C2001/3233, Transcript of Proceedings [2001] AIRCTrans 1709 (27 July 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 8322
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE

C2001/3233
C2001/3234

CLERICAL AND ADMINISTRATIVE EMPLOYEES
(VICTORIA) AWARD 1999

Application under section 113 of the Act
by Australian Chamber of Commerce and
Industry to vary the above award re
reasonable hours.

RETAIL AND WHOLESALE INDUSTRY - SHOP
EMPLOYEES - AUSTRALIAN CAPITAL TERRITORY -
AWARD 2000

Application under section 113 of the Act
by Australian Chamber of Commerce and
Industry to vary the above award re
reasonable hours

MELBOURNE

10.03 AM, TUESDAY, 10 JULY 2001

PN1

MR R. HAMILTON: I appear on behalf of the applicant organisations and for ACCI seeking leave to intervene as an intervener.

PN2

MR J. MACKEN: I appear with MS S. COOPER on behalf of the Minister for Employment, Workplace Relations and Small Business. I seek leave to intervene in these matters, your Honour.

PN3

MR A. WATSON: In matter C2001/3233 I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union and unusually as of right for the Australian Council of Trade Unions, which is a respondent to that award as a result of a roping-in award. And in C2001/3234 I appear on behalf of the ACTU seeking leave to intervene. At this point the basis for intervention is only to argue against joinder with the reasonable hours matters, if I can so describe them. And in both matters, Your Honour, I appear with MS M. BISSETT from the ACTU.

PN4

MR M. BUTLER: I appear for the Association of Professional Engineers, Scientists and Managers Australia in respect of C2001/3233 as a respondent.

PN5

MR J. RYAN: If the Commission pleases I appear for the Shop Distributive and Allied Employees Association. I appear in matter C2001/3234.

PN6

JUSTICE GIUDICE: Is there any objections to the applications for leave to appear or to intervene? I don't think there were any applications for leave to appear as such, were there? Yes. All right, in that event the applications for leave to intervene are granted. Mr Hamilton.

PN7

MR HAMILTON: Thank you, your Honour. If the Commission pleases, on 19 June 2001 these applications were lodged and on 5 July substitute service orders for these awards were issued by your Honour at the Commission. On the same day we forwarded the applications - we forwarded the substitute service orders and notice of listing, consistent with those orders, by registered post. We can hand up a copy of the registered post documents if that was required by the Commission. We had already - - -

PN8

JUSTICE GIUDICE: They probably should be filed I think. Can you tender that in due course.

PN9

MR HAMILTON: I will tender it now.

PN10

JUSTICE GIUDICE: It is rare that there is some - all right.

EXHIBIT #ACCI1 REGISTERED POST DOCUMENTS

PN11

MR HAMILTON: We had already forwarded the applications by registered post to the persons named in the orders and this was in effect the second forwarding and the first forwarding was on 25 June, shortly after the applications were lodged. We also sent the listing to the national secretaries of the three unions involved by registered post.

PN12

JUSTICE GIUDICE: Is there any issue about service that you are aware of?

PN13

MR HAMILTON: I don't believe so, your Honour. We have had discussions with the ACTU on these applications on 3 July 2001.

PN14

JUSTICE GIUDICE: Yes.

PN15

MR HAMILTON: We are having discussions with the SDA as I understand it today and have invited the other unions - - -

PN16

MR RYAN: If I may rise, your Honour, in relation to the question of service. You asked are there any issues in relation to service.

PN17

JUSTICE GIUDICE: Yes, I was only asking Mr Hamilton. I will come to you in due course, Mr Ryan.

PN18

MR RYAN: Thank you.

PN19

JUSTICE GIUDICE: You were saying you were having discussions today with the SDA, is that right?

PN20

MR HAMILTON: That is the case, your Honour.

PN21

JUSTICE GIUDICE: Yes.

PN22

MR HAMILTON: And have invited the other unions for discussions today. We invited them by letter forwarded with the substitute service orders and notice of listing on 5 July 2001 and we have already spoken orally by telephone to two of the unions.

PN23

JUSTICE GIUDICE: Yes.

PN24

MR HAMILTON: These applications, your Honour, are in substance the ACCI and applicant association counter claims to the ACTU unreasonable hours applications which are matters - and I won't read them all - but C2001/348, 362, 2248 and so on. On 20 June 2001 a hearing took place in relation to those ACTU - those trade union applications represented by the ACTU, the so-called unreasonable hours applications, and during that hearing, which was in relation to whether those applications should be referred to a Full Bench under section 107, ACCI and the ACTU and others discussed the applications before you today.

PN25

For the sake of convenience we forwarded that transcript to the associations by registered post on 5 July 2001. That is the three trade unions are represented here today. Now, during the hearing in relation to the ACTU applications we said in relation to our matters that - these present matters before you today, your Honour, that:

PN26

We seek for those matters whatever procedure is established by the Commission in relation to the other matters, so whatever procedure is established, a Full Bench, the same Full Bench, different Full Benches, whatever.

PN27

That appears at paragraph number 104. So the Commission has now established a Full Bench in relation to the ACTU unreasonable hours applications. Today, your Honour, as we foreshadowed on that day and foreshadowed in a letter to the unions sent by registered post on 5 July, we asked for these matters to be referred to a Full Bench under section 107. And we also asked for that Full Bench to be the same Full Bench that hears the ACTU unreasonable hours applications. That is C Nos 2001/348, 362 and so on. And we do so, your Honour, under section 107(2) which provides:

PN28

Where a proceeding in relation to an industrial dispute, or alleged industrial dispute is before a member of the Commission ...(reads)... the proceeding should be dealt with by a Full Bench.

PN29

And (b) I won't bother to read. Now, your Honour, we asked for these matters to be referred because they are of such importance that - the subject matter is of such importance that in the public interest it should - the proceedings should be dealt with by a Full Bench. We do so for a number of reasons, none of which would be a surprise to anybody. First of all, as we indicated in our letter forwarded on 5 July, our reasons are that these applications are in substance novel in many respects.

PN30

They are serious and substantial applications and as a variation of a safety net require a Full Bench under principle 10 and principle 2 of the principles established in the May 2001 safety net review wages decision, print PR002001. And if you look at the content of the applications they do have clear safety net implications. First of all, a system of annualised salaries which involves a changed payment, for example, of penalty rates. Secondly, an increase of the spread of hours by two hours, with clear implications, including for penalty rates and other matters. Thirdly, a novel proposal for a register of overtime with clear implications for overtime.

PN31

Fourthly, changes to the working time cycles to provide for three monthly cycles, again a substantial change to the safety net. Changes to the part-time work clause to remove the minimum hours provision of 20 hours of work and finally, single day annual leave provision, again a substantial change to the safety net. So the first submission is the subject matter, your Honour, satisfies the section 107 test for a Full Bench. Secondly, these applications are - as we said in our letter to the trade unions on 5 July, these applications are counter claims to the ACTU claims in C Nos 2001/348, 362 and so on, the so called ACTU unreasonable hours claims.

PN32

A Full Bench has been established in those matters. The ACCI response to the ACTU claims in that matter are in inextricably linked to these present applications. There will be duplication of submissions if two sets of applications are heard separately and this would be wasteful of the Commission's resources and our resources. Even if the claims are not joined our response to the ACTU's applications will involve a full traversal of the issues raised in the applications before you presently, your Honour. Thirdly, the ACTU - many of the ACTU reasons for their matters to be heard by a Full Bench are given during the preliminary hearing in the ACTU unreasonable case, are also applicable to our present matter.

PN33

And we also note that at paragraph number 56 the ACTU said:

PN34

Indeed, in our submission there seems to be very little overlap at all between the two matters.

PN35

The two matters being their matters and these present matters, your Honour. That does in our submission amount to a concession that there is some overlap at least in their view.

PN36

JUSTICE GIUDICE: Well, they both deal with ours.

