C0120/098, Transcript of Proceedings [2002] AIRCTrans 2260 (19 June 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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


O/N VT04331
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 01200 of 1998

VICTORIAN LEGAL PROFESSIONAL
CLERICAL AND ADMINISTRATIVE
EMPLOYEES AWARD 1993

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

MELBOURNE

10.10 AM, WEDNESDAY, 5 JUNE 2002

Continued from 13.5.02

PN127

MR R. BEALES: I appear on behalf of the Australian Services Union. I make apologise for Mr Foley who is in the Federal Court this morning.

PN128

MS H. AYRES: I appear on behalf of Holding, Redlich and Justice Nominees.

PN129

MR P. GARDNER: I appear for Ryan Carlisle Thomas.

PN130

MS A. RUSH: I appear for the Law Institute of Victoria.

PN131

THE SENIOR DEPUTY PRESIDENT: This matter is listed this morning principally for a report back and to deal with the issues that have been raised by the parties who were directed to provide any points of difference they have in relation to the draft that has been provided by the ASU. I have received from Ryan Carlisle Thomas, Mr Gardner, a table setting out the matters that are of concern as far as Ryan Carlisle Thomas is concerned and I have received from Holding Redlich a letter which reads that it only has one comment and it hasn't prepared a table in response. I have also received from Maurice Blackburn a letter stating and I will quote:

PN132

We have had the opportunity peruse the proposals put forward by the Australian Services Union in their ...(reads)... contained in the award.

PN133

They then go on to seek an extension of time of 14 days in which to lodge their table. Mr Beales, have you had any further discussions with any of the parties relating to this matter?

PN134

MR BEALES: Your Honour, I just have instructions from Mr Foley today to try and speed the matter up, but certainly from what I am led to believe there has been limited discussions. I do have a response to the items that Mr Gardner has put forward via e-mail and sent via fax, if that is satisfactory, your Honour, for me to do that?

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN136

MR BEALES: Okay, thank you, your Honour. Your Honour, my instructions are that as a general principle we will accept any recommendations on matters arising out of these discussions from the Industrial Relations Commission. Our specific comments on the changes sought by the employers, if I can deal with Mr Gardner's fax and perhaps, your Honour, it might be appropriate if I go through it as it is listed in his e-mail.

PN137

THE SENIOR DEPUTY PRESIDENT: Yes. Perhaps I better mark the document.

EXHIBIT #RCT1 MR GARDNER'S TABLE

PN138

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Beales.

PN139

MR BEALES: Thank you, your Honour. Your Honour, in relation to clause 4E which is the first one on Mr Gardner's fax at clause 24, we are happy to include that in the new award. In relation to clause 9B(3) and a proviso, we are happy to accept the Commission's recommendation on that. In relation to clause 9A, again we happy to accept the Commission's recommendation. In relation to clause 14B(5), again we are happy to accept but, you Honour, we are not sure if it is allowable or not. I guess we are in the hands of the Commission on that matter.

PN140

THE SENIOR DEPUTY PRESIDENT: Which is that, 14B(5)?

PN141

MR BEALES: 14C(3)(d), yes.

PN142

THE SENIOR DEPUTY PRESIDENT: No, 14 - - -

PN143

MR BEALES: Sorry, 14B(5). I beg your pardon, your Honour.

PN144

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I will consider that.

PN145

MR BEALES: Thank you, your Honour.

PN146

THE SENIOR DEPUTY PRESIDENT: But you accept that subject to it being allowable?

PN147

MR BEALES: Correct.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes.

PN149

MR BEALES: Your Honour, in relation to clause 14C(3)(d), etcetera, we are happy to include that in our clause 24.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR BEALES: Your Honour, in relation to clause 14A(c) and (a), our view is that that is not allowable. Certainly our view is the test case provision.

PN152

MR GARDNER: Your Honour, I might just indicate there is a typo in that. That C(e) should refer to 15A(c)(i).

PN153

THE SENIOR DEPUTY PRESIDENT: Right. Instead of (e) it should be (c)(i).

PN154

MR GARDNER: Yes.

PN155

THE SENIOR DEPUTY PRESIDENT: Yes. Sorry, what did you say then, Mr Beales?

PN156

MR BEALES: Your Honour, our view is that it is not allowable and our view is that it should be the test case provision.

PN157

THE SENIOR DEPUTY PRESIDENT: Just bear with me a moment. That is the new clause, 32.1.2, is that right?

PN158

MR BEALES: That is right. What I understand, your Honour, is that Ryan Carlisle Thomas is seeking to insert as the old clause.

