C2001/1736, Transcript of Proceedings [2001] AIRCTrans 2408 (20 September 2001)

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TRANSCRIPT OF PROCEEDINGS


O/N 9208

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2001/1736

CAR PARKING (VICTORIA) INTERIM
AWARD 1995

Application under section 113 of the
Act by Australian Liquor, Hospitality
and Miscellaneous Workers Union to vary
above award re hours of work, rates of
pay and trade union training leave

MELBOURNE

10.07 AM, THURSDAY, 30 AUGUST 2001

PN1

MR R. LEVIN: I seek leave to appear on behalf of Kings Parking, Wilson Parking, Secure Parking, Metro Parking and Care Parking. If the Commission pleases.

PN2

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

PN3

MS R. FRENZEL: If the Commission pleases, this matter, as I understand, is listed for mention and programming this morning. The Commission will note that the matter is fairly substantial.

PN4

THE COMMISSIONER: I am sorry, I should grant Mr Levin leave if there is no objection.

PN5

MS FRENZEL: I am sorry, I have got no objection to leave being granted for Mr Levin.

PN6

THE COMMISSIONER: Leave is granted.

PN7

MR LEVIN: If the Commission pleases.

PN8

MS FRENZEL: The scope of the application to vary the award is fairly expansive and given that there are a number of matters which the union is pressing with respect to the application, we thought it might be - I am sorry, it might facilitate the process somewhat if we were to have a mention in program and then to work out exactly how the case will be put to the Commission and the time-table for that. With that in mind, we are largely at the convenience of the Commission, save and except for a couple of matters that I have running into October, which I prefer not to have this one running with it side by side.

PN9

And I am happy to hear what my friend says about his availability an otherwise and then we can suggest a time-table for filing and serving of draft orders, witness statements and outlines of submission and the like to try and limit the number of sitting days before the Commission. If the Commission pleases.

PN10

THE COMMISSIONER: Well, it might be useful if I just tell you what the situation is as far as I am concerned first, and that is that I could not deal with this matter until after 9 October.

PN11

MR LEVIN: My submissions might affect other matters as well before we get too far into that.

PN12

THE COMMISSIONER: All right. Well, go ahead then, Mr Levin.

PN13

MR LEVIN: Yes. Sir, the nature of my submissions is that we would be asking to join to this matter an application by the employers to vary the award. The current application is to reduce working hours, increase shift penalties, weekend penalty rates, overtime rates and casual rates. I am instructed that the industry from the employees perspective is in critical condition. Margins are extremely thin, despite what one has to pay when one goes into a car park. And that certain members of our association are struggling financially in quite a serious way.

PN14

It has always been a competitive industry, but since 1994 when this interim award was made, shopping and patterns of times of shopping have changed dramatically. So have car parks and also in technology as well. There are currently Federal Court and Magistrates' Court actions brought against some of those whom I represent in respect of uncertainties about the meaning of clauses in the award and including a significant matter brought by the union to get a declaration, in fact, in relation to one particular provision of the award that is challenging to understand.

PN15

My submission is that what is needed is a new award that sensibly deals in the interests of everybody and I became aware yesterday that - through a call made to the Commission, that there is a draft simplified award that I have not had the opportunity yet to see, which was provided, I am instructed, 12 months ago. And rather than simply respond to the concerns raised on behalf of its members by the union to deal with the aspects that are subject to this application, we think that that would be not - - -

PN16

THE COMMISSIONER: Who do you think provided the draft?

PN17

MR LEVIN: I will obtain instructions, if I may. I am instructed that the information is that the draft simplification unit was the one that prepared it.

PN18

THE COMMISSIONER: Yes. That is probably not what we describe as the draft simplified award.

PN19

MR LEVIN: Yes, perhaps I should have rephrased it better.

PN20

THE COMMISSIONER: What I think has been done is that the award has been reviewed by the Commission in preparation for the simplification process.

PN21

MR LEVIN: I apologise.

PN22

THE COMMISSIONER: There is no draft simplified award in existence.

PN23

MR LEVIN: Yes.

PN24

THE COMMISSIONER: And the procedure which is followed by the Commission in relation to that review, is to, amongst other things, have the award checked by the award simplification unit. That is as far as that proceeding has got.

PN25

MR LEVIN: Yes. I am sorry, my instructions were hastily given to me this morning and so I apologise for that imprecision and thank you for that correct. So with that draft we would like to then prepare what we would see as a model for an award that will address a number of the issues of concern to the union, but also in a manner that can be accommodated financially by the employers and also to introduce other necessary provisions, for example. The award does not even have a part-time provision in it.

PN26

THE COMMISSIONER: Well, I think that illustrates the issue to the simplification question in terms of whether or not there is a draft simplified award.

PN27

MR LEVIN: There may also be matters of enterprise flexibility provisions, which - - -

PN28

THE COMMISSIONER: Exactly.

PN29

MR LEVIN: And so forth, which - - -

PN30

THE COMMISSIONER: There are many - there is much more to the simplification process than just checking the award in relation to matters that - in respect of which decisions have been made by the Commission, concerning whether or not provisions are allowable, and that is as far as it has got, the award simplification unit would have looked at the award and taken clause by clause a check off approach to any extant decision of the Commission to the effect that any of the provisions of the clause had been found to be non allowable by a member of the Commission and, most importantly, by a Full Bench and that is as far as it has gone. As you would appreciate, no doubt, Mr Levin, the provisions of items 51 of the WROLA Act go a much longer way than that.

