C2001/2345, Transcript of Proceedings [2001] AIRCTrans 2502 (1 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2001/2345

PIG BREEDING AND RAISING (AWU) AWARD 1999

Application pursuant to section 113 of the Act
by the Australian Workers' Union to vary re
insertion of parties into schedule A etcetera

SYDNEY

10.20 AM, THURSDAY, 6 SEPTEMBER 2001

PN1

THE VICE PRESIDENT: Could I have the appearances, please?

PN2

MR G. BEARD: If it pleases your Honour, I appear on behalf of the Australian Workers' Union.

PN3

THE VICE PRESIDENT: Thank you, Mr Beard. I note there are no appearances by the employer respondents. Do you have a statement as to service?

PN4

MR BEARD: I do, your Honour. I can advise you that the parties who are listed in the application for substituted service which was attached to the application were advised of today's hearing through correspondence forwarded by registered post on 24 August this year. Also included on that list, your Honour, were the two employer parties subject to today's matter, being Dinez Nominees and also N and D Enterprises. The correspondence forwarded by the union included a copy of the application, obviously, the notice of hearing details, and a draft order setting out the union's proposal in regard to the matter. A statement of service has been prepared and signed by myself. I hand to you a copy of that statement together with a copy of the covering letter and the receipt for registered post.

PN5

THE VICE PRESIDENT: Thank you, Mr Beard. I should indicate my apologies for the late start. I'll mark that exhibit AWU1.

EXHIBIT #AWU 1 - STATEMENT OF SERVICE, COVERING LETTER AND RECEIPT FOR REGISTERED POST

PN6

MR BEARD: Thank you, your Honour. You'll also note that exhibit AWU1 on the second page, being the letter forwarded to all of the parties, your Honour, the union sought a response from the parties prior to today's hearing so that we could ascertain the position of those parties in regard to the matter. Unfortunately, I haven't received any response from either those two parties or, indeed, any of the other employer organisations that were advised of the matter.

PN7

THE VICE PRESIDENT: Do you have a copy of the draft order?

PN8

MR BEARD: Yes, I do, your Honour. I hand a copy of the draft to you.

PN9

THE VICE PRESIDENT: I'll mark that exhibit AWU2.

EXHIBIT #AWU 2 - COPY OF DRAFT ORDER

PN10

THE VICE PRESIDENT: Can I briefly set out my understanding of the matter and then indicate a slight reservation I have about the form of the draft order and then as to how we might deal with the matter? As I understand it, these parties were bound to the Pig Breeding and Raising Award 1997 through a roping-in award which operated from 26 July 1995 and the roping-in award is recorded in print G0218, which was an order by Commissioner McKenzie. When the award was consolidated in May 1992 by a Full Bench of Peterson J, Deputy President Watson and Commissioner Merriman in print K2614, these two respondents, that is, Dinez Nominees and N and D Enterprises Pty Ltd, were inadvertently omitted from the list of respondents in the consolidated award.

PN11

MR BEARD: That's correct.

PN12

THE VICE PRESIDENT: Your application seeks to correct that situation by, in effect - it's a correct order to the consent order of 16 July 1992, being the consolidated award - by adding the names of the two respondents that you've identified. Is that the essence of it?

PN13

MR BEARD: That's correct, yes.

PN14

THE VICE PRESIDENT: My only reservation is this, Mr Beard, and I'm not suggesting it's an insurmountable reservation, but my hesitancy is that you seek to have the order operate from 1 May 1992.

PN15

MR BEARD: That's correct.

PN16

THE VICE PRESIDENT: There's a risk that in the event the award hasn't been applied because the employers may have been under the misapprehension that they weren't - well, not misapprehension, but on reading the consent order they would've seen they weren't respondent to it, and it may have a penalty effect on them. I'm just wondering if that's your intention or if it causes any problem for you if the order were to operate prospectively from the first pay period on or after, for example, in 14 days time. Is there an issue that I'm not aware of that would go to the operative date?

PN17

MR BEARD: No, it was a matter pointed out by one of our Victorian organisers, in fact, your Honour, that the enterprise Dinez Nominees is certainly still operating as a pig breeding operation and I understand that they are applying the terms of the award. So, in regard to Dinez, I'm aware that there would be no problems regarding the operative date being from the first pay period from 1 May 1992 which was consistent with the making of the 1992 award, obviously. In regard to N and D Enterprises, I've had no word from them or no instructions or no advice from the branch, so I'm not aware of their situation.

PN18

THE VICE PRESIDENT: Are they still operating as a piggery?

PN19

MR BEARD: I don't know, your Honour. All I know is that the letter forwarded to them in regard to this matter which was served by registered post hasn't been returned. So, I would assume that it was delivered to the company's office. I note that it's in Franklin Street, Adelaide. I'm sure that - - -

PN20

THE VICE PRESIDENT: The piggery is not in Franklin Street.

PN21

MR BEARD: - - - the pig breeding operation is not being undertaken at that particular site. That obviously is a business office. So, I can't offer anymore than that.

PN22

THE VICE PRESIDENT: What do you want me to do about the operative date question? Are you pressing 1 May 1992 in relation to both respondents?

PN23

MR BEARD: Yes, your Honour. As I say, in regard to Dinez Nominees, they are paying at least the award. I think they pay a bit over that. If either company had any reservations in regard to today's matter, they've had ample opportunity to inform either the union or your office and advise of their objection to the matter. As I say, because we've had no comment, I believe that they have no objection.

PN24

THE VICE PRESIDENT: Okay.

PN25

MR BEARD: I'll leave it at that at this stage, your Honour.

PN26

THE VICE PRESIDENT: All right. Well, given the extent of the retrospectivity, my intention is to adopt the following process. I will write to both of the employers, Dinez and N and D Enterprises, indicating that I heard the matter today, that I decided today to provide them with 14 days, and I'll nominate the particular date in the letter, to raise any objection to the making of an order in the form of exhibit AWU2. I'll set out briefly the grounds on which the application is made. In the absence of any objection then I would indicate to them and to yourself, Mr Beard, that I will issue an order in the form of exhibit AWU2. As I say, it's only the extent of the retrospectivity that's causing any anxiety on my part.

PN27

MR BEARD: Yes, I understand.

PN28

THE VICE PRESIDENT: But that would be adequately addressed by giving them a further opportunity and if they wished to object to the retrospectivity or any other part of the order, then they can do so. In the absence of any objection I would issue a correction order to print K2614. Nothing further?

PN29

MR BEARD: Thank you, your Honour. Yes, I wasn't quite sure which way would be the best way to handle it, a correction order or an application.

PN30

THE VICE PRESIDENT: I think it's probably a correction order because I don't think you can make an order - well, there's some doubt about whether you can make an order varying an award with respect to respondency, given that that goes to the originating dispute. Anyway, there's a nice debating point about that.

PN31

MR BEARD: It's an interesting one. I thought about it but I thought at least by filing an application that all of the employer parties - in case one of those companies were in fact members of one of those employer organisations, that everyone would have the opportunity of being aware of the nature of the matter. So, a correction order is fine.

PN32

THE VICE PRESIDENT: Thank you. Nothing further? I'll adjourn.

ADJOURNED INDEFINITELY [10.30am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU 1 - STATEMENT OF SERVICE, COVERING LETTER AND RECEIPT FOR REGISTERED POST PN6
EXHIBIT #AWU 2 - COPY OF DRAFT ORDER PN10