C0070/798, Transcript of Proceedings [2001] AIRCTrans 404 (27 March 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 6356
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HINGLEY

C NO 00707 OF 1998
C NO 30896 OF 1998

KFC NATIONAL ENTERPRISE AWARD 1995

REVIEW UNDER SECTION 51, ITEM 51,
SCHEDULE 5, TRANSITIONAL WROLA ACT
1996 RE CONDITIONS OF EMPLOYMENT

APPLICATION UNDER SECTION 33 ON THE
COMMISSION'S OWN MOTION TO VARY RE
WAGES AND CONDITIONS OF EMPLOYMENT

MELBOURNE

12.58 PM, FRIDAY, 9 MARCH 2001

CONTINUED FROM 17.4.00

PN1

THE COMMISSIONER: This matter is part heard but there is a change of appearance I think.

PN2

MR P. WILSON: I seek leave to appear on behalf of the company.

PN3

THE COMMISSIONER: Thank you. Mr Ryan, do you have any objection to leave being granted?

PN4

MR RYAN: Yes, we do, Commissioner. At this stage, when all we are doing is an arbitration over two remaining aspects of a simplified award, we see that there is no reason why Tricon should be represented by counsel when they have been adequately represented by Mr Champion for hearings that have been on now for some 18 months in terms of award simplification, not only in relation to the KFC award but also in relation to Tricon's other business, which is Pizza Hut. On that basis, it would appear that there is nothing new, nothing novel, nothing extraordinary that relates to the need for Tricon as the employer in this matter to be represented by counsel.

PN5

I note that Mr Wilson simply has sought leave. He has not even indicated on what grounds he would be able to justify seeking leave to appear as counsel in this particular matter. And noting that representation of a party by counsel is not a matter as of right but is a matter where, in the absence of consent by the other parties, you have to get the permission of the Commission, then it would be incumbent upon Mr Wilson if he seeks to appear as counsel to at least outline some grounds as to why he says there is a matter of such importance that it can only be settled at this late stage by having counsel involved, when counsel have not been involved in all of the stages leading up to this. And we are down to the last two issues.

PN6

We have been able to get everything else done without the benefit of counsel, and I am firmly of the view that the capacities of both Mr Champion and myself are such that we can adequately represent the interests of either side. Certainly Mr Champion seems to have no difficulty representing the interests of his employer and has done so with vigour and professionalism at all stages during the proceedings in both the simplification of this award and the simplification of Pizza Hut. For there to be a change at this late stage we find surprising and we strenuously oppose leave being granted to Mr Wilson to appear in this matter. If the Commission pleases.

PN7

THE COMMISSIONER: Mr Wilson, you are a solicitor, are you? Not a barrister?

PN8

MR WILSON: I am a solicitor, Commissioner.

PN9

THE COMMISSIONER: Do you want to make your submissions - - -

PN10

MR WILSON: Respond, yes, certainly, if I may. Yes, I think the grounds I put forward that my client should be granted leave to be legally represented at this stage is that I think the first contrast to what Mr Ryan has put is that this is the first matter that has been set down for arbitration in this long process. There is a distinct difference between the arbitration phase and what has been a series of conferences and conciliation that Mr Champion has handled. The other thing he says is there is nothing new or novel. I suppose that is probably the most material point that we take issue with.

PN11

What was originally a straight-forward review of the KFC National Enterprise Award 1995 has in recent days at the union's request seemed to acquire the hallmarks of a very different matter. In April 2000 the Commission heard submissions from my clients and from the union in which the parties were agreed on all but a couple of matters, but in particular it was clear from the transcript that they were agreed on the issue of wages. After almost a year and following a lengthy delay in which my client's submissions have in most instances been, as a result of the union - we have been advised that the union wishes to resile from that previous agreed position on wage rates.

PN12

That was a total surprise to my client. And the effect of that is that they seek a - well, an increase to the award that is different to that that was presented as an agreed position to the Commission back in April last year, and we submit that that raises serious matters in terms of whether the Commission should in fact hear the union on the issue of wage rates. We think there is a significant threshold issue that needs to be aired before the Commission proceeds in that matter. Should the union be permitted to proceed as it proposes on the two issues of the wage rates and the part-time, my clients would wish to make strong submissions that the Commission should not proceed.

