONER: Approximately. That came out of a Full Bench proceedings?
PN671
MS PAUL: The consolidation of the award, sir, you mean? The consolidation of the award was in front of a single member.
PN672
THE COMMISSIONER: The Full Bench dealt with a dispute finding, did it?
PN673
MS PAUL: Not with respect to this award, the Victorian Retails Shops Award. Certain aspects of that were dealt with by the Full Bench, and that was by the simplification process. And essentially the simplification process was not the vehicle within which to bring these arguments, and obviously that was not the intent of simplification. So some of the arguments which we will intend to raise with respect to this, which we did raise and lose in the simplification argument, was because of what we believe as a result of not being the appropriate vehicle. But the Full Bench didn't ultimately deal with the full consolidation, and certainly - - -
PN674
THE COMMISSIONER: Well, I guess I should have asked you more directly. The issue of economic impact, adverse economic impact both in terms of dollars and also flexibility, etcetera, that you say is at the fore for these 17,000 employers, and you say because of that the Full Bench should get a handle on it or deal with it, I am asking you whether, in fact, has not the Full Bench already dealt with that kind of economic adverse impact, you know, in relation to 1300, some of whom, or most of whom will also be small operators as well? In other words, the President would want to know, are we re-inventing the wheel? You mean the Full Bench may very have dealt with these sort of arguments?
PN675
MS PAUL: No. From my understanding, sir, the specific issue which we intend to raise has not been dealt with by the Full Bench. There were similar issues with respect to discussions of penalty rates, etcetera, that were part of the simplification, but we have withdrawn that. So the Full Bench has not addressed itself to the entire ambit of the economic arguments that we would be putting with respect to this, because it is not on just the narrow aspect.
PN676
Part of the economic argument was the fact that we now have a large number of about 19,000 as opposed to 1000, so the economic impact on the - there is two levels of economic impact; one being on the actual business, two being on the actual industry. And some part of that economic impact with respect to the actual business was raised with respect to penalty issues as part of the simplification process that went in front of a Full Bench. Certainly not all the arguments we intend to raise were dealt with in there, again, because that was not the appropriate forum.
PN677
But the second level, which is the economic impact on the industry, was not dealt with because that is not able to be dealt with, and we are talking about 1000 retailers out of potentially 35. We now have 19,000. We actually have the strength to be able to say we can look at the process of a real sense, what is the economic impact on the industry, and thereby on general trading, and the public interest about consumers, etcetera, that we would be able to raise. And that is what we would like the Full Bench to address themselves to, on that total issue.
PN678
THE COMMISSIONER: Yes, thank you. Mr Cole?
PN679
MR COLE: If the Commission pleases. The Commission will be aware that the Commonwealth has a long standing interest in the Association's proposal to move very large numbers of small and medium sized businesses in the retail sector in Victoria to a federal award. The Commonwealth applied for a Full Bench reference when the finding of a dispute was first listed before the Commission in February 1999. And, of course that matter went to a Full Bench at that time.
PN680
The application before the Commission today seeks to rope in, as the Association has clarified, some 17,000 or so businesses to the Victorian Shops Award. In the Commonwealth's view the dispute is of such importance in the public interest that the conciliation and arbitration of the dispute should be dealt with by a Full Bench. Accordingly the Minister that is represented here today to apply, pursuant to section 107, to have the matter before the Commission today, and the underlying dispute on which the Association's application for a roping in award is based, dealt with by a Full Bench.
PN681
So I do emphasise, Commissioner, the two aspects. We are seeking a reference of the application for the making of a roping in award, and we are seeking a reference of the underlying dispute on which that application is predicated insofar as that dispute relates to the parties against which the Association intends to press its application for a roping in award. Now, just pausing there.
PN682
That matter is obviously a bit flawed at this stage, and we don't direct ourselves to the detail, but conceptually what we are saying should be referred is both the application for the making of an award, and the underlying dispute, but insofar as it is clarified as to the parties against whom the Association is pressing the application for the roping in award.
PN683
Now, there are several grounds in support of the Minister's application. Firstly, the 17,000 or so businesses covered by the dispute constitute a significant part of the retail industry in Victoria, which in turn is a key sector of the Victorian economy. The large number of businesses affected and their importance to the Victorian economy supports the further handling of the dispute by a Full Bench.
PN684
As has already been mentioned, these businesses represent a bit under 50 per cent of the total number of retail businesses in Victoria. The previous figure of 19,000, Commissioner, was just about 50 per cent. We have not done the arithmetic, but the 17,000, which is the figure now referred to, will be a bit under 50 per cent. It is a very sizeable proportion of the retail industry.
PN685
THE COMMISSIONER: Sorry to interrupt you. I don't want to go back to Mr Blignaut, but in relation to that annexure 1 that you are probably relying on, which was a number of employers, I am not sure that that is the number of employers in this sector. These are business locations, and, for example, business locations with 1000 or more, there is two, I would have thought that - leaving aside Coles Myer and the Woolworths Safeway group - there would have to be some other retailers somewhere, some grocery chains, or whatever, with more than 1000. So think that is probably locations.
PN686
Either way, I don't think we need to be rocket scientists to know that 17,000 is a large number. I just want to be clear that when you say it is near half, you are relying on that annexure 1, are you, or you have got independent - - -
PN687
MR COLE: We are relying on ABS data.
PN688
THE COMMISSIONER: I see.
PN689
MR COLE: I might take the opportunity in due course, Commissioner, just to - without interrupting and delaying proceedings now - to confirm to you and to Mr Ryan that it is the same data source and the same data. But whatever the size of the percentage, and we note what you say about appendix 1 to Mr Blignaut's exhibit relating to locations, but the fact remains, and I am sure cannot be refuted by the Association, that they have cast the net extremely widely.
PN690
If they have missed retail businesses, it appears to us that is likely to have been more by accident than design in terms of the obviously comprehensive attempt that is being made to bring the retail sector under an award arrangement. So the first ground relates to the size and significance of the - the size of the sector industry affected, its significance to the Victorian economy.
[12.06pm]
PN691
Now, the second main ground relates to a number of important questions, additional questions affecting the public interest. And we firstly say that the proposed wholesale transfer of a very large number of retail businesses, mainly small retail businesses, from the established Part XV arrangement under the Workplace Relations Act, which we say is a more streamlined environment for managing workplace relations, the proposed wholesale transfer of these small businesses to a more formal, more regulated and less flexible award based arrangement raises crucial issues as to the nature and extent of the likely resulting impact of such a move on this important sector of the Victorian economy, including on levels of employment in Victoria.
PN692
It is not known how many people are employed by the 17,000 or so business affected by the application. But our estimate, when we understood the figure was 19,000, and this is how we proceeded. We understood that the vast majority of small retail businesses, that is, those with less than 20 employees, would be covered under Part XV arrangements rather than the federal award. And Victorian small business retail employers employing less than 20 employees, currently employ, on the ABS data, 97,800 employees, which equates to 39 per cent of total retail employment in Victoria.
PN693
The existing Part XV arrangements seems on its face to be appropriately matched to the circumstances of small businesses, having regard to such factors as the close relationships that they have with their employees simply as a result of their small size, their need for flexibility and the scope that clearly exists to implement mutually advantageous flexibilities in their working arrangements, having regard additionally to the typical commitment of owner managers to working themselves in the business, to the low incidence of membership of employer associations, a general lack of human resource personnel and access to that type of expertise, and their general lack of what counsel appearing in the Full Bench proceedings described as industrial savvy.