PN31

MR LEVIN: Yes, they do. My clients would like to take the advantage to utilise the provisions of WROLA to produce, as I say, a workable award and what we - - -

PN32

THE COMMISSIONER: Right and I might say, too, that - just for the record, in case there is any confusion, that information was provided to VECCI, the LHMU, AIG on 9 October, 2000 to that effect. There was an e-mail with an electronic copy of the document, which - - -

PN33

MR LEVIN: Well, I did not realise it was actually as long as 10 months ago, but - - -

PN34

THE COMMISSIONER: And the Commission has heard nothing since from the parties.

PN35

MR LEVIN: Well, the position of my clients is that they would like to advance this matter.

PN36

THE COMMISSIONER: No, I am not being critical of anybody. I am just simply saying they are the facts.

PN37

MR LEVIN: So what we are suggesting by way of programming, if this has any appeal to ..... perhaps to, within 21 days, lodge a section 113 application, that rather than attaches the detail provisions, attaches the nature of what would be sought within it in a general outline. And then to have a draft award prepared in the next 90 days, to then undertake on behalf of my clients to co-operate with the union, VECCI and AIG, to then have discussions so that we can determine amongst ourselves which areas we can agree upon and which areas we need to then try to mediate privately, then move at an appropriate time and, of course, we will need to have some mention dates before you or report backs and the usual process.

PN38

THE COMMISSIONER: I understand what you are saying.

PN39

MR LEVIN: Yes, sir. Well, I will make no further submissions at this time.

PN40

THE COMMISSIONER: Thank you, Mr Levin. Mr Halls.

PN41

MR HALLS: Commissioner, we at the Australian Industry Group will certainly support the submission of Price Waterhouse Coopers. We certainly believe that the proposed variations could be incorporated through the simplification process and we would certainly consent to having the matter programmed so that further discussions can be had with the parties to enable that to occur. If the Commission pleases.

PN42

THE COMMISSIONER: Ms Frenzel.

PN43

MS FRENZEL: A couple of matters, Commissioner. With respect to the e-mail that was sent around 9 October 2000, can I just put on the record a request that the e-mail get resent. I am not saying - - -

PN44

THE COMMISSIONER: It was sent to Silvana at lhmu.arg.au. So I presume it was sent to Ms Crowe.

PN45

MS FRENZEL: It was sent to Ms Crowe. Ms Crowe has been on maternity leave.

PN46

THE COMMISSIONER: Yes, well, that may be the reason why you are not necessarily fully appraised of the situation.

PN47

MS FRENZEL: But I have certainly checked that, Commissioner. Commissioner, with respect to the programming, can I say this. There is a certain attraction to respect to trying to deal with union's application to vary and the simplification on ..... We, however, have a few problems, not with the concept itself, but with the timing of it. The first thing I would like to say that there have been, albeit brief, but there have been discussions between the union and the employers about the union's application. And this matter has been on foot now for quite some time and it is probably time that the matter was dealt with.

PN48

Secondly, that we are opposed to the notion of joining a further application yet to be made, the terms of which we do not know about, to be made by the employers, they suggest, within 21 days from today, I assume, given that the employers have been fully appraised of our application for quite some time. We would say this, that the matter - these matters contained within the application are largely matters which we say fall within the safety net. There may be a debate about some of those matters, hence the union seeking the reference, which was rejected by his Honour, The President.

PN49

Having said that, we would wish to press forward with the union's application. The employers have been free. They have known about this matter for quite some time. They have been free for quite some time to lodge, if you like, a counter claim to the union's application. They have not done so. They are coming to the Commission today saying, well, there are - - -

PN50

THE COMMISSIONER: All right. No, no, I hear what you say. You do not think it is appropriate for this application to be effectively adjourned to fit the convenience of the joinder of the foreshadowed application.

PN51

MS FRENZEL: That is right. That is absolutely right. We would be happy to have dates set down in the month of November with filing and serving of outlines of evidence and submissions, with a view to having the matter heard and determined in the week beginning 22 October.

PN52

THE COMMISSIONER: Well, I doubt whether I would be able to indicate when the matter would be determined at this stage.

PN53

MS FRENZEL: Well, certainly. Listed for hearing, should I say.

PN54

THE COMMISSIONER: Yes. I think the issue is whether or not I should defer proceeding with this matter contingent upon the filing of other applications that are foreshadowed.

PN55

MS FRENZEL: Well, if the Commission is minded to take that approach, can I respectfully - - -

PN56

THE COMMISSIONER: No, I said I think that is the question, is not it?

PN57

MS FRENZEL: Sorry?

PN58

THE COMMISSIONER: I said I think that is the question, is it not?

PN59

MS FRENZEL: Yes, I think it is the question, but we - - -

PN60

THE COMMISSIONER: Well, you do not want me to, I know that. I understand that. Yes, I understand why you say I should not do that from a procedural perspective, having regard to where the applications come from, where it has been, where you see it going and the timing of it or the time that has elapsed since its lodgment. I guess I am more interested in the substantive issues that the application raises and why it should be dealt with, all those matters should be dealt with or deferred or - I do not think this is as simple as, well, the union has had an application on foot.