PN13

We think that a substantial arbitration may be involved, including the presentation of evidence and extensive submissions, because the issue of the wage rates under the award is not a minor matter, and for the union to attempt to change it, and at this late stage we would submit is not satisfactory. Mr Ryan is correct that my client has been up to now represented in proceedings by an agent, Mr Champion, but in the light of the extraordinary developments of the last few days and the prospect that the matter could assume quite significant proportions, it now wishes to be legally represented. We would submit that is valid reasons for leave being granted.

PN14

The case if arbitrated may require an examination of a number of leading cases in the Commission, principles, award simplification decisions and those matters, and also in terms of relative disadvantage, I understand Mr Ryan is legally qualified. He is certainly an extremely experienced advocate. I do not think he will be placed at any disadvantage in this matter. And in that light, we would say that all those circumstances fit the criteria in terms of the Act, in terms of granting leave. And finally I would say, in terms of the issue of how can our client be adequately represented, depending how this matter goes ahead today in terms of the issue of rates, we may need to call Mr Champion as a witness. That is another reason in terms of - that we would submit that is pursuant to section 42(3)(c), that if that does occur our client can only be adequately represented by myself. It is on those grounds that I would submit that leave should be granted.

PN15

THE COMMISSIONER: Mr Ryan, certainly you have got rights to object to representation pursuant to the Act but the Act says - - -

PN16

MR RYAN: Commissioner, if I may, I withdraw - on the basis of what Mr Wilson has said, if this is going to become a big case so that there is the potential for witnesses and obviously a lot more than a simple arbitration of this dollar value of that dollar value to be inserted into the award, I would not oppose the appearance of a solicitor in this matter representing the employer.

PN17

THE COMMISSIONER: Thank you, Mr Ryan. Leave is granted.

PN18

MR RYAN: Commissioner, I wrote a letter to you on 6 March and that was on Monday in relation to this matter. And it was really only as a result of undertaking the two proceedings on 6 March which involved both the KFC award simplification and the Hungry Jack's award simplification, and as the Commission may recall, and this is information that will be new to the other parties, the only outstanding issue we had in relation to Hungry Jack's was whether or not I got the rates right in that, and before I finalised the documentation to be sent to you, I had to just make certain we got the rates right.

PN19

It was a result of going back to the office and looking at what - whether or not I had the rates right in the Hungry Jack's award, that it also triggered in my mind had I actually - or had we got the rates right in this award, and I then went back and did a very careful analysis of the award and the proposed figure that we had indicated in April last year that we would apply into the award. And I came to the view that there certainly was an error in that. As a result I immediately wrote the letter to you and copied that straight away to Mr Champion, so that I would at least alert both the Commission and Tricon, or Mr Champion in particular, at the earliest possible opportunity, of the view that I had adopted.

PN20

In sending off that letter and trying to get it done as quickly as possible, I made a mistake. The trouble with me having the legal training but not mathematical training, I cannot add up sometimes. And as a result of getting the assistance of other people to cross-check my figures, the letter - in the letter in the fourth paragraph, Commissioner, we say:

PN21

The Association is of the view that it is necessary for the award to contain a wage rage of $474.60 as a safety net minimum wage rate for a team member and not the figure of $446 (or 461.20 with the 2000 SNAs applied).

PN22

The rate of 474.60 was wrong. I had added too many safety net adjustments when I calculated that, and the correct rate should be 466.60. Now, I have communicated that previously to Mr Champion. I spoke to him yesterday morning and advised him that the correct rate should be 466.60 and not 474.60. Yesterday afternoon. How time flies when you are having fun. I told him yesterday, in order to correct that.

PN23

THE COMMISSIONER: I am amending the amount in the letter to 466.60, Mr Ryan, and I am going to mark it as an exhibit in this matter.

EXHIBIT #SDA3 LETTER

PN24

MR RYAN: Now, Commissioner, to put this in perspective as to why we have changed our views on this, the way I calculated the 466.60 rate was to go to the rate that is the rate in the award, and this is the award that is subject to simplification. The rate in the award as at the commencement therein depending upon where you worked. From my understanding of the wage rates the only wage rate that could properly be considered to be a properly determined minimum safety net wage rate established in accordance with structural efficiency principles, and subject to minimum rates adjustments, was the rate of $399.60, which was the New South Wales rate for a team member.