PN694
The proposed move to an award based arrangement therefore for these businesses, or many of them, not only has implications for their labour cost structures, but just as importantly for their workplace relations culture, that is, the way people in these businesses work closely together, relate to one another and cooperate in flexible ways to support the ongoing viability of the business on which they all depend. In this regard it is highly relevant that a significant proportion of existing businesses in this part of the retail sector in Victoria have always operated under Part XV of the Workplace Relations Act, or under the previous equivalent under earlier Victorian Government legislation.
PN695
Now, the third main ground, and this is another key issue, is that the hearing and determination of the application will of necessity, given the mix of contextual circumstances that exist, involve the Commission in considering and establishing principles which should apply in deciding what award, if any, should be made in the specific context in which the present application is made.
PN696
Now, the Commonwealth is not aware of any principles that have been established, or Full Bench guidance provided in a comparable context. That is, where an award is sought to be made covering a major part of an industry sector in Victoria that has been operating under Part XV arrangements for several years, and where the vast majority of the businesses affected are small businesses.
PN697
The Commonwealth's view is that consideration of such principles is a matter that should, in the public interest, be undertaken by a Full Bench. Now, fourthly, in the Commonwealth's submission, considering and establishing such principles will be especially important in the public interest in a case like this where unrepresented small businesses it appears will constitute the vast majority of the businesses affected by the dispute.
PN698
And interpolating there; the full extent to which that factual position will apply, of course, will be able to be established by the Commission as a result of Mr Ryan's request to the employers this morning to provide lists of the actual businesses that they are appearing in these proceedings to represent. And whilst we don't know what the final outcome of that will be, I think I can safely assert, without fear of contradiction, that it will emerge that - and we put it as strongly as this - that the vast majority of these 17,000 businesses will be businesses that are unrepresented before the Commission.
PN699
And we lay considerable emphasis on that as a key aspect of the context in which this application is being raised and pursued. Now, what we say is, that given the preponderance of unrepresented businesses, it is simply no answer for the parties or, with respect, the Commission to draw inferences from their failure to appear or be represented. I have already referred to their lack of workplace relations savvy, as it was put in the previous proceedings. But another key point is, that from their perspective they are lawfully operating their businesses and have been doing so for many years under Part XV arrangements.
PN700
As a consequence they have little or no experience with the paper warfare associated with the handling of award based matters, and with the processes and formalities of Commission procedures and proceedings. Put simply, Part XV arrangements provide a stable workplace relations environment in which third party involvement is minimised, and likewise the formalities and processes that third party involvement brings.
PN701
Now, there are, in fact, we estimate, a large number of Victorian small retailers who began operating in the post 1993 period, that being when the Victorian equivalent of what is now the schedule 1A or Part XV arrangement commenced to apply under Victorian legislation. There are many businesses that have never operated under any different arrangement. We estimate that could be up to approximately 14,000 small retail businesses, and we have calculated that figure using as an estimated exit rate, because in developing such an estimate one has to have regard to the advent of new businesses, but also the exit of businesses from the industry for whatever purposes.
PN702
And using an estimated exist rate of 10 per cent per year, which is near enough to the annual exit rate for the Australian retail sector overall, then one arrives at an estimate that there could be up to approximately 14,000 small retail businesses falling into the category that have never operated in Victoria except under the Part XV or its predecessor arrangement commencing in 1993 under Victorian Government legislation.
PN703
Now, it is also relevant that there appears to be little or no indication that the Association has made any serious attempt to secure the improvements it seeks for employees in these businesses through agreement making. And that is not withstanding the primacy which the Act, of course, gives to agreement making. And it does appear to us that apart from the formal demands that may have been made through the post, that that seems to be about the extent of any contact the union has sought to initiate with these businesses.
PN704
And contrary to any assertion that the union might make in response that these unrepresented employers may have no concerns about making an award, we submit it is highly likely they are simply reciprocating the union's lack of any real demonstrated interest in the circumstances of their individual businesses, as against the union's preference to simply impose a one size fits all outcome through a roping in award under general retail sector.
PN705
Now, against this background, again laying heavy emphasis on the preponderance of unrepresented employers, the Commonwealth submits that there is a heavy responsibility falling on the Commission to ensure that the circumstances of these businesses are properly taken into account. In the Commonwealth's view the need in the public interest for the Commission to be properly informed about the circumstances of these businesses is so important that the Commonwealth is proceeding with a detailed survey of businesses affected by this dispute.
PN706
This survey is intended to provide the Commission with information that, in the Commonwealth's view, is necessary to allow for a proper consideration of the likely impacts of moving away from the present workplace relations arrangements applying to this part of the Victorian retail sector. The information gained from this survey will be vital, in the Commonwealth's view, in providing the necessary basis for the Commission to responsibly consider a wide range of issues that fall for consideration.
PN707
Now, among the vital questions that the survey results will assist the parties and the Commission to address, I would simply evidence or allude to the following. Firstly, what are the likely impacts of making any significant change in the existing workplace relations arrangements for this important part of the Victorian retail sector, in particular on employers and employees, small business proprietors and their families working in the business, and the broader community in terms of levels of employment, and as to any implications for shop opening hours, levels of service and amenity?
PN708
Secondly, are the nature, extent and implications of these impacts compatible or not with the making of an award? Thirdly, if an award is made, to what extent, if at all, having regard to the objects and other provisions of the Act, and the public interest considerations already referred to, should the terms of any such award depart from generally prevailing existing conditions of employment in this part of the industry in Victoria?
PN709
Fourthly, if an award were to be made, what phasing in arrangements should appropriately be considered? And fifthly, what approach is appropriate in dealing with the question of incapacity to pay? And we note in that regard that the Commission's current incapacity to pay principle was not established in a context where the Commission had the opportunity at first hand, to which exists here, to give detailed considerations to the practicality of the procedure insofar as its accessibility to small businesses is concerned.
PN710
But that opportunity will certainly exist in this case, and we say that is a very important issue in the public interest that a Full Bench should consider. So in summary, in dealing further with the present dispute, the Commission, in our respectful submission, will need to address issues such as we have outlined, and as a result of the information produced by the Commonwealth survey, will have the necessary information available to it to establish and apply appropriate principles and the appropriate approach that in the public interest should be applied in dealing with applications of this type.
PN711
In other words, applications that seek wholesale changes and existing workplace relations arrangements for a major sector of an industry such as Victorian retail sector that has been operating for many years under Part XV arrangements, and particularly in the context as applies here, where the vast majority of the businesses affected undoubtedly are and will, it would appear, unrepresented before the Commission.
PN712
Now, we again emphasise that we are not aware that Full Bench guidance is available on the appropriate handling of a dispute that raises such fundamental and important issues of principle in the context of a significant part of an industry operating under Part XV of the Act. It is appropriate therefore in the public interest that the Full Bench dealing with a dispute on reference consider such guidance, otherwise, as we see it, there is a real risk that the processes for ultimately resolving the dispute may prove to be unnecessarily drawn out and protracted.