PN159

THE SENIOR DEPUTY PRESIDENT: Yes, I will consider that.

PN160

MR BEALES: Your Honour, in relation to the old award, clause 31E, D and F, Ryan Carlisle are seeking to insert the old clause as well. Our view is that that is not allowable.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes.

PN162

MR BEALES: Your Honour, in relation to the ASU new clause, 18.6, we are seeking the test case standard.

PN163

THE SENIOR DEPUTY PRESIDENT: Yes.

PN164

MR BEALES: In relation to old clause 37A(c)(iv), our view is that to insert is as the old clause is not relevant.

PN165

THE SENIOR DEPUTY PRESIDENT: Not relevant?

PN166

MR BEALES: That is what my instructions are, your Honour.

PN167

THE SENIOR DEPUTY PRESIDENT: What does that mean?

PN168

MR BEALES: It means it is not relevant and I can't elaborate any further in the absence of - - -

PN169

THE SENIOR DEPUTY PRESIDENT: You mean it is obsolete?

PN170

MR BEALES: Yes.

PN171

THE SENIOR DEPUTY PRESIDENT: Yes.

PN172

MR BEALES: Your Honour, in relation to ASU new clause 11.2, old clause 40D, we are happy to include that.

PN173

THE SENIOR DEPUTY PRESIDENT: Yes.

PN174

MR BEALES: And the same would apply, your Honour, for the old award clause 40G. Again we are happy to include that.

PN175

THE SENIOR DEPUTY PRESIDENT: Yes.

PN176

MR BEALES: Your Honour, in relation to the position of Holding and Redlich my instructions are that we don't agree to retaining clause 15A on the basis that the new clause reflects the test case standard and that there is a further application I am advised before Senior Deputy President Watson on Friday linked to the national wage case where we have sought to put the 2001 May casual maternity leave and whole carer's case into the award.

PN177

THE SENIOR DEPUTY PRESIDENT: But what about the point that is raised by Holding Redlich that clause 32 would be more beneficial to the employees, less favourable to the respondents?

PN178

MR BEALES: Yes, the ASU doesn't agree with that point of view.

PN179

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN180

MR BEALES: The ASU doesn't agree with that point of view, your Honour. And, your Honour, in relation to Maurice Blackburn Cashman, we have no objection for the extension of time of 14 days subject to the Commissioner proving such.

PN181

THE SENIOR DEPUTY PRESIDENT: Have you had any communication with Maurice Blackburn Cashman at all?

PN182

MR BEALES: Personally, no, your Honour, but I am advised that Mr Foley has been in discussions. The extent of those discussions I can't advise you today, your Honour, I am not aware of them.

PN183

THE SENIOR DEPUTY PRESIDENT: I am concerned. I mean this matter has now been listed before me on four occasions - five occasions. On two occasions there was no attendance by anybody. On the other three occasions some people have attended and others haven't and now Maurice Blackburn Cashman have not attended today in any event. So I don't want this matter delayed any longer than necessary and whilst I am prepared to receive from Maurice Blackburn Cashman any comments its wishes to make I am not proposing that it have 14 days. But anyway, that is a matter I would be looking at.

PN184

MR BEALES: Thank you, your Honour. If there is no questions, if it please the Commission.

PN185

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Rush, what is the Law Institute's interest in terms of members?

PN186

MS RUSH: Thank you, Commissioner. My appearance today is unscheduled, which might be apparent from attire. The Law Institute has actually only just learnt of the matter. We have never received any notification regarding it.

PN187

THE SENIOR DEPUTY PRESIDENT: But your members have. Your members would have.

PN188

MS RUSH: Our members would have and Slater and Gordon have forwarded us the draft award this morning seeking our involvement, but we have been unable to obtain any instruction. We have learnt literally at 16 minutes to 10 this morning. So what we would seek is 14 days to obtain the instructions of our members.

PN189

THE SENIOR DEPUTY PRESIDENT: What do you propose doing within that 14 day period?

PN190

MS RUSH: Contacting our members to seek their instructions and views and also read the document ourselves to satisfy ourselves that it meets the relevant test cases and the Act.

PN191

THE SENIOR DEPUTY PRESIDENT: Well, if you had 14 days I would expect that in that period you would be able to provide any table or tables that you wish to put forward in opposition to the proposals that have been by ASU.

PN192

MS RUSH: Yes, we would do that.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes. Did you want to say anything else at this stage?

PN194

MS RUSH: No. Thank you, Commissioner.