PN25

MR WILSON: Could I just indicate, as I indicated in the leave to appear matter, I think there is a threshold issue as to whether this wages issue ought to be even re-heard, given there were - the transcript records that the parties put written submissions and orally said that they agreed with the calculations of the rates that were put in there. I think I would really like that issue to be ventilated first before he gets into the detail of the calculations, although I would observe it is the first time we have had any explanation of the methodology as well.

PN26

MR RYAN: I did explain the methodology to Mr Champion yesterday on the telephone, very clearly.

PN27

MR WILSON: Yes, but I think - well, I suppose the letter dated the 6th had absolutely no explanation of a methodology. But really, Commissioner, what I would suggest, with your leave, that it be appropriate if I could put some submissions as to why this issue of the wage rate should not even be ventilated.

PN28

THE COMMISSIONER: Go ahead.

PN29

MR WILSON: The threshold issue that I am raising, Commissioner, I would say is an important one. It is a claim that the union is attempting to bring before the Commission this morning. As I say my client was only notified, as I gather the Commission was, by fax on 6 March. And as I said at that time there was no explanation of the methodology and as it turns out it wasn't until yesterday afternoon we were told that the rate, in their view, is wrong again. We think that is an extraordinary claim having regard to the history of the matter as is recorded in the transcript and as I am instructed by Mr Champion in terms of the multiplicity of conferences that have gone on.

PN30

I am instructed that the matter was before the Commission since at least August 1999, and on 3 September 1999, in fact there is Mr Champion recording the fact that frustration at the delays in progressing the matter and now here we are in March 2001. So it has obviously been an extraordinarily long history and Commissioner you have lived through it all so I won't labour that point. But as I am instructed following a short mention of a matter on 15 March, there was a hearing on 17 April 2000, of which there is transcript, and at that time my clients and Mr Champion and Mr Ryan, they presented oral and written submissions.

PN31

They presented an exhibit, KFC1, which sets down the issues related to the award simplification. It deals in quite expansive detail with the issue of the rates, how they were set and it was the joint view that they were appropriate. Now, for instance, if I could draw the Commission's attention to these, a number of extracts. Mr Champion says on page 7 at line 28 of the transcript:

PN32

The parties have done after extensive discussions, they have been able to work through and establish what the parties feel are appropriate minimum rates for establishment in the award.

PN33

It goes on to says:

PN34

We have considered -

PN35

at the top of page 8 -

PN36

the particular nature of the industry. The fact it is a seven day industry, very competitive and we have taken into account ...(reads)... for KFC outlets.

PN37

Not Hungry Jacks, but KFC outlets. And under the paid rates decision it went through the steps, and they are all reasoned there, they are in that exhibit KFC1, and he went through on the transcript to tell the Commission the methodology, the reasoning behind it and then went on to say at the bottom of page 8, in line 39:

PN38

We have taken all those conditions, ...(reads)... and we feel it is an appropriately fixed minimum rate.

PN39

And he rounded off again, page 9, line 22:

PN40

Mr Commissioner, I might round off by saying it has been quite a difficult process, a lengthy period of time ...(reads)... and arrive at those rates.

PN41

So there has been an extensive process that went on and led to submissions that were put to you, sir, both on transcript, orally, and in writing, that dealt with the issue of paid rates. And as the transcript records at that period of time, 27 April, you, Commissioner, said you intend to reserve your decision. We would submit that that matter has been dealt with and should not be re-opened. The only issues that were outstanding on that, as I understand it, were issues of what were and what were not allowable matters within the award, the issue of wage rates was not in contention at all.

PN42

Now, I am instructed that following that hearing on 17 April, following a short delay on 29 May 2000, Mr Champion forwarded a draft of the award to the union. There was no response to that, further copies, I am instructed, was then sent to the Commission on 22 June 2000, and the Commission fed back some comments on that and restructured the award in terms of its own format. On 26 July, I'm instructed Mr Champion forwarded a revised draft to the Commission and to the union and it was only then that there was a response, on 31 July in a conference in front of yourself apparently Commissioner, the union gave a reply to those matters.

PN43

Then in August 2000, Mr Champion, on a number of occasions attempted to contact Mr Ryan to try and resolve the outstanding matters, and bearing in mind there was nothing to do with wage rates in this, this was the issue of what is and what is not allowable matters. There were a number of phone messages, e-mails and contact. On 1 September, Mr Ryan indicated that unless my clients agreed to their position in relation to the two outstanding issues, and that was part-time work and union dues, they were the only two outstanding issues at 1 September, according to Mr Ryan himself, that unless that happened they would seek an arbitration, this was back in September 2000.

