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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT04346
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT IVES
C2002/2066, 2070, 2144, 2163,
2164, 2165, 2166, 2167, 2168,
2169, 2311, 2314, 2315, 2316
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - VICTORIAN SHOPS INTERIM
AWARD 2000
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - HARDWARE RETAIL INDUSTRY
AWARD 1999
WHOLESALE AND RETAIL TRADE - SHOP
DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - DAIMARU AUSTRALIA PTY LTD
RETAIL AND WHOLESALE AWARD - 1996 - 1999
WHOLESALE AND RETAIL TRADE - THE DISNEY
STORE AWARD 1996
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - TOYS R US (NEW SOUTH WALES)
INTERIM AWARD 1994
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - TOYS R US (SOUTH AUSTRALIA)
INTERIM AWARD 1994
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - TOYS R US (VICTORIA) INTERIM
AWARD 1994
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION - TOYS R US (WESTERN AUSTRALIA)
INTERIM AWARD 1994
RETAIL AND WHOLESALE INDUSTRY - RETAIL
DISTRIBUTION CENTRES - SHOP, DISTRIBUTIVE
AND ALLIED EMPLOYEES AWARD 1995
OPTICAL SHOP ASSOCIATES (VISION EXPRESS)
AWARD 1993
KFC NATIONAL ENTERPRISE AWARD 1995
PIZZA HUT - SDA NATIONAL AUSTRALIA EMPLOYEE
RELATIONS AWARD 2000
AIRPORT RETAIL CONCESSIONS AWARD 1990
Applications under section 113 of the Act by
the Shop, Distributive and Allied Employees
Association to vary the above awards re safety
net review - wages May 2002
PIZZA HUT - SDA NATIONAL AUSTRALIA EMPLOYEE
RELATIONS AWARD
Application under section 113 of the Act by
the Shop Distributive and Allied Employees
Association to vary the above award re safety
net review - wages May 2001
MELBOURNE
10.08 AM, THURSDAY, 6 JUNE 2002
PN1
MS J. HEAGNEY: I appear on behalf of the Shop, Distributive and Allied Employees Association.
PN2
MR J. MERLINO: I also appear on behalf of the Shop Assistants Union.
PN3
MR T. HALLS: I appear for the Australian Industry Group in respect of only matter C2002/2066.
PN4
THE DEPUTY PRESIDENT: Sorry, you are appearing in respect of which, again, Mr Halls?
PN5
MR HALLS: The matter pertaining to the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000.
PN6
THE DEPUTY PRESIDENT: Which was case number?
PN7
MR HALLS: C2002/2066.
PN8
THE DEPUTY PRESIDENT: 2066, thank you.
PN9
MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry in respect to matter number C2002/2066 which is the Victorian Shops Interim Award 2000. And the second matter which is C2002/2070 which is the Hardware Retail Industry Award and then the last matter which is C2002/2316, Airport Retail Concessions Award.
PN10
MS E. WATT: I am from the Timber Merchants Association appearing on behalf of the members respondent to the Victorian Shops Interim Award 2000 and appearing in C2002/2066 and also seeking to leave to appear on behalf of the Hardware Association of Victoria in matter C2002/2070, the Hardware Retail Industry Award.
PN11
MS V. MOULATSIOTIS: I seek leave to appear on behalf of Daimaru Australia and Toys R Us, C2002/2163 for Daimaru and C2002/2165, 2166, 2167 and 2168 for Toys R Us.
PN12
MR G. HENDERSON: I seek leave to appear in the Airport Catering Award matter, C2002/2316 for - - -
PN13
THE DEPUTY PRESIDENT: That is the Airport Retail Concessions Award you are talking - - -
PN14
MR HENDERSON: Yes, it is the last on your list, your Honour.
PN15
THE DEPUTY PRESIDENT: Yes, thank you.
PN16
MR HENDERSON: And the people I seek leave to appear for are Souvenir World (Airport) Proprietary Limited, Ansett Australia Limited, Administrators Appointed insofar as their Australian's Concessions Management Division is concerned, and W.A. Pearson.
PN17
MR M. WELDON: I appear on behalf of the Australian Retailers Association in C2002/2066, the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000, and in C2002/2316, the Airport Retail Concessions Award 1990.
PN18
MS R. THOMSON: I represent the Walt Disney Company in matter C2002/2164.
PN19
THE DEPUTY PRESIDENT: Ms Heagney and Mr Merlino, my associates have prepared a table which you have got a copy of. Do we have enough copies to be able to distribute some of those along the table? It just has been prepared, I think, for ease of dealing with these applications. What I think is probably best we do is I will take general submissions and then if we can just work through in the order on that sheet it might help. I note that there are some applications that seek a retrospective effect and I will hear submissions relating to that. However, I will then need to refer those to the President in accordance with principle 10 and he will determine whether those matters go to a Full Bench or will be looked after by the Commission as it is presently constituted. Yes, Ms Heagney.
C2002/2066
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION - VICTORIAN SHOPS INTERIM AWARD 2000
PN20
MS HEAGNEY: Your Honour, this is an application under section 113 of the Act to vary the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 in accordance with the safety net review - wages May 2002 decision, print number 002002. Your Honour, notice of listing has been sent to the parties and was sent on 24 May 2002, as per the order of substituted service which was granted by the Commission. I have copies of those transmission records to hand up to the Commission if it please. I also have a draft order which has been circulated to the parties but I am not aware if the Commission has a copy yet, which I would like to hand up also.
PN21
PN22
THE DEPUTY PRESIDENT: Are these draft orders in respect of all of the applications, are they, Ms Heagney?
PN23
MS HEAGNEY: No. Would you like me to hand up - no. Actually, this is just for the Victorian Shops. I believe that you have all the draft orders for all the other matters I am appearing for today except for Toys R Us South Australia.
PN24
THE DEPUTY PRESIDENT: Okay. Thank you.
