C2001/5887, Transcript of Proceedings [2001] AIRCTrans 3656 (24 December 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2001/5887

AEROSPACE TECHNOLOGIES OF AUSTRALIA
LIMITED AWARD 1998

Application under section WR113 of the Act
by Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union to vary
the above award re Parental Leave - Casual
Employees

SYDNEY

11.43 AM, MONDAY, 10 DECEMBER 2001

PN1

HIS HONOUR: This is matter C5887 of 2001, it's an application lodged on 13 November 2001 under 113 of the Act, the variation of the Aerospace Technologies of Australia Limited Award 1998. The variation seeks in effect the insertion into the relevant provision of the award a parental leave for casual employees provision based upon the test case decision in print 904631. The matter has been listed today for hearing and/or directions. It was the subject of an order for substituted service directed to three other union respondents and to Aerospace Technologies of Australia Limited.

PN2

The union respondents in the case of the CEPU have indicated that they are supportive of the application but are not in attendance. Could I have appearances please?

PN3

MR B. TERZIC: I appear on behalf of the applicant union your Honour, the AMWU. It looks like there's no one here from ASTA. May I inquire of your Honour whether there's been any correspondence received by the Commission or the Registry.

PN4

HIS HONOUR: I don't think there's anything from the employer, the one I was talking about, the Saddlery, Leather and Plastic Materials, unless we've lost it Mr Terzic I think you're going to have to see whether you can lose the test case decision by yourself.

PN5

MR TERZIC: Well your Honour, we have filed with the Commission relevant documents which evidence this in accordance with the Act. There appears to be no explanation for the failure by ASTA to attend this matter but nonetheless the application I would suggest is remarkably uncontroversial and it seeks to give effect to a test case standard as one might call it, that is the parental leave for casuals test case standard. The application sets out in some detail the terms sought and there is a draft order that has been filed and served.

PN6

Nonetheless through my carriage of various other applications of a similar nature today it might be necessary to amend and augment various parts of that application as filed and served. I will make what I consider to be the necessary amendments which go to date, I'm looking at whether - - -

PN7

HIS HONOUR: I think you will have to be a little bit more precise than that to satisfy me on this point given the failure of the employer to attend. You will need to give the same licence that you've given the other employers who have attended, the fact that others have consented using 10 December 2001 really in all those operative places on 10 December 2002 I think I would impose the same requirement on you as those.

PN8

MR TERZIC: Yes, those would be the changes and we'll also look into whether the abbreviated form is faithful to the decision of the Full Bench, if not the comprehensive form of the order as made in another matter, the Drafting and Products and Planners Etcetera Award will be set down in a draft order which we will serve on ASTA and I think it might be prudent in these circumstances for me to make telephone inquiries of the Proper Officer at ASTA to inform them of the nature of today's proceedings and inform them of what has been done and what is proposed to be done and it would be our application that upon doing all of those things it shouldn't be necessary for there to be any further hearing of this matter and if relevant correspondence is filed and served to indicate that the employer has been formally appraised of the nature of the application the Commission should provisionally vary the award in the manner sought and perhaps affix a signature and stamp the necessary orders to give effect upon those undertakings being met by the applicant union. We suggest that all of those tasks could be completed prior to the end of this week, those are my submissions if the Commission pleases.

PN9

HIS HONOUR: Yes, thank you Mr Terzic. This matter is an application under section 113 of the Act lodged on 13 November 2001 for variation of the Aerospace Technologies of Australia Limited Award. That award, Aerospace Technologies of Australia Limited is the respondent employer in addition to the applicant in this matter, the AMWU. There are three other union respondents, APESMA, the CEPU and the NUW. There was an order for substituted service made in relation to those four parties. In fact there is on file a statement of facts dated 21 November demonstrating that Aerospace Technologies was served at 226 Lorimer Street, Port Melbourne by registered post with a copy of the application to vary and that application on its face indicates the terms of the draft order proposed.

PN10

The order that is sought in effect is one in line with quite a number that have been made before me today to give effect to the Parental Leave for Casual Employees Test Case decision in print 904631. I'm satisfied that the notice of the application to vary has been given adequately and brought to the attention of the respondent parties. It does not appear why there has been no appearance today from Aerospace Technologies of Australia Limited but I am in the circumstances of this variation not deterred from making an order that would give effect to the test case decision merely because of the absence of the employer.

PN11

The order proposed by Mr Terzic who appeared for the AMWU is set out in a revised form and a draft presented to me. The only variations to that draft that are strictly essential would appear to be those that he has more or less agreed in this context and had earlier agreed in relation to matters where employers were represented to make, effectively that substitutes the date of 10 December 2001 for dates that related to earlier precedence or the date of lodgement which were in the draft order and the application to vary.

PN12

In addition Mr Terzic has undertaken to complete a process of examination of the order as submitted to ensure that it does not inadvertently omit any necessary machinery or other provisions that were part of the model order, in particularly he adverts to subclause 9 of the model order in relation to the return to work of a casual employee who has been on parental leave.

PN13

In the circumstances I am satisfied I should vary the award as proposed. I make that determination provisionally upon Mr Terzic submitting a final draft. He has undertaken to do that after he has consulted by phone with whoever he can find from the respondent employer to address the question. The order to vary shall come into operation from the beginning of the first pay period on or after 10 December 2001 and shall remain in force for a period of six months. The order to vary shall make reference to the decision that I have just given in the transcript which will remain for that purpose a decision on transcript.

ADJOURNED INDEFINITELY [11.53am]