PN195

THE SENIOR DEPUTY PRESIDENT: Ms Ayres.

PN196

MS AYRES: Thank you, Commissioner. Holding Redlich would like to just state once again that we would like to keep what we have in the award currently and we do believe that, as we have said in our letter, that the ASU are seeking to increase the entitlements and we don't that that is simplification. We believe that is something that needs further discussion but we stand by what we have put forward.

PN197

THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't catch the last bit.

PN198

MS AYRES: We stand by what we have put forward which is elect to remain the way the award is.

PN199

THE SENIOR DEPUTY PRESIDENT: In relation only to clause 15A, is that right?

PN200

MS AYRES: That is right.

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Yes, thank you, Mr Gardner. And thank you, Mr Gardner, for the material that you have provided.

PN202

MR GARDNER: Your Honour, just a couple of things. Mr Beales has indicated that the matter before the Commission on Friday involves an application to vary the award in respect of the sick leave provision to insert the test case. The advice I got is that it involves an application to insert the national wage case increase and the parental leave clause but it is not propose to insert the test case provision. Now, that would come as highly relevant to Ms Ayres proposition about the inclusion in the award of the test case provision.

PN203

Your Honour, we have identified a number of things but there is a somewhat broader issue involved and it is submitted that what has been attempted by the union is in fact a combination exercise here of an application to vary the award to include a number of test case standards which haven't been previously included and that is a legitimate exercise, we concede, but it is being bundled up as a process of award simplification as well and as a consequence we are having some matters particularly relevant to this award drop out the bottom and so a number of the things that we have identified relate to, for example, article clerks or law students and what have you and for our part we are concerned that this process of simplification doesn't become standardisation so that the particular needs of - - -

PN204

THE SENIOR DEPUTY PRESIDENT: It is a legitimate exercise, as you rightly concede, to incorporate test case standards but not if it is going to be a variation to the award to something that wasn't in there previously.

PN205

MR GARDNER: Exactly, your Honour, and it can properly be an application to vary the award in accordance with the wag fixing principles to put in a test case standard.

PN206

THE SENIOR DEPUTY PRESIDENT: Yes, precisely.

PN207

MR GARDNER: What we have got is - and it is for that reason that it is actually very difficult to track quite what is happening and I must say I have had some difficulty in trying to tease out what were the legitimate simplifications and what were test case standards.

PN208

THE SENIOR DEPUTY PRESIDENT: Yes.

PN209

MR GARDNER: And what was falling out the bottom and I have, I must say, a great deal of sympathy for all on this end of the bar table in trying to come to grips with that confusion and it is not frankly our fault that it has taken so long. So that is one of the - - -

PN210

THE SENIOR DEPUTY PRESIDENT: No, no, I wasn't being critical of the length of time it has taken to deal with these issues that have been identified by you. What I was being critical about was that this matter has been listed, as I say, five times, the first occasion on 10 April 2001 when there was no attendance, 19 March when I listed it in fact to set it aside because of the absence of any parties when Mr Foley, and then on 6 May 2002 when there was no attendance by anybody. So that is what I am being critical about, is that whilst all of the parties have been notified of these listings only now is there any interest being exhibited by some people who have had opportunities to be here before and haven't been here.

PN211

MR GARDNER: Yes, I understand, your Honour. I observed that the union very sensibly have given there progressing of the matter don't appear to be opposing some further time for other of the respondents employers.

PN212

THE SENIOR DEPUTY PRESIDENT: No, no. Yes, I appreciate that.

PN213

MR GARDNER: Which seems to me to be a very sensible course on their part. Your Honour, a number of the matters are identified by my friend as being either not allowable or it is a matter for the Commission or whatever. I am in the Commission's hands as to how it might want to deal with that and whether it is preferable to wait until we have got a whole bundle of everyone's comments or go into conference or - - -

PN214

THE SENIOR DEPUTY PRESIDENT: Could I just indicate, I have had the award simplification unit within Commission run over the draft that was provided by the ASU and they made a number of comments in terms of allowable matters and things like that but they haven't dealt with the issues you raised about the insertion of test case provisions where there was no previous benefit or provision in the award to that effect. What I am proposing to do with that is to e-mail it to the parties who have appeared here or indicated an interest in the matter and they can then look at the comments that have been made by the award simplification unit in relation to the allowable matters and obsolete provisions and grammatical corrections and things of that nature and they can be taken into account in any further dealings.