PN25
MS HEAGNEY: In the Victorian Shops Interim Award, your Honour, allowances have been adjusted according to the CPI index and copies of the calculations that we have made are based on the ABS statistics. I have copies of those calculations and also the ABS Bureau of Statistics data on the Consumer Price Index to hand up to the Commission, if it please.
EXHIBIT #A3 CALCULATIONS BASED ON ABS STATISTICS, AND ABS DATA ON THE CONSUMER PRICE INDEX
PN26
MS HEAGNEY: This application is in accordance with the principles of the decision but there is just the one issue I would like to draw your attention to and that does relate to the operative date. Is it worth putting submissions now or would you prefer, because there are several matters, putting a general submission towards the end?
PN27
THE DEPUTY PRESIDENT: Well, maybe you can make that general submission now and you can simply refer to it in the matters that also have retrospective effect.
PN28
MS HEAGNEY: Thank your Honour. It is our view, as reflected in our draft order that the safety net adjustment should take effect from 2 June 2002 rather than 6 June 2002, as this is exactly 12 months from the date of the last safety net increase. We are seeking to raise this matter today under principle 10. Principle 10 allows for an issue of the operative date to be dealt with by the Full Bench or by a single member where the President has had the opportunity to consider whether the application should be dealt with by the Full Bench or a single member. We are seeking under this principle that the Commission grant an operative date of 2 June rather than 6 June and we are seeking this for several reasons.
PN29
Firstly, the SDA always files its safety net applications on the day of or the day after the National Wage cases have been handed down and in this case, applications were filed on 9 May and we have also done so, as we have done in this case. We do this to ensure that all our awards are kept up to date and that our members get the appropriate increase as soon as possible and are not disadvantaged by having to wait longer than necessary for that wage increase. It would be fair to say that employers and employees all have an expectation that wages will increase in their award every 12 months around about May. Yet the situation we find ourselves in is where the operative date is slowly drifting out to 13, 14 months.
PN30
We are not seeking that an operative date be less than the 12 months since the last adjustment but we are seeking to keep it within the 12 month date. In the reverse situation, we would be doing exactly the same thing, keeping it at 12 months. If the operative date is June 2 and the hearing date was 29 May, then the SDA would not be seeking an operative date of 29 May. It would be June 2 because that is 12 months since the last increase. Yet when the hearing is after, even as in this case it is only four days after, then the operative date has to move. This seems to place the employee in a rather disadvantaged position and the employer in a beneficial position because the dates get slowly pushed out.
PN31
It is no one's fault that this scenario has occurred, as it would be ridiculous to believe that the safety net application could be scheduled for hearing on the exact same day, year in, year out. Simply, it is not practicable. But, bearing this in mind, we do need to address this anomaly so as to not disadvantage employees. In addressing these issues, I would like to take the Commission to a decision by Commissioner Lewin on 28 June 2002 re the Hairdressing and Beauty Services - Victoria - Award 2001 and the Models and Mannequins Award 1991, relating to a variation in the operative date. I have copies to hand up to your Honour if it please.
PN32
THE DEPUTY PRESIDENT: It is a document of this Commission. I don't intend to mark it.
PN33
MS HEAGNEY: In this case, it was the SDA and we were seeking to have the operative date taken back from June 29 to May 29. In his decision, the Commissioner looked in particular at principle 8(a), (b) and (c) of the principles and, in doing so, found in favour of the SDA. Can I take your Honour to page 8, paragraph 21. I have highlighted it for you. In paragraph 21, the Commissioner states:
PN34
It will be observed that the terms of paragraph (b) of principle 8 is that a safety net adjustment will normally be available no earlier than 12 months after the previous safety net adjustment to the award in question. There is no requirement, as a matter of principle, that the adjustment occur no later than 12 months after the previous safety net adjustment. However, I think the best view of the principle is that, as far as reasonable possible, safety net adjustments will usually be available on an annual basis, subject to the parties to an award acting in a timely manner to give effect to the Commission's decision. The principle, however, permits that a longer delay may arise. In my view, however, such a longer interval should not arise entirely without reason if the relevant steps are taken to satisfy the principles by a party on application.
PN35
I would also like to read at paragraph 22:
PN36
In my view, the issue at the heart of this matter is whether or not remedy should be provided to the perpetual delay which has been built into a cycle of award safety adjustments arising from the delay occasioned in 2000 because of the demands of the Commission's resources in the circumstances which then existed.
PN37
The two issues he raises here are relevant to this case. We are not seeking, as I have stated earlier, a date which is earlier than 12 months and we have taken the appropriate steps, we believe, to satisfy the principles on application. It was done in a timely manner. Our application was made on 9 May. I would also like to read from page 9 of that decision, paragraph 24. In paragraph 24 Commissioner Lewin refers to the Transport Workers Award 1998 decision of 22 June 2001, print number S7291, which states that:
PN38
If procedural delay to the implementation of a safety net is no fault of the applicant, then consideration will be given to a departure from the strict application of principle 8(b).
PN39
I would also like to note that this very issue of operative dates was addressed by the ACTU in their submissions to the Full Bench during this National Wage case. I refer to paragraphs 172 and 173. Your Honour, shall I read out - they are from the Safety Net decision - or shall I just give you a general overview at this stage?
PN40
THE DEPUTY PRESIDENT: Yes, a general overview is fine, thanks.
PN41
MS HEAGNEY: In these paragraphs, your Honour, the ACTU sought an amendment to principle 8 to overcome the difficulty which had arisen from principle 8(a) and (b). As it is submitted, this caused a delay in employees receiving the safety net adjustment through no fault of a relevant union. In paragraph 191 the Full Bench decided that this issue could best be addressed by amending principle 10, by giving single members the ability to make or vary awards above or below the safety net adjustment, provided the President has had an opportunity to consider whether a Full Bench should deal with the application. So it is fair to say that the Full Bench was mindful of this very issue and is taking steps to remedy it.
