C0025/398, Transcript of Proceedings [2001] AIRCTrans 3575 (19 December 2001)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 1589

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 253 of 1998

HOTEL MANAGERIAL STAFF (FEDERAL) AWARD 1974

Review under section 51, item 51,
schedule 5, Transitional WROLA Act
1996 re conditions of employment

MELBOURNE

4.38 PM, TUESDAY, 4 DECEMBER 2001

Continued from 1.11.01 in Sydney

THE FOLLOWING PROCEEDINGS WERE CONDUCTED
BY VIDEO CONFERENCE

PN46

THE SENIOR DEPUTY PRESIDENT: Mr Mimmo, you appear for the AHA, do you?

PN47

MR R. MIMMO: I do, yes, your Honour.

PN48

THE SENIOR DEPUTY PRESIDENT: Mr Swancott, you are appearing for the LHMU?

PN49

MR N. SWANCOTT: Yes, your Honour.

PN50

THE SENIOR DEPUTY PRESIDENT: There is no appearance, as I understand it, for the applicant for an adjournment; is that right?

PN51

MR SWANCOTT: Well, Mr Cooper doesn't appear to have made it at this moment, no.

PN52

THE SENIOR DEPUTY PRESIDENT: Have you heard from him at all, Mr Mimmo?

PN53

MR MIMMO: I haven't, your Honour, no.

PN54

THE SENIOR DEPUTY PRESIDENT: It is from the Club Managers Association.

PN55

MR MIMMO: That is correct. I have not heard from them.

PN56

THE SENIOR DEPUTY PRESIDENT: Now, he has applied to adjourn the proceeding that is listed for Thursday in Sydney. Have you both you seen that application for an adjournment?

PN57

MR MIMMO: Yes, your Honour.

PN58

MR SWANCOTT: Yes, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: And I have received a response from the Australian Hotels Association effectively opposing the application for adjournment; is that right?

PN60

MR MIMMO: Yes, your Honour. That is my instructions, although I haven't made myself familiar with what they sent you as yet, your Honour. I have just received a copy.

PN61

THE SENIOR DEPUTY PRESIDENT: Would you like to just have a look at that then?

PN62

MR MIMMO: Yes, thank you. Thank you, your Honour. I have looked at that.

PN63

THE SENIOR DEPUTY PRESIDENT: What do you say about that?

PN64

MR MIMMO: Well, as I understand, there was another later dated 30 November addressed to you, with a copy to Mr Cooper, in terms of complying with that direction that you had set. But I think that the letter of the 29th - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Sorry, which letter were you referring to then?

PN66

MR MIMMO: Well, I take it you addressed me with respect to the letter that the AHA had sent to Mr Cooper of the Club Managers Association as a response to his letter to you, which was dated 26 November.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR MIMMO: Since the letter of the 29th from the AHA addressed to you, with a copy to Mr Cooper, the AHA have sent you a further letter, dated 30 November - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Yes, I have that, in which you set out the issues - or the outline of submissions.

PN70

MR MIMMO: Yes, and what they say, what the AHA have instructed me, that that is in compliance with your direction.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, but have you heard anything from the Club Managers Association since then?

PN72

MR MIMMO: No, your Honour, I have not and I have no instructions from the AHA with respect to any comments or conversations between them two.

PN73

THE SENIOR DEPUTY PRESIDENT: Look, what if I was to adjourn the hearing then until 14 December rather than 7 December?

PN74

MR MIMMO: Your Honour, I have a little difficulty, that as of the close of business this Friday I am not physically available until 21 December and at the moment have an engagement in Canberra on that day, which I can certainly move. But for two weeks following this Friday, I am engaged all the time, actually.

PN75

THE SENIOR DEPUTY PRESIDENT: Just bear with me. I am sorry. I was just reminded the actual date set for the hearing was the 6th not the 7th, but what I was wondering is whether the 14th might not be a convenient date and that, by the way, is as much for my convenience, I suppose, or the Commission's convenience, as for the Club Managers Association because at present I am dealing with a power dispute here in Victoria.

PN76

MR MIMMO: Well, we won't pass comment about whether Victoria needs power or not, your Honour, but, as I say, I am quite happy to speak to your associate away from the Commission as to what my engagements are. But from 10 December until the evening of 20 December I am committed and obligated to be elsewhere, not away from Sydney but I am just obligated on other duties.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, and is there much more you would want to say, other than what you have said in your written submissions?

PN78

MR MIMMO: Well, I think that the written submissions ought to be joined to the verbal submissions that we made last time we appeared before you.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes, but they are all on transcript, in any event.

PN80

MR MIMMO: Yes, that is true. There is nothing much further, except that we would press our point that was made on the verbal submissions of the last hearing, your Honour.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes. What if I was to list it, say on the 14th, though, for hearing and hear what the Club Managers Association has to say - that will be transcribed - and for you to have a right of reply in writing after that?

PN82

MR MIMMO: Yes, I am happy as long as the Commission does appreciate that my commitments do go until the evening of 20 December, so a written response to any verbal submission would need to await after that date.

PN83

THE SENIOR DEPUTY PRESIDENT: Well, I could give you until the second week in January to provide your written response because there would be some delay in any event in getting a transcript, which would probably be about a week after that, and then there is the Christmas period. But if, say, we were to allow you until, say, even 18 January, would that be sufficient time?