PN215

But the matters you raise about the incorporation of test case provisions that are in fact new to the award I will come back to Mr Beales about that and if they wish to proceed with those sorts of matters then it needs to be done by way of an award variation so that all the parties are notified of the proposed changes in those terms.

PN216

MR GARDNER: Yes, well, I think that is appropriate and it would be much easier to track it that way than trying to do two exercises at once.

PN217

THE SENIOR DEPUTY PRESIDENT: yes.

PN218

MR GARDNER: So in terms of the details of it I must say I would be content to leave that at this stage and a number of the matters have been accepted, particularly the issue about the dispute settlement procedure and others are either allowable or not allowable. I am happy to have a look at those again and take on board what the unit has to say as well about those issues. Not that they are always right.

PN219

THE SENIOR DEPUTY PRESIDENT: No, no, no, and they don't make the final decision. I make the final decision.

PN220

MR GARDNER: Indeed, your Honour.

PN221

THE SENIOR DEPUTY PRESIDENT: But they are helpful in some of their comments.

PN222

MR GARDNER: Yes. And as for the others, well, the recommendation of the Commission no doubt further down the track a conference might be very useful given the attitude of the union.

PN223

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN224

MR GARDNER: That is really all I have to say at the moment.

PN225

THE SENIOR DEPUTY PRESIDENT: Yes, thank you very much, Mr Gardner. Mr Beales, what I will ask you - or what I direct is that the ASU in fact identify those provisions that they have included in the draft that incorporate test case standards which were not reflected previously in the terms and conditions under the old award and then to the extent that the ASU wishes to have the award varied to incorporate those provisions it ought to make an application for a variation so that all of the parties are aware of the proposed changes to the award to the extent that they affect their operations.

PN226

MR BEALES: Your Honour, I will certainly take those views back to Mr Foley.

PN227

THE SENIOR DEPUTY PRESIDENT: All right. Well, is there anything else you want to say in relation to what Mr Gardner has said?

PN228

MR BEALES: Not at this stage, your Honour. Certainly if I can just restate that we are committed to getting this process resolved as soon as possible and I will take the directions back from the Commission to Mr Foley and we will seek to get those matters clarified as quickly as possible, your Honour.

PN229

THE SENIOR DEPUTY PRESIDENT: Very well. Thanks very much. Excuse me. I will provide a copy of the award as notated by the Industrial Relations Commission Award Simplification Unit to the parties. To the extent that that can be done electronically it will be. If parties do not have a facility to receive it electronically we will arrange for a notated hard copy to be sent out to those parties. If my associate doesn't have your electronic mail addresses that can be provided after I have adjourned this morning and I will adjourn the matter until 8 June - sorry, 18 June, 9 am, and direct that any party who wishes to provide any response to the ASU draft - no, sorry.

PN230

My associate just reminded me there is the award simplification unit and there is the ASU union. So any party who wishes to provide a response to the ASU union, to the union, should do so on or before 14 June 2002 by providing a copy of their response to the union and filing in the Commission a copy either electronically or in hard copy form. I will formulate these directions in the notice of listing and it won't be so affected by the head cold I have got at the moment.

PN231

So that on 18 June, when the matter resumes, I propose taking your suggestion, Mr Gardner, and adjourning the matter into conference to see what matters need to be further dealt with by consultation between the parties and what matters may need to ultimately be arbitrated.

PN232

MR GARDNER: Your Honour, there was just one matter and that it seems, with respect, to assist the process of response that there wasn't a time frame fixed for the ASU to identify - - -

PN233

THE SENIOR DEPUTY PRESIDENT: Yes, like the direction I gave a moment ago.

PN234

MR GARDNER: Yes.

PN235

THE SENIOR DEPUTY PRESIDENT: Yes. Well, the ASU should provide that information - it shouldn't be too difficult to isolate those provisions, would it, Mr Beales?

PN236

MR BEALES: No, your Honour.

PN237

THE SENIOR DEPUTY PRESIDENT: No. It should do that by 10 June, Monday, 10 June. By close of business Monday, 10 June. It does seem to me though, given the matters that have been identified by Mr Gardner and subject to some further consideration of the matters that are said to be non allowable by the union, the parties are not a long way apart at this stage in any event subject to what any other parties might have to say about it of course. There is some optimism on my part that we might even still get it resolved by the end of June if when everybody comes back here they have got a consent position on it. Anyway, we shall see. Is there anything? Very well, the matter is adjourned until 18 June.

ADJOURNED UNTIL TUESDAY, 18 JUNE 2002 [10.35am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #RCT1 MR GARDNER'S TABLE PN138