C0096/598, Transcript of Proceedings [2001] AIRCTrans 189 (9 March 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C NO 00965 OF 1998
C NO 00966 OF 1998

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE TRANSPORT WORKERS
(BULK MILK CARTERS) AWARD 1985

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE TRANSPORT WORKERS
(MILK CARTERS) AWARD 1985

SYDNEY

10.25 AM, MONDAY, 19 FEBRUARY, 2001

CONTINUED FROM 24.11.00 IN MELBOURNE

THIS HEARING WAS CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN43

THE SENIOR DEPUTY PRESIDENT: I might take appearances here first in Sydney.

PN44

MR E.R. COLE: If the Commission pleases, I appear with MS C. SHELLY and MS F. CARAPELLUCCI, and in Melbourne present in the videoconference room is another one of our staff, MR N. GOULD.

PN45

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Cole. I'll take appearances now in Melbourne.

PN46

MR. J. SMITH: If the Commission pleases, I appear for the Transport Workers Union.

PN47

MR D. EBERHARD: If the Commission pleases, I'm from VECCI.

PN48

MR S. FIELD: If the Commission pleases, I am from the Australian Industry Group.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. We have had a bit of a delayed start this morning due to the fact that the TWU was not represented at 10 o'clock, but as a result of a telephone call my associate placed to the union we have you this morning, Mr Smith. We might start with you. You may be aware that directions were issued in both of the matters that I called on this morning. They issued after the conference, after the last time this matter was before me in conference.

PN50

The fact that the directions were to issue was discussed in the conference and consideration was given to the convenience of the parties and the time required by the TWU, in particular, to attend to that which it needed to, and on 11 December the directions issued requiring the employers to do certain things by 22 December, which they did, and the TWU to do something by 30 January, which I don't think you did - well, if you did, it didn't make its way to my file, so perhaps we might start with that, Mr Smith?

PN51

MR SMITH: Yes, your Honour. Firstly, I apologise for the delay this morning and the fact that the matter has only come to my attention a short time ago. I have since the phone call from the Commission had a look at the directions and the transcript from last December and I note the directions, but the union hasn't complied with those directions. Certainly the union has received the draft documents from the other parties and I had assumed that this matter was going along in the usual fashion, but it appears that we haven't followed the directions.

PN52

I am unable to offer any sort of excuse for that failure, your Honour, and I apologise for any inconvenience which that is going to cause today. I am in a somewhat difficult position in terms of giving any indication of the union's position concerning those documents because I've not read them, and apart from indicating that we've obviously caused the Commission some considerable difficulty this morning, (a) with the delay and (b) not providing a response to the documents, I can't take the matter a great deal further. I know it's a rather unsatisfactory position.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes; well, unless your personal circumstances change, Mr Smith, I think you might be going overseas soon, so I don't think I'm in a position to place any time limits, bearing in mind your ability to do that which should have been attended to. Are you in a position on behalf of your colleague who might have the carriage of this matter to indicate when the direction will be complied with?

PN54

MR SMITH: Your Honour, I'm certainly in a position to do that. I'll be speaking to the relevant officer who was absent today immediately upon her return. I would like to think that given the time frame and the fact that the orders were made in December or mid-December, we would be in a position to provide our response promptly. I would like to say that we could provide the response by the end of business, close of business this Friday. I am, however, mindful of the fact that there's obviously been a delay today and there's obviously a bit of work involved, but I would like to indicate to the Commission that every endeavour will be made to file and serve a response be the close of business on Friday.

PN55

THE SENIOR DEPUTY PRESIDENT: We might come back to that, because I think there are a few matters that we can usefully attend to this morning anyway, so at least some of the matters raised by the employers we can clarify those. Now, VECCI and AIG raised a number of comments about the draft. They are matters I think principally that the TWU will need to respond to in relation to the sorts of comments where it is said that clauses are obsolete or they do not cross-reference with the correct clause or they need some clarification.

PN56

I don't know how much further we can go with any of those types of matters raised in the two letters, but there are a couple of matters we could attend to. The first I think of is the reference in I think it's the VECCI letter to revisiting the casuals clause in the Milk Carters Award after a Full Bench has handed down their decision in the Metal Workers case. That's the VECCI letter and the response contained in paragraph 2.1 referable to the Milk Carters Award. I understand the reference to the Full Bench, and I suspect I know which one is being referred to, and I also know that a decision recently in the casuals case has been handed down and I suspect an order issued, but I'm not entirely sure what is being deferred.