PN713
Now, the Commonwealth's intention is to place submissions and material before a Full Bench addressing the establishment of such principles and the other significant public interest issues to which we have referred. And we propose to do that in the context of expediting our survey. To that end - and I will hand up in a moment a document which is an indicative outline of the survey - that end we are prepared to take on board for consideration any suggestions that other parties and, of course, the Commission may wish to make concerning relevant data items.
PN714
In addition, in the interests of expedition, we are prepared to consider adjusting the range of data to be collected, taking into account any data that other parties may already have available or may themselves be proposing to obtain for the Commission's benefit. We have no desire to duplicate the efforts of either parties in this regard, but we are committed to ensuring that the Commission has the information that we consider is required for it to be able to responsibly consider and resolve the dispute.
PN715
And we strongly commend that a Full Bench should undertake the further hearing and determination of the dispute for the reasons we have provided, and through you, Commissioner, we respectively urge the President to decide accordingly. If I could hand up a document which is entitled Commonwealth Survey of Victorian Retailers, an Indicative Outline.
EXHIBIT #DWRSB/22/1 COMMONWEALTH SURVEY OF VICTORIAN RETAILS, AN INDICATIVE OUTLINE
PN716
MR COLE: If I could briefly direct your attention, Commissioner, to this exhibit. I do emphasise this is an indicative outline. We intend to press ahead with this survey as quickly as possible, and there will be opportunities for interested parties to contribute any suggestions for comments in relation to the survey which is ultimately undertaken. And that is something that nevertheless will need to be done in the very near future.
PN717
Under the heading Research Objectives, you will see that they are essentially twofold, as stated here. Firstly, to identify all the major issues associated with moving to award coverage for businesses in the retail sector, and then to obtain the information to be able to reliably estimate the impact of moving to a federal award by quantifying the effects on such factors as labour costs, employment, business opening hours, hours worked by owner proprietors and on current working arrangements in these businesses.
PN718
I draw your attention to what is said under existing data sources. That whilst the ABS data provide useful background, they do not allow identification of Victorian businesses coming under Part XV. You can't specifically isolate that population in the ABS data. Nor do ABS data identify working patterns in sufficient detail in any event to enable an accurate assessment to be made of the impact of moving to the federal award.
PN719
If I could add to that; to be able to accurately assess that impact one needs information on the distribution of hours worked by employees across the entire working week, and specifically as to time of day and day of the week. And information at that level of detail is not available from the ABS. So the rest of the exhibit sets out at this stage in simply an indicative way how it is proposed to proceed with this survey. The Commonwealth will be proceeding with this as quickly as possible, and there will, as I said, be opportunities for other parties to raise any matters for the Commonwealth's consideration before the design of the survey is finalised.
PN720
If the Commission pleases, subject to the matter that I have undertaken to have a look at about the data source for our estimate, and whether it is the same as Mr Blignaut's appendix, those are the Commonwealth's submissions in support of the reference we seek to a Full Bench. If the Commission pleases.
PN721
THE COMMISSIONER: Yes. I mean, I don't think you need to trouble yourself too much on that last aspect. The more I think about it, if there is 38,000 business locations, well, that is at least 38,000 - sorry, that is at the most 38,000 employers, isn't it? They wouldn't have many locations shared by several employers, so if there is 17,000 actual employers, and presumably a lot of employers operate in several locations, it is well and truly over half.
PN722
MR COLE: Yes.
PN723
THE COMMISSIONER: So unless it is ready at hand I don't want anyone to spend time investigating what is obviously - - -
PN724
MR COLE: Thank you, Commissioner. Mr Blignaut handed up some notes. Ms Paul offered to provide submissions in writing. May I, Commissioner, inquire if the transcript is intended to be available to the Commission, there is probably no need for me to do anything further.
PN725
THE COMMISSIONER: That is right, yes. That is why I said to Ms Paul I don't think there is any necessity. I won't be speaking to the President or dealing with the President without the transcript. So he will be looking at the transcript and any exhibits that have been put forward, yes.
PN726
MR COLE: Yes. Thank you, Commissioner. That being the case I won't compound the paper warfare to which I alluded. If the Commission pleases.
PN727
THE COMMISSIONER: Thank you. Before we hear from Mr Ryan, is there any other employer representatives that wish to make a comment either in support or otherwise of the 107 applications? Mr Harris?
PN728
MR HARRIS: Commissioner, I simply don't want to repeat what has been said, but join in those submissions that have been made on behalf of the Master Grocers Association.
PN729
MS FIELD: Commissioner, I endorse the comments already made by both VECCI and the ARAV and the Government from the Australian Industry Group.
PN730
MS LAKE: Commissioner, I also, from the Restaurant and Catering Association, we endorse all the comments that have been made so far.
PN731
MR KLEMIS: Commissioner, in respect to the Baking Industry we do not have a position on this in as much as we weren't aware that this application was taking place today. But with your indulgence, sir, I would just like to place on the record, since the Commission last met on this matter, and just to get the correct statistics, Mr Ryan made reference to 22 persons being excluded this morning. The figure should be 25 of our members, and agreement was reached in respect to another 56 members on 13 November. That is in addition to what was placed before this Commission when the Commission last met. If the Commission pleases.
PN732
THE COMMISSIONER: Yes, thank you, Mr Klemis. Any other comments?
PN733
MS MURDOCK: If the Commission pleases, the Victorian Farmers Federation endorse what the retail associations have said, and also VECCI.
PN734
THE COMMISSIONER: Yes. But you are probably out of this anyway.
PN735
MS MURDOCK: Yes, I am probably out of this anyway, yes.
PN736
THE COMMISSIONER: Yes. Any other comments? No. Okay. Well, I take it that they will run with the flow. Now, Mr Ryan?
[12.33pm]
PN737
MR RYAN: If the Commission pleases, the Association strenuously opposes the section 107 reference. In our submission there is nothing so unique about this matter that would warrant a matter being referred either as the application for the roping in award or for the whole of the dispute finding to be referred to a Full Bench.
PN738
The only difference between this application and most other applications that the Commission has dealt with for the making of a first award or a roping in award is the size of the application, which tends to suggest that if we didn't run this as a single application, but had started the process off in 1997 with 19 or 17 separate applications of 1000 each, we probably would have got the whole lot done by now without anyone batting an eyelid.
PN739
It is just that simply because it started off with 35,000, it is now down to 17,000, it has generated a level of political interest which we say is probably motivated much more by the political position of the Commonwealth Government rather than any clear concern in relation to the particular employees involved in this matter.
PN740
MR COLE: Well, if the Commission pleases, that sort of submission is not necessary, it doesn't assist the Commission, and we refute those assertions. We are concerned here with issues as serious as the economic impact of an application on a significant industry sector. I would ask Mr Ryan to choose his submissions in terms that will assist the Commission, and simply not cast unnecessary and inappropriate criticisms on other parties.
PN741
THE COMMISSIONER: Yes, Mr Ryan, I think you - - -
PN742
MR RYAN: I note what Mr Cole says. I never criticised Mr Cole, but I certainly will criticise the Minister as much as I possibly can.
PN743
THE COMMISSIONER: Well, the Minister is not the only one here, is he? There seems to be pretty broad support for this from the employer associations.