PN44

Then on 20 September there was again a conference before yourself, Commissioner, apparently, the matter was adjourned following an offer from the Commission to conciliate the matter and a request that Mr Ryan attend on behalf of the union on the next occasion. On 9 October before the Commission the draft award was again discussed, again the only two outstanding issues were part-time employment and union deductions, no ventilation of the appropriate wage rates, that had been settled we would submit back in April 2000.

PN45

On 23 October, Mr Champion forwarded an offer in relation to the outstanding issues seeking to confer with the union and follow that up with another offer to meet with the union, but met no response. Then Mr Champion, late last year requested a re-listing of the matter before the Commission to try and advance it to conclusion on the basis that there were only two outstanding matters, that was the constant chain of events since the April hearing. And it is only then that - then Mr Ryan contacted him while he was on leave, the Commission then re-listed the matter on 11 January this year, I am instructed, and there was a report and a response, again there was only two outstanding issues, there was no discussion on wage rates at all, that matter had been finalised.

PN46

And then again, I am instructed, the last time was in front of yourself, Commissioner, on 5 March, there was a video conference, and after that conference there was only one outstanding issue, the union dues issue had gone away and we were left with the issue of part-time employment. Now, following that conference, then on 6 March, a fax is received. Now, I would submit that course of conduct sets the scene that says that it is entirely inappropriate to re-open the matters that were ostensibly closed on April 2000, and which for all intents and purposes have been closed in the union's mind as well as our clients.

PN47

Now, that altered positions, it set out a proposed wage rate, it set out no methodology for how they suggested it was computed and in fact notified only late yesterday afternoon that that has changed again. I mean I would submit that it is very strange that the course of proceedings should go this way. So as a result of that history of the conduct of the matter, Commissioner, in my client's respectful submission the Commission should not hear anything on the matter of wages, we would make that submission under section 111(1)(g) of the Act. In that sense it says that:

PN48

The Commission has the power to refrain from further hearing a matter ...(reads)... hindering the settlement of the matter.

PN49

And we would suggest that seems to be what is happening, that matter of wage rates was clearly concluded. The only matter outstanding, that you listed for hearing today, on Monday when our clients left, and you listed the matter was the issue of part-time work. That should be the only issue that the Commission hears. We would submit that the union acting to try and put an agreed position and then try and resile from it is not something that the Commission should entertain, it is not in the public interest we would submit to allow that sort of behaviour before the Commission.

PN50

We would also submit that it is grossly unfair to my client's position that they should - it goes against the things in the Act, section 98A, in relation to fair proceedings. Section 110(2)(c), the Commission acting with equity and good conscience, we would submit that that course of conduct by the union is such that there is no merit in the Commission agreeing to Mr Ryan's submission to re-open the matter of wage rates.

PN51

We would submit that the matter that has gone on for a very long period of time should be concluded by a simple arbitration of the matter of part-time work, that is the one outstanding matter. And we would conclude it on the basis of quoting page 10 of the transcript of 17 April, and this is Mr Ryan, and he states:

PN52

Commissioner, the submissions made by Mr Champion in relation to wage rates and personal leave issues, they are joint submissions and we agree with them. We confirm there should be no difficulty with the Commission finding that that is proper minimum rates awards, and it does accord with the paid rates decision. The only areas we have any difference in are the issues of allowability.

PN53

Now, we would suggest that is a strong position. It was reached after the words I quoted from Mr Champion, an exhaustive process involving both parties. For one party to unilaterally opt out and think they can recalculate it, is not behaviour that we would suggest should be entertained. And the only other, I suppose, in terms of your discretion, Commissioner, it is clear it is a discretionary matter, that on the figures that Mr Ryan put up, it appears, you know, there is a matter of $5 difference in the wage rate. We really don't think that that is an issue of significance.

PN54

In terms of how to proceed with the matter, what we would really suggest is that if there is an issue that our parties are willing to confer. There has been no conferring on this matter. There is a listing for part-time work to be resolved, and then faxes and phone calls being returned. We really don't think, in the event that the Commission doesn't uphold my submissions, I would like to put further submissions as to how the matter should proceed in relation to wage rates.

PN55

THE COMMISSIONER: Mr Ryan?