PN42
In looking back through the history of the Victorian Shops Interim Award, in particular, regarding date of application, date of hearing and then the date of operation, it can be seen that there has been a gradual shift which drags the operative date further away as each year goes by. Employees are having to wait longer and longer before they receive the benefit of the safety net adjustment. These are low income earners who greatly benefit and rely on this adjustment to their minimum wage. If we let these minor shifts move further out, then it may get to a stage of, say, 13, 14 months between what should be an annual 12-monthly increase.
PN43
Again, we are not asking that the Commission grant an operative date that is less than 12 months. We are simply asking that the Commission use its powers to keep the operative date at 2 June in the interests of fairness to all. There is no financial imposition to the employers, who have all known about the $18 increase in a general sense and expect annual increases in the minimum wage. The ARA have consented to 2 June as an operative date. We believe that the Commission has the power under section 111(1)(t), section 111(1)(q) and section 110(2)(c) and principle 10 of the Workplace Relations Act to make this application effective from 2 June 2002. If there are no questions, your Honour, that is the extent of our submission today.
PN44
THE DEPUTY PRESIDENT: No. Thank you, Ms Heagney. That is fine. Mr Halls.
PN45
MR HALLS: Your Honour, the first issue I would like to address is the draft order. We have only just received that today. I understand it may have been faxed to our office approximately half an hour ago, so we would certainly be seeking some additional time to check the accuracy of the rates and allowances contained within it. Twenty four hours would certainly be sufficient for that purpose. Regarding the operative date, your Honour, the Australian Industry Group would certainly oppose the operative date sought by the SDA and on the basis of doing that, we would seek to rely on principle 8(a), which stipulates that the operative date shall be no earlier than the date of variation - of the hearing.
PN46
We accept that should the President - after the conversation with the President, that if it is decided that an operative date be set at 2 June, so be it. However, we certainly oppose that during these proceedings.
PN47
THE DEPUTY PRESIDENT: Thank you, Mr Halls. Yes, Mr Eberhard?
PN48
MR EBERHARD: Your Honour, with respect to the draft order can I say that VECCI did receive a copy late yesterday afternoon. I haven't had a chance, or anyone else in our office hasn't had a chance to completely go through it. The parts that I have looked at have been all right but I just haven't completed the whole checking with regards to the draft order and, like AIG, we would just like 24 hours so as we can do that, if that is - - -
PN49
THE DEPUTY PRESIDENT: Well, let me say on that matter, with this application, as I have already stated, I need to make reference to the President anyway. So I will allow a period of 24 hours to enable both VECCI and the AI Group to come back to me in respect of the draft order before I make any approach to the President.
PN50
MR EBERHARD: Thank you, your Honour. With respect to the earlier operative date, VECCI would neither support nor oppose the position put by the SDA. However, as in a similar circumstance where I put a similar proposition to yourself, your Honour, we would submit that - - -
PN51
THE DEPUTY PRESIDENT: I think consent was a word you had a difficulty with as I recall, Mr Eberhard, was it not?
PN52
MR EBERHARD: Not allowed to use the "c" word, your Honour. I have been told that many a time. With respect to the actual application in regards to an operative date of June 2, we would say this, and that is that in both the National Wage case decision, from paragraphs 172 to 192, the Bench does talk about amending principle 10. Also, with respect to section 146(2) of the Act, the Act actually talks about exceptional circumstances. The exceptional circumstances are brought into both the decision that Ms Heagney referred to and also the Commission's decision in regards to the actual National Wage case decision.
PN53
As I have indicated to the Commission before, if the Commission is satisfied that there are exceptional circumstances that exist, then the Commission is capable of varying that but we would just be mindful of saying that the Commission needs to be satisfied that exceptional circumstances do exist for a retrospective operative date to be awarded, as is being sought by the SDA in this matter. If the Commission pleases.
PN54
THE DEPUTY PRESIDENT: Thanks, Mr Eberhard. Yes, Mr Weldon.
PN55
MR WELDON: Your Honour, the ARAV does not object to the application as sought. However, we would seek 24 hours also to check the particular rates.
PN56
THE DEPUTY PRESIDENT: Yes. Thanks. Can I just ask on that that all parties advise my associate within that period of time as to their assent or otherwise to the draft order that has been provided. Yes, Ms Thomson, I think. Did you have a submission to make on this matter or have I written that down wrongly?
PN57
MS THOMSON: No, not on this matter.
PN58
THE DEPUTY PRESIDENT: No. I apologise. It is Ms Watt, isn't it.
PN59
MS WATT: Yes, sir. The Timber Merchants Association hasn't actually received a copy of the draft order for this particular award, the Victorian Shops Interim Award, but I am sure that we will get one today and we would like 24 hours to have a look through that as well. With respect to the retrospective operative date to 2 June, we consent to that operative date. If the Commission pleases.
PN60
THE DEPUTY PRESIDENT: Thanks, Ms Watt. All right. Well, subject to those 24 hours and advice back from the parties with respect to the draft order, then I will be approaching the President, as I previously stated, to get his view as to whether this matter should go to a Full Bench or be handled by the Commission as it is presently constituted. Are you dealing with all of the applications, Ms Heagney, or is Mr Merlino - - -
PN61
MS HEAGNEY: No, your Honour. I am actually dealing with C2002/2070, 2002/2165, 2166, 2167, 2168, 2311 and 2314.
PN62
THE DEPUTY PRESIDENT: Well, we will have you bobbing up and down, won't we. Yes.
C2002/2070
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION - HARDWARE RETAIL INDUSTRY AWARD 1999
PN63
MS HEAGNEY: Your Honour, this is an application to vary the Shop, Distributive and Allied Employees Association - Hardware Retail Industry Award 1999. Notice of listing has been sent to the appropriate parties and was sent on 30 May. I have copies of those transmission records, if it please the Commission. I also have a copy at this stage of a revised draft order. It has been going back and forth between the parties, trying to get calculations correct. So there is a revised order to provide to the Commission today. Your Honour, again, this application is consistent with the principles of the decision and, again, we are seeking to have an operative date of 2 June 2002. We rely on our submissions.
PN64
MS HEAGNEY: Thank you, your Honour.