PN37

MR HAMILTON: I beg your pardon.

PN38

JUSTICE GIUDICE: They both deal with ours, don't they?

PN39

MR HAMILTON: They do, your Honour, they do. And if the detail of the claims is examined there is obviously overlap. The ACTU is seeking to vary the safety net on hours of work provisions and we are doing the same in substantial respects. The ACTU is seeking to amend the provisions relating to overtime and so are we, for example, regarding the register of overlap - register of overtime. The overlap is in our submission obvious in the content of the claim. And finally, the Commission has determined that the ACTU has the right to put its case.

PN40

We also logically have the right to put ours and ours involves speaking to these applications in the ACTU unreasonable hours case. And in our submission we do not believe that this Commission countenance - deny a body like ACCI the right to at least put its case in a major case like the ACTU unreasonable hours case, and in fact we do not believe that the unions or ACTU would deny us that right either. Finally, we have received a brief letter from the ASU, dated 9 July, yesterday, in which they oppose our application for a Full Bench reference for a variety of reasons. And just briefly dealing with them - - -

PN41

JUSTICE GIUDICE: Well, as I understand it, Mr Watson is authorised to appear for the ASU.

PN42

MR HAMILTON: I beg your pardon, your Honour.

PN43

JUSTICE GIUDICE: As I understand it from that letter - - -

PN44

MR HAMILTON: Yes.

PN45

JUSTICE GIUDICE: - - - the ACTU is appearing for the ASU.

PN46

MR HAMILTON: Thank you, your Honour, I think they are.

PN47

JUSTICE GIUDICE: Well, that is what the letter says. That is right, isn't it, Mr Watson?

PN48

MR WATSON: Yes, it is right, your Honour.

PN49

JUSTICE GIUDICE: But if you wish to deal with it now by all means do so. It is just that you may have to deal with it again after Mr Watson has made his submissions. But it is a matter for you entirely.

PN50

MR HAMILTON: No, no, I am quite happy to wait, your Honour, and those in substance are our submissions.

PN51

JUSTICE GIUDICE: Mr Hamilton, could you outline for me briefly how this provision in the Victorian Clerical Award is to operate?

PN52

MR HAMILTON: Yes, your Honour.

PN53

JUSTICE GIUDICE: What are the elements of the provision.

PN54

MR HAMILTON: Thank you, your Honour, I am happy to do that. If you turn to the application in paragraph 1 there is to be a new 16.4 in the Clerical Award, which is a novel clause that we, VECCI and others have drafted. And what it provides is that, first of all, rather than having a weekly pay packet which varies according to the hours worked, the weekly pay packet would be essentially the same, your Honour, each week, and at the end of the year if there is any difference between the entitlement that the employee should have received under the award in terms of penalty rates and the like, and the entitlement the employee did receive, then the employer tops it up at the end of the year and brings it up to the award entitlement level.

PN55

And the first part of - so that is the concept of it and it also applies to allowances too, and it builds in an average amount of overtime per week of one hour's overtime per working week. And that is - so the pay packet in terms of penalty rates and allowances doesn't vary each week, it is the same pay packet. So that is the concept, your Honour, and it is quite a - and paragraph 16.4.1 is essentially the agreement provision which establishes how you can establish an annualised wage rate arrangement which allows this uniform weekly pay packet arrangement to come into force. And it continues for 12 months and has to be in writing.

PN56

Secondly, in 16.4.2 it just says that the annualised wage clause rather than the weekly award entitlement clause is the operative wage payment clause. Thirdly, in 16.4.3 there is provision for annualisation of allowances and there is quite a detailed scheme of how you can annualise the allowances and build them into the weekly pay packet. 16.4.4 deals with termination of an annualised wage arrangement. 16.4.5 builds in the one hour's overtime per week provision, and in paragraph (c) at page 3 you will see, your Honour, that the parties can agree to build in a different amount of overtime; it could be three hours or half an hour.

PN57

In 16.4.6 that is when the - is the new wage rates clause which applies in situations of annualised salary, which is based, of course, on the award wage rate clause but adjusted in the way we have outlined before. 16.4.7 deals with part-time work and then we - so that is the first part of the application which varies probably the most significant - one of the most significant areas of awards; namely, the wage rate clause. Secondly, in paragraph 2 there is provision for a three-monthly work cycle rather than the existing work cycles in the award.

PN58

In paragraph 3 on page 4 there is provision for an overtime register; in other words, to promote the working of voluntary overtime, a matter which is clearly relevant to the ACTU reasonable hours claim and which we will deal with at some length during that unreasonable hours case. In paragraph 4 there is an expansion of the spread of hours of two hours. And finally at page 5 we set out the grounds and again, if you look at the grounds, your Honour, we say that that does establish again that this matter is of some substance, such substance that it should be dealt with by a Full Bench.

PN59

JUSTICE GIUDICE: Yes, thank you.

PN60

MR HAMILTON: Thank you, your Honour.

PN61

JUSTICE GIUDICE: Mr Macken.

PN62

MR MACKEN: Thank you, your Honour. I can be brief, your Honour. We support ACCI's submission that these matters should be referred to the same Full Bench as is to be convened in respect of the reasonable hours case. We understand that the ACCI applications are in the nature of counter applications. They represent a formal response to the ACTU's applications in the reasonable hours case and should be seen in our submission as a formal motion to the Commission that the more appropriate response to the issues that are to be agitated by the ACTU, is the one that ACCI proposes.

PN63

We submit that in that circumstance the ACCI applications ought to be considered by the same Full Bench as is to consider the ACTU applications. In the preliminary proceedings in the reasonable hours case the ACTU fortified its section 107 application by reference, amongst other things, to the observation that this Commission has not undertaken a systematic review of the issues of hours of work for over 50 years. We think that if that review is now - - -

PN64

JUSTICE GIUDICE: You found that submission unpersuasive at the time, Mr Macken.

PN65

MR MACKEN: That is right, your Honour, but we have had our say on that and that has been decided. It has been decided to in effect give the ACTU an opportunity to move the Commission to undertake such a review. Now, in that context we think that all of the options available to the Commission to respond to the issue of unreasonable hours ought to be before the Commission, including the formal response that ACCI proposes. In saying that, your Honour, we said earlier in the reasonable hours case that quite up front our view is that these issues are issues that are most effectively dealt with through workplace bargaining.

PN66

We don't resile from any of that and I today don't have any instructions as to the Commonwealth's view on the merits of ACCI's applications, but we think that those merits ought to be considered in the same context as the ACTU's applications. Those in brief are my submissions, your Honour.

PN67

JUSTICE GIUDICE: Yes, thank you, Mr Macken.

PN68

MR WATSON: Your Honour, I might go next. Can I address you first in relation to the application by the Victorian Employers Chambers of Commerce and Industry to vary the Clerical and Administrative Employees (Victoria) Award? Can I start by handing up a copy of that award. It is an Osiris copy, not an official copy, but, your Honour, I have checked that it is in material respect accurate and it is. Your Honour, there is a fundamental difficulty with the application for reference by the ACCI in this matter, and that is that the application made by VECCI is not competent, and can I make that submission good.

PN69

If your Honour goes to the person - parties bound by this award your Honour will see in clause 6 that the award is binding on the Australian Municipal, Administrative, Clerical and Services Union, its officers and members and the employers whose names are set out in the schedule. There is no reference of the Victorian Employers Chamber of Commerce and Industry. When one goes to the list of employers which commences at page 61, that list continues for some time.

PN70

I can assure your Honour that I have checked it both physically and electronically by down loading from Osiris and VECCI is not listed as a respondent, nor is it a respondent to either of the roping-in awards which are attached, the roping-in award which commences at page 74, roping-in award number 1, which ropes in Chubb Securities, nor the roping-in award which commences at page 75, which is in fact the award which roped in ourselves and various other trade unions.

PN71

Your Honour, can I take your Honour to a case I have no doubt your Honour will be familiar with, but for the purpose of completing the argument, re Media Entertainment and Arts Alliance ex parte The Hoyts Corporation. That is a case which is reported at 1993 178 CLR, page 379. I want to refer particularly to a passage from the joint judgment of their Honours, Mason CJ and Brennan, Dawson, Toohey, Gaudron and

PN72

McHugh JJ at pages 395-7. Can I, just before I take you to that passage, note that Dean J, who was in dissent, agreed with this aspect of the majority's reasons at page 407.

PN73

So in this respect the judgment is one which is of the entire Court. And at 395 at about point 5 of the page, your Honour will see that the decision of the Commission that the Hoyts companies lacked standing to bring an application to set aside the Greater Union and Village Roadshow Award was based on section 33 of the Act, which provides as follows, and your Honour will be familiar with the terms of section 33. It was held that the Hoyts companies did not have standing because they did not come within either limb of section 33(b), being neither parties to the Greater Union and Village Roadshow Award, nor parties to the dispute on which that award was based.

PN74

And then the Court deal with various arguments which were raised by The Hoyts Corporation in that case, and their conclusion comes at 397 and can I take your Honour to a passage commencing at about point 2 of that page:

PN75

There is no doubt that in various places the Act acknowledges that the Commission's determinations may have an impact extending beyond the parties whose rights and interests ...(reads)... entitles a person who is not a party to an award to apply under section 113 to have it set aside.

PN76

And in our submission by parity of reasoning the same must apply in relation to an application to vary.

[10.33am]

PN77

Can I turn from that matter, your Honour, to our submission that the one, if you like, extant application which is before the Commission this morning, that being to vary what I will describe as the ACT Retail Award, should not be joined with the applications which seek to insert a reasonable hours standard. Now your Honour would be aware, there are actually in a sense, two separate issues to be considered here. The first, whether to constitute a full bench pursuant to section 107 to deal with this matter, and the second then, whether to hear that current application together with the reasonable hours applications.

PN78

In my submissions, I propose to deal with the two issues simultaneously and focussing on the joinder issue because for reasons which will emerge more fully in the context of our submissions as a whole, it is our contention that the joinder question is in a sense determinative and we put that in this way. If your Honour were persuaded that these matters should be joined, then obviously in light of the decision which your Honour made in relation to the reasonable hours matter, that necessarily involves a full bench.

PN79

Having constituted a full bench for the reasonable hours matters, if this matter is joined with those then there is a full bench. Conversely, if your Honour is persuaded as we think your Honour will be, that you should not join the single application to vary the ACT Retail Award, then we think it will emerge that this application is not of such importance that in the public interest a full bench should be constituted.

PN80

JUSTICE GIUDICE: Mr Watson, I don't want to interfere with the construction of your submission, but the question of joinder is strictly a matter for the Commission as constituted at the time the issue arises. For example, I don't it would be open to me to, sitting as I am, to join these applications with applications which are before another bench. I just mention that.

PN81

MR WATSON: I understand the proposition you put, your Honour, and there is indeed that logical distinction between the two issues. As I apprehend it - - -

PN82

JUSTICE GIUDICE: Well I think it is more than a technical issue, if you like, because whoever is to deal with these applications would not be in a position to decide the issue of joinder unless it was the same bench.

PN83

MR WATSON: Yes, your Honour.

PN84

JUSTICE GIUDICE: There is no physical way in which it could be done, so it seems to me that we are operating in an area where the initial decision is whether there is to be a full bench and logically it should be the same one if there is to be. But the question of joinder would then be a matter for that bench.

PN85

MR WATSON: Yes.

PN86

JUSTICE GIUDICE: You see, I may be - maybe there is another way in which to view it.

PN87

MR WATSON: Well, your Honour is right in terms of - undoubtedly in terms of who is to make the decision about joinder. As I apprehend it, though, what is put against us is in effect in part, in relation to the argument for the constitution of the full bench, what is put against us is - it is in the public interest that these matters are referred to a full bench because they are in effect our counter-applications to the ACTU's reasonable hours claim, and in light of that they should be heard concurrently. So it is put against us as being a matter which goes to public interest, and in that context - even though your Honour can't make that determination about joinder, it is put as a matter going to public interest. In that context, it seemed to me that we needed to be - anticipating as I had that that would be the submission, we needed to be in a position to respond on that issue.

PN88

JUSTICE GIUDICE: Yes, well by all means, go ahead.

PN89

MR WATSON: In any event, your Honour, there is an overlap between some of these matters. Can I start, your Honour, by analysing the application which has been made in relation to the ACT Retail Award and does your Honour have a copy of that?

PN90

JUSTICE GIUDICE: Not of the full award.

PN91

MR WATSON: Yes. I can hand your Honour a copy of the full award which will assist in gaining some understanding of the nature of the application.

PN92

JUSTICE GIUDICE: Yes, thank you.

PN93

MR WATSON: Can I go first to paragraphs 4 and 7 of the application in this matter. Paragraph 4, your Honour, you will find on page 5 and similarly paragraph 7. Paragraph 4 is an application to change the basis on which annual leave can be taken in this award. Currently the award provides that annual leave can be taken in, in effect, one block or two blocks and the application seeks to change that. Paragraph 7 is an application to change the provisions in relation to part time employment.

PN94

Can I make the following submissions in relation to those two paragraphs. Firstly, it would be our submission that those matters are not common in any way with the matters which are raised in the reasonable hours claims. They go to annual leave and part time employment. We note in addition that those matters were not sought in relation to the clerical award. Now it may be that - in relation to the annual leave provision it may be that it was felt that the annual leave provision there provided the flexibility that the employers sought.

PN95

Further, it is our submission, that when one goes to the grounds of the application, the grounds of the application don't even address in any substantive way, either of these provisions, either the annual leave clause or the proposed part time employment clause. When one goes to the grounds it is all about, in our submission, the proposed introduction of an annualised wages arrangement. Now, your Honour, in that context we say that these parts of the application call for an examination of the particular provisions of this award regarding annual leave and part time work.

PN96

They do not, it appears, warrant sufficient importance for the applicant to even include grounds in relation to those matters in its application, and they are not the sorts of matters which it appears in any way intersect with the matters which are raised in the reasonable hours claim. They go to separate and distinct matters and have, in our submission, nothing to do with the subject matter of the reasonable hours application.

PN97

JUSTICE GIUDICE: Couldn't they be said to go to the flexibility to be employed in those areas as well as in the areas of weekly hours, or monthly hours or however one characterises it? They are about flexibility in the time at work and the time not at work aren't they?

PN98

MR WATSON: Well, your Honour, strictly I think not in the sense that the application in relation to part time employment, and this is something which perhaps I should deal with now. The application in relation to part time employment as we apprehend it, is misconceived. It seeks to delete clause 15.2 and insert a new 15.2. In fact, when one goes to the award, the relevant provisions in relation to part time employment are in clause - sorry, your Honour, I have got the wrong one now - are in clause 13.3 which your Honour will find at page 9. And your Honour will recollect that it was put by Mr Hamilton that the application removed a minimum requirement of 20 hours per week. It is not apparent, at least on my reading of clause 13.3, that there is such a restriction. There is a minimum daily employment.

PN99

JUSTICE GIUDICE: That is in 13.3.3?

PN100

MR WATSON: Yes, your Honour.

PN101

JUSTICE GIUDICE: Yes, all right. Thank you.

PN102

MR WATSON: Your Honour, while I am in, if you like, this part of the application, can I deal with the claim for a clause relating to an overtime register which is also at page 5 of the application, and it is paragraph 6 of that application. And can I just read your Honour the terms of it, because in our submission it is important to understand the terms of what is sought in order to characterise this aspect of the application. It says:

PN103

An employer may establish an overtime register in which employees shall be able to record their desire to work overtime and any other relevant matters.