PN744
MR RYAN: And in relation to the matters that have been put there is nothing, in our submission, which would justify this matter going to a Full Bench. The submissions from VECCI are cursory to say the least. There is no identification of particular employers who are raising particular issues. It is very much a case of trying to take a broad brush global approach by painting a picture without necessarily identifying any detail.
PN745
There is not any indication in VECCIs submission that there are any particular employers who have particular concerns with economic issues. It is all put in the broad, and the assertions and the generality of the submissions of VECCI we say don't raise issues of any particular importance. In essence the issues raised by VECCI and generally by ARA, and in part by the Commonwealth, are issues which the Commission deals with on a day by day basis when faced with the making of a first award or a roping in award against any employer, whether it be a large employer or a small employer.
PN746
The process of the national wage case principles makes it clear that there are clearly established principles for the making of first awards, they are principles which are of long standing duration. They have been altered on various occasions, but there is a fundamental underlying element of the principles of the Commission relating to the making of a first award and for the making of interim awards and the making of roping in awards.
PN747
This is not a unique case, nor is it one that would warrant the matter being dealt with by a Full Bench. There are clearly, despite the emphasis placed by Mr Cole on the fact that, as he identified, he is not aware of any Full Bench authority on moving a large number of small businesses in an industry into an award with the effect that it is an effective industry exercise. I would accept that there is no Full Bench authority that deals with this particular issue of a 19,000 or 17,000 employers in an industry going into an award. But that is the only area I agree with Mr Cole on.
PN748
There, however, is very clear authority from Full Benches as to the process to be adopted in relation to making roping in awards and the approach to be adopted in relation to making first awards. I will draw to the attention of the Commission, and these are matters which we say the President should have particular regard to in considering the applications. I draw the attention of the Commission to print PR903661, a decision of a Full Bench on 4 May 2001, the Full Bench comprising Justice Munro, Senior Deputy President Drake and Commissioner Jones.
PN749
This is an appeal against the making of roping in awards involving the coal mining industry. In particular, the decision makes very clear at page 7, Commissioner, what are the principles relevant to the exercise of a discretion to make a roping in award. And in this decision the Commission does identify the history of the approach adopted to award making, and certainly deals with this matter in the concept of industry awards versus specific conditions of employment that may apply at a particular workplace.
PN750
The Commission examined the history by going back before 1993. They went back to the Industrial Relations Act. They even went so far as quoting from Justice O'Mara's decision in 1941 in relation to the nature of a roping in award not being made as a matter of course, but being made on the basis of a proper examination of all of the materials that would relate to the making of an award against a particular employer.
PN751
And the decision makes very clear that an employer may oppose the making of an award. A union may certainly ask for it, but the union doesn't get it as a matter of right. It is an issue that the Commission must determine on the basis of an application. And if an employer opposes it, then there has to be at least a clear process by which the Commission has proper regard to the issues raised by the employer. Paragraph 18 of the decision, the Full Bench notes that - and they endorse it - they say:
PN752
In our view, O'Mara Js precept that the employers are entitled to an investigation of the facts of their cases has as much relevance to a contemporary contested roping in award issue as it ever had.
PN753
We have got no objection to that and we don't disagree with that. In fact, that is the entitlement and the right of the employers to raise an objection, and it is the duty of the Commission to consider that. But in terms of whether or not the matter before you is one that should go to a Full Bench, this is the type of authority which makes very clear that there is a clear, unambiguous process that the Commission can and should adopt in relation to making roping in awards.
PN754
There doesn't need to be new principles established. The principles are clear, they are concise. They are either in the current statement of principles attached to the recent safety net adjustment decision, or they are clearly articulated and have been articulated in relation to the processes of the Commission since at least 1941 with the decision of O'Mara J.
PN755
Because this is an area where the Commission has dealt with this matter constantly over long periods of time in the processing of roping in awards, it is not as if there are merely isolated decisions that a Commissioner would have to have regard to. There is a long chain of decisions relating to the whole concept of making roping in awards. The decision of the Full Bench in print PR903661 clearly articulates what is, in our view, the proper approach by applying the Act, applying the current principles and applying relevant authority to the making of roping in awards.
PN756
Rather than take the Commission through the decision on a word by word basis, we make the very strong submission that as a recent decision of a Full Bench of this Commission, this is the sort of decision which provides the relevant direction assistance to any member of the Commission in dealing with an application for a roping in award. It is not a decision in isolation, it is not a decision that one can say is so limited to the specific facts of the matter that it has no relevance to any other matter.
PN757
The fact that the Full Bench titled a portion of their decision, principles relevant to exercise a discretion to make roping in award, is, in our view, a clear indication that what is being clearly articulated by the Full Bench in this matter, and has been articulated on the basis of a proper consideration of the authorities and the current wage fixing principles, is a set of principles relevant exactly to the case in point that we have in our application. Our application is an application for roping in award.
PN758
Our application would fit within the principles relevant to the exercise of discretion to make a roping in award. The issues raised by the decision in this Full Bench, where the cite both O'Mara Js decision, they also cite a previous decision by Munro J, and they cite a Full Bench decision concerning the SDA, which was the Toys 'R Us decision, and a Full Bench headed by Vice President Ross in that matter again dealt with the whole issue of making awards, roping in awards.
PN759
And these decisions have been done in the context where there was clearly regard given to the fact that employees were under what is equivalent to Part XV. In fact, the Toys 'R Us decision was very particularly a matter where we were roping in Toys 'R Us into the federal award at a time when it was operating under the then Victorian legislation, which is the predecessor to Part XV.
PN760
The chain of authorities and the approach adopted by the Commission is consistent. There is not a great variation or variance between the approaches adopted by the Commission over the last 60 years. In fact, it is a consistently reasoned approach for the application of roping in award applications and the approach the Commission should adopt. In our view therefore, despite what we would say is the technical correctness of Mr Cole's submission that he can't Full Bench authority that would deal with the particular fact situation concerning our application for roping in award, that is not the same as saying that there is not sufficient Full Bench authority that would enable a single member of the Commission to properly deal with an application for a roping in award involving 17,000 employers.
PN761
The principles should not be different, and certainly have not been shown to be different through an examination of the authorities where the only essential difference in various roping in applications is the number of employers. There is not one principle if you rope in one employer as against a separate principle or you rope in 10, or a separate principle when you rope in 400. And we have roped in to awards up to 400 at a time without anyone or any member of the Commission being concerned about not having the capacity to properly a well reasoned chain of authority on how to deal with roping in award application.
PN762
I also draw to the attention of the Commission a decision, and also a recent decision of the Full Bench of the Commission in print PR904634. This is again an appeal decision. The Full Bench comprised in this matter Senior Deputy President Polites, Senior Deputy President Lacy and Commissioner Hingley, a decision given on 25 May of this year. It concerned an appeal against an application to vary a company specific award concerning Mitsubishi, where the union had sought to have a new classification inserted into a Mitsubishi award to cover a managerial employee.
PN763
The relevance of this decision in this particular matter is the very strong statements by the Commission as to the effective nature of common law contracts of employment and statutory legislated minimum as not being the same as a fair and reasonable safety net as that term is used in the Act. That is necessary, in our submission, for the Commission to have regard to simply because there has been extreme reliance placed upon the existence of Part XV of the Act by the Commonwealth.