PN57

Now, what I do know, though, is that that suggestion really picked up something said by the department in one of their documents, the Summary of Changes. Mr Eberhard, as you're representing your members here, may we start with you? Have you had any further thoughts as to what if any changes need to be made to the casuals clause as a result of the Full Bench order?

PN58

MR EBERHARD: I haven't at this stage, your Honour, and all we were really doing in 2.1 of our correspondence was endorsing the position that the department had put in regards to their Summary of Changes document that was distributed at the previous conference.

PN59

THE SENIOR DEPUTY PRESIDENT: Well, I'm on the right track when I say, aren't I, that whatever the terms of the order were that issued, it would have no immediate consequence for this award?

PN60

MR EBERHARD: That's correct, yes.

PN61

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Cole, was there something else behind that reservation that was in that earlier document to say you might want to re-visit the casuals clause again?

PN62

MR COLE: Yes, your Honour, there was. There were some questions of jurisdiction raised by the Commonwealth in the Metals Casuals case, matters that went to whether or not certain proposed restrictions on the circumstances in which casuals might be used were compatible with section 89A(4)(a) of the Act. In the outcome of the case, the Full Bench did not see fit to adopt any restrictions on the type of circumstances in which casuals might be employed under the Metal Industry Award.

PN63

What the Bench did of course was to provide that for casual employees employed on a regular and systematic basis for six months or more but such employees would have a right to elect to convert to permanent part-time or permanent full time employment as the case may be. So it does seem to us there are some clauses in the Milk Carters Award, clause 9A and 9B, which actually impose time limits on the period for which a casual employee may be engaged.

PN64

We've been addressing the issue to what extent any guidance in the Full Bench Metals Casuals case bears on the issue that we had previously raised to the Commission's power to include such a clause in an award. The matter is not necessarily free from doubt and we're actually still suggesting in that regard the outcome of the case, but whatever the position may be in respect of the issue of power there is something of a lead, I think, provided by the Full Bench in the Metals Casuals case that there would also be questions of principle and merit to be dealt with in considering restrictions, the imposition of a continuation of restrictions on the use of casual employees.

PN65

Therefore, the situation depending on the views of other parties, may well be one where there is a combination of issues of jurisdiction, principle and merit to be addressed, and it may be that - well, of course, that sort of combination of issues can alternatively be dealt with by dealing first with jurisdiction or dealing with all matters in combination and depending on what views were taken on matters of principles and merit the question of jurisdiction may not actually arise to be determined.

PN66

THE SENIOR DEPUTY PRESIDENT: And certainly from your point of view, you haven't formed the view that should certain matters have to be heard you would seek to be heard in relation to jurisdiction in particular?

PN67

MR COLE: Well, we haven't finalised a view on that matter, but that's a matter that we would expect to reach a conclusion on expeditiously and I would anticipate by the end of this week, your Honour.

PN68

THE SENIOR DEPUTY PRESIDENT: Well, then, from the employers' point of view, I think that at least you will understand where the - I don't know if we've called you the Commonwealth in the past or the Minister or the department or what we've called you. What should we call you?

PN69

MR COLE: It's all the same to us, your Honour.

PN70

THE SENIOR DEPUTY PRESIDENT: Well, whilst we're in conference it's probably all the same to me, too.

PN71

MR COLE: I think we announced our appearances originally on behalf of the Commonwealth.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, I think that's right. So I think the employers need to ascertain whether they're going to take any position in relation to the power, or perhaps I'll put it this way: in relation to whether the old clauses 9A(c) and 9B(b) can remain in the terms in which they're in the old award and just be transferred into the appropriate place in the new award, and then also whether there are any merit arguments that the employers wish to run referable to whichever head under item 51 as to why I should in any event, even if there's power for them to remain, reconsider them. Now, I must say that at that latter category the merit of retaining them in the clause I put very much into the lap of the employers.

PN73

You need to let me know fairly soon as to whether you're going to challenge those clauses because it will then of course be for you to bring suitable evidence to satisfy me that one or other head of item 51 is offended by them remaining there. So I suppose there's a little bit more work for the employers to do, and I suppose there's an indication that we would obtain from the Commonwealth as to whether in the event the matter has to proceed to a hearing on a number of matters, not withstanding these, you'd be inclined to intervene to run that argument?