PN65
THE DEPUTY PRESIDENT: Yes, I am sorry, I interrupted you.
PN66
MS HEAGNEY: This application is consistent with the principles of the decision but we are seeking again as per our previous submission to have an operative date of 2 June 2002.
PN67
THE DEPUTY PRESIDENT: Yes. So you are simply adopting the submissions that you put in case number 2066?
PN68
MS HEAGNEY: Yes, thank you, your Honour.
PN69
THE DEPUTY PRESIDENT: Yes, thank you. Mr Eberhard.
PN70
MR EBERHARD: Your Honour, I haven't seen a copy of the final draft and we did find that there were some corrections that needed to be made to the draft that was distributed in correspondence dated 28 May. I have now been given one. If I can be given about five minutes to check that I think we might be in a position where, provided that that has been rectified, that we would not be opposing the application with respect to the financial side of the actual increase but we would be adopting the submissions that we made with regard to the Victorian Shops Award with respect to the operative date of 2 June 2002.
PN71
THE DEPUTY PRESIDENT: Yes, thanks, Mr Eberhard.
PN72
MS WATT: Yes, if it pleases the Commission. The Hardware Association of Victoria does not oppose the varying of the award in the terms sought and consents to the early operative date of 2 June 2002.
PN73
THE DEPUTY PRESIDENT: Yes. So you are in possession of the amended draft, obviously, Ms Watt?
PN74
MS WATT: Yes, sir, I am.
PN75
THE DEPUTY PRESIDENT: Yes, thank you. And, similarly, for the previous matter I will be referring this matter to the President in accordance with principle 10. Yes, Mr Eberhard.
PN76
MR EBERHARD: Can I just say, I have just quickly checked the draft order with respect to the clarifications that we needed to have made and they conform with them so we would not be making an issue in regard to the draft order.
PN77
THE DEPUTY PRESIDENT: Okay, good, thank you. Yes, Mr Merlino.
C2002/2163
WHOLESALE AND RETAIL TRADE - SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION - DAIMARU AUSTRALIA PTY LTD RETAIL AND WHOLESALE AWARD - 1996 - 1999
PN78
MR MERLINO: Thank you, your Honour. In relation to the next item, C2002/2163, this was the application to vary the Wholesale and Retail Trade - Shop Distributive and Allied Employees Association - Daimaru Australia Proprietary Limited Retail and Wholesale Award 1996 to 1999. As per your document, the SDA won't be making an application to withdraw the application but we are seeking that this matter be adjourned indefinitely. The reason for that is that the company is winding up on 31 July. There is an agreement that - - -
PN79
THE DEPUTY PRESIDENT: Yes, I am well aware of that, Mr Merlino, we have had them in here on a number of occasions over other matters.
PN80
MR MERLINO: Sorry, I wasn't aware it was before your Honour. So we are seeking that this matter be adjourned indefinitely. If post 31 July the association believes that there is reason for hearing this matter we will contact the Commission, but it is likely that we will be contacting the Commission post 31 July to withdraw the application in full. If it please the Commission.
PN81
THE DEPUTY PRESIDENT: Yes, thanks, Mr Merlino. Ms Moulatsiotis, is that correct?
PN82
MS MOULATSIOTIS: Yes, that is correct. We do not oppose that. We discussed that earlier with Mr Merlino and we agree with that procedure.
PN83
THE DEPUTY PRESIDENT: Okay, thank you. In respect of this particular matter I will adjourn it indefinitely.
C2002/2164
WHOLESALE AND RETAIL TRADE - THE DISNEY STORE AWARD 1996
PN84
MR MERLINO: Thank you, your Honour. The next matter is C number 2002/2164 which is an application to vary the Wholesale and Retail Trade - The Disney Store Award 2002 [sic]. In relation to service I will hand up a copy of a fax receipt that was sent to the company and also their legal representatives which was sent on 30 May this year.
PN85
MR MERLINO: Thank you, your Honour. A copy of the draft order has been e-mailed to your office.
PN86
THE DEPUTY PRESIDENT: Yes.
PN87
MR MERLINO: There has been no variations to that.
PN88
THE DEPUTY PRESIDENT: Yes, I have a copy of that.
PN89
PN90
MR MERLINO: Thank you, your Honour. The draft order simply seeks to vary the agreement as per the safety net review decision May 2002 applying the $18 and also varying allowances in clause 19.2. The SDA has inserted the provision regarding absorption. The draft order is in accordance with the principles as set out in the decision and we seek that the Commission approve the draft order as at today's date, 6 June. If it please the Commission.
PN91
THE DEPUTY PRESIDENT: Yes, thank you. That was yours, Ms Thomson, was it not?
PN92
MS THOMSON: That is right. Your Honour, the Walt Disney Company has no objections to the draft. We agree.
PN93
THE DEPUTY PRESIDENT: Thank you. So the Wholesale and Retail - Disney Store Award 1996 will be varied with effect from today's date in accordance with section 113(3) of the Act and in accordance with the draft order marked A2 subject to a final check by my office on that draft. Thank you.Right, so 2164?
C2002/2165, 2166, 2167
and 2168
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION/TOYS R US (NEW SOUTH WALES)
INTERIM AWARD 1994
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION/TOYS R US (SOUTH AUSTRALIA)
INTERIM AWARD 1994
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION/TOYS R US (VICTORIA) INTERIM
AWARD 1994
SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION/TOYS R US (WESTERN AUSTRALIA)
INTERIM AWARD 1994
PN94
MS HEAGNEY: Yes, if it please the Commission, the next four, 2165, 2166, 2167 and 2168, are all going - the notice of hearing was all sent to the one party. So it would be preferable to deal with them all as one, as a collective group.
PN95
THE DEPUTY PRESIDENT: Yes, that is fine. Look, leave was sought when appearances were made, and I did not ask whether there was any objection. I am assuming there is not.
PN96
MS HEAGNEY: No objections.
PN97
MS MOULATSIOTIS: No.