PN61

The employers had opportunities to make their own. They have not. The unions application, therefore, should not be deflected by these current developments in terms of the foreshadowed intentions of the employers. That is procedural discussion. It is what is in the application, which is the substantial issue, is it not? What you seek is orders of the Commission in relation to certain conditions of employment and I would be interested to hear from you in relation to those matters as to why we should deal with those issues or not deal with them from Mr Levin's perspective and Mr Halls, quite apart from who filed their application when.

PN62

MS FRENZEL: The substantive matters in the award and we say, as I have said before, some of these fall clearly within the safety net and within the wage fixing principles. The award, perhaps, has a bit of an unfortunate history. It is an interim award which came off a former Victorian state award. It most probably has not had the intention that other awards that the LHMU has had. Having said that, there are a number of matters which do require the attention of the Commission with respect to ensuring that the notion of a fair and equitable safety net is, in effect - - -

PN63

THE COMMISSIONER: So it has got a 40 hour week at the moment.

PN64

MS FRENZEL: It has got a 40 hour week. It has got shift penalties, which we say are below Commission standards with respect to shift penalties. The shift penalties clause is found at clause 10. The Commission will note at clause 10(a)(1) that a shift worker on afternoon shift or night shift gets paid a 10 per cent shift penalty.

PN65

THE COMMISSIONER: Well, you see, this is what I am interest in having some assistance with. It seems to me that there are a number of considerations in the minds of the parties respectively. Considerations of substantive terms and conditions of employment, which I consider to be inadequate by the union. Ambiguity in the terms of - the various terms of the award, which should be clarified from the employer's perspective. The desirability of having the award simplified, probably from the perspective of both parties. These are the substantive issues as opposed to the when of it. My inclination is to decide what to do about all of this more by reference to the substantive issues than the procedural ones.

PN66

And you filed this application in April 2001 in relation to the conditions of employment, which you say are inadequate and you want those heard. Those questions heard and determined, because there is obviously a significant inadequacy in the experience of the employees insofar as their remuneration and conditions of employment are concerned, according to you. Is there any reason why they cannot be done simultaneously with these other considerations, such as dealing with the ambiguity and simplifying the award?

PN67

MS FRENZEL: Well, if I can just briefly address you about the ambiguity. I think the matter that Mr Levin might be referring to is the issue about whether casuals attract overtime, which is the main ....

PN68

MR LEVIN: In part, that is correct.

PN69

MS FRENZEL: Okay. Now, the matter that is before the Magistrates' Court is a - - -

PN70

THE COMMISSIONER: Well, it is a matter of what the award prescribes now, is not it?

PN71

MS FRENZEL: Well, that is exactly right and the whole point of it is that even if the award alters with respect to that provision - - -

PN72

THE COMMISSIONER: It is only going to alter prospectively, unless there is some extraordinary circumstance made out.

PN73

MS FRENZEL: That is exactly right, too.

PN74

THE COMMISSIONER: Because I do not have any power to do anything else.

PN75

MS FRENZEL: And we are not seeking that, Commissioner, either.

PN76

THE COMMISSIONER: Well, the employers may. I leave open the possibility that they may argue, that there is some extraordinary circumstance, but - - -

PN77

MR LEVIN: And I should say that it is intended that - - -

PN78

THE COMMISSIONER: That you will be making such a submission.

PN79

MR LEVIN: Yes.

PN80

THE COMMISSIONER: All right. It is useful to know these things in terms of where we are going.

PN81

MS FRENZEL: Well, the problem that I have right now, Commissioner, is that I am not sure about what they want and I am not sure about what they intend. It does - I mean, I can certainly address the Commission about the contents of the union's application, but I can't put that in a context against the employer's application, because apart from having a vague suspicion of what they want, I cannot address the Commission any further on that point. But there is no harm in packaging the entire three facets of it, if you like, together. Whatever application the employers want to make and the simplification, it makes good sense to do that. We have not got a problem with that concept. The concept - - -

PN82

THE COMMISSIONER: Well, it could be done in parallel as well.

PN83

MS FRENZEL: The problem that we have is the notion of, for example, having 90 days after the 21 days Mr Levin has suggested to file the a section 113, to talk about the draft award. That is taking it into January.

PN84

THE COMMISSIONER: You see, I think perhaps you are missing the point. It is probably my fault, because I have not really expressed it clearly enough and that is that what I referred to in parallel, I think I probably gave the wrong impression, and that is that - it would be two parallel lines, which were not only parallel, but that they are congruent with one another in every other respect. What I had in mind is that the two lines may run parallel, that they do not necessarily have the start and end at the same point. So if I described it more accurately with that sort of metaphor, do you see what I mean, that it would be possible for a program to be established, which dealt with the substantive issues that are on the minds of the parties, but did not necessarily have to be all happening at once.

PN85

MS FRENZEL: Well, I was about to make the observation as well, Commissioner, than any matters which the Commission determined with respect to either the union's application or the foreshadowed application by the employers, could very well be inserted into the simplified award in any event. One does not necessarily rest with the other. But I think that is the same issue that you are discussing.

PN86

THE COMMISSIONER: Well, I want to hear a little bit more from Mr Levin, but I gather that you are not adverse to my inclination to consider the possibility of using the parallel.

PN87

MS FRENZEL: Not at all.

PN88

THE COMMISSIONER: The parallel proceedings and there may, indeed, be more than two.