PN56

MR RYAN: Commissioner, Mr Wilson seeks that this matter, or my submissions on the wage issues not proceed, and that you use your discretionary powers under section 111(1)(g). Unfortunately they don't apply, and they can't apply. The reason for that, Commissioner, is that whilst section 111(2) makes it very clear that where they refer to industrial dispute in the context of section 111 for all of the general powers and functions of the Commission, that the term industrial dispute is to be read as including a reference to any other proceeding before the Commission. And this proceeding would be that sort of proceeding.

PN57

Section 111(1)(g) is not available to you because that is the discretion as for a Commissioner, or a member of the Commission to dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute or part of the industrial dispute. That is simply not available to you because under item 51 of the WROLA Act the one thing you cannot do is not determine the matter, nor can you dismiss the matter or part of a matter.

PN58

The matter before you is a review of an award in accordance with item 51 of WROLA, and no person could make an application and have you successfully decide that you don't do what the Act says you are absolutely obliged to do, and that is because the WROLA Act, as being part of the transitional provisions that were incorporated into the Workplace Relations and Other Legislation Amendment Act made it absolutely specific that once the interim period has passed there is an absolute statutory obligation on the Commission to review each and every award.

PN59

So in that sense there is no capacity for any member of the Commission to dismiss, refrain or not to determine an item 51 matter. Also in the proper understanding of item 51 matters, neither the union nor Tricon are parties to the matter, as that term is normally used as parties to an industrial dispute. We are certainly parties to the award, but the matter is the statutory obligation on the Commission to act on its own motion and to review the award under the terms of item 51 of the WROLA Act.

PN60

Whilst it is normal for the Commission to operate on the basis of treating this in the same manner as it treats industrial disputes, so that there is at least a proper way of dealing with competing submissions, there is no applicant, there is no respondent, there is not an initiator of an application on someone who is either defending or prosecuting a matter. We are participants in a matter that the Commission must determine as a result of the statutory obligation.

PN61

We have to be participants because the outcome affects directly the interests of the association, the employer and the employees, and in that sense the Commission would not act without giving us the opportunity of being heard.

PN62

THE COMMISSIONER: Well, I don't know that I agree with that, Mr Ryan, and I don't know that I agree that the Commission can't just set rates it thinks are appropriate, without hearing anything, in a review.

PN63

MR RYAN: If no one sought to be heard, I wouldn't hesitate to say that the Commission could set rates without hearing from the parties. But if parties to the award seek to be heard - - -

PN64

THE COMMISSIONER: And they were.

PN65

MR RYAN: Yes. So in that sense, if they seek to be heard they have to be heard, but we are not heard as parties to a proceeding in the normal sense of the word. We are heard by the Commission before the Commission determines the matter properly before it. In any sense though, section 111(1)(g) is not available because you can't dismiss the matter or refrain from determining the matter.

PN66

You can certainly use section 110 and tell us when to stop making submissions or how we should make submissions. And I have no difficulty with any direction the Commission may give under section 110. What I would say though, and what our letter makes very clear, is that we have identified that in our view the rate proposed to have been inserted as at April of last year is not a proper rate and would not be a rate that would satisfy the obligation on the Commission to ensure that the rate is a proper safety net minimum, having regard to both the paid rates decision and the fact that you have to strike a rate having regard to structural efficiency principles and MRAs.

PN67

THE COMMISSIONER: In short form, why not?

PN68

MR RYAN: Because the analysis I - - -

PN69

THE COMMISSIONER: How did it occur that you came to a new position?

PN70

MR RYAN: How did it occur? Because I went back yesterday and re-tested all of the figures by going back to the start point of the award. And by going back to the start point of the award and working out what were the safety net adjustments that should have applied to a properly established safety net minimum. I have made the assumption, and I think it is a proper and fair assumption, that the rate of $399.60 which was inserted into the award was itself a properly determined minimum at that particular point in time. It is slightly at variance to the award wage that would otherwise have applied under the New South Wales Shops Award, where the rate as at - - -

PN71

MR WILSON: Could I just make one point, Commissioner. I mean, it is another contradiction. The fifth paragraph of his letter, the last sentence of that says:

PN72

In our view these wage rates were not properly set minimum rates.