PN98
MS HEAGNEY: No objection. This is an application to vary the Toys R Us - sorry, the Shop Distributive and Allied Employees Association/Toys R Us (New South Wales) Interim Award 1994, the SDAEA/Toys R Us (South Australia) Interim Award 1994, the SDAEA/ Toys R Us (Victoria) Interim Award 1994 and the SDAEA/Toys R Us (Western Australia) Interim Award 1994.
PN99
THE DEPUTY PRESIDENT: Yes.
PN100
MS HEAGNEY: Your Honour, notice of listing was sent to the parties on 30 May, which is Toys R Us head office, and I have facsimile transmission records of notice. And I also have a draft order to hand up regarding South Australia, which I believe the Commission does not yet have, and also Victoria because there was a revision made to that draft order. The company is in possession of both of those, your Honour.
PN101
PN102
MS HEAGNEY: Thank you, your Honour. Your Honour, we are seeking that this application is effective from 14 June 2002. I have noticed on Brendan's list he has left New South Wales and Victoria blank, but all of those are in line with each of others on 14 June 2002, your Honour.
PN103
THE DEPUTY PRESIDENT: Right. So that includes the Western Australian one which I have down here as the 6th, so that is an error, is it?
PN104
MS HEAGNEY: I believe that is an error, your Honour. I believe it should read 14 June, to keep it in line with last year's order.
PN105
THE DEPUTY PRESIDENT: Sorry, I do not have that order immediately to hand, that was on the Western Australian one, wasn't it?
PN106
MS HEAGNEY: Would you like me to hand up a copy to the Commission, I do have - - -
PN107
THE DEPUTY PRESIDENT: I will just check first of all. Yes, the order does actually say the 6th. So you have an amended order.
PN108
MS HEAGNEY: Yes, no, I will have to get a copy to the Commission, because I have just noticed that myself. But I am pretty certain that that should actually be 14 June, not 6 June.
PN109
THE DEPUTY PRESIDENT: Well, it may cause us a problem subject to what Ms Moulatsiotis has to say, because as I understand it you intend to seek some time, Ms - - -
PN110
MS MOULATSIOTIS: Yes, we do intend to seek some time.
PN111
THE DEPUTY PRESIDENT: Yes.
PN112
MS MOULATSIOTIS: But we do not oppose 14 June as being the effective operative date.
PN113
THE DEPUTY PRESIDENT: No, but if it was the 6th and I was to grant time then that may cause us a problem, because then we would be into retrospectivity. So you are saying to me it is the 14th and you will provide an amended draft to that effect, is that right?
PN114
MS HEAGNEY: Yes, yes, your Honour.
PN115
THE DEPUTY PRESIDENT: Yes.
PN116
MS HEAGNEY: And it was my understanding, your Honour, that the company were seeking just to have seven days to peruse these figures and check that they were actually correct.
PN117
THE DEPUTY PRESIDENT: That was my understanding as well, but no doubt we will hear about that from Ms Moulatsiotis.
PN118
MS HEAGNEY: Thank you, your Honour.
PN119
MS MOULATSIOTIS: Your Honour, Toys R Us received the notice of listing on Friday, but by the time - it was only addressed to the head office, so the HR manager didn't receive the notice of listing until yesterday. And together with that we then received the Victoria and Western Australia draft order, and received the South Australia draft order this morning. Provided that we have the operative date of 14 June 2002 and we are granted seven days in which to assess the calculations, we do not object to the application as is made by the SDA.
PN120
THE DEPUTY PRESIDENT: Yes, thanks, Ms Moulatsiotis. Ms Heagney, do you have any objection to the seven days being granted?
PN121
MS HEAGNEY: No, no objection, your Honour.
PN122
THE DEPUTY PRESIDENT: All right, well, as this has an operative date of the 14th I see no difficulties being posed by granting that seven days. And on the basis that there is no objections from the respondent then the variations will be granted. The order will be varied in accordance with section 113(3) with an operative date of 14 June in each case, that is, in the matters of the Shop, Distributive and Allied Employees Association/Toys R Us (New South Wales) Interim Award '94, the SDAEA/Toys R Us (South Australia) Interim Award '94, the Shop, Distributive and Allied Employees Association/Toys R Us (Victoria) Interim Award 1994 and the Shop Distributive and Allied Employees Association/Toys R Us (Western Australia) Interim Award 1994. Thank you.
C2002/2169
RETAIL AND WHOLESALE INDUSTRY - RETAIL DISTRIBUTION CENTRES/SHOP, DISTRIBUTIVE
AND ALLIED EMPLOYEES AWARD 1995
PN123
MR MERLINO: Thank you, your Honour. The next matter is C number 2002/2169, which is the variation of the Retail and Wholesale Industry - Retail Distribution Centres/Shop, Distributive and Allied Employees Award 1995 in accordance with the safety net review decision May 2002. Your Honour, an application of the service of notice of listing the application to vary and the draft order was sent to the company on 30 May, and I will tender a copy of that.
PN124
MR MERLINO: Thank you, your Honour. A copy of the draft order was also e-mailed to your chamber.
PN125
THE DEPUTY PRESIDENT: Yes, I have that.
PN126
PN127
MR MERLINO: Thank you, your Honour. The only variation to that draft order was in regards to storeworker grade 4 in which the rate of $511.70 was in the original order and that should be $528.70, so we have made that adjustment to that figure. Your Honour, the SDAEA has inserted the provisions regarding absorption, the draft order is in accordance with the provisions as set out in the decision, and we seek that the Commission approves this order as at 9 June 2002, which is 12 months from the previous variation to the award.
PN128
THE DEPUTY PRESIDENT: Yes, there are other respondents to this award, are there not, Mr Merlino?
PN129
MR MERLINO: No, there is no. There is only one respondent to this award.
PN130
THE DEPUTY PRESIDENT: Right.
PN131
MR MERLINO: It relates specifically to the Target DC in Victoria.
PN132
THE DEPUTY PRESIDENT: Yes, okay. I was just asking from the point of view of whether if there were any they had had an opportunity to see the amended draft. The operative date for this is 6 June, is that correct?