PN89

MR LEVIN: Thank you, Commissioner. With the reluctant or, indeed, if I can say so strongly as to oppose the idea of a parallel running of these matters for this reason. The matters that are the subject of the application by the union that is currently before you are, in our submission, a defacto pay rise because of the nature of the employees that work in this industry. A large number of - - -

PN90

THE COMMISSIONER: Well, it certainly leads to increases in remuneration - well, depending upon the incidents of the employment. If they were shift work - well, certainly it would lead to reduced hours of work. Shift workers would enjoy higher shift allowances if the application were granted. There would be additional remuneration for work performed on Saturday morning and presumably overtime earnings would increase and casual employees would be paid more.

PN91

MR LEVIN: Yes. And the point of that is that - well, there are a number of points to make from that as to - and how it bears upon an idea of a parallel set of hearings. The way that this industry works is that a lot of the employees are casual workers. Students and the like. They move sometimes from car park to car park. There are some permanents, of course, but we all have experience in a car park as a consumer and you can see the nature of the work fairly clearly.

PN92

The way that people are rostered, both permanents and the casuals - of course, we do not have part-time, and the absence of the part-time provision does mean that the flexibilities that the employer has with regards to rostering are very limited, given that we now have 24 hour operation of some car parks and, of course, weekend operation. To simply increase what may appear to be to - or to have argument about whether things should be increased, which on its face, in the context of another industry might seem understandable, in this industry would cause an enormous, perhaps even - an enormous problem.

PN93

Perhaps a problem that actually could have catastrophic effects because, if you do not make the adjustments in terms of enterprise flexibility, and I will give an illustration in a moment that might help to make my point even better and you do not have part-time, then you are in effect forcing the employer because of the way that rosters work with the operation in the hours of car park, into a massive pay increase. I mean, one obviously - - -

PN94

THE COMMISSIONER: Is not this the - but you are just arguing the merit of the application, which is not under consideration at the moment.

PN95

MR LEVIN: The reason I am making these points, which does go to merit, goes to the substance of the manner in which this matter should proceed, because you have made the point quite appropriately that in April the employees, through the union, said that there are things that we want changed to bring us up to certain levels. And you have made the point that since April they have been waiting. And I should say - interrupt my own submission on the - - -

PN96

THE COMMISSIONER: Well, to be honest with you, that really was not what was on my mind.

PN97

MR LEVIN: I see.

PN98

THE COMMISSIONER: The fact that they have been waiting.

PN99

MR LEVIN: I see.

PN100

THE COMMISSIONER: What is on my mind is that part of the Workplace Relations Act, the section which I must say eludes me at the moment. It says that the Commission must act as quickly as possible.

PN101

MR LEVIN: 110, I think, sub (2).

PN102

THE COMMISSIONER: I mean, it is the Parliament that is telling me what to do.

PN103

MR LEVIN: Yes, but you also have the power to, under that same section, to - - -

PN104

THE COMMISSIONER: I have control of the proceedings.

PN105

MR LEVIN: And so it is my job to convince you today that the appropriate way to act in accordance with your obligations under the legislation is in a certain manner that is where my submissions are coming from. And so I would submit that you do not have a situation here where you have employees - - -

PN106

THE COMMISSIONER: Cannot you simply make a submission; one, on the merits that, look, it is an inappropriate costing position on the industry and; two, if there is to be any change to any of these particular conditions, it should be accompanied by the incorporation entity award of part-time employment provisions. Now, there is nothing to stop you when this matter is heard, tabling such provisions and making an application.

PN107

MR LEVIN: I think that the - it is not as simple - - -

PN108

THE COMMISSIONER: Or making an application tomorrow for part-time employment conditions or - these are fairly straight forward developments in any hearing of an application that touches upon conditions of employment under an award, except - I mean, there is no need to defer the commencement of the hearing of the merits of this application in order to hear the merits of any counter application.

PN109

MR LEVIN: I would submit with respect that if I could disagree with that proposition in this way, that there is a reason why one should defer the hearing of the matters that are currently pressed by the union before you in order to deal with it, which relates to the nature of the way that this industry functions. That means that in terms of the industrial fairness for both sides of the equation, that to simply make an application prematurely before one has actually done the analysis that is required, to - it is not as simple in this industry to simply say, well, we will also apply for - - -

PN110

THE COMMISSIONER: But that is what the purpose of the hearing is for.

PN111

MR LEVIN: Of course, sir. But what we are submitting is that to have a parallel so that we are running those that have been already listed, then we start hearing other ones, which may result in - - -

PN112

THE COMMISSIONER: Well, they can be joined if it is appropriate at that time.

PN113

MR LEVIN: But if one hears the matters that are subject to the application before you at some point in time, then you hear other matters which are then the subject of application by the employer.

PN114

THE COMMISSIONER: In relation to different award provisions.

PN115

MR LEVIN: In relation to different, but the point I am trying to make, perhaps badly, is that they are not separate and different. They are so intertwined because of the way that the employees - - -

PN116

THE COMMISSIONER: But is not it open to you when this matter is being heard to make this submission, that no decision or at least no date of effect of any variation, say, to the casual employment provisions should be provided before consideration of the employees application in relation to part-time employment has been completed?

PN117

MR LEVIN: Of course. Of course, sir. That would be - - -

PN118

THE COMMISSIONER: There is no need to actually defer the inquiry into the merits of the application in order for you to have the opportunity to seek the relief that you want. It is only if I was to say, well, look, I have heard the evidence and, you know, I am going to reserve my decision and then, ultimately you did not take your submission that - you know, that these conditions should not be dealt with and some sort of variation was provided that any prejudice to you would arise, is not it?