PN73

And as I heard his beginning of his explanation was, he went back to them. His letter says they were not properly set minimum safety wage rates. And that was what was put to you in April, and that was what the process before April said as well. We have got another contradiction from the facts coming up now. And he is proposing to take award rates that he says in his own letter were not properly set minimum rates and safety net adjustments, and say that is an appropriate wage rate, and it is a process that he is trying to rescind. The whole process of a carefully thought through process that followed the correct principles under the award simplification decision, and he is attempting to just re-write it like scribble on a pad.

[1.28pm]

PN74

MR RYAN: The rate of 399.60 was inserted as at 1 March 1995. At that point of time the award rate for a shop assistant was $392.40 which meant there was a $7.60 differential between the shop assistant rate and the $399.60 rate for a person employed under this award. The difference can be accepted as relating to the fact that this award lacked penalty provisions which were in the relevant New South Wales State Award at the time, and that is consistent with the approach adopted by the Association in negotiating the start rates, that there is a buy-out figure for those things which are changed from the underpinning awards.

PN75

All I have done then is take the $399.60 rate, I have added to it the $8 safety net adjustment of April '95, the $8 safety net adjustment of April '96, the $10 safety net adjustment of April '97, the $14 safety net adjustment of April '98, the $12 safety net adjustment of April '99, and the $15 safety net adjustment of May 2000. Where I made the error in the letter is that, when I added all of those up, I just put an extra $8 in there, but the sum total of all of those figures added to $399.60 gives $466.60.

PN76

Now, that is all that I have done. I have not sought to reconfigure, fiddle with, the $7.20 buy-out value of alterations in the award entitlement. I have simply applied to what was the start rate in that award the safety net adjustments which were provided for by the respective decisions of the Full Benches in those years.

PN77

THE COMMISSIONER: And what did you do the first time? Why is it different, because you seem to be saying to me that it is a matter of just confirming the correct amount between the parties? If there was an error in the calculation, then that can be confirmed and corrected, if you agree on the calculation.

PN78

MR RYAN: The rate of $446.20, in the draft which has been tendered to you, actually has a date above it. I mean it is a rate with a fixed date. So in the draft document which was provided to you there is the date of 18 December 1999 above a rate of $446.20. That was the rate that was in the current KFC National Enterprise Agreement, the current certified agreement. So we put that rate in on the basis that it seemed to line up with where we had come from with the award; it was the current rate; it addressed - and having a look at these general issues - it appeared to address everything correctly.

PN79

What I have done in the letter you will note, Commissioner, is I have already identified that, because even when we put it together in April last year, we still have to add another $15 to the 446, because we identified that rate as being a rate at December '99. And the safety net adjustments have already moved in April 2000, so there still has to be an extra $15 added to the 446, which gives us the - - -

PN80

MR WILSON: We don't dispute that at all, but as I would suggest, if there is a genuine error - - -

PN81

THE COMMISSIONER: It seems to me that if that is the basis of your argument, that is just a matter of correcting an error and confirming the amounts, isn't it? It is not really an arbitration matter.

PN82

MR WILSON: Eventually our submission is the methodology was set, and there had been an exhaustive process. If he thinks there was an error, my parties are willing to talk about that.

PN83

THE COMMISSIONER: Presumably we would have picked that up in the - - -

PN84

MR WILSON: But there was a methodology agreed, and as long as that methodology agreed is stuck with, that is fine by my client; we are willing to talk about it.

PN85

THE COMMISSIONER: But it just seems to me that would have been picked up in - if that is a discrepancy, it would have been picked up in confirming draft orders for issuing.

PN86

MR RYAN: The $15, I suspect, would have just been picked up and we would have confirmed the $15 and changed the date from 15 December '99 to whatever was the date in May 2000 that the actual national wage case - or safety net adjustment was issued.

PN87

THE COMMISSIONER: Well, look, I won't take you any further on that point for the moment, Mr Ryan. I am concerned that I have got a 2 pm listing and we started over an hour late. What are you going to put to the Commission in respect to the other matter, the part-time employees?

PN88

MR RYAN: In relation to the part-time employment issue, Commissioner, we say that the appropriate form of a clause which should be inserted into this award is to follow the format of the clause inserted into the SDAEA (Victorian Shops) Interim Award 2000.

PN89

THE COMMISSIONER: Well, how does that differ from the proposed draft in Mr Champion's letter, and I will mark that now, if that is your wish, Mr Champion. I will mark that as an exhibit.