PN764
Mr Cole had made the submission that Part XV provided a more streamlined approach to regulation of small business, that Part XV seems to be appropriately matched to the circumstances of small business. It may very well be that there are flexibilities that flow from the operation of Part XV where small business is concerned. But the mere presence and existence of legislated statutory minimum conditions of employment does not mean that they are proper safety net terms and conditions of employment.
PN765
The question as to whether or not an award should be made has to have regard to the circumstances of a particular case. The relevance of the Full Bench decision, in our view, for the President's consideration of a section 107 application, is that in that matter, whilst the Full Bench criticised Commissioner Foggo at first instance for her possible suggestion that the common law contract of employment was equal to the concept of an award safety net, they nevertheless went on to support Commissioner's Foggo's handling of the matter. In particular, at page 11 of that decision at paragraph 43, the Full Bench says:
PN766
To the extent that the Commissioner considered and relied on the proposition that a common law contract of employment provides a safety net for the purposes of the Act, the Commissioner has made an appealable error.
PN767
They then went on to say:
PN768
However, we are not convinced that Commissioner Foggo's finding that the relevant contract of employment provides a safety net for section managers is properly to be regarded as evincing an intention on the part of the Commissioner to equate contracts of employment with the concept of a safety net as it finds expression in the Act.
PN769
And then they go on to closely examine exactly what Commissioner Foggo had done in that matter, and finally determine that her decision not to make an award covering a section manager was an appropriate exercise of her discretion, and was a proper application of her duties under the Act. The importance of that decision is that it does show that an employee who is protected by nothing other than statutory minimum conditions of employment and a common law contract may avoid the operation of a roping in award or award coverage where a proper case can be made to the Commission.
PN770
So again there is clear direction to the Commission on how it should approach the issues that will fall fairly and squarely for the Commission to determine in relation to this particular matter. It is not as if an employee who is covered by part XV must automatically be roped into an award. It is not as if an employer who is utilising the provisions of part XV of the Act will automatically be made a respondent to the award. We certainly have made the application to have such employers made respondent to the award, but it is simply not automatic.
PN771
And if an employer can show that there are reasons why the Commission's discretion should not be exercised, then they can avoid the operation of an award. Now, it is very much a case of examining the particular factual circumstances whenever there is an employer opposing the making of a roping in award. Such is very clearly articulated in O'Mara Js 1941 decision, and reiterated in the decision of the Full Bench in print PR903661, and also the decision of the Full Bench in PR904634 clearly indicates that there is a proper approach for the Commission to adopt in relation to consideration of these sorts of issues.
PN772
In our submission the President should have particular regard to the fact that two Full Benches less than three weeks apart, in May of this year, have both issued quite detailed decisions that would directly assist the Commission in dealing with the particular matters before it. Not as if these two decisions are the only decisions that can be found. They simply are two recent decisions which form, in our view, a long chain of authority that would assist the Commission in dealing with the matter.
PN773
They do, in our very strong submission, constitute the principles that would apply to the Commission exercising its statutory functions in considering the application made by the Association and in considering any objections made by any employer who we have sought to rope into the award. Commissioner, the relevance of a survey undertaken by the Commonwealth to whether or not this matter should go to a Full Bench or before a single member of the Commission - I should say, whether or not the Commonwealth has a survey and undertakes a survey that has no relevance to whether or not this matter should be dealt with by a single member of the Commission or a Full Bench.
PN774
The difficulty with a survey is that it deliberately hides the supplier of the information. If an employer, and if the Commonwealth is concerned to go to employers on SDA/22/3 to ascertain what their particular views are in relation to the application, then in our submission the Commonwealth would be better advised to spend this money by actually having those persons come before the Commission and give direct evidence to the Commission, or at least allow those employers, if the Commonwealth is concerned about them, to be represented before the Commission.
PN775
To hide the identity of employers in surveys is, in our view, not only not helpful to the Commission, but can be quite misleading. The difficulty with the surveys is that, depending upon the structure of the questions, the survey may be loaded, the concept of what they call push polling on these sorts of things, where you can get the answer you want by the way you structure the questions, the fact that a person is under no obligation to tell the truth in relation to answering a survey, and there are difficulties in ascertaining the veracity of any information.
PN776
All of those sorts of issues mean that there will be little if any help, we would say, that would ever be gained from anything that the Commonwealth could do that employers or employer organisations could also do in their own right and do by having employers who object to roping in awards coming directly before the Commission. One very strong aspect of the submission of the Commonwealth is the concept of the unrepresented majority of employers.
PN777
As if the lack of representation carries with it a higher obligation on the Commission to protect the interests which the Commonwealth says need to be protected for those employers, even if those employers have not sought to be represented before the Commission. One thing that the Association has been very studious about in relation to every single aspect of the proceedings, both on the service of the letter of demand and log of claims, and on each phase of the proceedings up to the making of the dispute finding, and in relation to the application for roping in award, is that we have constantly advised employers as to their options, we did that very particularly.
PN778
Any examination by the President of the original file in this matter shows that the letter of demand and log of claims that was sent out to employers was accompanied by a detailed letter to each employer advising them where they could get advice. We actually helped the so called unrepresented employers by giving clear identification of major employer organisations in the industry, major employer law firms. We didn't put the union law firms, we put the major employer law firms on that original letter, and a number of independent industrial relations consultants.
PN779
We have advised and constantly advised employers of their options, we have constantly advised them to seek representation if they have any queries in relation to the matter. We have, in the most recent time, when we sent the letter, the formal notice of listing issued by the Commission on these proceedings, we sent a letter, exhibit SDA/22/2, Commissioner, and the very particular wording on the letter is that we advised employers in the fourth paragraph of the covering letter sent out with the notice of listing that employers were entitled to be represented at the hearing, but we also advised them that they were not required to attend the hearing.
PN780
We also made very clear in the letter that we would be seeking an award to be made against each of the employers. We identified the award that we would have sought to have applied to them, and that is the effective contents of the Shop, Distributive and Allied Employees Victorian Shops Interim Award 2000. We even ensured that we attached to exhibit SDA/22/2, as the letter that went out to the employers, the formal roping in award, or the order that we would have sought made.
PN781
But because that doesn't contain the full range of conditions of employment, because being a roping in award it does it by reference back to the parent award, we identified very particularly in the penultimate paragraph of the letter of 11 May, and it is in these words:
PN782
A copy of the proposed roping in award is attached. If you want to obtain a copy of the Shop, Distributive and Allied Employees Victorian Shops Interim Award 2000, you can either obtain a copy from the Australian Industrial Relations commission -
PN783
Which is, they could come in here or contact the Commission and purchase a copy directly from the Commission, or, we said:
PN784
- from the Internet at www.osiris.gov.au.
PN785
Which is the key website. But to ensure that those who were not familiar with working with Osiris, we didn't just send them to the home page of Osiris, we continued by putting the direct reference where, when you type it in, takes you directly to the Shops Award, and that is, \html\awards\19\SO492\top.htm. That was the exact website address, when you type it in it takes you to the Victorian Shops Award. Now, we made it very easy.
[1.01pm]
PN786
MS FIELD: Excuse me, Commissioner. Look, I have another commitment in this building that I have to go, so I wonder if I could be excused please?
