C1998/00276, Transcript of Proceedings [2001] AIRCTrans 3194 (21 November 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C No 00276 of 1998
C No 00277 of 1998
C No 00278 of 1998
C No 00279 of 1998

APPLICATION FOR REVIEWS PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION/TOYS R US (NSW) INTERIM
AWARD 1994; (VICTORIA) INTERIM AWARD 1994;
(SOUTH AUSTRALIA) INTERIM AWARD 1994; AND THE
(WESTERN AUSTRALIA) INTERIM AWARD 1994

SYDNEY

9.30 AM, FRIDAY, 2 NOVEMBER 2001

TELECONFERENCE CONDUCTED IN SYDNEY

PN1

THE COMMISSIONER: This is matters 00276, 277, 278, and 279 of 1998, Toys R Us Award Simplification process. Mr Ryan, you sent us some drafts, and we've subsequently been sent drafts from Toys R Us or Baker and McKenzie, and they have said they agree on the draft. The only outstanding issue is the wage rate adjustment. Now, I thought everything was agreed. What do you know about it?

PN2

MR RYAN: There's one problem with the May 2001 wage rates for the South Australian Award, and that's not something that concerns award simplification as such. It's if a simplified award was issued now, it should be issued with the 2000 wages rates in it for South Australia on the basis that Justice Bolton hasn't yet issued the safety net adjustment order for the South Australia Award because there was an error in the draft orders and we're still trying to work out what the error is.

PN3

Somewhere along the line we've made mistakes in calculating the flow on of the safety net adjustments in the award, and between the company and ourselves we are still trying to work out why things don't add up. We are having some difficulty still trying to work out where we have made a mistake because what's happened is that the records that we've got when we've applied the safety net adjustments to them, they didn't come up with the same figures that Justice Bolton's office had in terms of the official version of the award. So we're trying to work out where along the line we've made a mistake; whether we've asked for incorrect orders to be issued in the past, or whether it's just current problems that we've got.

PN4

So that's the only issue in relation to wage rates that was being referred to. It's got nothing to do with any argument about should there be significant changes to wage rates or anything like that.

PN5

THE COMMISSIONER: But if the 2001 rates are a problem, it's probably likely that the 2000 rates are too.

PN6

MR RYAN: Yes, but that's what we don't know and that's what we are still trying to work out, so between both ourselves and Toys R Us, we're going through the records to try and find out why. We are going back to the original award and then re-applying the safety net adjustments at each level just to cross check the calculations. This is a genuine minimum rates award and the rates for the original award came directly out of the South Australian State Award because it's a mirror image of that, so it's a case of just trying to make certain that we correct it. It's really just to try and do that so that we can justify to Justice Bolton what figures are put into the 2001 order. I mean the position with it is because it's a mirror image award we know that we can check the current rates by simply looking at the current South Australian Award and saying that whatever rates are in the current South Australian Award are the right one's, but we've got to work out why we've gone wrong in order to have Justice Bolton issue an order where there might be an increase greater than the safety net adjustment. We've got to be able to identify what error we are trying to correct.

PN7

THE COMMISSIONER: Yes. The rates, the 2000 rates that are in the instrument that I've got, the draft award I've got, they are rates that have already been put into the Commission by variation - - -

PN8

MR RYAN: That's right, so as far as we're concerned, they simply apply.

PN9

THE COMMISSIONER: If in fact you discover an error in '99 or '92 or whatever.

PN10

MR RYAN: That will all be fixed up by Justice Bolton being able to issue the order in relation to the safety net adjustment 2001.

PN11

THE COMMISSIONER: That's right, and that probably will be after when my award is made.

PN12

MR RYAN: Yes.

PN13

THE COMMISSIONER: Okay. Thank you, Mr Ryan.

PN14

MR RYAN: In relation to the content of the award, the draft versions that have been sent to you from Baker and McKenzie are agreed versions, so you can discount the one's that we originally sent, and then the one's that we have been working on to finalise this are the one's that Baker and McKenzie sent.

PN15

THE COMMISSIONER: Thank you. On the basis of these submissions and the documentation, I am satisfied that the awards are now properly a fixed minima and reflect the simplification requirements of the Act. The awards will be made each of them separately and they will operate from the first pay period to commence on or after 1 December 2001 and they will remain in force for a period of 12 months. We will hopefully provide those drafts back to you, Mr Ryan, and to Baker and McKenzie for final checking, although I don't think it will be necessary. If Justice Bolton issues his decision in the interim, we might have to look at that, but he's away, so I don't know what you are going to do?

PN16

MR RYAN: No, that's why we're not really worried about it. We're just going to work through it ourselves, between the company and ourselves to work out the history and prepare the paperwork that whenever he comes back he can issue it.

PN17

THE COMMISSIONER: He's not coming back for two years, is he?

PN18

MR RYAN: Is he away that long?>

PN19

THE COMMISSIONER: Yes, he is, but in any case, once you get the thing - - -

PN20

MR RYAN: Someone else will deal with it in the Commission anyway, I would have thought.

PN21

THE COMMISSIONER: It's a matter of checking with his staff, and if he's not coming back for many months, then it's just a matter of having the President deal with it.

PN22

MR RYAN: Yes. And these awards don't apply on a day to day basis because all of the employees are under AWAs, so, I mean, both the company and ourselves understand that this is not a critical issue.

PN23

THE COMMISSIONER: Well, on that basis the proceedings are now adjourned.

ADJOURNED INDEFINITELY [9.40am]