PN133
MR MERLINO: 9 June, your Honour.
PN134
THE DEPUTY PRESIDENT: It is the 6th on the draft, Mr Merlino.
PN135
MR MERLINO: It is the 9th on the draft, your Honour.
PN136
THE DEPUTY PRESIDENT: Sorry, I might have the wrong file in front of me. Yes, okay, thank you. Nobody else appearing in respect of this matter, is there? No. The Retail and Wholesale Industry - Retail Distribution Centres/Shop, Distributive and Allied Employees Award 1995 will be varied with effect from 9 June 2002 in accordance with section 113(3) of the Act. Thank you.
C2002/2311
OPTICAL SHOP ASSOCIATES (VISION EXPRESS) AWARD 1993
PN137
MS HEAGNEY: Thank you, your Honour. In relation to matter C2002/2311, Optical Shop Associates (vision Express) Award 1993. This is an application to vary this award in accordance with the safety net wages decision 2002, print number 002002. Notice of listing was sent to the party. I have copies of that transmission record to hand up, if it please the Commission. I believe you do have a draft order, your Honour.
PN138
THE DEPUTY PRESIDENT: Yes, I do have a draft order.
PN139
MS HEAGNEY: Thank you. That is unchanged, that order.
PN140
PN141
MS HEAGNEY: Thank you, your Honour. The application is in accordance with the principles of the decision, and we would seek to adopt the submissions we made in C2002/2066 on the issue of the operative being 2 June 2002 as opposed to 6 June 2002, your Honour.
PN142
THE DEPUTY PRESIDENT: Yes. And again, as in previous matters, this one will be referred to the President in accordance with principle 10. Yes, I think we are up to 2314, are we not?
C2002/2314
KFC NATIONAL ENTERPRISE AWARD 2001
PN143
MS HEAGNEY: Thank you, your Honour. This is an application to vary the KFC National Enterprise Award 1995 - sorry, actually that should be the KFC National Enterprise Award 2001 - that has undergone simplification process. Notice of listing was sent to the parties on 30 May, and I have notice of transmission records to hand up to the Commission. There is also a revised draft order after discussions with the company on calculations to hand up to the Commission also. Thank you.
PN144
PN145
MS HEAGNEY: Thank you, your Honour. Your Honour, this application is in accordance with the principles of the decision, and we would seek this come into effect on 1 December 2002, if it please the Commission.
PN146
THE DEPUTY PRESIDENT: Yes, I have a fax here, Ms Heagney, on behalf of the respondent requesting a seven day period. I assume you have a copy of that, do you?
PN147
MS HEAGNEY: Yes, I do, your Honour, and no objection to the seven days.
PN148
THE DEPUTY PRESIDENT: Yes, you have no objection to that. Yes, well, I will allow, in accordance with the request from the respondent employer, I will allow a period of seven days to peruse the draft order. Subject to there being no objection the award will be varied in accordance with exhibit A2 and subject to a check by my office on A2, with effect from 1 December 2002. Thank you. Yes, Mr Merlino.
C2001/2144
C2002/2315
PIZZA HUT - SDA NATIONAL AUSTRALIA EMPLOYEE RELATIONS AWARD 2000
PN149
MR MERLINO: Your Honour, the next matter is in relation to Pizza Hut. What I would like to do is discuss both C2002/2315 and also C2002/2144.
PN150
THE DEPUTY PRESIDENT: Yes.
PN151
MR MERLINO: Thank you, your Honour. Your Honour, in relation to this matter the company was sent notice of listing the application and the draft order on 30 May, and also a copy of correspondence that was directed to yourself, your Honour, in relation to this matter, and I will table a copy of that service.
PN152
MR MERLINO: Thank you, your Honour. What the association is seeking to do with the draft order which has not varied from the draft order that was e-mailed to your chambers, is we are seeking to give effect to the 2001 safety net decision and also the 2002 safety net decision. The 2001 matter was previously before Boulton J on 24 May 2001. Through the simplification of this award it was agreed - or the simplification of this award had the rates as from December '99 so the award was varied in 1999 so the company requested that this matter - the 2001 safety net matter not be varied until December 2001.
PN153
Your Honour, that matter wasn't re-listed, so what we are seeking to do is re-list that matter to deal with the 2001 safety net decision and we are seeking to give effect to the 2001 safety net decision as at today's date. And, furthermore, give effect to the 2002 safety net decision as at 24 December this year. Your Honour, you have received correspondence from the company consenting to that and requesting seven days to review the documentation and we have no objection to the granting of that seven days.
PN154
The SDA has inserted the provisions regarding absorption. It is in accordance with the principles as set out in the decision and we seek that the Commission approve this draft order for the 2001 decision as from today's date and the 2002 decision as from 24 December this year. If it please the Commission.
PN155
THE DEPUTY PRESIDENT: Thanks, Mr Merlino. Yes, subject to the provision of the seven days to the respondent I intend to vary the awards in accordance with the submissions put by the SDA and the operative dates contained in those submissions and in accordance with section 113(3) of the Act. Thanks, Mr Merlino.
C2002/2316
AIRPORT RETAIL CONCESSIONS AWARD 1990
PN156
MR MERLINO: Thank you, your Honour. The final matter today is C2002/2316 which is an application to vary the Airport Retail Concessions Award 1990. Firstly, your Honour, I will hand up copies of service. The service was by fax transmission to employer representatives and in terms of actual respondents to the award, that was by registered mail. So I will hand those two up, thank you.
PN157
MR MERLINO: Thank you, your Honour. Your Honour, I haven't yet heard if any of the representatives here today have an issue with the draft order. I don't have any variations so it is as per the draft order that was e-mailed to your chambers.
PN158
PN159
MR MERLINO: Your Honour, the draft order simply seeks to apply the $18 as per the 2002 safety net decision and also vary a couple of the allowances. I understand that Mr Henderson may well raise the issue of some other allowances that haven't been varied for a number of years. We have simply sought to vary those allowances that have been varied over the last few years. The simplification of this award is before the Commission at the moment with a report back, I think, next week or the week after.