PN787
THE COMMISSIONER: Yes, okay.
PN788
MS FIELD: Thank you.
PN789
THE COMMISSIONER: Yes, Mr Ryan?
PN790
MR RYAN: We made it very easy, Commissioner, for employers to know exactly what was being done by us in terms of these proceedings. So to the extent that employers then have not sought to become involved in these proceedings at any of the stages, it doesn't mean that because they are not here they must be treated as having no knowledge of what is going on, no understanding of what are the possible outcomes, and no capacity to be here.
PN791
As is always the case, and has been the case since we started this exercise, every time we send out a letter or a notice of listing, it generates an enormous amount of telephone traffic both to the SDA and to the respective employer organisations. When we did it originally we know one employer organisation closed down their switchboard because it crashed their telephone switchboard. I have spoken to VECCI and ARA on several occasions, and they all that when we send something out it generates an enormous response, not only from their members but from non members, because people who pick up the letter, and where we encourage them to seek representation, they will either ring us or they will ring an employer organisation, a law firm or some other contact in order to seek advice if they have concerns.
PN792
On this recent exercise alone, Commissioner, and a matter which we draw to the attention of the Commission so that the President is aware of it, we have taken 271 calls in relation to this particular letter, the letter dated 11 May. Of the 271 we have had the vast majority of those calls, when we have spoken to the individual concerns, have expressed no opposition or satisfaction with the course of conduct that we have undertaken.
PN793
Now, I am quite happy to indicate to the Commission that we have had employers, and I can go through them by name of the person we spoke to and the name of the store, and these are not major employers. Narcissus Flowers and Gifts, Wilma was happy with what we were doing when we explained it to her. Cynthia at Compleat Curtains was happy with what we were doing when we explained the process. And these are the people who have actually received the letter explaining that the process was on for today.
PN794
Julie at Creek Family Footwear; Peter at Barkly Pawnbrokers, Suzanne at a milk bar and mixed business, I haven't got the address for that one; Mrs Guzzardi of Joe Guzzardi shoe store. These are all the individual responses, and we have kept quite detailed records of the phone calls. And quite obviously with the sheer number of phone calls we have received, in many instances we weren't able to take the phone calls as they came in. We had our staff take messages and we returned the phone calls so that we were in a position of being able to say to the people - and these are small businesses, and we understand that - exactly what the course of conduct was on about.
PN795
Now, apart from the vast majority who expressed either no opposition or support for us, there were June of Jackaman expressed extreme opposition to what we were doing. And the employers want to note these names so they can sign them up as members. John at Cafe Spiral, and Rudy at Pizza Inn all expressed extreme anger at what we were going. But they are not here, they are still unrepresented, but they know exactly what was going on. It was explained to them exactly what the process was that was being undertaken by the Association, even where employers have expressed extreme opposition to us and to the course of action.
PN796
And I must also say there are a number of calls where we have no names and no identification of the employer because all they were content to do was to ring up and abuse us in quite foul language for what we were doing. If they have sought not to be represented it doesn't mean that they don't understand the process. It also means that there is not a particular status that should be attached to the concept of an unrepresented employer that would warrant this matter going to a Full Bench.
PN797
There is nothing in this matter that can't and should not be dealt with by a single member of the Commission exercising the proper statutory functions of the Commission in dealing with any application for an award to be made. In fact, we would say that the conduct of the Association throughout these proceedings is such that the Commission can be satisfied that employers understand what has happened at each step along the way, and what is intended to be the next step in the process.
PN798
There has not been a requirement in the rules for us to communicate with employers in the way we have done that. But we have done that to ensure that we have advised employers in the best and clearest manner possible as to the consequences of the course of conduct that we have initiated, and what its potential consequences would be on an employer if we were successful. Given that, we say that notwithstanding any survey that the Government may want to take - they can take surveys if they want to - that is not necessarily a matter that will concern the Commission.
PN799
Because if it doesn't identify individual employers it may be of no assistance whatsoever to the Commission. What would assist the Commission is direct evidence from employers if they have issues to raise. That is the approach the Commission has clearly adopted in relation to the Mitsubishi Motors matter, and to the Bengala Mine matter which I have referred the Commission to. It is facts that the Commission will need to have regard to, not broad brush surveys which are not necessarily relevant or even involve any form of testable evidence before this Commission.
PN800
Can I also respond very specifically to an issue that is addressed in both the DWRSB/22/1 and also in Ms Paul's submission, and that concerns the concept of class A exempt shop. There is no such thing under Victorian law as a class A exempt shop. It was a creature of a former Victorian law, and as a creature of a former Victorian law it found its way into the awards of the former Industrial Relations Commission of Victoria, and subsequently into the federal awards, but it is something that no longer exists, and certainly in relation to the employers who are subject to this application, there is no such concept of class A shop that they would even know about, because it is simply not a feature of Victorian law.
PN801
Commissioner Hingley dealt with the issue only because there were particular award provisions which existing award respondents had access to, and as a result of the simplification and the consolidation of that award it was not proper for the Commission to reduce or expand the existing safety net terms and conditions of employment. And to that extent a reference to class A exempt shops in the simplified award is to a discrete number of employers who were the respondents to the former awards.
PN802
That concept, however, has no relevance in relation to any of the employers that we are seeking to rope into the award because it is not a concept known under the Victorian legislation concerning trading hours. It was a very particular feature of a 1970s Shop Trading Act, and it related to a very particular concept of defining shops under legislation which pre-dated the freeing up of shop trading hours in Victoria.
PN803
To the extent, however that any employer seeks to argue that there is a necessity for them to have terms and conditions of employment peculiar to themselves and not an industry standard, that is simply not an issue that is or needs to go to a Full Bench. That is simply part and parcel of an application or a response, defence that an employer would make to our application to have them roped into an award. The terms of an award will be up to the Commission exercising its discretion. That is very clear from the authorities.
PN804
And if, in the case of the Mitsubishi Motors, the Commission can even exercise its discretion to say it won't make an award for a particular employee or a particular class of employees, or a particular employer. And that is nothing other than the application by the Commission of its normal statutory responsibilities in exercising its discretion as to whether or not it will make an award.
PN805
Ms Paul made very particular emphasis, or placed very particular emphasis on the fact that the current terms of the Victorian Shops Award are such that an employer cannot roster an employee on Sunday. That is an issue which was specifically addressed by the ARA in the award simplification. They challenged that provision as being a provision that restricted flexibility in the industry. They even had an expert witness give evidence on their behalf in those proceedings before Commissioner Hingley, and their expert witness identified to the Commission that from his knowledge no employer had any difficulty in ever attracting sufficient volunteers to work on Sunday.
PN806
It was a very clear admission during the proceedings that whilst they cannot roster on Sunday, there was no difficulty that employers had in attracting sufficient volunteers. And Commissioner Hingley made specific reference to that in his determination of the matters concerning the retention in that award of a provision which said that Sunday work is voluntary. Because that matter has been dealt with at length by Commissioner Hingley, and was done so on the basis of the Retail Traders Association, as it then was, producing expert witness material to the Commission, we say that there is not an issue there which needs to go to a Full Bench.