PN119

MR LEVIN: Well, I think it would, because the preparation for a matter such as that would mean that - perhaps if I could say it this way. In order to put together an award that actually works, one has to actually spend the amount of time necessary from my client's perspective and my work and VECCIs work with them and ..... to actually make sure that it all actually works in a way that does not create the problems that exist now. That the interaction of various provisions, which on their own seem absolutely - - -

PN120

THE COMMISSIONER: I understand that, but the point is that there are substantive issues here raised about the level of conditions of employment and they cannot be deferred simply on the basis that you want to, you know, redraft the award and the employees have taken advantage of the opportunity to make the application to the Commission and it joins substantial issue with the current level of several conditions of employment, which are obviously on your submission quite significant in the industry.

PN121

And it said that the safety is inadequate according to, I presume, some sort of standards or what is appropriate for the industry or both, and it seeks to have those substantive issues of levels of conditions of employment heard and determined and the Commission is obliged to do so as quickly as practicable under the legislation.

PN122

MR LEVIN: Yes, but at the same time the Commission should not, in my submission, make a decision based on an application - - -

PN123

THE COMMISSIONER: I am not suggesting I am making any decision whatsoever at the moment. What I am talking about is the inquiry into the merits of the application and when that should be conducted. Not what the outcome of it should be.

PN124

MR LEVIN: And the timing of when the application on the merit should be made, in my submission, should not be done when the Commission will have other matters in which evidence needs to be prepared and in respect of which the - - -

PN125

THE COMMISSIONER: Yes, the difficulty I have, Mr Levin, if I accept this proposition, I am in your hands. If I accept that exactly as you put it, then I am in your hands. You can come here any day and tell me you are not ready to proceed yet, because you have not done the work.

PN126

MR LEVIN: I would have difficulty doing that if I was ..... and saying let us do it in 12 months time.

PN127

THE COMMISSIONER: But ultimately, if I accept the principle, then until such time as the employers lodge the full and duly considered draft of the whole of the terms and conditions of employment that they think are appropriate for the industry, I should not inquire into the merits of this application, is essentially what you are asking me to do.

PN128

MR LEVIN: No, I am not asking that. I would not ask that. What I am asking is that - I am not asking you to set a principle of that. What I am asking is that within the context of the time frame that I was proposing, that I be given that, because I would not ask such a broad latitude, because I agree that that would be an appropriate solution.

PN129

THE COMMISSIONER: Well, let us move away from the idea that there is some sort of principle which guides the conduct of the hearing of the merits of this application of that kind, then it is simply a pragmatic question of when this inquiry should take place, is it not?

PN130

MR LEVIN: Yes, sir. I was just trying to come up with a - - -

PN131

THE COMMISSIONER: And what do you say to Ms Frenzel's proposition that the dates that she outlined, which have escaped me, I am sorry.

PN132

MR LEVIN: Six weeks. For us to get into a position where within six weeks we can get to the number of people in - - -

PN133

THE COMMISSIONER: Yes, but now you are returning to the principle that it should not proceed until such time as you have completed your preparation in relation to matters that are not to do with the level of the conditions of employment, which are in issue.

PN134

MR LEVIN: No, I am specifically talking about the matters that are only the subject of the application before the Commission to have - - -

[10.44am]

PN135

THE COMMISSIONER: Six weeks for you to prepare in relation to these matters - - -

PN136

MR LEVIN: Yes.

PN137

THE COMMISSIONER: - - - is not enough.

PN138

MR LEVIN: This is the industry, sir, where you have a number of major players and then - and I know my friend will say that there are - and I do not know where VECCI is today, but there are a number of - - -

PN139

THE COMMISSIONER: How many weeks do you think it would be - would it be necessary to prepare for a response to the union's case in relation to the matter?

PN140

MR LEVIN: In isolation?

PN141

THE COMMISSIONER: You are faced with this application - you are foreshadowing another application. Let us just confine ourselves to the matter that is before me today. How long - this application has been in existence since April.

PN142

MR LEVIN: And deferred only because the union made application to adjourn it, so that it can be referred to a Full Bench. There has been no step taken by the employers at any stage to delay this proceeding, ever.

PN143

THE COMMISSIONER: No, I am not suggesting that, but I am saying that the employers have been on notice that this is - they are faced with this and, in fact, been on notice of the view the union took, that they should actually prepare and be ready for a hearing and determination of the matter, effectively.

PN144

MR LEVIN: But some of those matters, sir, that are before you, we will be making submissions, should not be heard by you and you should refrain from hearing them on the basis that they are in excess of the safety net. If the matter had been - - -

PN145

THE COMMISSIONER: Well, that is fine. I mean, whatever you want to put to me is not of the issue here, that we are immediately discussing. What we are discussing is how long the Commission should conclude is a reasonable time for a group of employers to be ready to proceed to put their case in a relation to an application filed on 9 April 2001.

PN146

MR LEVIN: And the point I am making in terms of the fairness to the employers is that we are not dealing - the union can put its matters and its case together as a collective on behalf of the employees, because it only has to consult, in effect, with itself and its own - it does not have to go to a number of different organisations, each of whom have different operations and I would submit that it would be - put an unfair burden on employers to be expected to be able to prepare for a matter in the same time that a union can because we have an industry here where there are a number of small players and I would like to be able to get - - -

PN147

THE COMMISSIONER: There is no necessity for the employers to present the same position. I do not know why you presume that is the case.