PN160
Through that process what I want to do is update a lot of those non-work-related allowances because what I need to do is figure out the CPI over a number of years, so we will be seeking to do that. Mr Henderson may well have a different point of view as to when those allowances should be varied but we will just wait to hear that debate. The SDA has inserted a provision regarding absorption. The draft order is in accordance with the principles of the decision and we seek that the Commission approve the draft order as from today's date. If it please the Commission.
PN161
THE DEPUTY PRESIDENT: Thank you. Yes, Mr Eberhard.
PN162
MR EBERHARD: Your Honour we have checked the draft order that was distributed in correspondence dated 30 May and we would submit that it conforms with the requirements under the national wage case decision and as a result we would not be opposing the application by the SDA in this matter.
PN163
THE DEPUTY PRESIDENT: Thanks, Mr Eberhard. Yes, Mr Henderson.
PN164
MR HENDERSON: If the Commission pleases. Your Honour, as foreshadowed by Mr Merlino I do have some problems in relation to the sought order. In relation to the allowances in the award it has been three or four years since they have been varied. And the approach taken by the SDA in its other awards - and, for example, in these proceedings the submission by Ms Heagney in relation to the Victorian Shops Interim Award, I think you have got an exhibit A3 that has all those other allowances being varied appropriately to relevant CPI movements.
PN165
I can advise your Honour that on 29 May Senior Deputy President Duncan varied the Airport Catering Award to which there are joint employer respondents to the Airport Retail Concessions Award before you today and those awards - and traditionally those awards in relation to non-work-related allowances have moved in accordance with the appropriate CPI. On behalf of the companies I represent we do not agree it should be left any longer and that it would be a simple matter for the SDA and the parties to look at a further draft award that implemented the Commonwealth statistician CPI figures and that it should operate from today's date.
PN166
There are problems in relation to employees at the airport in a close collection of shops, some retail, some food outlets or catering operations, where it will be known, as it has in other years, that the Commission varies the Airport Catering Award to give effect to what is possible under the national wage or, now, safety net wage increase decisions and yet on the retail side those people miss out. As a matter of equity, your Honour, we would submit that that should no longer be allowed to happen if possible.
PN167
And we would ask that the Commission entertain the suggestion that the application should, if necessary, be amended - application for variation - and the order to issue from the Commission the appropriate rates could be calculated and checked and put into a revised draft order within 48 hours. We would think that is an appropriate way to deal with it.
PN168
THE DEPUTY PRESIDENT: It would raise an issue, Mr Henderson, in respect of the effective date, however.
PN169
MR HENDERSON: Yes. In relation to the effective date, even although the draft order says "on or after 6 June" the variation order that issued under the hand of Boulton J on 15 June 2001, print PR905333, the operative date there was 2 June. For completeness and I think it is appropriate that it be raised with you that it would come within the spectrum of those matters that were dealt with by Boulton J on 2 June in 2001 and would, I think, in equity also be on the same basis of the application in the Victorian Interim Shops Award. Now, having brought that to your attention, the - - -
PN170
THE DEPUTY PRESIDENT: Sorry, I am not quite clear on what you are suggesting there. In the circumstances that the SDA maintains that the application should have effect from the 6th, if I was to grant your application for that not to occur such that 48 hours were allowed for the parties to adjust the other allowances we would be looking at a retrospective effective date of operation.
PN171
MR HENDERSON: No, I don't think so, your Honour, unless I have not addressed your properly.
PN172
THE DEPUTY PRESIDENT: Well, you may well have and I might have not understood what you were saying, Mr Henderson.
PN173
MR HENDERSON: What I am suggesting is that the draft order operate from the first pay period to commence on or after 6 June which we would submit gives effect to the Full Bench decision of the May safety net review. However, given the submission which Ms Heagney said would be a general submission and she highlighted some awards that were before the Commission on 2 June, and at an operative date as from the first pay period to commence on or after 2 June 2001, this award was one that fitted within that hearing of the Commission.
PN174
And I just think for completeness the Commission should be aware that if there is validity in the argument put by Ms Heagney, then if you look at an exhibit which was handed up in relation to comments that came on you will see that the operative date highlights the 2 June, or bold 2 June, and the other is 6 June. What I think has happened, your Honour, in that the SDA has split its representation here today, that for completeness the Commission should realise that this award would come within the parameters of her submission.
PN175
However, we oppose that. We oppose that on the basis that it doesn't give effect to the national wage case - to the safety net review wages decision of 2002. And in relation to her general submissions, which I understand the question of whether it would go to a Full Bench of the Commission is a matter that you will refer to the President - in relation to safety net review and before it national wage case and before that basic wage or total wage and before that, again, basic wage, going back to the basic wage the old Court of Conciliation and Arbitration set the prospective date and that accords with the pronouncements of the Commission by that court in relation to the general proposition that there should not be retroactive or retrospective operations of awards.
PN176
I can inform the Commission, however, that the Commonwealth Conciliation and Arbitration Commission which was established in 1956, during those early years when national wage cases went before it, if they determined that if the application had been filed to vary before the date of the decision of the Full Bench, then it had a date of operation from the date of the decision. But if it was left with, as some unions did wait until they got the decision and then made an application, it was from a prospective date from when that matter went before the Commission.
PN177
Now, my understanding is that since the total wage came in in 1967 there has been prospective operation and it has been either from the date of the decision of the relevant Full Bench or in more recent times from the date of the hearing of the application to vary before the Commission.
[11.07am]
PN178
And my understanding is that in the early decisions of this Commission that made it operative from the date of the hearing of this - of specific applications. One of the aspects that was dealt with by the National Wage Case Full Bench of the Commission was that the economic impact of staggered wage increases was a relevant factor in relation to the economy and that my understanding and reading of the safety net wages review of May 2002 follows that logic and that principle in that the matters should be retrospective notwithstanding the submissions and the authorities referred to by Ms Heagney as a general parameter. So we would suggest that the - and submit - that the operative date should be 6 June.