PN807
It is a matter which has been the subject of quite clear determination by a single member of the Commission, it was a matter properly to be determined by a single member of the Commission then, and it is still a matter that can be properly determined by a single member of the Commission at the moment. It is not a matter which is of such importance that, in this particular application, it would justify the matter going to a Full Bench of the Commission.
PN808
Ms Paul also identified that in support of the matter going to a Full Bench, was that the application would have a negative economic impact. She further expanded on that by saying that that negative economic impact was at two levels; on the individual business and on the industry. With respect, if there is adverse economic impact on an individual business, then it is up to the individual business to at least identify what that potential negative economic impact is.
PN809
But in relation to whether or not this is a matter which is of such importance it should go to a Full Bench, we say that every time an employer goes out of this industry there seems to be a clear tendency for new employers to come into the industry. Mr Cole has already identified the turnover rate amongst businesses. Mr Cole makes the assertion that the majority of the employers on this application were simply not in business at a time when awards were previously operating. This is the old state common rule awards.
PN810
It doesn't mean therefore that the demise of any particular employer leads to the demise of the industry. In fact, it would appear from the submissions of Mr Cole that what does occur is that there is a rotating change, some go out and some come in. Also there has been no acknowledgment by either Mr Cole or VECCI or ARA of the presence of the fact that there are 1300 employers in this industry, and they are not 1300 individual shops, but 1300 employers in the industry covered by this award who have been able to maintain a presence in the industry under the award conditions.
PN811
Nor has there been any acknowledgment by Mr Cole or ARA or VECCI as to the presence of enterprise agreements that operate for the major players in this industry. The Victorian branch of the SDAs current membership is around 51 to 52,000 employees, all in the retail industry, and 90 odd per cent of them are all working under enterprise agreements. There are large numbers of employees working in this industry who are covered by the SDA, there are employers both operating under enterprise agreements and under the present terms and conditions of the Victorian Shops Award who are able to do so without suffering negative economic impact.
PN812
In our submission there is nothing that would relate to economic impact which would necessitate or justify this matter going to a Full Bench of the Commission. Any of the issues can be raised and should be raised and should be dealt with by an individual member of this Commission dealing with the application in accordance with clearly established principles that the Commission has set in relation to the making of first awards, interim awards or roping in awards.
PN813
If the Commission pleases, they are the submissions of the Association in strenuous opposition to the reference of this matter to a Full Bench.
[1.22pm]
PN814
THE COMMISSIONER: Any great need for a response? Mr Blignaut?
PN815
MR BLIGNAUT: Commissioner, yes. My first response would be in respect of PR903661. I just had a cursory glance at the matter. What I just want to respond is that the sheer logistics of this matter must have an impact upon the consideration of the issues involved. What does one call an industry standard when you have 1300 respondents, and all of a sudden you are faced with 17,000 additional respondents? That is something which has to be taken into consideration.
PN816
I would submit that the sheer size of the respondents involved here, for instance, turns the whole first award principle almost on its head. What comes first, one can rightfully ask, given the size of people involved? My second response is, when Mr Ryan says that we are merely painting broad brush strokes, I would submit that any system which is based upon natural justice, arguments presented by an opposing party must enjoy consideration.
PN817
I noted that in Mr Ryan's response he did the same thing that I did. He referred to telephone conversations, instructions, and so forth. I just wish to make the point that the practical implications of leading evidence in an interlocutory application of this nature, where so many different actors are involved, means that a simple exercise like this one, a reference to a Full Bench can take several days to conclude without even getting into the merits of the case itself. And I submit that the broad brush strokes should not be disregarded, and that they are, in fact, valid arguments advanced by our membership.
PN818
And then in respect of correspondence and so forth, I just wish to make the point that we have, for instance given several letters to the SDA, to which we have not had a response. I don't know how many other letters there are out there which also have not been responded to. And I would submit that just to say because people are not here means they can be regarded as approving of the application, that I would say is not logical, and that many, many versions can be made of why they are not here.
PN819
THE COMMISSIONER: Thank you. Ms Paul?
PN820
MS PAUL: Sir, I would like to address, firstly, the first issue being the cases that Mr Ryan has raised. Accept that the Full Bench in that instance, in those sort of circumstances made determinations based upon the orders and the proper criteria, etcetera. But, sir, this is a different sort of circumstance, and we would argue that those two particular cases should be limited to the facts of those two particular cases, namely, the fact that we are talking about one employer as opposed to 19,000.
PN821
Not wanting to belabour the point so it actually loses the value, but it is the sheer numbers itself what we start talking about, what is public interest? The very nature of public interest is because we are talking about an entire industry, or a large portion of the industry that is going to be affected by this. And the added peculiarity and complexity of the award is that currently the majority of respondents to the award are large businesses. They have the infrastructure to cope with the award in its current terms.
PN822
The new respondents coming in are small businesses, micro businesses, businesses that have only ever operated under schedule 1A. But these businesses also don't have that infrastructure. The infrastructure that used to be in the award which is the class A exempt, is no longer in there as a concept, but it is still allowable, and I will come back to that issue.
PN823
To finalise that one point, we would say that the authorities put before you by Mr Ryan are limited in its scope as an argument of what should go to the Full Bench or not. They merely deal with the issues concerning one employer. We are talking about issues concerning 19,000 employers, or 17,000 employers, whichever the case may be. In that sense we would support the Government's proposal, the Federal Government's proposal of a survey.
PN824
Whilst yes, questions can be asked as to what, or surveys can be manipulated, that is certainly accepted, but certainly where the Government seems to have invited all parties to put their proposals forward, that should minimise that or get rid of that prospect if all parties can actually input into that survey. And that will certainly show the economic impact, and we would say it is actually a value, to the Commission to identify what the economic impact and the public interest is with respect to this application.
PN825
But to deal specifically with issues on the class A exempt status that Mr Ryan has raised, as well as the other issues he has raised. The class A exempt shop, sir, we agree is based on the fact that it is on non existent law. But for the fact that Mr Ryan raises it as being non existent law, Commissioner Hingley nonetheless has seemed to have accepted it as being something as being part of the award. For example, he has stipulated that:
PN826
In my view, supported by the evidence, it is not for the Commission as presently constituted to determine ...(reads)... argue for the benefits of class A exempt status on merit. This is consistent with item 51.
PN827
Certainly the issue of class A exempt - and I use that term broadly to discuss the exemptions, the actual exemptions that the employers receive, whether you want to call it class A or just exemptions. But those exemptions were intrinsic in the award prior to consolidation, they are still intrinsic in some form in the award, not quite in the form that we would like, but intrinsic in the award as exemptions, but they are exemptions only to the named respondent. They are not general exemptions that would apply to everybody.
PN828
Certainly from Commissioner Hingley's view this is not an issue that he can actually deal with, and he has raised issues here of a technical nature which we believe the Full Bench needs to determine. One, whether the concept of class A exempt or any form of exemption should go into the award for the style of businesses that we are talking about, being less than 20, small businesses, or, and also the issue about whether - what is defined as merit?
PN829
Commissioner Hingley hasn't defined it, and he doesn't feel he has the appropriate authority to have defined that, which means we would argue that that very nature needs to be determined by a Full Bench. And it is not a simple issue about the fact that class A exempt was based on a 1970s legislation that somehow flowed with the award and now has petered out. The actual exemptions are formed in the award. The difference is, currently that exemption is limited to the respondents to the award.
