C2001/3152, Transcript of Proceedings [2001] AIRCTrans 1942 (16 August 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8765

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2001/3152

FRANKLINS BIG FRESH SDA VICTORIA CONSENT
AWARD 1994

Application under section 113 of the Act
by the Shop Distributors and Allied
Employees Association, to vary the above award
in respect to the Safety Net Review Wages
May 2001 Decision

MELBOURNE

2.47 PM, TUESDAY, 17 JULY 2001

PN1

MR J. RYAN: I appear for the Shop Distributors and Allied Employees Association.

PN2

MS S. WHITE: I am from the Australian Retailers Association, appearing on behalf of Franklins Limited and together with MR WAY of the Association.

PN3

THE SENIOR DEPUTY PRESIDENT: Mr Ryan?

PN4

MR RYAN: Your Honour, this is an application seeking to vary the Franklins Big Fresh SDA Consent Award 1994, by incorporating safety net adjustments up to and including the May 2001 safety net. This is an award which does not have practical operation in terms of determining or controlling the terms and conditions of employment of any employee of Franklins, as all of the employees are currently covered by certified agreements made between the company and the association. It was, however, the underpinning award for the existing Franklins certified agreement and the association's application is simply to ensure that the wage rates in the underpinning award have been brought up to date in terms of applying the relevant safety net adjustments.

PN5

On the basis of consent by the employer, we note that the recent principles of the National Wage Case allow less than 12 months between the '99 and 2000 and 2001 safety net adjustments to be given effect to, in a practical sense, where there is consent by an employer and certainly in terms where this award has no direct impact upon determining the actual wages and conditions of employment of those employees. We have filed with the Commission, a draft order. I have amended that and again e-mailed a copy of the amended draft order to your officer and I would hand a copy of the amended draft order. The draft order we sent had all the right wage rates but we didn't incorporate the clause required by the Full Bench decision.

PN6

The draft order that I handed up, your Honour, the only adjustment between that and the original draft order we have filed, is the addition of the relevant provision as required by the Safety Net Review Wages May 2001 Decision print PRR2001. If the Commission pleases.

EXHIBIT #SDA1 DRAFT ORDER

PN7

THE SENIOR DEPUTY PRESIDENT: Yes?

PN8

MS WHITE: Your Honour, if I understand Mr Ryan correctly, he has sought and received the consent, or he has said today that he has sought and received the consent of Franklin Limited's to an early operative date. I have no such instructions, but having said that, I have received instructions to appear in this matter at 1.30 this afternoon and not had an opportunity to speak to the company, but I am in no position to confirm what Mr Ryan has said on that matter.

PN9

In respect of the draft order that has now been provided, I note that it has got the appropriate clause regarding absorption in it. The other comment that I would like to make in relation to this, your Honour, is that these rates have not been adjusted in this award for some years and Mr Ryan has appeared to have used a methodology that seeks to retain relativity between this and the SDA Victorian Shops Interim Award 1994, as it then was. I would seek 14 days to be able to review the rates, to see if that is the appropriate methodology.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes.

PN11

MR RYAN: We would consent to the adjournment of these proceedings for 14 days or alternatively to have any order made by the Commission not operate for at least 14 days, subject to the employer confirming their position. I do just draw the Commission's attention to clause 14, paragraph (14)(d) of the award, which provides for a very specific relativity between the wage rates in the award and the relevant wage rate in the Victorian Shops Award 1994, which has now been simplified to the 2000 award. That was to ensure that there was some way of tracking the award for the purposes of applying safety net adjustments into the future.

PN12

THE SENIOR DEPUTY PRESIDENT: What is the basis for the 1 June date?

PN13

MR RYAN: I think the only relevance it has is the relationship to when this process first started, by the association, some time ago. I am not wedded to - - -

PN14

THE SENIOR DEPUTY PRESIDENT: So it should be the first pay period on or after today, should it?

PN15

MR RYAN: That is not a problem at all - the understanding I have is that the employer is not insisting upon the implementation of the 1999 safety net adjustment within a year from that date for the 2000 and then a year from that date to the 2001. Which would effectively mean that we wouldn't get the May 2001 safety net into the award until the middle of 2003.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR RYAN: I am not pressed on 1 June under any circumstances. If your Honour pleases.

PN18

THE SENIOR DEPUTY PRESIDENT: What I will do in this matter is I will consent to the variation of the award, in accordance with exhibit SDA1, with a change at the base at the variation date being the first pay period on or after 17 July 2001. But that is subject to giving the parties 14 days to check the figures and also check the issue of whether there is agreement about rolling up all the increases from one variation and applying from the same date, being the first pay period on or after today.

PN19

In the event that there is disagreement about that, then I will re-list the matter. So if you could let my chambers know as to whether there is agreement or not. If there is agreement to the variations I have indicated, then I would indicate that I am satisfied the variation is consistent with the requirements of the Act, the principles and the regulations and would issue the decision.

ADJOURNED INDEFINITELY [2.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 DRAFT ORDER PN7