PN104

So, your Honour, the thing about this clause is that it precisely adds nothing to the current award provisions. Currently there is no prohibition on an employer establishing such a register and once such a clause were inserted into the award, there would be no requirement for them to do so. The situation which pertains now is that if they wish to do so, they may, and if they don't wish to, they don't have to. The situation which the ACCI say warrants a test case hearing, a Full Bench to be convened, is that they want to insert a clause which means that after the clause is inserted, precisely the same situation as pertains now will pertain then; that is, if an employer wants to establish a register, they may, but if they don't want to, they don't have to.

PN105

In that context, your Honour, we think the provision sought is simply trivial, and we draw an analogy with, if your Honour pleases, the situation which pertains in relation to industrial disputes, and can I draw your Honour's attention to a passage from Re State Public Services Federation; ex parte the Attorney-General for Western Australia. Your Honour will recall this is a decision regarding the genuineness of industrial disputes, and I don't need to trouble your Honour with the particular fact situation which pertained in the case, that is not relevant, but can I take your Honour to a statement of principle.

PN106

The case is reported at [1993] HCA 30; 1993 178 CLR 249 and the passage to which I want to refer your Honour is a passage commencing at page 270 in the joint judgment of Mason CJ and Deane and Gaudron JJ. At the foot of 270 at about point 9, the last paragraph, they go on to - they are in the course of a discussion about whether a bare claim that the Commission should deal with the matter is sufficient to found an industrial dispute, but in that context they make some remarks which are apposite:

PN107

The second matter that indicates that a bare claim for increased wages and allowances as determined by the Commission does not give rise to an industrial dispute is that the assent or dissent of employers

PN108

- and we would interpolate here unions -

PN109

is entirely irrelevant to what is demanded. Indeed, the claims proceed on that very basis, and assuming ...(reads)... of opinion, but does not give rise to a dispute.

PN110

Now, your Honour, one thing is clear in our submission and that is that the claim here for a provision that an employer may, if they wish, establish an overtime register, is one on which our assent or dissent is virtually irrelevant, and if it were to found a dispute, there would be no genuine dispute. Now, this is done in the context of an award application, we concede, but in that context we submit that what that portrays is the complete non-event nature of this aspect of the application. It matters not a jot whether this clause goes in or stays out. Employers will be in no better or worse position in relation to that issue and it hardly warrants in our submission the constitution of a Full Bench and the troubling of the Commission's time.

PN111

Can I then go to the question of paragraphs 2 and 3 of the application which, your Honour, deal with the extension of the ordinary hours span for certain shops covered by this award. Can I take you to the application first. Your Honour will find these provisions on page 4 and going on to page 5, and your Honour will see that the proposal is to delete and substitute clauses 23.2.1 and 23.3.1 of the relevant award.

PN112

Can I take your Honour to those provisions and some surrounding them. Your Honour will see that the existing 23.2.1 prescribes ordinary hours of work except in newsagencies and builders supplies merchants, groceries and hardware shops or departments. Now, your Honour will see that the proposed new clause retains that exception, but simply expands the hours.

PN113

Your Honour will see over the page in the award print at page 32, clause 23.2.2 then provides commencing times for newsagencies, building materials and supplies, hardware and grocery stores. That matter is not touched by the application. Similarly, in relation to clause 23.3.1, the application seeks the deletion and replacement of that clause, but your Honour will see 23.3.2 deals with the commencing times in newsagents and that matter is not touched by this application, nor is clause 23.4 which deals with the span of hours in warehouse and wholesale establishments - or full warehouse and wholesale employees, I should say.

PN114

In relation to this aspect of the application, your Honour, I would make the following points. Firstly, spread of hours considerations are notoriously award specific. In fact, in the realm of these things, if one goes to different awards, one can find different spreads of hours varying quite dramatically, but more than that, in this instance, the application isn't even seeking an examination of the spread of hours for this award, it seeks an examination of the spread of hours for one part of it. What this part of the application seeks is a minutiae style examination of a particular subset of a particular industry covered by a particular award; again, in our submission, hardly the substantive, broad sort of issue which should be dealt with by way of a test case or a Full Bench.

PN115

JUSTICE GIUDICE: Well, it is shops, it is retail shops, isn't it? Is that what is left?

PN116

MR WATSON: Well, yes, your Honour, except where they - - -

PN117

JUSTICE GIUDICE: Except for the kind - - -

PN118

MR WATSON: Except for the kind which is specified in 23.2.2, which includes, your Honour, groceries which I would have thought - - -

PN119

JUSTICE GIUDICE: Groceries, yes.

PN120

MR WATSON: Groceries, hardware, building materials and supplies and newsagents. It is a fair swag, your Honour, it is not - and then, of course, your Honour, warehouse and wholesale employees.

PN121

JUSTICE GIUDICE: Yes. Thank you.

PN122

MR WATSON: Your Honour, that leaves then the question of paragraphs 1 and 5 of the application which essentially relate to annualising of salaries and the implementation thereof. In relation to those matters, your Honour, can I make the following submission. We say that the focus of those clauses is not exclusively or event primarily about hours. It is primarily about a method of payment. We concede that it may have implications for other terms and conditions of employment, such as matters to do with sick leave and the like, but it is not primarily or exclusively about hours, and in that context, your Honour, merely because the hours question may in some sense or other be raised on the periphery, that is not in our submission a sufficient condition for the joinder of this matter with the reasonable hours matters.

PN123

JUSTICE GIUDICE: If the provisions that are sought were granted, there would be an ability to, by agreement, provide for an annual salary which allowed for, for example, 20 hours overtime a week.

PN124

MR WATSON: Yes, your Honour.

PN125

JUSTICE GIUDICE: That would be one - - -

PN126

MR WATSON: That would - that would - presume, of course, that our claim is not granted; the two provisions could be read together. Your Honour, the other matter that I should draw your Honour's attention to in relation to the consideration of this, and this goes in our view quite significantly to this aspect of the application and the question of whether a Full Bench is warranted. Can I take your Honour to the provisions of clause 20.2.8 of the award. Perhaps I should start by taking your Honour to clause 20 which is payment of wages; that is on page 24, your Honour.

PN127

Clause 20.1 provides for, if you like, the default method of payment; that is, weekly payment, and then, your Honour, clause 20.2, which is headed Despite the Above Requirements, sets out a range of other matters. Can I take your Honour over the page to clause 20.2.7 which says that wages may be paid fortnightly. And then, your Honour, clause 20.2.8 which provides Alternative Arrangement:

PN128

However, by agreement with an employee or employees, an employer may implement an alternative arrangement. The agreement must be in writing, signed by the employees and the employer.

PN129

Now, your Honour, the existence of that provision together with the facilitative provisions which are set out in clause 9 of the award in our submission bears substantially on the suggestion that the application of the ACCI is of such importance that in the public interest a Full Bench should be granted.

PN130

JUSTICE GIUDICE: So do you submit that the matters dealt with by paragraphs 1 and 5 are capable of implementation through 20.2.8?

PN131

MR WATSON: Well, your Honour, it appears that an alternative method of payment could be agreed and there doesn't appear to be any restriction on the nature of that alternative method of payment.

PN132

JUSTICE GIUDICE: Yes.

[11.01am]

PN133

MR WATSON: Your Honour, that brings me to the final aspect of my submissions. In our submission this application bears all the hallmarks of a hasty and ill conceived response to our claim in the reasonable hours matters. I want to just list briefly a range of factors in that regard. Firstly, the ACCI have today characterised their matters as counter applications. There is nothing wrong with that per se, but in light of the other matters which I will go to shortly, in our submission it betrays an attitude that these applications were merely or mainly about deflecting attention from the reasonable hours claim and not seriously pressed.