PN830
We would argue, sir, that that is very much a concept that is alive, and that is one that the Association takes a very strong view on. And we would say, the very nature that we have two opposing views, in itself needs to be a matter that is determined by the Full Bench. The final issue on the class A exempt or the exemptions idea, sir, is that if that is not in the award then this is clearly not an award that should apply to the retail industry. Because if we look at other awards in the retail industry across Australia, there is some form of exemptions for small business.
PN831
This award doesn't apply. It is also an interim award that allows that process to go through, but there are certain technical issues that need to be dealt with, and legal issues that need to be dealt with as to definitions of this, and the scope of what is an exemption and what is merit that we believe needs to be dealt with by the Full Bench. On the issue with respect to the Sunday rostering issue. When it was first raised in the simplification matter, sir, it was limited to the evidence that was put forward by ARA, or RTAV, and the Commission themselves certainly said, there was no evidence before me to suggest current flexibilities are available, blah, blah, blah.
PN832
The issue, sir, is that there was no evidence because the current respondents to the award weren't facing those problems. And certainly at a point at which this decision was made the class A exempt status was still in there. It was only after this decision the class A exempt got removed, and it was a further decision by Commissioner Hingley. So at this point there is no evidence, because there was no possibility of providing evidence, because the majority of the businesses that were governed by the award or respondents to the award didn't fall under the category.
PN833
But the position we now have is, there will be 19,000 businesses out of which there will be a large proportion of those businesses that will be able to claim this exemption, that we will be able to provide the evidence. The determination by the Full Bench in that instance was not that this was not an issue. It was that they had no evidence at that time. And no evidence could have been put to them.
PN834
But now we have an issue that actually deals with an industry issue, and that industry issue is something that should go to the Full Bench, so that the issue of Sunday rostering is to be dealt with, and evidence be put forward in one form or another. We would submit that evidence in the form of a survey would be primarily quite important to assist in that process.
PN835
The third aspect about the negative impact to the industry. The very nature of the breadth and width of the employers to whom this award would apply to, and the very nature of the issues which we have already raised, which is, Sunday trading is the norm. Employers need to have employees work in their stores on Sundays. If this award comes in they are not going to be able to roster their staff to work. These are issues that are going to cause them difficulties and would, in itself, one would assume, flow on to being a negative impact on an industry.
PN836
We would point out, sir, that the three issues which we have raised, which is the class A exempt issue, the ability to roster on a Sunday. So is this the appropriate term that should apply to 19,000 retailers? And the impact on not just the individual business, but the impact on the industry is what public interest is about. Sir, the final point we would like to make; this award was not meant to cater for small employers, employers with less than 20, but this is also less than five employees. They don't have the infrastructure to cope with some of the inflexibilities of this award.
PN837
And the process is that the Full Bench needs to address these issues because there is a public interest issue that these small businesses need to be catered for, as these are part or the majority of the 19,000 that are part of this application. Thank you, sir.
PN838
THE COMMISSIONER: Yes, thank you. Mr Cole?
PN839
MR COLE: If the Commission pleases, I can be very brief. The employers have covered a range of points. We simply make three quick points, Commissioner. Firstly, in our submission, the Association has not really addressed at all in their comments the issue of the importance and the public interest of the potential economic and employment impact of moving to an award. As Ms Paul has said, there is an industry dimension to that issue, and that is an important matter in the public interest.
PN840
The second matter I direct myself to concerns the Full Bench decisions that have been referred to. We are not here denying that there are decisions and a line of decisions about making roping in awards or first awards. But what we say is, these decisions don't go to the contextual circumstances. And we are not dealing with some arcane situation here, some exceptional situation.
PN841
We are dealing with a situation with three key ingredients; the proposed wholesale transfer from Part XV to an award where the transfer affects a large part of an industry sector, that is the second factor. And thirdly, where the vast majority of the businesses affected are unrepresented. Now, that is a particular mix of circumstances. It is not arcane, it is a mix, as far as we are aware, which is, in terms of Full Bench consideration of matters, an unprecedented mix of circumstances that exists, and, in effect, the Association concedes that there is no specific authority.
PN842
We have some guidance that may be or may not be available, and the parties can debate what the relevance of other decisions is, but we don't have decisions that address that specific mix of contextual circumstances. And that is why we say Full Bench guidance is required. And obviously there are other parts of industry in Victoria operating under Part XV arrangements where the principles and approach that are determined by the Commission in this case may have important implications in future.
PN843
And the final point relates again to the unrepresented employers. The more the Association addressed you on that matter, the more issues, in effect, were begged in its submissions. They can't, in my respectful submission, avoid the question of, is it or is it not appropriate to draw inferences from the fact that this very large number of employers are not represented in this particular situation?
PN844
Now, that very question itself, what sort of inferences might appropriately be drawn, is it appropriate to draw any? How would the survey results bear on even that question of whether any inferences are to be drawn? These are matters on which, with respect, there is, to our knowledge, no Full Bench guidance, and they are indicative of the need in the public interest for the matter to be referred, so that issues of that nature, which are crucial to the ultimate determination on the matter, can be addressed by a Full Bench in the public interest. If the Commission pleases, that concludes our remarks.
PN845
THE COMMISSIONER: Thank you.
PN846
MS PAUL: If the Commission pleases - I am sorry, sir - if we may just address you on the issue which we have raised previously. We would, in light of the opposition, seek to tender some written submissions. We would be able to oblige by Wednesday of next week, sir.
PN847
THE COMMISSIONER: Yes. Mr Ryan?
PN848
MR RYAN: Commissioner, I do wish to rise just to address a comment made by Ms Paul. If I have understood her submission to you correctly, she said that this is an award, or the Victorian Shops Award is an award that was not designed or made for small business. It may not have been designed for small business in terms that no one ever set out to design an award for small business. It is an award that does apply to small business, and very clearly, and this is certainly in the knowledge of Ms Paul, there are members of hers who are small business employers employing less than five people.
PN849
And the most recent matter I had before the Commission concerns a number of Pets Paradise stores, and you don't get much smaller than the Pets Paradise sort of cat and dog shops, where they are one and two employees. So to the extent that there is any misunderstanding, this is an award which has applied and does apply to small business. If the Commission pleases.
PN850
THE COMMISSIONER: Yes.
PN851
MS PAUL: I am sorry, sir, I don't intend to belabour this, but - - -
PN852
THE COMMISSIONER: Now, Ms Paul, you put that in your submissions.
PN853
MS PAUL: Thank you, sir.
PN854
THE COMMISSIONER: Pursuant to the provisions of the Act, the applications will now be referred to the President, and you will be advised of his decision in due course. Thank you.
ADJOURNED INDEFINITELY [1.39pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #SDA/22/1 NOTICE OF LISTING MAILING RECEIPT PN538
EXHIBIT #SDA/22/2 COPY DOCUMENTATION MAILED PN539
EXHIBIT #SDA/22/3 UPDATED PROPOSED RESPONDENCY LIST PN543
EXHIBIT #VECCI/22/1 OUTLINE OF VECCI SUBMISSION PN642
EXHIBIT #DWRSB/22/1 COMMONWEALTH SURVEY OF VICTORIAN RETAILS, AN INDICATIVE OUTLINE PN716
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