PN90

MR WILSON: Can we reserve on that, if we wouldn't mark it at this stage, because I suppose a lot of it depends on what he is going to say. I haven't even seen the award he is relying on, so if we could avoid marking it at this stage, Commissioner.

PN91

THE COMMISSIONER: All right. So what is the answer to my question: how does it differ from this, Mr Ryan? Is it just a matter of format, or is it entitlements?

PN92

MR RYAN: It goes to issues of entitlements in that our reading of the employer's proposed part-time clause essentially keeps part-time employment without any of the protections that the concept of regular, part-time employment as defined in the Workplace Relations Act and as applied in both the hospitality and the retail decision have provided for.

PN93

THE COMMISSIONER: And you say that is a discrepancy in Mr Champion's draft.

PN94

MR RYAN: A significant discrepancy. Whilst he has got language which would appear to mirror key aspects of the retail decision which is - you have to be provided with - - -

PN95

MR WILSON: Sorry, I don't mean to keep interrupting, but have you got a copy of what you are proposing?

PN96

MR RYAN: It was also contained in the early version that we supplied to the employer.

PN97

MR WILSON: Back in the July one?

PN98

MR RYAN: Yes, where we put in the retail - the standard retail part-time employment provision.

PN99

MR RYAN: Mr Champion's draft uses language that would appear on the surface to provide certainty in that:

PN100

On engagement shall be notified of the range of hours to be worked each week, the days of the week on which work is to be performed, and the anticipated commencing and ceasing times of such hours a week for each day of the week on which work is to be performed.

PN101

They are not quite in the same terms as the retail decision, because in retail the language was more specific, and it said that at the time of first being employed you had to agree in writing on a regular pattern of work, specifying at least the days worked each week, which days of the week the employee will work, the actual starting and finishing times of each day, the fact that variations must be in writing, etcetera.

PN102

THE COMMISSIONER: That is in retail, but is it in the current KFC Award?

PN103

MR RYAN: No. But the difference, Commissioner - and this is the same as the argument in retail and also in hospitality - the concept of part-time employment that is in the current award with its fixed minimum hours and fixed maximum hours is not the same as the concept of regular, part-time employment as defined, and regular part-time employment as defined is now a new creature.

PN104

And the hospitality clause bore no relationship to the prior part-time provisions in hospitality, and that is because they were dealing with two different creatures, and the Act - there is no obligation on the Commission other than to consider the desirability of inserting into an award provisions which promote regular part-time employment. And as the hospitality Full Bench made very clear, if you are going to have something to something that promotes regular part-time employment, you have to define all of those elements which ensure regularity so that it is regular part-time employment, not part-time employment, that may be up and down and all around the place.

PN105

The critical difference in the approach adopted by Mr Champion is that he defines then terms such as ordinary hours and anticipated commencing and ceasing times to make them conditional upon reasonable business needs. In other words, not only is not the actual starting and finishing times, it is anticipated commencing and ceasing times, and then those times based on reasonable business needs.

PN106

The real difficulty with that is that it has such a high degree of uncertainty in it, it does not provide the certainty which is inherent in the nature of the concept of regular part-time employment as defined in the Workplace Relations Act. Clearly the clause as inserted into the retail award - and that is both the Vic Shops Award and a similar clause - or identical clause went into the ACT Shops Award, that is a clause which very specifically provides the certainty for a person being engaged as a regular part-time employee.

PN107

We have tried several versions of trying to get to an agreed position in relation to a part-time employment clause. Every version that the employer has put up we have rejected on the basis that there is such a high degree of uncertainty in terms of what an employee would actually be entitled to, there is such a high degree of latitude to the employer to alter the structure of the part-time employment relationship, that there is no - it has no resemblance at all to the statutorily defined concept of part-time employment, and certainly that concept as it was addressed by the Full Bench in the hospitality case and by yourself in the retail decision.

PN108

THE COMMISSIONER: Can I, with respect, just stop you there and hear what Mr Wilson says about that general, over-all position?

PN109

MR WILSON: Thank you, Commissioner. I can reply to the issues on part-time, and I would indicate that we would be seeking to call evidence. The critical distinction between the way Mr Ryan is promoting the case and what our client's case would be is essentially: we are not the retail industry, and we are not the hospitality industry. There is a current award clause, and as your question rightly indicated, Commissioner, it gives a certain degree of flexibility to the employer now.