PN74

MR COLE: Yes; as I said, in about a week we would expect to be in a position to indicate that to you and the other parties, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: Okay. Now, I think that's the only clause that falls into this sort of category, isn't t? Have I overlooked anything, Mr Eberhard or Ms Field in your written submissions?

PN76

MS FIELD: I don't think so, your Honour, as far as we're concerned.

PN77

THE SENIOR DEPUTY PRESIDENT: No. I think it's the only one that could have the potential to throw up these types of arguments. Mr Eberhard, anything I have overlooked in your letters?

PN78

MR EBERHARD: I don't think so, your Honour. I think the only thing that we really - there's still some clarification required as to what the original award intended to be referred to in a couple of instances that we've referred to and the Government department has referred to.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Now, could I deal with this other issue that might be one that we could usefully say something about this morning or you could usefully say something about. This is the VECCI letter. On this occasion I'm dealing with bulk milk carters, but you've expressed a view about there being no scope or coverage clause and you've suggested a clause that should go in. Do you know if that's an oversight or from your research has there not been such a clause for some time now?

PN80

MR EBERHARD: No, look, it's very much just a suggestion and was just a discussion point to be raised amongst the parties and I hadn't researched to see whether there had been one previously or whether it had never applied, but as I said, it was really just a matter of throwing some words together and then seeking discussions with the parties with respect to those words that we propose.

PN81

THE SENIOR DEPUTY PRESIDENT: All right. Well, I suppose if you reach some agreement with the TWU, that might - I see, no, I'm sorry. I was just looking at the existing award - no, I'm so sorry. Back to what I was saying, bulk milk carters. If you reach some agreement with the union, well and good. If you don't, is your current inclination to actually proceed to an argument and require me to make a ruling on the proposed clause or any clause at all?

PN82

MR EBERHARD: To be honest, your Honour, I hadn't really thought about it at this stage. It was a matter that I think both Mr Ironmonger and myself raised at a previous conference and it's a matter that we basically undertook to provide some words and at this stage we'll provide those words, where they get to we don't know, but it's probably something that, yes, we probably would pursue, but I can't definitely say that, yes, we would seek to have them argued if any arbitration arises in these proceedings.

PN83

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Then I think that the third category of matters that we could usefully at least refer to or deal with this morning arises out of the Commonwealth letter to me, a copy which I'm told was sent to the other parties. It deals with superannuation, and it provides a suggested superannuation clause. I haven't looked at it closely enough to see whether the clause is in similar terms for both bulk milk carter and milk carters.

PN84

MR COLE; I think, your Honour, this may only be an issue in bulk milk carters.

PN85

THE SENIOR DEPUTY PRESIDENT: In bulk milk carters. Well, what's the situation in milk carters?

PN86

MR COLE: It appears there may be no superannuation, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: I see. We can at least deal with that fairly promptly. Yes, well, as it's not in alphabetical order at all, I can just very quickly go through the subject matter clause and I can't immediately see a superannuation clause in there. There's this clause 7A in there, though. It might be a matter, Mr Smith, you can take on board and probably I would need to be addressed on. It provides that employers may apply in lieu of the award the provision of the Bulk Milk Carters Award if that award covers the majority of workers.

PN88

Now, I think on other occasions I've commented about those sorts of clauses. I know how historically they have arisen, but this might be an example where that clause would call up superannuation for certain employees of employers if it's triggered and would not, but otherwise it would appear that there's no superannuation clause in the Milk Carters Award. Then back to the proposed clause that the Commonwealth suggest for the Bulk Milk Carters Award. Is there anything more that needs to be said about that other than the description of it and where it comes from? Mr Cole?

PN89

MR COLE: I think we did attach a commentary to the clause. We've endeavoured to draw that clause in terms consistent with what I'll call the final outcome from the Superannuation Test Case, and I'm referring to a Full Bench decision of 13 December, 2000. That's Print T4144, and at least one issue that arises relates to, if everybody has this letter in front of them, to proposed clause 24.3.2A which provides that:

PN90

An employer must determine a weekly contribution in respect of each full time employee.

PN91

and we comment on that in the attachment. It's the second row of comments, and basically what we raise is, well, is there a particular purpose in requiring determination of a weekly contribution noting that the contributions are in fact paid monthly and it just escapes us, but there may be some reason for this, what the rationale or purpose is of requiring the employer to actually determine a weekly contribution.