PN134

It is apparent that the application in the retail matter was hastily thrown together. I have already drawn your Honour's attention to the apparent discrepancy in relation to the part-time clause which is being amended. Can I draw your Honour's attention to a number of other errors which appear in the application. Firstly, your Honour, in effect the first full line of the application there is a small typographical error of which we do not make very much, but 18.4.1(b) instead of (a). Then, your Honour, in relation to the proposed annualised salary clause at 18.4.6, your Honour will see there a table which gives an annualised base rate together with overtime for work.

PN135

Your Honour will see that the first line has a shop assistant with 24,533.60 and the overtime figure is 898.93. If I can take your Honour over the page to the penultimate line in the table, your Honour will see that a restaurant worker has the same salary but a different overtime figure. Incidentally, on checking it appears that shop assistants with the duty of buying who have 5 to 12 assistants and more than 25 assistants, the overtime figure in the table is also wrong and the tradesperson figure is also wrong, although I don't make much of those arithmetical errors.

PN136

But it does show, your Honour, in our submission, that this application was thrown together. The grounds of the application do not even refer to the annual leave and part-time employment matters as I have indicated and we invite the Commission to consider the track record of the ACCI in this regard. Until this year the ACCI had been in the habit of making counter applications in the national wage case and can I read to your Honour a passage from the transcript of the national wage case which I, in my submission, casts some light on the nature of those applications.

PN137

I want to take your Honour to paragraph 107. Mr Hamilton says:

PN138

Thank you, your Honour. It is relevant to this issue of conciliation and essentially the issue is this, your Honour. The claims of ...(reads)... bring a greater realism, if you like, to these proceedings.

PN139

Now, your Honour, in that context, Mr Hamilton is talking about providing greater realism to proceedings and he talks about the applications of the ACCI as a response in kind. We think, your Honour, in light of all of the matters that I have gone to this morning and in light of that history, it is open for your Honour to infer that the purpose of the application in this matter and indeed the purpose of the matter, the application in the matter which we say was incompetent, was to create a kind of exaggerated ambit before the Commission in proceedings.

PN140

In some respects that can be looked at by posing the rhetorical question, would the ACCI proceed with these applications if they were not joined with the ACTUs reasonable hours claim, and the answer to that is we think not. In all of the circumstances it is our submission that there is a serious lack of intent underlying these applications. There is a serious failure for the content of these applications - or the content of this application which is before your Honour, to establish the basis for a Full Bench. Those are my submissions, your Honour.

PN141

JUSTICE GIUDICE: Do you have any submissions, Mr Butler?

PN142

MR BUTLER: Yes, if the Commission pleases. First of all in respect of the service of the documents, we did receive the time, date and place of hearing. But there was an earlier reference by Mr Hamilton to correspondence sent to the parties and we do not appear to have received that. Suffice to say that we do not see that as a major issue, but we would like to point out that we are available to meet and we would certainly respond to any letter that we receive. And secondly, your Honour, we support the submissions of the ACTU. Thank you.

PN143

JUSTICE GIUDICE: Yes. Mr Butler, which award is your - your organisation is a party to the Clerical Award is it?

PN144

MR BUTLER: Yes, your Honour. Yes, as a respondent.

PN145

JUSTICE GIUDICE: Yes. Mr Ryan.

PN146

MR RYAN: If the Commission pleases. The Shop Distributive and Allied Employees Association has a number of submissions to make in this matter. We appear in our own right today, very clearly the appearance of the ACTU is not to represent us in this matter, whereas the ACTU does represent us in the reasonable hours matter. We have drawn a very clear distinction between the two issues. Your Honour, in relation to the issue of service of the application by the afore applicant or afore organisation, applicant, in this matter, we note that an order for substituted service was issued in relation to this issue.

PN147

However, the order for substituted service is not in the same form as is normally issued by this Commission in relation to any other variation that has ever taken place in relation to this award. Namely because there is one employer organisation who is actually a party to this award who was not notified, and not even sought to be incorporated in the order for substituted service, and it happens to be the employer organisation who actually has the biggest interest in this matter.

PN148

The ACT and Region Chamber of Commerce and Industry is one of the bit players in the retail industry in the ACT, the same as is Australian Business. The Australian Retailers Association happens to be the major employer or the major employer organisation in the industry and also the major player in relation to the award. And we say that failure to advise them and to serve them with a notice of the hearing is not a matter that should be rectified by doing it after the fact. But we say that the application should be stood aside, they should be properly notified and then only after the proper service ..... effected upon the major employer organisation in the retail industry and a named party to the award should the matter then proceed.

PN149

To that extent we say that the order for substituted service should be revoked by the Commission and to the extent that order for substituted service is to be issued, it should be in the same form as has traditionally been used to put in place, and that is that each of the organisations who are parties to this award are properly notified of the hearing. The only reason - - -

PN150

JUSTICE GIUDICE: Do you submit that the ARA are not aware of the application, do you?

PN151

MR RYAN: We have certainly had not contact from them, no one has said there is this application on foot, what is the SDAs view on it. And certainly in relation to anything that goes on with the ACT Shops Award we often get calls, or invariably we get calls directly from the ARA to discuss it with us, because we happen to be the two major parties to the award. In some instances it is a case that issues are generated solely between the ARA and the SDA, with us informing the other parties of what we are about to do and everyone sort of goes along with that.

PN152

The ACT and Region Chamber of Commerce and Industry and Australian Business, have recently been more active in this award than they have in the past, but quite clearly they are still not the major parties to it and there is nothing before the Commission that suggests, or would show, that the ARA is even aware of this application. If that is the case, or until that is rectified the Commission should not proceed with an application that has been so deficiently served on key parties to the award.

PN153

JUSTICE GIUDICE: Do you think that the matter should be adjourned, the ARA notified and the proceedings resumed at some future date, is that your submission?

PN154

MR RYAN: It certainly should be adjourned, yes, for that reason and for other reasons which I will further develop. In relation to this application, I note the comments of the ACT in relation to particular aspects relating to the application. Whilst the ACTU may be a bit more generous with the application in terms of suggesting that when it comes to the variations sought to proposed clause 15.2 in relation to part-time employment that they may have intended to have looked at clause 13, we treated the application as it reads, and that is that clause 15.2 was to be deleted and the new clause 15.2 would be inserted.

PN155

That alone would create such ambiguity and uncertainty in the operation of the award, because it would then - we have no difficulty with the deletion of existing clause 15.2 because it relates to the period of notice that an employee must give on termination and if there is no period of notice that would be fine by us, they can walk out whenever they like. And to that extent clause 15.2 may be good to delete. But if a part-time employment provision is inserted at clause 15.2, it would appear to create a conflict with the existing operation to clause 13 as they relate to part-time employment.

PN156

And on that basis the concept of a reference to part-time employment directly with a termination of employment clause is nonsensical and would be difficult to read as being part of termination of employment provisions of the award and if it was to be read as being other than a matter relating directly to termination of employment, then it creates a direct conflict with the provisions in clause 13. And this award has been the subject of incredibly lengthy proceedings before Commissioner Hingley on award simplification.

PN157

This is not an area where the Association was prepared to make easy concessions in relation to award simplification and the employers sought significant changes to the award as part of the award simplification process. And most issues were argued out over very lengthy periods with numerous conciliation proceedings before Commissioner Hingley and even having arbitration before Commissioner Hingley before the simplified award was finally issued.

PN158

And the part-time employment provisions contained in this award were specifically the subject of extensive negotiations, conciliations and final determination by the Commission in order to ensure that the provisions relating to part-time employment accorded with the approach of the Commission in relation to award simplification. What appears to be sought by this application is either to destroy the effective work of the parties, including the applicant, in relation to simplifying the award. Or alternatively to create such a mess with the award by having to competing and conflicting provisions relating to part-time employment, that the award would be impossible to implement.

