C0054/299, Transcript of Proceedings [2002] AIRCTrans 3069 (9 August 2002)

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TRANSCRIPT OF PROCEEDINGS


O/N VT05086

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00542 of 1999
C No 30752 of 1996

CLERKS (ROAD TRANSPORT INDUSTRY)
AWARD 1992

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

Application under section 113 of the Act
by Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award re making of an award giving
effect to the terms of the attached roping-in
award

MELBOURNE

9.00 AM, FRIDAY, 26 JULY 2002

Continued from 27.6.02

PN181

THE SENIOR DEPUTY PRESIDENT: I might just take the appearances again I think.

PN182

MR J. NUCIFORA: Thank you, your Honour. I appear for the Australian Services union in place of Keith Harvey who is unable to make it today.

PN183

MS J. WHITECROSS: I am from the Victorian Employers Chamber of Commerce and Industry on behalf of respondent members.

PN184

MS F. FIELD: I appear for the Australian Industry Group on behalf of respondent members. I also appear on behalf of ARTIO as Mr Paul Ryan is unable to attend.

PN185

THE SENIOR DEPUTY PRESIDENT: On the last occasion this matter was adjourned, there being only one issue between the parties, that being the question of the exemption rate, the parties were going to try to resolve that matter amongst themselves and if not it was going to be sought to be resolved in a conference today. Could somebody tell me where we stand, please. Mr Nucifora.

PN186

MR NUCIFORA: Thank you, your Honour. My instructions go to - and Ms Field and Ms Whitecross may be able to supplement my instructions - in terms of at least the last hearing before you there was a meeting early this week on Wednesday. Mr Harvey met with employer representatives and my understanding was that a number of other issues also needed to be concluded and there is almost a final draft, but I understand there are a few other issues that Ms Whitecross might go to in relation to drafting.

PN187

The parties were proposing that a final draft, except for the part exemption provision be made - be sent on to the Commission next week. I do have a draft here but it isn't the absolute final draft and the matter that you referred to in particular, the part exemption provision, there is a proposition that has been raised and the parties are seeking to deal with that today. In terms of the other issue that hadn't yet been finalised there has been an updating of the draft in relation to the 2002 safety net adjustment which was recently approved by the Commission.

PN188

That needed to be incorporated. It includes a new printer leave clause. Of course, this is the test case provision for printer leave for casuals. Also the award didn't have a supported wage clause as I am instructed and that is to be inserted. The draft that the parties now have is based on the draft provided by the Department last year with further amendments and refinements agreed to by the parties. There is a preference between the parties that a final draft be sent on to the Commission next week and in fact the draft we have here is not yet complete.

PN189

And as I have indicated, the ASU has put to the other parties some proposals as to how the matter of the part exemption should be dealt with. The parties have discussed the implications of the Clerks Breweries decision which no doubt has come up before at earlier conferences and the hearing. Also more recently a decision of Senior Deputy President Cartwright in the Shell Refinery Award. I might just refer to the particular print numbers in that matter. I was actually involved in that matter, your Honour. It was PR919771, the decision and the order was PR919773 and the award was 813206.

PN190

Now, the exemption in that award was an absolute exemption and, of course, those types of provisions vary from award to award. The part exemption we have in this award is similar to the Customs Clearing Award, an award that I have been involved with. In fact that award was originally part of this - or Customs Clearing and Freight. International Freight Forwarding clerical employees were once covered by this award. So that provision is a unique one and one that the parties not only - or if you like, the employers in our unit have not only tried to grapple with here but we have concerns with grappling with it in other awards and in fact it has been an outstanding issue right to the very end.

PN191

So in the context of what had occurred in the Clerks Breweries, Shell Refinery and now more recently, although not complete, the Customs Clearing and Freight Forwarding Award, we are seeking to - we seek that the party be given some short time to deal with the ASUs and the employers' proposition. Apart from that, your Honour, my instructions are that the award is complete and that a final draft can be provided as soon as next week, but subject to what my friends need to say. If your Honour pleases.

PN192

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Yes, Ms Whitecross.

PN193

MS WHITECROSS: If the Commission pleases. Your Honour, I would suggest that Mr Nucifora's summary of the situation to date is fairly accurate. I say fairly only on the basis with respect to the exemption rate issue. Indeed, we do virtually have a final draft save and except for that exemption rate issue and that we would be looking to get a draft copy to the Commission in the immediate future. With respect to the discussions that took place on Wednesday morning Mr Harvey from the ASU put forward a number of propositions in terms of addressing the union's concerns in this area.

PN194

It is the employer position that the exemption rate should remain the same. However, we have taken into consideration the views that Mr Harvey has put forward with respect to the Clerks Breweries, the Shell Refinery decision and the pending decision of Senior Deputy President O'Callaghan with respect to the Clerks International Freight Forwarding. Now, the meeting that took place between the parties occurred early Wednesday morning in terms of VECCIs position that I haven't been able to consider the cases referred to by Mr Harvey before this morning and naturally I would need to seek instructions from my members, having formed an opinion and being able to provide them advice on those matters.

PN195

I would respectfully request a short period of time and I would believe that at the very most I would need a fortnight with which to canvass my members' views on that position, but save and except for that issue I believe that we have a completed draft to forward to the Commission. If the Commission pleases.

PN196

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Whitecross. Ms Field.

PN197

MS FIELD: Thank you, your Honour. Your Honour, really I support the submissions of both the other parties at the bench here. I can confirm that the draft is complete other than for the exemption provision and I, like Ms Whitecross, have not yet had the opportunity to have a look at the decisions that Mr Harvey brought to our attention on Wednesday. So like Ms Whitecross I would like perhaps two weeks maximum to have a look at that and come back to you on that.

PN198

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you.

PN199

MS FIELD: Thank you.

PN200

THE SENIOR DEPUTY PRESIDENT: Well, it is desirable that the parties resolve their difficulties if they can and you are almost there and I commend you for that. I will give you an opportunity to try to sort out the exemption issue by agreement, failing which I will have to decide it for you. We will just go off the record and find a date.

OFF THE RECORD

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, the parties will have to me a copy of their draft award by 4.30 pm on 7 August 2002 and when that is provided I will be informed as to whether or not the matter of the exemption has been agreed. The further hearing of this matter will be adjourned until 9 am on Friday, 9 August. If there is nothing else we will adjourn the Commission. Thank you.

ADJOURNED UNTIL FRIDAY, 9 AUGUST 2002 [9.11am]