PN92

There's a related issue that as this award would, as redrafted, cover part time employees if the employer has an obligation to determine a weekly contribution in respect of full time employees. If there is some purpose behind that, the question arises would the same rationale extend to a similar obligation perhaps in respect of other employees? Although I should go on to indicate that the, as I understand it, thresholds that are applicable to casual employees and part time employees, that is, as to whether employers have any obligation at all to pay the SG, I think this is correctly expressed in terms of amounts over a month.

PN93

THE SENIOR DEPUTY PRESIDENT: Certainly the last time I had to look closely at the legislation that was the case but whether there's been any change since, yes.

PN94

MR COLE: In any event, the main issue we raise there is what is the purpose of the requirement to determine a weekly contribution? Another issue which is - I'm just going to the main points perhaps that relates to the current clause, 38(c()(ii), and that, in effect, provides that the definition of ordinary time earnings will be as per rulings of the Australian Taxation Office as varied from time to time. It does seem to us that that is not a necessary reference because the way that ruling operates and the SG arrangement overall refers to definitions in awards, and in the absence of definitions of an ordinary time earnings base in awards provides an alternative default definition as per the rulings by the Australian Taxation Office.

PN95

So the omission of that definition from the award would simply trigger the default situation under the SG arrangement and would bring about in effect the same outcome that the applicable definition would then be the definition provided by the ATO rulings. In those circumstances, this seems to be a redundant provision and for that reason we propose that it be excluded. It in effect simply duplicates what would apply in any event absent this provision under the SG arrangements.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, well, again I suppose my position would be in relation to whether - I'll use the terminology as a matter of merit, and by that I mean whether one of the requirements if item 51 would require me to look at this and entertain that sort of submission, I should say that I'd be interested firstly as to whether it is one coming from the employers, and I think you've both reserved your position to consider the draft of the Commonwealth further, so I suppose I'll be asking you how much longer do you need to do that? I might ask you that now. Mr Eberhard?

PN97

MR EBERHARD: How much longer we'd need to review what the Commonwealth has just said in regards to superannuation?

PN98

THE SENIOR DEPUTY PRESIDENT: Well, I suppose taking it this way; whether you subscribe to the draft of the Commonwealth, subject of course to the Commonwealth, even the Commonwealth is saying there's some further consideration to be given to that, and if you don't, what's your proposal for the superannuation clause, namely, starting from the superannuation clause already in the award, what do you propose to be the outcome of the simplification exercise?

PN99

MR EBERHARD: In all honestly, your Honour, I haven't had a chance to review the Commonwealth's proposition contained in their correspondence of 14 February, but we could certainly indicate by the end of the week to the various parties VECCIs position with respect to that correspondence.

PN100

THE SENIOR DEPUTY PRESIDENT: Ms Field?

PN101

MS FIELD: Yes, similarly, your Honour.

PN102

THE SENIOR DEPUTY PRESIDENT: All right. I think they're the sorts of matters that I could raise this morning and about which I would not have pressed the TWU this morning for their response anyway, but all the other matters are all very much in your court, Mr Smith, so I wonder whether what we're leading up to is this? From the Commonwealth's point of view you might let us know, let's say close of business next Tuesday, what your position is on casuals?

PN103

MR SMITH: Yes, very well, your Honour.

PN104

THE SENIOR DEPUTY PRESIDENT: I don't know at this stage that I would hear you further on superannuation, I wouldn't know what the employer is going to say, so I think that's really all that I would want from you. The employers; each of the matters that I've asked for your response on this morning, what do you want, no later than next Tuesday or do you want another day to consider whether the Commonwealth - I mean, you can speak to the Commonwealth and know before close of business next Tuesday whether they're going to be seeking to intervene to run the jurisdiction argument, can't you, and decide whether you two want to subscribe to that or not?

PN105

MR EBERHARD: Next Tuesday would be fine from VECCIs point of view.

PN106

THE SENIOR DEPUTY PRESIDENT: Now, Mr Smith. What about close of business on the following Friday for you to do all that which you should have done by today plus consider the position of the union in respect of the matters we've discussed this morning?

PN107

MR SMITH: That would be 2 March, your Honour?

PN108

THE SENIOR DEPUTY PRESIDENT: Yes, it would.

PN109

MR SMITH: That's right.