PN110

It was an award that was agreed by the parties in 1995; it met the needs of KFC. Here is an award now that we are reviewing. It is clear that the award and the restrictions that Mr Ryan has referred to that do apply in some other establishments, they have been agreed in some instances, they have seen to be appropriate for those industries. They are not appropriate for KFC. They are not appropriate for their environment, and in fact their own union agreed to that in 1995.

PN111

The only issue that we are faced with is that, yes, under the Act you are not allowed to have the span of hours of 8 to 32, the minimum and maximum. The Act says that that must be removed. But the overall position really is, from our client's perspective, yes, that one restriction must be removed, because the Act says that has got to happen, the parties don't have a choice in that. And Mr Ryan is seeking - doing six restrictions instead of one. It is something that flies in the face of an agreed position in 1995, it flies in the face of the needs of the business and in fact the needs of the employees for the degree of flexibility that they need. The overall - - -

PN112

THE COMMISSIONER: I just wonder - I hear your submissions and I hear the point you are making. I just wonder whether the parties might not consider this. Do I really need to hear witnesses and hear further submissions or is there enough guidance in what has been said already and in the award simplification decisions for me to make a discretionary decision in the matter, as part of the review?

PN113

MR RYAN: Certainly, Commissioner, at this stage we just say it is a matter that has to be arbitrated, in other words, determined by yourself.

PN114

THE COMMISSIONER: I am not trying to reduce anyone's natural justice, but I am trying to reduce an overload of work.

PN115

MR RYAN: No, but I am not - as from Monday when we said this has to be determined, it has to be arbitrated, it is not our position that we have to reinvent the wheel at all. I mean, I am doing nothing other than - if I need to, I just take you to the Hospitality decision, the Retail decision and all these - - -

PN116

THE COMMISSIONER: Well, that is why I am saying I think I understand the parties' submissions.

PN117

MR RYAN: I don't need - yes.

PN118

THE COMMISSIONER: You could go to further detail in them and you can call witnesses. I am not preventing you from doing that either. I am just putting a proposal to you.

PN119

MR RYAN: We have no intention or desire to call witnesses. Our submission is just in relation to the application of the standards as set by the Commission.

PN120

THE COMMISSIONER: Mr Wilson, do you have a view on that or - - -

PN121

MR WILSON: Could I seek some instructions on it, Commissioner?

PN122

THE COMMISSIONER: Yes, please do that, please. Can we just go off transcript, please?

OFF THE RECORD

PN123

THE COMMISSIONER: Mr Wilson.

PN124

MR WILSON: Yes, Commissioner, yes. Having considered the issue in terms of the part-time work issue, as the essence of our clients' case really is the distinctiveness of KFC, we would see that the inability to call evidence would probably severely prejudice our position.

PN125

THE COMMISSIONER: I see, thank you.

PN126

MR WILSON: We do not seek to draw the matter out inordinately and given we can't proceed today, we will attempt to find the most expeditious way of dealing with that.

PN127

THE COMMISSIONER: All right.

PN128

MR WILSON: And if I could perhaps record too an issue of wage rates, I would reiterate the position of our client. I am instructed that if the methodology that was put before the Commission in KFC1 on April 2000, which was clearly set out in terms of the process and the things related to that in that submission, if that is what we are talking about, and whatever the outcome is, is going to be consistent with that methodology, our client is willing to meet with the Union, try and confer and see if there is any error that arose out of that process, as long as it is that agreed methodology.

PN129

THE COMMISSIONER: Right, sorry, we will go off transcript again.

OFF THE RECORD

PN130

THE COMMISSIONER: Look, I give these directions to the parties. I direct the parties to confer on the rates and to advise me by the close of business Friday, the 16th, as to the outcome of discussions in respect of the rates, and whether the amended rates can be accepted, or whether the rates as put to me in April last year stand. And I will list this matter at 2.00 pm, Tuesday, 3 April for the balance of the afternoon, and ask the parties to exchange all materials, including witness statements and outlines of submissions and anything that is to be relied on. And not only served on other party, but also provided to the Commission by close of business on Friday, the 23 March.

PN131

If there is to be responses to those submissions or further clarification to them, they can be done at the hearing. We will adjourn until then, thank you.

ADJOURNED UNTIL TUESDAY, 3 APRIL 2001 [1.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA3 LETTER PN24