PN179
In relation to that argument I should also draw the Commission's attention to a decision - and I think the decision was given in transcript - a similar position was put by the SDA in relation to - it might have been the year 2000 or the year 2001 safety net review and wage increase. The proposition put today by Ms Heagney was rejected by Boulton J as not applying with the principles but my memory is not good enough to tell me whether he did that from the Bench in transcript or he issued a decision.
PN180
In relation to the - coming back now to the non-work related allowances which are not covered in this draft award - we would submit to the Commission as a matter of equity they should be dealt with. They have not been dealt with by some time and to leave it to the possible variation of the award to give effect to award simplification nothing was done on that until it was raised before your Honour in earlier proceedings this year.
PN181
THE DEPUTY PRESIDENT: Yes. Well I think things will be done on that in the near future, however. There is some impetus to have that occur.
PN182
MR HENDERSON: I can't make any rational statement as to whether it will be short or long those proceedings.
PN183
THE DEPUTY PRESIDENT: Yes. Thank you, Mr Henderson. Yes, Mr Weldon.
PN184
MR WELDON: Yes, thank you, your Honour. The ARAV's position is that they have no objection to the applications sought in this matter.
PN185
THE DEPUTY PRESIDENT: Yes, thank you. Yes, Mr Merlino.
PN186
MR MERLINO: Thank you, your Honour. I take on board the comments of Mr Henderson and perhaps if we can go off transcript to have a discussion as to whether it is possible to perhaps have a few days and I can go through the draft order and put a variation to the draft order to give effect to those other allowances that are not included in this draft order. I mean I would be happy to do that.
PN187
THE DEPUTY PRESIDENT: Yes, all right. We will, if you have no objection, go off the record. We will go off the record for a few moments, thank you.
OFF THE RECORD
PN188
THE DEPUTY PRESIDENT: Yes, Mr Merlino.
PN189
MR MERLINO: Thank you, your Honour. Further to the comments of Mr Henderson and the brief discussion off record the Association seeks to have a period of - can I ask for a bit more than 48 hours - would that be possible?
PN190
THE DEPUTY PRESIDENT: Yes.
PN191
MR MERLINO: Yes. If I can request a week to get - to go through those allowances that are not covered in this draft order. I will then send a copy of the draft order to your Honour and also to the parties. Secondly, your Honour, we request that this matter be referred to the President because retrospectivity will apply. I will rely on Ms Heagney's comments - general comments - in relation to that that was given earlier in the hearing. And we would be seeking an operative date from 2 June which is 12 months from the previous variation to this award.
PN192
THE DEPUTY PRESIDENT: Yes.
PN193
MR MERLINO: If it please the Commission.
PN194
THE DEPUTY PRESIDENT: Yes, thank you, Mr Merlino. Well, on the basis that that draft which you are to prepare, Mr Merlino, will go to the parties and obviously to this Commission and that there are no objections then I will refer the matter to the President. I am not anxious to reconvene to hear further submissions with respect to this matter so it would only be to the extent that there are major objections to whatever calculations come out of that particular draft and I wouldn't expect there to be any. Is there a different view at the table?
PN195
MR HENDERSON: Your Honour, if Mr Merlino could forward a table of his calculations on the appropriate Commonwealth Statistician indexes or indices that he relies on that would help us.
PN196
THE DEPUTY PRESIDENT: Yes. Yes, Mr Eberhard.
PN197
MR EBERHARD: Can I say two things, your Honour. Firstly we would reserve our rights with regards to checking of the order and whether we are required to come back here will really - - -
PN198
THE DEPUTY PRESIDENT: I don't think you have to reserve them actually, Mr Eberhard, they will be yours anyway.
PN199
MR EBERHARD: It is always good to say it. And the other thing we would just adopt our submissions that we have made in regards to the Victorian Shops Award and the Hardware and Retail Industry Award with respect to a prospective operative date or an earlier operative date with regards to the submissions that are now being made by the SDA for a - seeking an operative date of June 2 of this year. If the Commission pleases.
PN200
THE DEPUTY PRESIDENT: Yes. Thank you, Mr Eberhard. Mr Weldon, was there anything you wanted to add?
PN201
MR WELDON: No, there is no further comments I wish to add.
PN202
THE DEPUTY PRESIDENT: Yes. Okay. This matter will be adjourned on that basis. Thank you.
ADJOURNED INDEFINITELY [11.16am]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #A1 BUNDLE OF TRANSMISSION RECORDS PN22
EXHIBIT #A2 DRAFT ORDERS PN22
EXHIBIT #A3 CALCULATIONS BASED ON ABS STATISTICS, AND ABS DATA ON THE CONSUMER PRICE INDEX PN26
EXHIBIT #A1 TRANSMISSION RECORD PN64
EXHIBIT #A2 REVISED DRAFT PN64
EXHIBIT #A1 FAX RECEIPT RE SERVICE OF LISTING PN85
EXHIBIT #A2 COPY OF DRAFT ORDER PN90
EXHIBIT #A1 TRANSMISSIONS PN102
EXHIBIT #A2 DRAFT ORDER IN RESPECT OF SOUTH AUSTRALIA PN102
EXHIBIT #A3 REVISION TO DRAFT ORDER IN RESPECT OF VICTORIA PN102
EXHIBIT #A1 NOTICE OF LISTING PN124
EXHIBIT #A2 REVISED DRAFT ORDER PN127
EXHIBIT #A1 TRANSMISSION DOCUMENTATION PN141
EXHIBIT #A2 DRAFT ORDER PN141
EXHIBIT #A1 NOTICE OF TRANSMISSION RECORD PN145
EXHIBIT #A2 REVISED DRAFT ORDER PN145
EXHIBIT #A1 NOTICE OF LISTING PN152
EXHIBIT #A1 NOTICE OF SERVICE PN157
EXHIBIT #A2 DRAFT ORDER PN159
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