C2002/3895, Transcript of Proceedings [2002] AIRCTrans 4514 (15 November 2002)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

MUNRO J

C2002/3895

CHULLORA PRINTING AWARD 2001

Application under section 113 of the Act
by the Australian Manufacturing Workers Union
to vary re reasonable hours

SYDNEY

11.16 AM, TUESDAY, 29 OCTOBER 2002

PN1

HIS HONOUR: This is matter C3895 of 2002, it is an application lodged on 17 September 2002 under section 113 of the Act to vary the Chullora Printing Award 2001. The application seeks to give effect to the standard provision emerging from the working hours case decision recorded in print 07 2002. Could I have appearances please?

PN2

MS K. COTIS: If it pleases the Commission I appear on behalf of the Australian Manufacturing Workers Union.

PN3

MR A. CUNNINGHAM: If the Commission pleases I seek leave to appear for the respondent employer Nationwide News Pty Limited.

PN4

HIS HONOUR: Leave to appear, I take it, is not opposed and is granted. I note that there has been service on Nationwide News Pty Limited, the Mirror at the Chullora Print Centre. Mr Cunningham, is the application to vary opposed? The only change we would propose is to re-number it in decimal style unless you have some other objection.

PN5

MR CUNNINGHAM: Your Honour, what we seek is - well, we consent to it subject to one minor amendment which is designed really to tailor it to this specific award and in fact reflect a form of words which exist in the current comparable provision in the award. If I might I have two very thin documents to hand up.

PN6

HIS HONOUR: I will mark as Exhibit CP1 the copy of the existing award and Exhibit CP2 can be the draft order.

EXHIBIT #CP1 COPY OF EXISTING AWARD

EXHIBIT #CP2 DRAFT ORDER

PN7

MR CUNNINGHAM: Thank you, your Honour. As you will see from CP1 there is an existing clause, 17.5 which the present application seeks to replace which provides that an employee - and I quote:

PN8

An employee shall when required work such overtime as is reasonable to ensure production requirements are met.

PN9

Exhibit CP2 is a draft order which is identical to the draft order prepared by the union with one exception that it has added to clause 17.5.2.3 the words:

PN10

particularly the need to ensure production requirements are met.

PN11

which are in substance the same as the words that appear in the existing clause 17.5. I acknowledge that in one sense the addition of those words is not essential in that certainly on my understanding of the test case decision the matter referred to in those additional words would be a matter which would need to be taken into account in any event in determining whether overtime is reasonable but we do submit that it is desirable that those words be added, this is a consent award reached between the parties not all that long ago and the parties have particularly turned their minds to this issue in the context of a reasonable hours, reasonable overtime clause which differs from the standard in that it has those words added.

PN12

That has been done in the context of an award which covers employees who are principally engaged in the production of my client's daily newspapers, metropolitan daily newspapers where obviously time is of the essence. A daily newspaper produced late is of course of little value to anybody. So those words we really see as not so much changing the meaning of the clause but rather adding a point of emphasis which we submit makes no substantive change to the test case decision but rather tailors it to the particular circumstances of this enterprise and reflects an existing consent position.

PN13

I understand Ms Cotis has not in the time available been able to obtain instructions from the relevant representative of the union about our application about the additional words that we seek but we do press them in any event, your Honour.

PN14

HIS HONOUR: What do you have to say, Ms Cotis?

PN15

MS COTIS: Thank you, your Honour. Mr Cunningham is right in that I have no instructions other than to press that the award - the variation is made in line with the hours case decision, clearly this is a variation of that decision and whilst I will need to seek some instructions I think I can make some preliminary comment that the suggestions being made by Mr Cunningham are and do I think very clearly change the intent of the test case provisions to the extent where in my view it renders the provisions useless.

PN16

Therefore I simply would like to proceed with my instructions and press that the orders are made in the terms being sought with the variations that have been made, with any variations that have been made apart from those suggested by Mr Cunningham in terms of the additional words being added to clause 17.5.2.3. Thank you, your Honour.

PN17

HIS HONOUR: Yes. Do you wish to say anything in reply, Mr Cunningham?

PN18

MR CUNNINGHAM: Your Honour, I don't think - well, for the records I will simply respond that I neither accept nor understand the criticism that has just been made that the additional words render the provision useless. I do not accept also that it changes the meaning of the test case decision, clause 17.5.2.3 expressly provides that one of the factors to be taken into account in determining whether overtime is reasonable are the needs of the workplace or enterprise. The additional words do no more than emphasise the importance of meeting production requirements in a daily newspaper. As I say that is clearly a factor which will have to be taken into account anyway, it is a factor which the parties have already agreed should be taken into account in determining whether overtime is reasonable and as the full bench said in the test case decision it is implicit in any overtime clause which says that reasonable overtime can be required, that unreasonable overtime cannot be.

PN19

As I understand the decision the full bench said that it was implicit in a clause such as the one that is already in the award that it would require some balancing of the competing considerations of employer and employees. So in a sense all that the full bench decision and test case clause do in the particular circumstances of this award is to provide an expanded clause directed to doing exactly the same work and it is in those circumstances that we say it is appropriate that a particular recognition of a particular factor which appears in the existing award by consent should also be reflected in that expanded clause. It does it no injury, in fact as we say it really provides no more than some emphasis or focus to the general matters for which the full bench have made provision in the standard clause. So your Honour, we press our application.

PN20

HIS HONOUR: I am placed in the dilemma between making a variation that is in line with the working hours case decision or modifying it in relation to a consent. I am here largely to give effect to the working hours case decision. I note that the words proposed are possibly of some meaning but they appear in a rather incongruous position. Clause 17.5.1 as it will be renumbered - 17.5 reads:

PN21

Subject to 17.5.1 an employer may require an employee to work reasonable overtime at overtime rates.

PN22

That's the provision that corresponds it would seem with 17.5:

PN23

Such overtime as is reasonable to ensure production requirements are met.

PN24

If the words were to go in I would have thought they should be going in to 17.5 rather than where they are.

PN25

MR CUNNINGHAM: Your Honour, as to that we are more than happy for them to be inserted in that place if that meets the Commission's requirements.

PN26

HIS HONOUR: Why don't we compromise on that? We are holding up a lot of people here, Ms Cotis. Re-word 17.5 so as that it is as per 17.5 of the existing provision subject to 17.5.1:

PN27

An employee shall when required work such overtime as is reasonable to ensure production requirements are met.

PN28

Such overtime, add in the other words that are not there, at overtime rates. Do you have any difficulty with putting those words in?

PN29

MR CUNNINGHAM: No, your Honour.

PN30

MS COTIS: Your Honour, I do, unfortunately, with apologies. I have no instructions to vary the award or the orders being sought by the union in any other way than has been applied for.

PN31

HIS HONOUR: Very well, I will stand the matter over. The parties may submit written submissions within ten working days. Could you supply a copy of those draft orders, Mr Cunningham, to Ms Cotis?

PN32

MR CUNNINGHAM: I have, your Honour.

PN33

HIS HONOUR: We will go to the next matter.

ADJOURNED INDEFINITELY [11.29am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #CP1 COPY OF EXISTING AWARD PN7
EXHIBIT #CP2 DRAFT ORDER PN7