PN148

MR LEVIN: The submissions that would want to be put by employers in this particular matter will be different. There will be individuals who - - -

PN149

THE COMMISSIONER: Exactly, so why should any employer need any more time than it would take them to determine their position and what they want to do about this application.

PN150

MR LEVIN: The matter is more speedily and efficiently dealt with by the Commission, if a collective position is taken by - - -

PN151

THE COMMISSIONER: That is a matter for the employers. It is not a matter of any interest to the Commission. There is a private issue for the employers. How they arrange their representation and whether they prefer to present a collective position or an individual position is a matter entirely for them. They are - - -

PN152

MR LEVIN: Would it not be more helpful to you, Commissioner, to have - - -

PN153

THE COMMISSIONER: No, no. It is their right - - -

PN154

MR LEVIN: Well, having 40 - - -

PN155

THE COMMISSIONER: It is their right, as a corporate legal personality to put whatever they wish to the Commission and it is not a matter of any interest to the Commission, they should be compelled or influenced or cajoled into all saying the same thing. They can all make their own decisions about what they want to say and they may well say different things and I will take whatever they say into account.

PN156

MR LEVIN: It is my submission that I will be able to assist the Commission into having a more streamline process that will actually end up getting a result quicker in the end for everybody if - - -

PN157

THE COMMISSIONER: Well, that may be the case, but it is not essentially the primary position. The respondents who are sought to be affected by the application are individual corporate legal personalities. They have whatever rights they choose to exercise before the Commission. If they take the view that it is desirable that they be collectively represented and put one position, then that is their right and it will be heard and dealt with accordingly. And it may provide some convenience for the Commission in terms of the ease of consideration of the determination of the matter. But that is a secondary consideration and the parties rights are as they wish. They can come along either as one or as individual entities.

PN158

MR LEVIN: Well, perhaps I will make submissions on behalf of the clients I represent.

PN159

THE COMMISSIONER: Well, I think that is really, effectively, what you are doing, is not it?

PN160

MR LEVIN: Well, perhaps I was actually going further and actually indicating what I thought the positions have been indicated to me informally by people whom I do not represent, and perhaps I should confine myself, then, to those five parties that I do represent, who are the five major employers. We would say that a reasonable time we would ask for will be eight weeks and if you - but our primary submission is that all matters should be dealt with together and - - -

PN161

THE COMMISSIONER: But what does dealing with them together mean? I mean, it does not necessarily mean you actually formally need to join the proceedings. I mean - and you cannot address each and every issue that is likely to be raised by any of the parties all at once on any one day.

PN162

MR LEVIN: I guess the thing, Commissioner, that concerns is - sir, let us say hypothetically if the Commission were minded to say - set a particular period of time, be it six weeks, eight weeks or 10 weeks for submissions in response to - or in application and then we have submissions in response and so forth is - I am thinking as to how that will roll out. I am foreshadowing of course that we will be making a submission that any changes should not become effective until other provisions become effective and that that will be a matter for the Commission to determine at that time and on the basis - - -

PN163

THE COMMISSIONER: There might be - you might make out a compelling case with a proposition that the industry should have, particularly in light of the statutory direction, appropriate part-time employment provisions.

PN164

MR LEVIN: Certainly, sir.

PN165

THE COMMISSIONER: And in the light of that statutory direction, it would be, as a matter of policy, undesirable to treat with, say, casual employment until such time as that matter has been brought to some sort of conclusion and to issue decisions and orders simultaneously affecting casual employment and part-time employment as an example. Now, there is a fair bit of prima facie logic to that. The award must be simplified. In the process of simplification, the Commission is required to give consideration to and unless it has got a very good reason not to, to include part-time employment provisions.

PN166

MR LEVIN: So that is something which - - -

PN167

THE COMMISSIONER: But that is a matter of merit that would require some consideration of the details involved, but you could well put that case with - you know, with the statutory policy as one of its merits.

PN168

MR LEVIN: Sir, that is not where I was going with my submission. What I was going to say was that you could set a particular period of time, whatever it happens to be and, yes, we can make applications along the way for whatever it is we make applications for along the way. But what will end up happening will be that those people who will be giving the evidence and will be cross-examined on their witness statements, will then be being cross-examined in relation to isolated matters. That is, the matters that are currently before you or those which, within time, we are able to join.

PN169

And in my submission, I would strongly submit that the Commission should refrain from having the matter dealt with on a piece by piece basis with submissions being made along the way in respect of the matters that are currently before you and/or any other matters that we are able to determine are the appropriate wording and fit in with the award as we do them, time by - or bit by bit, because the evidence that you will then be getting will be evidence on certain parts that will then - may be contradicted later when matters are also looked at.

PN170

THE COMMISSIONER: Well, I understand what you are saying. There should be coherence to the reception of any evidence and the making of submissions about the evidence. That does not, however, mean that there is any need to do other than program this application within a reasonable amount of time, because other applications, which are foreshadowed and the joinder or hearing of evidence in relation to those, can be dealt with when they are lodged.

