C2002/5395, Transcript of Proceedings [2003] AIRCTrans 1699 (5 May 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2002/5395

EXHIBITION INDUSTRY AWARD 2001

Application under section 113 of the Act
by The Australian Workers Union to vary
the above award re casual employment

SYDNEY

9.31 AM, WEDNESDAY, 23 APRIL 2003

Continued from 15.4.03

PN158

THE VICE PRESIDENT: Good morning, Mr Beard. Good morning, Mr Hutchinson. Mr Beard, the draft order which you have sent through provides only for the first stage of the two stage increase. Were you proposing that a second order would be made at some later time to give effect to the second stage in the increase?

PN159

MR BEARD: That is correct, your Honour. You're aware that the agreement that was reached on 15 April before you, that agreement provided for the 5 per cent to the casual loading to be phased in in two instalments with the first instalment being from 1 May this year, the second 2-1/2 per cent instalment from 1 May 2004. In the award itself, it refers to casuals in two sections, your Honour. One is in regards to the definition of a casual employee and you'll note that the draft order deletes the 20 per cent that's currently appearing in that particular clause and increases it to 22-1/2 per cent.

PN160

There is also another reference to the casuals in the actual wage rates contained within clause 17.2. Now, because there is a safety net review decision to be handed down probably in the very near future, in order to maintain absolute clarity, there was no point in - and because I don't have a crystal ball and certainly don't know if there is an increase to be awarded in the safety net review decision, what it would be for next year.

PN161

THE VICE PRESIDENT: So therefore you would have to ..... with clause 17.2 in terms of specifying an actual dollar figure in that clause and it would become quite messy to try and have a multiple component calculation then to be undertaken.

PN162

MR BEARD: That's impossible to do at this stage, your Honour. So I'm quite happy to put on the record that the union will in fact file another application to vary the award in accordance with - - -

PN163

THE VICE PRESIDENT: I don't know that that's necessary. I think I can just note in some reasons for decision that the agreement is for a two stage and for the reasons you've articulated, it will be done by way of two separate orders and that a further order will issue after the - in fact, probably the most convenient way is for me to deal with the adjustment that may be necessary following the safety net review decision and the order for stage two can be made as part of that order.

PN164

MR BEARD: Yes, that could be done that way, your Honour. It depends how clear a paper trail is necessary in regard to - I don't mind either way.

PN165

THE VICE PRESIDENT: I understand your purpose and endorse it but suffice to say, I don't think there's any necessity for a further application. This application can remain on foot until such time as a second order is made. I think, Mr Beard, that the formalities require the issuing of a short decision. There is a draft here which is substantially complete and I should be in a position to complete it today. So that I note that the consent of the parties to the variation to the award consequent upon the agreement reached in conciliation on 15 April 2003, I propose to issue an order today in terms of the draft order filed with the Commission by the applicant, consented to by the appearing respondents. That includes, I think, the Australian Entertainment Industry Association. Even though Mr Hamilton is not here today, he appeared on the application at an earlier time.

PN166

I'm satisfied that the various statutory requirements including those in sections 89A, section 88B and section 90 of the act are satisfied in relation to this matter. It therefore is appropriate to make the order to which the parties consent. So I will issue that order later today and have copies of it sent to the parties. I don't think there's anything further we need to do. I should note, too, that I notified the application to the President as I'm required to do under principle 10 of the current safety net review principles and that he responded indicating that he'd consider whether the application should be dealt with by a full bench and decided that it should continue to be dealt with by myself. Anything further?

PN167

MR BEARD: No, your Honour.

PN168

MR HUTCHINSON: No, your Honour.

PN169

THE VICE PRESIDENT: Now, in terms of adjourning this, I think technically the act requires it - we're not entitled to adjourn things generally or indefinitely. The act requires adjournment to a nominated date. Mr Beard, assuming the safety net review decision came down in early May, how long does it normally take your union to arrange for the flow on applications? Well, at least for the final application in relation to the Exhibition Industry Award?

PN170

MR BEARD: In this particular award, your Honour, the safety net is due on 3 July this year so what we'd be looking to do is, I'd be filing an application shortly after the safety net review decision was handed down.

PN171

THE VICE PRESIDENT: With a return date - with a view to having the orders made on 3 July.

PN172

MR BEARD: The safety net would be operative from the first pay period commencing on or after 3 July this year and then we'd be in a situation, I believe, where we could show a proper time line as such, where we have the first phasing in of the casuals safety net and then processing the second phase. It might be appropriate to go off the record at this stage, your Honour, while we're discussing -

PN173

THE VICE PRESIDENT: I'll adjourn this matter to Tuesday, 1 July 2003 at 9.30 am and I will deal with any safety net review application that may be appropriate to make following the handing down of the currently reserved safety net review decision on that day as well if the paperwork is in an appropriate form by that time. I take it there's no problems with that date for either of the parties?

PN174

MR BEARD: No, thank you, your Honour.

PN175

THE VICE PRESIDENT: Thank you, Mr Beard. Thank you, Mr Hutchinson. The Commission is adjourned until 1 July at 9.30 am.

ADJOURNED UNTIL TUESDAY, 1 JULY 2003 [9.42am]