PN110

THE SENIOR DEPUTY PRESIDENT: Now, I said on the last occasion, Mr Smith, that it's useful for me to consider anything that's been submitted by reference to the draft prepared by the Commonwealth despite Ms Sdrinis's concern about the source of the draft. I don't think I want to revisit that again, there is a draft there. It is best that we're all working from the same document, so it will be very difficult for me if the TWU now files its own draft that isn't referable to that document, its own draft in terms of differently formatted and requires me to undertake a comparison of clause by clause which would really be very time consuming and I really don't want to do that.

PN111

MR SMITH: I take your Honour's point, and it's perhaps in the current circumstances a little difficult for us to suggest that there should be some other way at this stage of the proceedings, so our response will be referable to that and, indeed, 2 March gives us more time than perhaps we might reasonably have expected.

PN112

THE SENIOR DEPUTY PRESIDENT: Yes, that's good. I think then what I'll start to do is to work on the draft I have to make such changes to it that arise out of the submissions of the employer that refer to clauses that are obsolete or don't make sense or cross reference to a clause that is clearly incorrect. It may well be they're the sorts of things that I can deal with and change the draft to reflect the way I'm thinking because they might be matters that are just not contentious, so at least I can start to usefully work those proposals into the draft. I don't think that should hold up anyone doing that which they've all said they will do, but this is just something that I can commence to do. Is there anything else we can deal with? Ms Field?

PN113

MS FIELD: Yes, your Honour. I probably when I put in our response on 22 December, or our comments on 22 December, I think that I probably did it fairly hastily because I was actually on leave at that point and I think the Commonwealth has made a few comments on the comments that I made which perhaps go to the fact that I perhaps made some comments that referred to clauses and it should have been parts of clauses. So would it assist you if either the Commonwealth makes available to you the issues it picked up or, alternatively, I just send you another fax to - - -

PN114

THE SENIOR DEPUTY PRESIDENT: I'd like you representing the employers bound by this award to do that.

PN115

MR FIELD: Yes.

PN116

THE SENIOR DEPUTY PRESIDENT: And if takes the form of a letter substituting - in full substitution of the matter of 22 December that would be useful rather than requiring me to read two together, yes.

PN117

MS FIELD: Okay, that's fine, I'll do that.

PN118

THE SENIOR DEPUTY PRESIDENT: All right.

PN119

MR EBERHARD: Your Honour, I have one letter that I would like to raise at this stage, it's not a matter that's been raised before. Linfox has contacted VECCI and has advised that they would seek to be excluded from the operation of the Transport Workers Milk Carters Award 1985, and that's a matter that, as I said, hasn't been raised before. Whether we take that up separately with the TWU and have discussions in regards to that it may be appropriate at this stage, but it's a matter that Linfox has asked us to raise in the simplification proceedings.

PN120

THE SENIOR DEPUTY PRESIDENT: You take that up with the TWU because I wouldn't propose to be dealing with it within the scope of what I think I'll need to.

PN121

MR EBERHARD: That's all right, yes.

PN122

THE SENIOR DEPUTY PRESIDENT: Mr Cole?

PN123

MR COLE: Your Honour, could I just ask, the material that the TWU will produce in response to the current draft by 2 March, it is clear, is it, that the union will be requested to provide that to the parties and to the Commonwealth?

PN124

THE SENIOR DEPUTY PRESIDENT: I don't know that that's clear or not, but I'm pretty sure that the directions I issued last year did direct - let me see what I did direct. No, I didn't actually specify who should be served, I don't think.

PN125

MR COLE: Your Honour, it would certainly assist us, your Honour, if the union would agree to do so in terms of sorting out the extent of what issues may remain outstanding in the matter.

PN126

THE SENIOR DEPUTY PRESIDENT: Yes. Do you want to say something about that, Mr Smith?

PN127

MR SMITH: I'm happy to assure Mr Cole that the Commonwealth will be provided with a copy of our response.

PN128

MR COLE: Through you, your Honour, I thank Mr Smith for that indication.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. What else can we usefully do this morning; not a lot? Well, I think what I'm going to do is adjourn without fixing another date because shortly after 2 March I should have an idea about which matters I assess may need to go to a hearing and which matters might be able to be resolved with a further conference, but as you can appreciate, I think whichever of the two I have, both or just one, a date for them will probably be given fairly shortly after the 2nd, but we'll do our best to take into account the convenience of each of the parties. Good morning to all of you, the Commission now adjourns.

ADJOURNED INDEFINITELY [11.02am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs