C0046/298, Transcript of Proceedings [2001] AIRCTrans 43 (21 February 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C NO 00462 OF 1998
C NO 00463 OF 1998
C NO 00464 OF 1998
C NO 61050 OF 1999
C NO 61051 OF 1999

APPLICATION FOR A REVIEW PURSUANT TO
ITEM 51 SCHEDULE 5 TRANSITIONAL WROLA
ACT 1996 OF THE AGED AND DISABLED PERSONS
HOSTELS (ALHMWU) INTERIM AWARD 1996
AND OTHERS RE AWARD SIMPLIFICATION

APPLICATION UNDER SECTION 111(1)(l) OF
THE ACT FOR AN AWARD RE ANGLICAN HOMES
(INC) AND OTHERS

SYDNEY

4.10 PM, MONDAY, 5 FEBRUARY 2001

Continued from 12.10.00

Hearing Continuing

THIS MATTER WAS CONDUCTED BY TELEPHONE CONFERENCE IN SYDNEY

PN94

MR L. PILGRIM: I appear for a named respondent.

PN95

MR B. WALKER: I appear for a named respondent.

PN96

MR S. WHITE: I appear for a named respondent.

PN97

MR D. KELLY: I appear for the ALHMWU.

PN98

MR J. BLACKBURN: I appear for the Chamber of Commerce and Industry, Western Australia.

PN99

THE SENIOR DEPUTY PRESIDENT: Good afternoon to you all. This matter is a telephone hearing, as you know, because of a request by Mr Kelly on behalf of the ALHMW for a further postponement of the scheduled hearing dates from the current, which are late March, to May, Mr Kelly, I think you suggest, is that right?

PN100

MR KELLY: Well, I think your associate indicated that you had some dates at the end of April also.

PN101

THE SENIOR DEPUTY PRESIDENT: I see. Very well, we will get to dates if we get that far. Is there anything you want to say in addition to what is in the letter, Mr Kelly, in which you applied for the variation to the directions?

PN102

MR KELLY: Yes, if I can just bring you up to date with the situation as it currently stands. In addition to what is in the letter, we have been advised by the Federal Court this morning, and I am not sure whether the other parties would be aware but we have been advised that the stay hearing has been listed for 2 March, so that notice of motion will be heard then. The substantive matter has been listed for callover on 21 February and we anticipate that will give us a listing date for the substantive matter in May. We have also received from Mr Blackburn a letter indicating that the parties he represents are opposed to the hearing dates being moved.

PN103

Your Honour, the principal reason why we seek to have the directions amended again is because the current requirement is that on 15 February we are supposed to provide full submissions. Now, we don't see that it was our fault that the Federal Court took the action they did and listed the stay matter before a single judge rather than as required under the Act the Full Court. It just seems to us inappropriate that we provide our full submissions on 15 February if the stay is going to be heard some time shortly after that.

PN104

Having got the letter from Mr Blackburn, the only other permutation that I have sought, and I hope he will raise it here, is if the employers are very keen to have those dates in March remain, as the directions currently stand we are required to provide full submissions. In the interim award matters, if I can pass on to that, the employees are the applicants so they would bear the onus of establishing that the awards should be varied in the way they seek. In the award simplification matters likewise the parties seeking to have the awards amended again bear the onus of establishing the case for that.

PN105

We provided our evidence first because we requested that we be able to call additional evidence on the basis of the passage of time and it seems to us appropriate that the employers put in their submissions first along with any additional evidence they wish to call in response to ours. If they want to do that by 15 February we can then respond with our submissions in the time frame that had previously been set down for them which I think was 15 March and then the hearings, if our application for a stay is unsuccessful, could go on in March. In our view that would make the hearings in March still possible but our principal view is that with both parties concerned it makes sense to delay them for what would be only a short period if it was until March but, as I say, given that the onus lies with the employers in the interim award matters and the award simplification matters it would be appropriate to provide their submissions first if they wish the matters to proceed currently.

PN106

THE SENIOR DEPUTY PRESIDENT: What do you say, Mr Blackburn?

PN107

MR BLACKBURN: Well, your Honour, it's the first I have heard of that suggestion but this question of a stay was argued before you on 12 October and the AMWU is not putting anything new now. It sought a stay then so that it could proceed to the Federal Court and your Honour denied it. As far as the way the union is characterising this so-called failure on the part of the Federal Court, I notice that it is only characterising it as a failure on the part of the court in letters to yourself and myself and that in the letter to the Federal Court they say something slightly different. They don't suggest there that it is the fault of the court, they say there that they have received advice that a single judge doesn't have jurisdiction to deal with a stay application and therefore, they say, the applicant union has no alternative except to seek the reference of this notice of motion to a Full Court.

PN108

What we say is that the union, as it is well aware, ought to have sought the reference of the matter to the Full Court in the first place and that the error is that of the union and it seems to us just a little bit precious for the purpose of seeking a stay from your Honour to now try and characterise it as the error of the court.

PN109

The submissions we put in October as to why the stay should not be granted are the submissions we would again put today, that is that the matter has been on foot for three years now and even if the final award applications are stayed, either temporarily or permanently, your Honour will recall that the final award applications and the award simplification matters are almost identical, save for there are two claims only in the final award applications, one relating to whether overtime is paid at time and a half for 1 or 3 hours and the other relating to an additional week of annual leave for shift workers. Those are the only two additional claims if you like so that any work the union does in formulating its submissions will not be lost because at some time it will have to argue all of those matters as far as award simplification. We say there is no additional work on the union by requiring it to comply with directions that have been on foot for a very long time.

PN110

We also note that - we weren't aware, but we anticipated that the stay would be some time in March, it's going to be on 2 March, so there's certainly no need at this point, in our submission, to vacate the hearing dates at the end of March because we will know well before then whether the final award applications are to be stayed or not. Also, it is open to the union after you hand down a decision in these matters and if the Federal Court application has not been determined by that time to apply for a stay either before you or before the Federal Court for all or part of your Honour's decision, so there is certainly no need that we would see for it to seek a stay now, it can do that once your decision is known.

PN111

The suggestion that has now been made that we should put our submissions in first ignores the history of the matter and the history of the matter is such that our position is very clearly stated. We also have already filed in these proceedings one set of final submissions, this is long ago in 1999 when there were directions on the union to then file its own submissions, which it never did. We filed our submissions in the matter, albeit now they obviously want to change, but in terms of our position, it is very clear in a number of exhibits before you exactly what we seek.

PN112

We still have to this day no indication of what the union seek. The last we heard was that Mr Kelly was going to change his position again and he had withdrawn from a variety of agreements that have been reached. We have had no indication of what the union's position is and we were presuming that we would get that once and for all in the submissions that they are going to put and that's why it is appropriate for them to put their submissions first.

PN113

I think it is far too late at this juncture for Mr Kelly to suddenly say, well, hang on, you go first, when in October he accepted that they would go first. We see this as just another attempt to in effect cavil with the ruling that your Honour made in October when this question of a stay was heard by you and determined.

PN114

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Pilgrim?

PN115

MR PILGRIM: We agree with that, sir, and we have nothing to add.

PN116

THE SENIOR DEPUTY PRESIDENT: Mr Walker?

PN117

MR WALKER: Similarly, sir, we agree with what Mr Blackburn has said and we have nothing to add.

PN118

THE SENIOR DEPUTY PRESIDENT: Mr White?

PN119

MR WHITE: Your Honour, we also agree and have nothing further to add.

PN120

THE SENIOR DEPUTY PRESIDENT: Mr Kelly in response, please?

PN121

MR KELLY: Your Honour, Mr Blackburn is talking as though we are seeking a stay before you; we are not seeking a stay, you have made a decision in respect of that. We are only talking about appropriate hearing dates and appropriate directions, so I think Mr Blackburn is a bit remiss there in characterising what we are seeking.

PN122

Mr Blackburn's claim that in the event that the stay is granted, because the claims in the award simplification matter are similar to the claims sought in the interim award matters that there is no additional work on the part of the union to knock up the submissions required. Quite frankly, that is simply not true. The claims are similar but the submissions in respect of the award simplification matter we would say can quite easily be disposed of because the tests and the precedents in respect of award simplification are fairly well met and it is quite clear that the vast bulk of what the employers are seeking they simply cannot achieve through award simplification. On the other hand, the interim award matters which the employers seek purely on the basis of merit is a whole different kettle of fish and to address that will require considerably more work than that required in the award simplification matter. It is simply not the case that you can just knock out one and you have virtually done the other, that is not the case.

PN123

In respect of Mr Blackburn's submission that they have not known what our position has been, we have provided the employers with the awards as we seek to have them made as a result of this process. Now, if that is the basis on which Mr Blackburn believes that we broke agreements that were entered into in months gone past, I don't understand what Mr Blackburn is saying in respect of that. The fact is that in October we sought leave from the Commission to call some additional evidence because of the passage of time. On that basis we were asked to provide our evidence first and that was probably appropriate because we were the ones who were seeking additional information and the employers were given the opportunity to give evidence in response if they saw fit.

PN124

Now, I suspect, and I didn't complain at the time, that on that basis the union was asked to follow up its witness evidence with some submissions. We provided the witness evidence but we have yet to do the work in respect of the submissions. The fact is, regardless of what Mr Blackburn says about the award simplification matter and the interim award matters by the applicant, the normal procedure in the Commission is that they provide their submissions first. Mr Blackburn said that they have provided their submissions previously but he says now they intend to change them.

PN125

It is appropriate that they provide their case in respect of justifying the award amendments they seek and then the union respond to them. That is the appropriate way for this matter to proceed. If they are half set on having it dealt with on the 22nd and 23rd, them doing that on the 15th and us replying on 15 March allows them to do that, I don't see how in any way they can complain about that. As far as the history goes they have always been the applicant, they have always borne the onus, so if they want those hearing dates in March this is an appropriate way to proceed.

PN126

MR BLACKBURN: Your Honour, if I might just comment in relation to that.

PN127

THE SENIOR DEPUTY PRESIDENT: I don't need any comments, Mr Blackburn. I have listened to the parties, I do recall the history of submissions in particular in these matters and apart from dates in the Federal Court the circumstances have not changed since I had consideration to procedural matters on 12 October last year. In light of that and what I have heard today I have decided that I will not vary the directions or vacate the dates I have given and adjourn further proceedings in this matter subject to compliance with the directions to 20 and 21 March 2001. Thank you for your assistance this afternoon, I now adjourn these proceedings in accordance with that last direction. Good afternoon.

PN128

MR BLACKBURN: May it please your Honour.

PN129

MR KELLY: Thank you, your Honour.

ADJOURNED UNTIL TUESDAY, 20 MARCH 2001 [4.28pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs