C0035/898, Transcript of Proceedings [2002] AIRCTrans 2950 (1 August 2002)

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


O/N VT04980

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C Nos 00358, 00889, 00538, 00539,
00542 and 00722 of 1998

AIRPORT RETAIL CONCESSIONS AWARD 1998

RETAIL AND WHOLESALE INDUSTRY - FAST FOOD RETAIL - SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION - RED ROOSTER FOODS CONSENT AWARD 1996

RETAIL AND WHOLESALE INDUSTRY - SDAEA WHOLESALE GROCERS (DAVID DISTRIBUTION VICTORIA) INTERIM AWARD 1995

CAMPBELLS CASH AND CARRY PTY LIMITED - VICTORIA - AWARD 1996

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION HARRY HEATHS AWARD 1994

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION (WHOLESALE GROCERS) PUBLIC HOLIDAYS INTERIM AWARD 1993

Reviews under Item 51, Schedule 5, Transitional
WROLA Act 1996 re conditions of employment

MELBOURNE

10.23 AM, THURSDAY, 18 JULY 2002

Continued from 14.6.02

PN510

THE DEPUTY PRESIDENT: Any changes to appearances?

PN511

MS J. WHITECROSS: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry and Ms Fiona Field, from the Australian Industry Group.

PN512

THE DEPUTY PRESIDENT: Thank you, Ms Whitecross. I have received a number of messages. First of all, Mr Tony Bourke of the STA has advised by telephone that he wasn't able to attend because he had an eye problem and was not able to see. I certainly extend my sympathies to Mr Bourke and hope that he gets better soon, I hope by the next hearing. Mr Merlino advised that he was not well and would not be in attendance; he advised by phone. However, Mr Merlino apparently is in attendance.

PN513

MR MERLINO: Yes, I am not sure. No-one spoke to me, your Honour, there must have been some miscommunication, but I have certainly been well and I am here in regards to the Airport Retail Concessions Award, so I am not sure why that message was passed on to you. My apologies.

PN514

THE DEPUTY PRESIDENT: Thank you, Mr Merlino. Meredith Blackstock advised that she would not be in attendance because she understood that Mr Merlino and Mr Bourke would not be in attendance. That is, of course, however not the case. Nevertheless, Ms Blackstock is not in attendance today for those - that reason.

PN515

MR MERLINO: That is right. And your Honour, Ms Blackstock rather is appearing on matters that Tony Bourke is dealing with. I am representing the SDA National Office only in relation to Airport Retail Concessions, so she certainly is not at a disadvantage for my being here because it was only on matters that Tony Bourke was dealing with.

PN516

THE DEPUTY PRESIDENT: Yes. Mr Henderson also rang and he has been called away on a dispute. He advised that he is sending - that he has sent or is sending a letter through to the Commission. I have had a search done and I haven't received that letter as yet. Perhaps I will following these proceedings. To date I haven't received any foreshadowed documentation from Mr Henderson. I have, however, asked the Australian Industrial Registry to prepare draft awards. I have just seen those drafts. I have not read them. The drafts have no status for the point of view of this Commission, they are simply documents prepared by the Australian Industrial Registry. I don't given them any sort of endorsement, prima facie or otherwise.

PN517

And of course, I couldn't do so since I haven't read them. I will, however, provide them to the parties to assist them in the process they have undertaken.

EXHIBIT #R1 DRAFT AWARD OF CAMPBELLS CASH AND CARRY PTY LTD - VICTORIA - AWARD 1996

EXHIBIT #R2 ATTACHED TABLE OF CHANGES TO THE PARTIES

EXHIBIT #R3 DRAFT AWARD OF RETAIL AND WHOLESALE INDUSTRY - SDEA WHOLESALE GROCERS (DAVIDS- DISTRIBUTION VICTORIA) INTERIM AWARD 1995

PN518

THE DEPUTY PRESIDENT: Again, the Registry has prepared a draft which I, again, haven't read, as with all of them.

EXHIBIT #R4 ATTACHED TABLE OF CHANGES

EXHIBIT #R5 DRAFT AWARD OF SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION - HARRY HEATHS - AWARD 1994

EXHIBIT #R6 ATTACHED TABLE OF CHANGES

PN519

THE DEPUTY PRESIDENT: I seem to have only one copy of R5. A copy of R5 will be provided to Ms Whitecross and Mr Weldon as soon as possible following the proceedings, if you could just wait for - sorry, Ms Whitecross?

PN520

MS WHITECROSS: Your Honour, I would indicate that for his appearance today, is only in relation to the Airport - - -

PN521

THE DEPUTY PRESIDENT: So you don't need a copy of that one?

PN522

MS WHITECROSS: So we wouldn't need a copy in that one.

PN523

THE DEPUTY PRESIDENT: Mr Weldon?

PN524

MR WELDON: Yes, sir, we are the same. We are only appearing in 358 of 1998, so we don't require a copy.

PN525

THE DEPUTY PRESIDENT: All right. Thank you for that.

EXHIBIT #R7 DRAFT AWARD OF AIRPORT RETAIL CONCESSIONS AWARD 1990

EXHIBIT #R8 ATTACHED TABLE OF CHANGES

PN526

THE DEPUTY PRESIDENT: Given that a number of parties have not been able to appear today, what I propose to do is as follows. In relation to Mr Bourke, I rely on you, Mr Merlino, to distribute the relevant drafts to Mr Bourke. In relation to the others, a copy will be forwarded to them, as soon as possible, together with a transcript. Now, perhaps I will hear - so what I would ask the parties to do is as follows, to examine the draft award and indicate to me, at the next hearing, agreement or disagreement of that document. If there is disagreement, to indicate specific areas of disagreement, namely the specific clause numbers.

PN527

In addition, indicate the specific problems with that clause, and finally, if this is at all possible, to have an alternative draft clause which that party considers is the appropriate form that that particular clause should take, if it should be in the award at all. And I, of course, give leave to parties to argue that maybe it should be deleted or restructured or whatever. However I think we are getting to the stage where we need to be a bit more specific in our consideration in this review, and so that it why I would ask the parties to do.

PN528

Again, I propose to adjourn the matter for what - six weeks? Now that should provide ample time, given the work that would have already been done by all of the parties given this is the what, third hearing, is it? Yes. I assume that the parties would be - have made considerable progress at developing their particular positions in that time, so I expect by the third hearing of this matter that I have quite specific positions stated by each party in relation to their position on simplifying the award they have an interest in. Now, six weeks takes us to where, 29 August? I propose 29 August at 10.15.

PN529

First of all, does anyone have any objection to what I have - the course of action I have proposed.

PN530

MR MERLINO: No objections, your Honour

PN531

MS WHITECROSS: I wouldn't object, your Honour.

PN532

MR WELDON: No, your Honour.

PN533

THE DEPUTY PRESIDENT: Thank you very much. Secondly, does anybody wish to report back on any results of their discussions or put any submissions?

PN534

MR MERLINO: Your Honour, just to report that the parties have, indeed, held discussions in regards to the Airport Retail Concessions Award. We have had two meetings. Perhaps Ms Whitecross can comment, but my understanding is that some draft documents in terms of model clauses will be provided by VECCI to the parties. There are a number of issues raised by Mr Henderson that I would imagine he would be keen to pursue at the next opportunity and they relate to variations to the award, and he foreshadowed at the last hearing that he may want to join these proceedings with those variations.

PN535

THE DEPUTY PRESIDENT: All right. On that issue, Mr Merlino, first of all, I have not seen any applications. I have no idea what is in them, should they exist. You advise me they do exist?

PN536

MR MERLINO: No, your Honour, it has simply been a point of discussion at this point. I mean, we are aware of - - -

PN537

THE DEPUTY PRESIDENT: What has been discussed if there are no actual - if there is no actual document in existence?

PN538

MR MERLINO: That we are aware of the issues that Mr Henderson may want to raise, but like you we have yet to see any documentation, so it is hard for us, at this stage, to put forward any detailed comments on those issues. They relate to classifications, travelling, carparking allowances, shift work allowances and Saturday work, that as yet the parties haven't received any documentation either.

PN539

THE DEPUTY PRESIDENT: Were these issues communicated orally or in writing?

PN540

MR MERLINO: Orally, your Honour, at the meeting.

PN541

THE DEPUTY PRESIDENT: Yes, all right. Well, should they be relevant to Item 51 and, obviously, that is an issue for the parties to address. Obviously, any documents that are provided will be taken into account, provided they are provided within good and appropriate time having regard to the need to - the requirements of Item 51 of Schedule 5 of WROLA - - -

PN542

MR MERLINO: Yes.

PN543

THE DEPUTY PRESIDENT: - - - and having regard to the Award Simplification Principles, which are quite - which give some guidance as to what the task of this Commission is during award simplification.

PN544

MR MERLINO: Thank you, your Honour. I just simply wanted to let you know that progress has been made and we are working towards finalising this matter.

PN545

THE DEPUTY PRESIDENT: Thank you, Mr Merlino. Ms Whitecross?

PN546

MS WHITECROSS: Your Honour, I would support the submission of Mr Merlino in terms of being an accurate reflection of the situation to date. I would also indicate that VECCIs involvement in this matter has really only been in terms of the last two meetings and have not attended the last hearings that we were unaware of that. As Mr Merlino has indicated, VECCI undertakes to rewrite a number of clauses where multi-clauses exist, taking into account specific provisions within the award for the parties to then consider. As Mr Merlino has also indicated that Mr Henderson has flagged and I would suggest at this stage that he, in the absence of formal applications, that he has verbally flagged his intention to make applications on for the four areas that Mr Merlino has indicated.

PN547

It would be VECCIs position that section 113 matters are outside the Item 51 review process. VECCI would not be seeking instructions with respect to those matters that Mr Henderson raises until section 113 applications are made. It is also our position that we would not be wanting the Item 51 review process delayed in any way in waiting for those applications. We view them as being separate matters and, you know, until such applications are made, we are not in a position to be able to comment, or indeed seek instructions from our members. If the Commission pleases.

PN548

THE DEPUTY PRESIDENT: Mr Weldon?

PN549

MR WELDON: Yes, thank you, your Honour. Our position does not differ from VECCI in respect to the points it just raised in respect to Mr Henderson's 113 applications, if they do eventuate. Yes, we do see the section 51 review as being the priority at this stage, and then once that process is completed then we are quite happy to look at any other issues that may be on the table. That is all, your Honour.

PN550

THE DEPUTY PRESIDENT: Thank you, Mr Weldon. Well, in relation to applications under section 113 which were foreshadowed, should such applications be lodged, parties are at liberty to put whatever submissions they wish regarding their treatment, and I have expressed and do express no view on those applications, particularly given the fact that I haven't seen any such applications, so we will deal with that matter if and when it arises. Anybody have any objection that that?

PN551

MS WHITECROSS: No, your Honour.

PN552

MR MERLINO: No, your Honour.

PN553

MR WELDON: No, your Honour.

PN554

THE DEPUTY PRESIDENT: Thank you. All right, have we done what we can today? Is there anything else? I think we have covered most of it, so at the next hearing we will be, I hope, well advanced in our task. On that matter - on that basis these matters will stand adjourned.

ADJOURNED UNTIL THURSDAY, 29 AUGUST 2002 [10.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 DRAFT AWARD OF CAMPBELLS CASH AND CARRY PTY LTD - VICTORIA - AWARD 1996 PN518
EXHIBIT #R2 ATTACHED TABLE OF CHANGES TO THE PARTIES PN518
EXHIBIT #R3 DRAFT AWARD OF RETAIL AND WHOLESALE INDUSTRY - SDEA WHOLESALE GROCERS (DAVIDS-DISTRIBUTION VICTORIA) INTERIM AWARD 1995 PN518
EXHIBIT #R4 ATTACHED TABLE OF CHANGES PN519
EXHIBIT #R5 DRAFT AWARD OF SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES' ASSOCIATION - HARRY HEATHS - AWARD 1994 PN519
EXHIBIT #R6 ATTACHED TABLE OF CHANGES PN519
EXHIBIT #R7 DRAFT AWARD OF AIRPORT RETAIL CONCESSIONS AWARD 1990 PN526
EXHIBIT #R8 ATTACHED TABLE OF CHANGES PN526