PN159

I suspect that to a very large extent paragraph 7 of the application is simply a reflection of absolute sloppiness on the part of the applicant. And I say that quite deliberately because when I went to the award it seemed beyond belief that an organisation would want to put a part-time employment provision into the middle of a termination of employment clause when there was a perfectly good, sound, thoroughly modern and absolutely consistent with the decision of this Commission - - -

PN160

JUSTICE GIUDICE: Mr Ryan, I would be assisted if you would deal with this matter on the basis that it was not intended to delete any part of the termination of employment clause, but rather to deal only with the part-time clause in the award.

PN161

MR RYAN: Yes, sir, I will. I have then tried t work out why clause 15.2 was identified, and it does appear that clause 15.2 of the award, which has been replaced by the simplified award, in other words the ACTU Retail Award prior to award simplification, clause 15.2 of that award did relate to part-time employment. And that clause 15.2 was in a form which is similar to the wording that is sought to be inserted into the award now. But even at the stage of award simplification it was agreed by both the Association and by the applicant in this matter, that that clause needed to be significantly restructured to ensure that it complied with the award simplification process.

PN162

In fact what is now being sought to be reinserted into the award is effectively the part-time employment clause out of the 1996 award with only one operation to the provision relating, or that was incorporated in the 1996 award, and that was a reference to a minimum of 20 hours work or part-time employment. It was conceded, even during the award simplification proceedings, that the conflict of part-time employment inherent in the 1996 award was not the same as the concept of regular part-time employment, which is defined in the Act and which was dealt with in the Hospitality decision and also in other retail award simplification matters.

PN163

And it was agreed by all of the parties to the award simplification that it was necessary to significantly re-write the part-time employment provision so as to incorporate the concept of regular part-time employment as that concept has been defined in the Act and as the provisions relating to an item 51 review required the Commission to have regard to whether or not it was desirable to vary the award to deal with the issue of regular part-time employment.

PN164

On that basis the existing clause 13 provisions on part-time employment are fully consistent with award simplification, whereas what is being sought is actually a retrograde step. If that is a genuine part of this application then it is not an application which in our view requires or justifies the matter going off to a Full Bench in any event, it is a matter which can be dealt with either by ACCI or the applicant redrafting their application and I suggest that they may on reconsideration of the application delete clause 7.

PN165

If they wish to pursue it then it simply is a revisiting of the award simplification proceedings and that in itself wouldn't warrant, in any event, a Full Bench. It could be properly dealt with by a single member of the Commission as was the whole of the award simplification process. Another aspect of the application relates to the concept of incorporating an overtime register. The Association has very strong doubts as to whether or not that is an allowable matter. It is structured in such a way that it doesn't relate, in our preliminary view, to any issue concerning allowable matters.

PN166

And it wouldn't appear, in our view, to be able to be justified as being a matter that was necessary, incidental and necessary for the effective operation of the award. Given that it allows the creation of a register at the discretion of the employer in which employees are able to record any other relevant matter. Now, one wonders how wide any other relevant matters may be, but quite clearly it would probably be not only an overtime register, but a wish list book or a staff suggestion book or a staff comments book.

PN167

It has the hallmarks given the concept inherent in the clause, of being a record of any other relevant matter that an employee wishes to record in writing in a book. It doesn't necessarily have to relate specifically to the concept of overtime, and even if it did, because it is not a requirement and doesn't appear to be a requirement in order to trigger the application of an overtime clause, the application of payment of overtime or have any specific relationship to such matters as the working of overtime, nor does it appear to be part of the time and wages record keeping required by an employer under the provisions of the regulations, then there would be, in our view, serious doubts as to its allowability, let alone serious doubts about the merits.

PN168

It would appear, in our submission, not to be an issue that would warrant in any event the matter going to a Full Bench, or the matter going to a Full Bench at all. Apart from those preliminary comments, there are other aspects of this application which cause us serious concern. Those aspects which go to - - -

PN169

JUSTICE GIUDICE: I would be assisted by your submissions about the matters of how the application should be dealt with, rather than the merits, although I acknowledge that there is an overlap.

PN170

MR RYAN: The issues which cause us most concern, your Honour, are those that go to the wages to be paid to employees. In our view the application in very critical areas is not a matter that deals with hours of work per se, it alters not the hours of work, it alters the rates of pay. This is not an award where the hours of work clause operates to proscribe employment in a way that a person cannot be employed except in the hours of work.

[11.24am]

PN171

The nature of the industry is such that it is effectively an unregulated industry in terms of the hours that retailers may operate. The hours of work clause operates not as a control on work but as a control on the amount of money to be paid. The application by seeking an extension of ordinary hours operates to effectively reduce the wages of employees who would otherwise work those hours. This is not, in our view, an application relating to the mix of hours within existing rates of pay, but is aimed directly and specifically at reducing rates of pay. It constitutes to the Association a fundamental attack on existing conditions of employment.

PN172

The Association has determined that this is an attack which we will resist at all costs and we will do whatever is necessary to resist this attack. We do not see this matter as having any relationship whatsoever to the reasonable hours matter. In the reasonable hours matter we made an application in identical terms to applications made by other unions, parties to other awards, so that the same application was being sought across a number of awards. In this matter only two unions have been singled out to be the recipients of this particular type of application. One is the SDA and the other is - not two unions, two awards have been singled out.

PN173

One is our ACT Shops Award and the other one is the Victorian Clerks Award. There is no application in similar terms across all of the other awards as counter claims to all of the applications made. In our submission this is not a counter claim. It is a specific claim aimed at a specific issue in a specific award. We have adopted the position that whilst we are content to allow the ACTU to continue to run that aspect of the reasonable hours test case that has been constituted by the other applications, in this matter the SDA will deal with this matter itself. We see that there is probably need for us to brief counsel on this matter.

PN174

We also see that this matter cannot be dealt with together with any other application to vary any other award. Issues relating to hours of work as they relate to the wage rates of employees in the ACT retail industry are specific to that industry and to that award. In our submission the proper course of conduct is for this matter not to be joined, not to be referred to a Full Bench at this particular point of time, although I haven't yet made any detailed submissions in response to Mr Hamilton's section 107 references because I was not aware prior to the hearing as to what he was going to say to support his application.

PN175

I must admit I will adopt Mr Hamilton's own words to your Honour when he made comment about the ACTU's section 107 application, and I will say that it is in our submission very disappointing that the applicant, ACCI, in this matter, has made one of the most unconvincing applications for a Full Bench or a test case that we have heard for some time. And similar to the position adopted by Mr Hamilton in the proceedings on 20 June, we seek a period of time of at least five days in which we will - in which to lodge a written submission concerning those issues going to section 107, as to whether or not there are aspects of this matter which warrant a Full Bench, or whether there are aspects of this matter that do not justify a Full Bench.

PN176

I was hoping to be enlightened by Mr Hamilton's submissions today, having read his quite strong opposition to section 107 reference in his written submissions, filed as a result of the hearing on 20 June. I was very interested to see what sort of submissions he would make that would actually justify in his submission a reference of his particular applications to a Full Bench. And as I say, I adopt his own words, very disappointed that it was one of the most unconvincing applications for a Full Bench or test case reference that I have heard for some time. On that basis we seek to the five days to formally respond in writing to the section 107 application that has been made.

PN177

A critical issue for us, your Honour, is the issue of joinder. And I note that in the questions and answers between yourself and the ACTU, quite properly you identify that the issue of joinder is not a matter that is strictly before you, when the only issue before you is whether or not the matter should go to a Full Bench. That is strictly true in the context of the operation of the Act. But in a practical sense the issue of joinder is absolutely within - or not absolutely within your control, but whatever decision you make would in our view so influence the issue of joinder that it cannot be separated from the issue of a section 107 reference.

PN178

The reason we make that submission is if you referred the application to the same Full Bench as has been constituted to do the reasonable hours test case, there would be in our view enormous and overwhelming pressure on the Full Bench to join the matters. Equally, if you referred this application to a Full Bench - - -

PN179

JUSTICE GIUDICE: Why on earth would that be so, Mr Ryan? They would decide the issue of joinder on the merits - the submissions put.

PN180

MR RYAN: I have no doubt that they would decide it on the merits. The difficulty with it is given the undoubted workload problems of the Commission, all of the issues that go with the total difficulty administering the Commission, there would be pressures put on that Full Bench in order to expedite the proper utilisation of the resources of the Commission, the time of the Commission to give more - we say more than favourable consideration to a joinder of the matters.

PN181

Equally, your Honour, if you referred this current application to a Full Bench other than the Full Bench upon - which has been constituted to hear the reasonable hours test case, we say that equally there would be enormous pressure on both Full Benches not to join the matter because again of the difficulties that are placed upon the natural workload of the Commission and the administration of the Commission's business.

PN182

JUSTICE GIUDICE: How could they join them? How could two separately constituted Full Benches join their proceedings?

PN183

MR RYAN: It is certainly not impossible under the Act.

PN184

JUSTICE GIUDICE: Well, what would you suggest would be the outcome if they decided on a joinder?

PN185

MR RYAN: I have got no idea.

PN186

JUSTICE GIUDICE: That they all sat together?

PN187

MR RYAN: Yes.

PN188

JUSTICE GIUDICE: Continue with your submissions, Mr Ryan.

PN189

MR RYAN: But, your Honour, that question itself that you have just raised highlights in our submission the reality that the issue of joinder is inextricably linked with whether or not a Full Bench is constituted and which Full Bench is constituted. In that case we say that our position is that there are such separateness relating to the issues of this application to the applications in the reasonable hours test case, that joinder should not be considered. We also make the submission that the nature of the opposition that we would run to this application is yet to be determined. We do not see the application lodged in this matter as a counter to the reasonable hours.

PN190

However, we have seriously considered, and are continuing to consider within the Association, the making of a counter claim to this application. If there are issues relating to wage rates and if there is an attempt to undermine and reduce actual wage rates with employees, then we would, and are considering, making a counter claim to ensure that the wage rates are properly protected in a way that will respond to and counter any of the issues raised by the applicant in this particular matter. We are still considering the making of that counter claim. We need to take further advice on that matter before we determine our position on whether or not we will make an file a counter claim.

PN191

In our submission any hearing of the application would properly and should take place in the ACT. It has been the traditional practice that all matters concerning this award are dealt with - all matters of substance are dealt with in the ACT. Even award simplification when it was dealt with in Melbourne was done by way of video conferencing back with the ACT, so that respective employer parties in the ACT could be present. Given the very specific issues that this application raises in relation to actual wage rates and a reduction in the wage rates, the number of witnesses that the Association would need to call would in our submission require any hearings to be dealt with solely in the ACT.

PN192

Equally, we believe that the nature of any evidence that the employees would lead in relation to justifying their application would require considerable cross-examination of their witnesses, and to that extent would also necessarily be in the ACT where the employers are all based. That alone in our view should keep and justify this matter being kept totally separate from the reasonable hours test case matter, and there should be no joinder of the matters, nor given the sheer complexity of running a case with potential for extensive witness examination, the possibility of inspections of work places, that there should be a reference of these matters to a Full Bench, although we do ask that we be given five days to finalise in writing our considered views in relation to the section 107 reference sought by ACCI. If the Commission pleases.

PN193

JUSTICE GIUDICE: Thank you, Mr Ryan. Just before I turn to you, Mr Hamilton, I would be interested in the submissions of the ACTU in particular, but Mr Butler as well if he is minded, on the application that the SDA be given a further five days in which to file submissions on the question of the reference. Do you have any submission about that, Mr Watson?

PN194

MR WATSON: No, your Honour. I mean obviously - other than to say obviously if your Honour were minded to granted that application we certainly wouldn't oppose the time being granted. We think we have established a case, if you like, for your Honour to dispose of the matter today but in the event that the SDA feel they need time we certainly couldn't oppose that.

PN195

JUSTICE GIUDICE: Mr Hamilton.

PN196

MR HAMILTON: Thank you, your Honour. As a general submission this present matter relates to an application under section 107 for two applications to be referred to a Full Bench and the same Full Bench that has been established in another matter, which I have referred to as the ACTU unreasonable hours case. We in our response would, therefore, deal with issues relevant to that section 107 application and their views on it, and we won't be canvassing in any great detail the many merit issues that have been raised by those opposed to us. First of all, in relation to the Victorian Clerks' application the ACTU submitted the application was not competent because VECCI is not a respondent to that award.

PN197

We are seeking instructions on that issue. We believe the situation to be that VECCI lodged the application on behalf of respondent members and we will respond in writing very shortly just to clarify the issue of whether they are respondent, as an organisation what capacity the application is made. And we would respond very shortly in relation to that issue, your Honour. Secondly, the ACTU is also acting for the ASU and the Municipal Employees Association address the issue of the ACTU Retail Award. I think they use the word "joinder" on a number of occasions. We have not sought joinder today, your Honour. That is a matter to be dealt with by a Full Bench if it is established.

PN198

JUSTICE GIUDICE: Well, I think it has been put though certainly by Mr Watson and by Mr Ryan that the questions are related. I don't think it was words were put into your mouth that you were seeking joinder, rather it was said that there is a relationship there. But I just put that, as it were, for the record.

PN199

MR HAMILTON: Yes.

PN200

JUSTICE GIUDICE: How you deal with it is a matter for you.

PN201

MR HAMILTON: Thank you, your Honour. Well, we don't see the joinder issue as at all relevant. What we are asking for at this stage is a Full Bench to be established and for the matters to be heard together with the other matters regarding which a Full Bench has been established. How the Commission deals with it as a matter of procedure, whether it joins so called, whatever that phrase means, or de-joins or some other procedure, is a matter for the Full Bench and it is not relevant to the issue of what we are seeking today, your Honour, we say.

PN202

Secondly, the ACTU argued that the grounds didn't - of our application didn't deal with the issue of annual leave, single day annual leave and other aspects. And we just put the brief submission that that submission is completely incorrect. As the final ground we have said:

PN203

To modernise the provisions of the award governing hours of work, to facilitate flexibility and options for an employer and employee at enterprise level.

PN204

One option would, of course, be single day annual leave and so on. So even though that submission is not relevant to the issue before this Commission today, which is a section 107 reference of two applications, their submission is simply not relevant. It is also incorrect. Fourthly - and that does, of course, raise the issue of general flexibility of hours provisions and provisions such as single day annual leave and the like are simply a small sub-set of a general issue which is raised by our application and is raised by the ACTU unreasonable hours applications.

PN205

The ACTU dealt with our proposal for an overtime register saying it adds nothing to the clause. The ACTU seemed to be suggesting that there may be other ways of adopting an overtime register which might meet some of those concerns, or if they weren't suggesting that it would obviously be possible to vary that clause in a way which did make a difference in our submission. In any event it is a merit submission which properly will have to be dealt with by the Commission when it hears merit submissions. At this stage, your Honour, it is simply a sub-set of the general issue of hours of work provisions, alleged unreasonable hours, alleged excessive overtime and the like.

PN206

It is our attempt to provide a constructive submission on what can be done to deal with various allegations that exist about alleged unreasonable overtime, and we will in the unreasonable hours case pursue that constructive submission and give reasons why it is appropriate. And I am sure if necessary the ACTU and unions will put merit submissions as to why it is not appropriate, including perhaps the submissions they have put today. But at this stage it is not strictly speaking a relevant submission in our submission. Sixthly, the ACTU dealt with the issue of genuineness of industrial disputes seeming to argue that - sorry I withdraw that - genuineness of industrial disputes.

PN207

The genuineness is, of course, an argument that is put from time to time in relation to industrial disputes. We are not seeking a finding of dispute in this present matter. We are seeking a variation of an award based on existing industrial disputes. That submission is in our submission quite irrelevant, as is the cases cited by them. We are quite firm in our intention to seek these variations and we will pursue them as best we can during the ACTU unreasonable hours proceedings, hopefully with our applications being heard concurrently at the same time.

