C2002/234, Transcript of Proceedings [2002] AIRCTrans 4826 (3 December 2002)

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:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N VT10077

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/234

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION -
WESTERN AUSTRALIAN BRANCH

and

CHUBB SECURITY AUSTRALIA PTY LIMITED

Application under section 170FB of the Act
for employment termination orders re employees
of Chubb Security Australia engaged on the
Western Australian Government Railways contract

MELBOURNE

1.30 PM, MONDAY, 18 NOVEMBER 2002

Continued from 15.11.02 in Perth

THE FOLLOWING PROCEEDINGS WERE CONDUCTED BY
VIDEO CONFERENCE IN MELBOURNE

PN1709

THE SENIOR DEPUTY PRESIDENT: Good afternoon, or good morning in Perth, is it, still? Any change in appearances?

PN1710

MR UPHILL: No.

PN1711

THE SENIOR DEPUTY PRESIDENT: No. Have the parties had an opportunity, Mr Uphill, to have some discussions about the terms of the order?

PN1712

MR UPHILL: We have had a brief discussion, your Honour. It is, of course, a bit difficult to ensure that the order adequately reflects your reasons for decisions without having reasons for decision. But broadly, given what you said on Friday, I think the order is consistent with perhaps what your intention was.

PN1713

THE SENIOR DEPUTY PRESIDENT: Yes. Well, did you want to saying about it at this stage, Ms Northcott?

PN1714

MS NORTHCOTT: Your Honour, a couple of typographical concerns, which I can mention now, or we can deal with later and perhaps some guidance as to the ordinary and customary turn-over of labour, which you did give verbally on Friday, just to confirm.

PN1715

THE SENIOR DEPUTY PRESIDENT: Well, look, without going into the technicalities of it, basically what I was saying is that the people who have gone from Chubb to WAGR, have an entitlement under the terms of the order because they do not carry over with them their accrued entitlements to long service leave, the sort of accruals they would have built up in relation to sick leave, and those sorts of matters that are intended to be compensated by severance payments.

PN1716

That is basically the reason, as I say, the people who went over to WAGR will get the benefit. People who are continuing their employment with Chubb, whether on a full time basis or a part-time basis in accordance with the terms of their contract, do not receive a benefit. Those who are not placed in a position with Chubb and have their employment terminated as a result of the loss of the WAGR contract would get a benefit. So does that clarify the position for you, Ms Northcott?

PN1717

MS NORTHCOTT: Yes, your Honour, it does, thank you.

PN1718

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Uphill, did you have any concerns about the operation of the order? Obviously you have some concerns that there is an order.

PN1719

MR UPHILL: I understand the terms of the order. Look, leave aside the fundamental question about whether or not there should or should not be an order - - -

PN1720

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1721

MR UPHILL: - - - and moving forward with looking at the terms of the order, I think what you have said is clear, but the order, of course, stands by itself.

PN1722

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN1723

MR UPHILL: And there are certain applications that can be made, given the terms of the order, and they are matters that we need to consider.

PN1724

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I mean, the term of the order will include a provision for the parties to apply in any event, have liberty to apply. I will get my reasons for decision out as soon as I have received - very shortly after I receive the transcript. And my associate will make some inquiries about how long that might be and perhaps give some indication to the parties about the availability of transcript. But unless there are any particular aspects of the order that you - either party believes doesn't give effect to what I have said in my reasons so far, then I would propose making the order in those terms, subject to the typographical errors being fixed up as well, of course. So is there anything else, Mr Uphill? Anything else you want to say?

PN1725

MR UPHILL: No, your Honour, if you proceed on that basis, I think that is clear.

PN1726

THE SENIOR DEPUTY PRESIDENT: Okay. Ms Northcott?

PN1727

MS NORTHCOTT: Your Honour, the wording of the order, I recognise your intention in your decision that employees who receive full-time or part-time employment with Chubb do not receive the benefit. However, I suggest that the terms of the order don't seem to reflect that.

PN1728

THE SENIOR DEPUTY PRESIDENT: I see.

PN1729

MS NORTHCOTT: Unless - I mean, only if it is read with the contract of employment which - - -

PN1730

THE SENIOR DEPUTY PRESIDENT: Well, yes, well, I suppose you need to read it in conjunction with the contract of employment, but I can clarify that in terms of the order in any event. By reference to the definition of redundancy, I can clarify it in that position there.

PN1731

MS NORTHCOTT: Your Honour, the typographical concerns I have was in clause 3.7.2.

PN1732

THE SENIOR DEPUTY PRESIDENT: What was the part - which part was that; 3.7.2, was it?

PN1733

MS NORTHCOTT: That is correct, sir.

PN1734

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1735

MS NORTHCOTT: And moving back to 3.1, the definition of the employer - and this was a mistake in the order I submitted to you, your Honour - describes an employer named in schedule A, and I did not submit schedule A. However, it would be in the same terms as 2.1, I would suggest.

PN1736

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Yes, well, I presume your other draft order was made in terms of the possibility of the section 113 application being made, or something along those lines?

PN1737

MS NORTHCOTT: Yes, your Honour.

PN1738

THE SENIOR DEPUTY PRESIDENT: All right, any other matters? Ms Northcott?

PN1739

MS NORTHCOTT: That is all, thank you, your Honour.

PN1740

THE SENIOR DEPUTY PRESIDENT: Anything else, Mr Uphill?

PN1741

MR UPHILL: No, your Honour, that is all.

PN1742

THE SENIOR DEPUTY PRESIDENT: All right. Well, as soon as we get the transcript my Associate will give you some - well, first of all my Associate will make some inquiries about when the transcript will be available, and my Associate will then let you know that so that you will have some idea of about how long it might be before you get the reasons for decision. Very well. If there is nothing else, this matter is adjourned. I should say, the section 113 application, Ms Northcott, are you still wanting to proceed with that, to vary the award?

PN1743

MS NORTHCOTT: No, it does need to happen at some point.

PN1744

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I will issue a notice of listing for one day in the week of, I think, 17 December, or 16 December, 16 December and that will be provided to you to serve on all of the parties to the award.

PN1745

MS NORTHCOTT: Thank you, your Honour.

PN1746

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. The matter is adjourned.

ADJOURNED INDEFINITELY [1.40pm]