PN84

MR MIMMO: Yes, I would l happy with that, your Honour. I would have no objection to that. Your Honour, may I at this point just take the point that I have not received transcript of a previous hearing, even though we ordered a copy.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will have my associate make some inquiries about that and arrange for that to be provided. Just by the by, would you be able to have one of your colleagues perhaps be present on that day just so that there is somebody there? I wouldn't be asking them to make submissions because I have already reserved the right to you to make those submissions in writing but it might just be helpful to you if one of your colleagues or a person from your office could be present on that day as well, that is on the 14th.

PN86

MR MIMMO: Yes. I could ask someone to be present from my office on the basis that they just observe but make no submissions.

PN87

THE SENIOR DEPUTY PRESIDENT: Yes. No, that would be fine. Are you content with proceeding on that basis?

PN88

MR MIMMO: Well, I would prefer, your Honour, if I could, to go ahead with 6 December. That is my own preference on it. At least we would make whatever submissions we need to make. We would deal with the matter and, hopefully, resolve the matter.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes. As I say, the difficulty I have at the moment is two-fold. One, we don't have the Club Managers Association here to put forward any further arguments that he might want to put forward on the question of adjournment and I have some personal embarrassment with the dispute that I am dealing with in Victoria at the present time.

PN90

MR MIMMO: Look, I understand the importance, your Honour. I mean, I am not going to press it. If you were asking for a preference, then my preference would be to have it dealt with on Thursday, that is all.

PN91

THE SENIOR DEPUTY PRESIDENT: Very well. What do you have to say about all of that, Mr Swancott?

PN92

MR SWANCOTT: Well, your Honour, I have been - my organisation has been working at a slight disadvantage in that we complied with the Commission's directions today but in the absence of submissions either from the association or from the AHA. So the written submission to which Mr Mimmo just referred we haven't seen at this stage. I did write to the AHA enclosing a copy of our submission and asking for them to forward a copy of theirs to us and I made the same request to your office today. We would, obviously, be in a better position to contribute, should the Commission allow us to contribute, with the knowledge of everything that was before the Commission.

PN93

Your Honour, I am obviously happy to fit in with any program that you determine and will respond accordingly. I have had lengthy discussions with Mr Cooper, although the last occasion was last week, I think before either of us was aware that this mention had been listed for today.

PN94

THE SENIOR DEPUTY PRESIDENT: I see, yes. Have you had an opportunity now then or you haven't yet had an opportunity to look at the AHA submission either?

PN95

MR SWANCOTT: No, your Honour. It is not a difficulty if I receive a copy before our next appearance. Any submissions I make on them will be brief.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Mimmo might be able to provide you with a copy there today. Can you do that, Mr Mimmo, at some - - -

PN97

MR MIMMO: I would undertake to give Mr Swancott a copy, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: Thank you for that. Well, look, I think in the interests of ensuring that this can run smoothly and given the absence of the CMA today, I will adjourn it until 14 December. Mr Swancott, will you be able to attend that day?

PN99

MR SWANCOTT: Yes, your Honour. It means I won't be going to the AHA Christmas party but I think I will survive that indignity.

PN100

THE SENIOR DEPUTY PRESIDENT: What time is the AHA Christmas party?

PN101

MR SWANCOTT: I imagine it is most of the day.

PN102

THE SENIOR DEPUTY PRESIDENT: I don't think this is going to take too long, is it?

PN103

MR SWANCOTT: I am not sure, your Honour. No, it is not a problem. I am available that day.

PN104

THE SENIOR DEPUTY PRESIDENT: I will arrange for an amended notice of listing to go out with a direction for the CMA to provide the parties with their written submissions and it still would be helpful if the AHA and the CMA could do something about providing me with a joint statement of their agreed positions.

PN105

MR MIMMO: Your Honour, if I might just interject, I understand - unless I am badly informed and instructed, my understanding is the only area that the AHA and the CMA are in some difference is over the exemption clause and, if my memory serves me correct, that was the basis of the verbal submissions on the last occasion as well.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, it was, yes. I had the impression, though, that CMA wished to say something more about that and also the AHA wanted to say something more about that.

PN107

MR MIMMO: Well, I am not sure that the AHA can say much more because my instructions are to remain consistent with what we put to you verbally on the last occasion.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will take those matters into account, obviously, and I am still not clear, though, whether the CMA wanted to have something more to say about that or not. But I did have the impression that was the case on the last occasion and I think I - yes, I did - I actually gave a direction that the AHA and the CMA together file a jointly prepared document which briefly outlines the issues in contention and those in agreement in relation to this matter.

PN109

I had proposed then on the 6th to proceed to deal with any outstanding matters by way of arbitration in the hope that we could give a decision on that day or at least an interim decision on that day. So I will proceed still on that basis on the 14th, subject, of course, to your right to respond to anything new that the CMA has to say on that date, Mr Mimmo.

PN110

MR MIMMO: Yes, thank you, your Honour.

PN111

THE SENIOR DEPUTY PRESIDENT: And, of course, subject also to anything the LHMU might want to put in response to what the CMA have to say about it all.

PN112

MR MIMMO: Thank you, your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: Very well. I will adjourn the further hearing of this matter until 10 am on 14 December. Thank you for your attendance.

ADJOURNED UNTIL FRIDAY, 14 DECEMBER 2001 [4.55pm]