PN208

Seventhly, they raise the issue of specific - another specific sub-set of our application, another specific hours sub-set of our application relating to the spread of hours, and the fact that the spread of hours was proposed to be increased for one set of shops and not others. Again, that is an issue of merit to be dealt with during the case proper, and we will address that as a sub-set of the general hours issues we seek to raise during the case proper. Eighthly, they argued that the annualised salaries clause was about the method of payment, not hours issues. In our submission that overlooks the increased work cycle, the three monthly work cycle that is a part of that application, and again, it is not relevant to these present proceedings.

PN209

Ninthly, they raise the issue of whether another provision in the retail award might provide the same sort of outcome of annualised salaries possible under our application. If that is the case that is another argument in our view for granting our application and making it clear. And we would also say that that sort of submission doesn't fit well with submissions put by the SDA and others that this is - I think the phrase was a fundamental attack on the existing terms of employment. So we say there is an inconsistency there. In any event it is a merit issue and an issue of interpretation of award clauses and they will during later proceedings have an opportunity to address merit issues.

PN210

Tenthly, they quoted some statements we made in relation to the safety net proceedings. Now, I really can't see the relevance of those submissions to this present matter. Today we are simply seeking a section 107 reference and we pursue that section 107 reference. There is no lack of intent. These are the submissions - these are the sorts of outcomes we believe to be appropriate in these awards and these are the sorts of submissions we will be putting during the ACTU unreasonable hours proceedings. In relation to APESMA they adopted the submissions of the ACTU and we have already dealt with those.

PN211

We will secondly provide them with a copy of the letter that we sent by registered post on 5 July and hope we can have discussions with them today. Turning to deal with the SDA submissions, the SDA has firstly sought five days in which to respond to claims - to respond to submissions we have put today seeking to justify reference of these two matters to a Full Bench, and they said - the SDA was represented in the proceedings before the Commission on 20 June 2001 in relation to section 107 reference of the ACTU unreasonable hours matters.

PN212

At paragraph number 104 and following, we did give an outline of the sorts of reasons which would lead us to seek to have these present matters before your Honour dealt with in the same way as the ACTU applications were procedurally. We said, for example, there was a commonality of the two sets of matters, a submission which is a key part of our submission today. So they have had notice of our arguments. Our arguments were, as they were then, that as counter claims they should be dealt with in the same way as the ACTU counter claims. There is in our submission no justification at all for a five-day delay to enable them to put written submissions.

PN213

And, of course, they did concede that the ACTU represented the SDA in the reasonable hours matter on that day and transcript records that. Secondly, as to service, they raised the issue that the Australian Retailers Association had not been notified. We undertake to provide the Commission with a letter from the Australian Retailers Association indicating whether or not they seek to put submissions in relation to the section 107 matter heard today. They have been provided in writing with a copy of our applications as soon as they were lodged.

PN214

They have been aware - they were aware of them during development of the applications and the lack of provision for them is in our submission no basis for any further delay in this matter and we will - if, of course, a letter from them indicates they wish to put submissions, then it would be appropriate for the process suggested by the SDA in relation to them to be adopted, which is provision for five days to put a submission in writing. In relation - so we reject their submission that this matter should be adjourned. Thirdly, they point out in relation to our clause 7 of our application to delete clause 15.2 and add a following clause 15.2, that that is made in error.

PN215

That is at page 5 of the application to vary the retail award. We accordingly withdraw that aspect of our application. Fourthly, they raise - - -

PN216

JUSTICE GIUDICE: Which is that, Mr Hamilton?

PN217

MR HAMILTON: That is paragraph 7, page 5 of our application to vary the retail award.

PN218

JUSTICE GIUDICE: Yes.

PN219

MR HAMILTON: We withdraw that paragraph.

PN220

JUSTICE GIUDICE: All if it, yes, I see. Thank you.

PN221

MR HAMILTON: Thank you, your Honour. Fourthly, they raise the issue of whether an overtime register is allowable or not and say it doesn't relate to any allowable matter. A similar issue has been raised, of course, in relation to preliminary hearings of the ACTU unreasonable hours matters. As with them, those issues of allowability will have to be dealt with during merit proceedings. We are here today dealing with a section 107 reference and for the record we believe they are allowable and will put a submission in relation to that.

[11.52am]

PN222

In effect, the argument that that register doesn't relate to any allowable -does seem to us to be quite a - I am sorry, I withdraw that. Fifthly, they say that the - they described our application as a fundamental attack on the existing terms of employment. Now, we say that does reinforce our submission that this is a matter of such importance that it requires a Full Bench to hear it. If their submission is a correct one, logically it would suggest that this application is of some importance.

PN223

Seventhly, they said this matter is not a counter-claim. Well, it is a counter-claim as we have said, and as we said in relation to the - at the time of hearing the 107 reference to the ACTU unreasonable hours claim, we will be seeking to put arguments of this kind during the ACTU unreasonable hours case. It by definition a counter-claim. They then put submissions as to procedure. Those issues will have to be dealt with when any procedural hearings are held in relation to this and the ACTU unreasonable hours matter.

PN224

Overall, today's hearing has been very instructive to me on ways - to use the ACTUs words in the ACTU unreasonable hours hearing - on ways of delaying, perhaps impeding or frustrating applications, very instructive. We, however, press our section 107 application and respectfully ask the Commission to grant it and we will certain provide the Commission with additional material we have promised in the very near future. If the Commission pleases, those are our submissions. Yes, thank you, your Honour.

PN225

MR WATSON: Your Honour, there are just two matters which arise and they are both very brief and with your indulgence. Mr Hamilton mentioned in relation to service of the Australian Retailers Association that documents have been forwarded to them. Your Honour, I have just noticed that the order for substituted service in the Clerical and Administrative Award matter actually contains the Retailers Association as a party for substituted service in relation to that matter.

PN226

JUSTICE GIUDICE: Well, it may be the - - -

PN227

MR WATSON: So it may be that they have received, in effect, the wrong application, your Honour.

PN228

JUSTICE GIUDICE: Yes.

PN229

MR HAMILTON: Perhaps I can clarify that. Your Honour - I am sorry.

PN230

JUSTICE GIUDICE: Yes, well, I don't want to spend any more time on that issue. If there is to be some verification of a position, then I think you should attend to it, Mr Hamilton.

PN231

MR HAMILTON: Yes.

PN232

MR WATSON: The only other matter, your Honour, that I did want to place on record was that Mr Hamilton in his submissions suggested that the application in the Clerks' matter might have been brought on behalf of certain employers. Your Honour, on its face it is not, it is an application.

PN233

JUSTICE GIUDICE: Yes, well, that is a matter that he is going to attend to as well. Mr Ryan, I intend to give you an opportunity to make some further submissions. They should be made orally. I have in mind at the moment sitting at 10 o'clock tomorrow morning to hear them.

PN234

MR RYAN: Yes.

PN235

JUSTICE GIUDICE: Yes. You will be available then?

PN236

MR RYAN: Yes.

PN237

JUSTICE GIUDICE: Good. At that time, Mr Hamilton, I would also like to hear from you on the outstanding matters.

PN238

MR HAMILTON: Yes, your Honour.

PN239

JUSTICE GIUDICE: And I won't be acceding to any submission that there should be further submissions in writing.

PN240

MR HAMILTON: Yes, your Honour.

PN241

JUSTICE GIUDICE: I want to have this matter dealt with to finality tomorrow morning so it can be progressed.

PN242

MR HAMILTON: Thank you, your Honour.

PN243

JUSTICE GIUDICE: All right. I will adjourn now till 10 o'clock tomorrow morning.

ADJOURNED UNTIL WEDNESDAY, 11 JULY 2001 [11.57am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACCI1 REGISTERED POST DOCUMENTS PN11