PN171

MR LEVIN: Well, I do not know whether you are prepared, sir, to indicate and I will understand if you are not, but the final point I was going to make was that your decision on how to deal with both procedurally and then substantively the matters that are subject of the current matter before the Commission, you may come, in my submission, to a different conclusion as to how it should be dealt with procedurally and substantively, both on evidence and in your final decision dependant upon the other matters that have been put before you, and so by way of example, you might come to a different conclusion about what should be dealt with and how to deal with the matter, in all respects, about a particular - - -

PN172

THE COMMISSIONER: Yes, I accept that. You do not need to persuade me of that. I think that is quite logical.

PN173

MR LEVIN: Yes, sir. I do not think I can really advance my matters any more, Commissioner.

PN174

THE COMMISSIONER: All I am saying to you is that I do not need to try and predict that now. All I need to do is to program this at a reasonable time.

PN175

MR LEVIN: Perhaps I will just conclude, then, and say that my final submission then would be, we would ask that the matters be deferred that are currently before you until we have had the opportunity within 90 days and it was my mistake if I indicated 21 days plus 90. I intended to say that within 90 days from today, that we would have a draft award before you and that it was simply within 21 days we would file an outline - - -

PN176

THE COMMISSIONER: What I should indicate to you is I am not minded to adjourn the merit inquiry in this matter for 90 days.

PN177

MR LEVIN: Yes, sir.

PN178

THE COMMISSIONER: But what I will do about it is a matter that will depend upon what the parties put to me.

PN179

MR LEVIN: Yes.

PN180

THE COMMISSIONER: What I do about the matter in due course will depend upon what happens in terms of the foreshadowed applications and any submissions that are made to me.

PN181

MR LEVIN: Yes.

PN182

THE COMMISSIONER: Now, you may submit to me that, well, look, as foreshadowed, we have not been able to develop the application within the 90 days, therefore, you should defer any decision of the merits of this matter until such time as you have heard ours.

PN183

MR LEVIN: Yes.

PN184

THE COMMISSIONER: That is a possibility. You might file the application sooner and as that it be joined. I might agree with that. I might decide not to join it, but to make the evidence in the matters common.

PN185

MR LEVIN: Yes. The only think that might get in the way of that would be if the orders that you were minded to make were within a time frame that was so short, like, six weeks, that we really would be deprived of the opportunity and not unfairly, but we would not have the opportunity to then actually be able to develop what would need to be developed in order to make a sensible submission, if the Commission pleases.

PN186

THE COMMISSIONER: So could you just give me the idea of when you would at least be able to answer this application, presuming that you get a look at the case in evidence that is going to be presented by the LHMU?

PN187

MR LEVIN: Sorry, I - - -

PN188

THE COMMISSIONER: Sorry. Could you give me, then, a more specific idea of when you would be able to answer this application, which goes to the level of these conditions of employment, with which it deals after you have had the opportunity to see the evidence, which is going to be put against you?

PN189

MR LEVIN: Yes, may I obtain instructions, please? We would ask for 49 days.

PN190

THE COMMISSIONER: From?

PN191

MR LEVIN: From the time of us receiving the material filed by the applicant.

PN192

THE COMMISSIONER: Mr Levin, one of the issues that is sort of arising in my mind is the sort of time frames that you are talking about are by this Commission's standard rather long. Do you have any - do you think that is an unreasonable characterisation?

PN193

MR LEVIN: Ordinarily, I would absolutely agree with you and have dealt with other matters that have gone in a similar nature, that have been dealt with in shorter times than I have just indicated, but - - -

PN194

THE COMMISSIONER: Well, what is the particular circumstance of this industry that leads to such lengthy time frames for preparation and presentation of the employer's case being proposed.

PN195

MR LEVIN: It is the disparate nature of the employers in the industry. We have a lot of people who actually have one car park and divide two or three employees. The - - -

PN196

THE COMMISSIONER: But you do not represent them.

PN197

MR LEVIN: No, I do not and that is why - - -

PN198

THE COMMISSIONER: And with all due respect, frankly, therefore, that does not matter.

PN199

MR LEVIN: Well, technically that is right.

PN200

THE COMMISSIONER: You can speak for your clients and I think that what matters to me in relation to this question is, what is it about the car parking companies that your represent that leads to a situation where it is necessary for them to propose such lengthy time frames for them to be able to develop a representation of their interests in this matter?

PN201

MR LEVIN: Well, it is a fact that many of them are, at the moment, understaffed in management. I am reluctant to make these submissions, but you have asked directly. The fact is that many of them do not have any HR personnel at all, those that I represent. It is dealt with on an operational level. Even the largest does not have an HR manager. They have a personnel person. And so a large amount of the work is in educating and making the employers understand the nature of what it is that - are the consequences, sitting down with people who are perhaps very good at rostering, very good at the bottom line and so forth. So they are the sort of problems - - -

PN202

THE COMMISSIONER: I hear what you say about that. So you say that - well, the people who operate in this industry are not well staffed or schooled in relation to the prosecution of a defence of an application like this.

PN203

MR LEVIN: Indeed, since 1994.

PN204

THE COMMISSIONER: And, therefore, they need a longer time to; one, understand what it is they have to answer; two, understand the standards and norms of the system in which the application will be determined and to prepare the necessary evidence in accordance with those standards and norms.

PN205

MR LEVIN: And in saying that, I do not say for one moment that my clients are in any way lacking in professionalism or intelligence - - -

PN206

THE COMMISSIONER: No, I am sure they run their business perfectly competently. I see most of their signs up around town, so obviously they know how to run a car park. All right. I hear what you say. Mr Halls, do you want to add anything to that?

PN207

MR HALLS: Commissioner, I have nothing further to add as far as that is concerned, but we would certainly support the submission that our preference would be to have the award simplified before such a variation take place, but if that is not the Commission's decision, the time frame specified would be adequate, the six weeks, as far as the Australian Industry Group is concerned only in respect of this variation. If the Commission pleases.

PN208

THE COMMISSIONER: Right. Ms Frenzel, when would you be able to, sort of, serve your outline of argument and the witness statements that would be representative of the evidence to be given by persons to be called in relation to the matter?

PN209

MS FRENZEL: By 21 September, Commissioner.

PN210

THE COMMISSIONER: And when do you propose that the matter be heard?

PN211

MS FRENZEL: We would commence on 22 October, Commissioner. Can I just make one observation. There has been - - -

PN212

THE COMMISSIONER: Well, just bear with me for a moment. If I was actually to hear it in the week beginning 29 October, that would allow one, two, three, four - about five - something like five weeks. Is that right, mr Levin?

PN213

MR LEVIN: I am sorry, sir. I apologise.

PN214

THE COMMISSIONER: My understanding is that if I was to list this matter to commence hearing on 29 October, that would permit your clients five weeks to consider the evidence and submissions which were advanced on behalf of the union.

PN215

MR LEVIN: Yes, that is right.

PN216

THE COMMISSIONER: That is quite a long time in terms of the Commission's standards.

PN217

MR LEVIN: Yes. Can I ask, when would we be required, just hypothetically speaking, if it were to be heard on the 29th, when would we have to have our material in in reply under such a proposed time-table?

PN218

THE COMMISSIONER: Well, I was thinking probably by 22 October, which would give you a month.

PN219

MR LEVIN: Yes, sir. Yes.

PN220

THE COMMISSIONER: Ms Frenzel, does that present you with any difficulties, apart from the fact that it is a week longer than you desire?

PN221

MS FRENZEL: No, it does not, Commissioner, I am - the only thing I would say is that if we are planning to have this matter heard in the week beginning 29 October, I might beg the Commission's indulgence and just ask if I can have our material filed and served by the 28th.

PN222

THE COMMISSIONER: Yes.

PN223

MS FRENZEL: The only problem I have is that I have got a 170MX.

PN224

THE COMMISSIONER: No, no, I do not have any difficulty with that. All right. So you are 28 September.

PN225

MS FRENZEL: Yes.

PN226

THE COMMISSIONER: The employers are 22 October and the hearing commences on the 29th.

PN227

MS FRENZEL: Can I just make one very quick observation. There has been a lot of mention made about a part-time provision. Can I put it very fairly and squarely on the record now that the union is in no way opposed to the notion of a part-time position going into this award. I can also put it fairly and squarely on the record that we would support the insertion of a part-time clause along the lines of the hospitality award provision that was determined by the Full Bench, or if that does not find favour with the employers, I would suggest that if they want a more flexible part-time provision, that they have a look at the Building Services Victoria Award.

PN228

THE COMMISSIONER: Well, do you want one?

PN229

MS FRENZEL: Sorry?

PN230

THE COMMISSIONER: You are saying you are not opposed to it. Do you want one? I mean, if you are not opposed to it, there is going to be one, is not there?

PN231

MS FRENZEL: Well, that is right.

PN232

THE COMMISSIONER: Because if the employers want one, there will be one. The only issue will be what its terms are.

PN233

MS FRENZEL: Well, can I say - - -

PN234

THE COMMISSIONER: And you say the hospitality provisions are appropriate. It may assist the expedition of your application if you were to amend accordingly.

PN235

MS FRENZEL: Well, we will seek to ..... that and I will put an amended application in accordingly. I would foreshadow that either the hospitality provision for regular part-time, which is now - - -

PN236

THE COMMISSIONER: Well, whatever provisions you determine, it may facilitate the hearing and determination of the application, which is of interest to you, if it included part-time employment prescriptions, because it substantially meets the issue that was raised in terms of procedure. There may be others, but certainly that one is met.

PN237

MS FRENZEL: In terms of procedure, Commissioner, would you like me to write to the Commission asking for the application accordingly?

PN238

THE COMMISSIONER: Well, I think you just amend, you formally amend, seek leave to amend.

PN239

MS FRENZEL: Well, I seek leave to amend the application in that case.

PN240

THE COMMISSIONER: Yes and - well, I think you need to do it so in writing, because you need to submit the terms.

PN241

MS FRENZEL: I will do that. We will include that in our draft order as well.

PN242

THE COMMISSIONER: Well, no, I think you need to - yes, formally write or make an application to amend, one or the other, to my associate. I think make an application to amend through my associate served on the employers.

PN243

MS FRENZEL: Yes, okay, that is fine.

PN244

THE COMMISSIONER: Yes, all right. Right, so the order, unless I hear anything further, will be Ms Frenzel has sought to extend the time for the filing of the union's material until 28 September and I would be inclined to the allow that. And for the employer to file their material by 22 October and the hearing to commence in the week beginning 29 October. And I will put the whole of the week aside for the hearing. If there is an application made by the employers in the meantime, I will list it quickly for mention for consideration as to how that application should be proceeded with. Unless there is anything further I will adjourn until 29 October. Thank you.

ADJOURNED UNTIL MONDAY, 29 OCTOBER 2001 [11.07am]