AG2003/5401, Transcript of Proceedings [2003] AIRCTrans 2660 (26 June 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

AG2003/5401

APPLICATION FOR VARIATION OF
CERTIFIED AGREEMENT

Application under section 170MD(6) of the Act
by Omni Leisure Operations Limited for order to
vary Dreamworld Certified Agreement (No 4) 2001

SYDNEY

10.05 AM, THURSDAY, 12 JUNE 2003

PN1

MR J. SIMPSON: I appear on behalf of the applicant Omni Leisure Operations, from herein I suppose I will call them Dreamworld, it is a bit of a mouthful. I also mention the appearance on behalf of the Australian Workers Union.

PN2

THE COMMISSIONER: You have served the notice of listing?

PN3

MR SIMPSON: Absolutely. Absolutely, and I spoke to them again this morning, I have confirmed that they asked that I mention their appearance.

PN4

THE COMMISSIONER: All right. It is just that it is unusual I have not received anything but the matter has been called on very quickly. Mr Simpson, who did you speak to at the AWU?

PN5

MR SIMPSON: I spoke to a Tracey Lane, and that is the Queensland branch, and Ms Lane is with the legal section of the AWU, and she confirmed - if the Commission prefers at some stage I could get something in writing and bring it down through the day, if that would be more preferable, but certainly I can confirm that I received those instructions to mention their appearance.

PN6

THE COMMISSIONER: Yes. Mr Simpson, I have no reason to doubt the submission you are putting to me.

PN7

MR SIMPSON: Certainly. Both parties have liaised very closely throughout this process and everything is - all the parties are fully aware of what is going on.

PN8

THE COMMISSIONER: Yes, and your documentation, your application is saying to the Commission that this is by consent.

PN9

MR SIMPSON: Absolutely, that is correct, and you will also see that the letter that was sent to the Commission was CCd to both the union organiser and Ms Lane.

PN10

THE COMMISSIONER: Yes, a Mr Kevin Court and Ms Tracey Lane.

PN11

MR SIMPSON: That is correct.

PN12

THE COMMISSIONER: All right. Well, Mr Simpson, why don't I hear your submissions and we will see where we go.

PN13

MR SIMPSON: Certainly, it is a very straight forward matter, Commissioner. It is arising as a result of a, basically a corporate restructure, and that is proposed to take effect as at 1 July 2003. It is quite simply a change in the employing entity. As is indicated in the application that employing entity will take over all of the statutory entitlements and continuity of service, and there is no change, in effect, as to the terms and conditions of the employment of any of the employees. Of course the new employer will also be bound by the existing agreement.

PN14

The actual application - there are two proposed orders, one is the general and one is the specific. The uncertainty, I suppose, that this application is trying to remedy really arises out of the Amcor decision where on the face of the certified agreement it is unclear as to whether a redundancy payment would be made in the circumstances of a straight transfer of employment. So that is where the actual uncertainty or ambiguity arises and you will see that proposed order one rectifies that and makes that very clear. The second actual aspect is the specific - - -

PN15

THE COMMISSIONER: Sorry, do you have a draft order, Mr Simpson?

PN16

MR SIMPSON: I only have the proposed orders which are actually attached, and I apologise that I don't have some draft orders, but certainly I can make that happen through the day, if the Commission would prefer that, but the actual draft orders - - -

PN17

THE COMMISSIONER: But the draft orders - - -

PN18

MR SIMPSON: - - - will be exactly the same as the proposed orders, except that they are not in the formal makeup.

PN19

THE COMMISSIONER: Yes.

PN20

MR SIMPSON: In relation to the second specific order that arises out of clause 2.11.6 of the certified agreement and does the Commission have the certified agreement before them?

PN21

THE COMMISSIONER: Yes, I do have it.

PN22

MR SIMPSON: Clause 2.11.6 indicates this that:

PN23

The employer in a particular redundancy case may make application to the Australian Industrial Relations Commission to have the severance pay prescription varied if the employer obtains acceptable alternative employment for the employee.

PN24

So arising out of that the second order sought which is the specific order, that is order number two, and that is, as indicated, specifically relates to this particular transfer of employment.

PN25

THE COMMISSIONER: So point two of your proposed orders seeks a variation to clause 2.11.6 or does it seek that this particular provision be included within the agreement at a particular point?

PN26

MR SIMPSON: Well, it is something I haven't actually had to deal with before with this specific type of - in that we may make application to the - and it was actually a difficulty as to how to get that - - -

PN27

THE COMMISSIONER: And which you are making application?

PN28

MR SIMPSON: That is correct, so like, I am sort of using two barrels here I suppose, so the second order specifically does not ask for a variation to the certified agreement, it is simply an order arising out of this clause 2.11.6.

PN29

THE COMMISSIONER: Yes. I suppose in a sense the order if made as sought would reflect an appendix to the agreement?

PN30

MR SIMPSON: That would certainly be an appropriate way of doing it, Commissioner, yes.

PN31

THE COMMISSIONER: Yes. I might ask you to file a draft order when you go back to your office, please?

PN32

MR SIMPSON: Certainly.

PN33

THE COMMISSIONER: If your application is successful this morning - - -

PN34

MR SIMPSON: Certainly.

PN35

THE COMMISSIONER: - - - and you say to me then that it will be reflective of the proposed order which you have filed on 10 June.

PN36

MR SIMPSON: It will be in exactly the same terms.

PN37

THE COMMISSIONER: Yes. In that regard it might be appropriate that I mark your proposed order.

PN38

MR SIMPSON: Yes, certainly.

PN39

THE COMMISSIONER: Yes. We will mark your proposed order which is attached to your email on 10 June as A1, thank you.

EXHIBIT #A1 PROPOSED ORDER ATTACHED TO EMAIL 10/06/2003

PN40

THE COMMISSIONER: So you are seeking an order in terms of A1 but your draft order, which will go to a little bit more detail, would be filed later on this afternoon.

PN41

MR SIMPSON: Yes, certainly. Perhaps, Commissioner, I could say this: that if the proposed order number one would be inserted as a clause 2.11.6(a) in the ongoing certified agreement and then as, yes, Commissioner, you have indicated then order two could be in the form as an appendix. Would that be more preferable?

PN42

THE COMMISSIONER: Well, it would be the one order.

PN43

MR SIMPSON: I see.

PN44

THE COMMISSIONER: But it depends on how you are going to - - -

PN45

MR SIMPSON: No, I think the appendix would be the better way to go about it, yes, and have both orders there.

PN46

THE COMMISSIONER: Yes. I only think to myself that the variation is coming out of, if successful would come out of proceedings today and would only be effective as of today's date. I don't think you are seeking a date effective prior to today's date?

PN47

MR SIMPSON: No, that is correct.

PN48

THE COMMISSIONER: And it would have a life, when does the certified nominal expiry date?

PN49

MR SIMPSON: It is in 30 September 2004, so one year, just over one year.

PN50

THE COMMISSIONER: So, the draft order I presume that you would be filing, having regard to your proposed order in A1 and your submissions to me, that draft order would represent that it is to vary the agreement to include an appendix A and your point one and point two would be the variation that you seek, and that order, that draft order would seek that the order be effective from today's date, being 11 June 2003, and remain in operation until 30 September 2004.

PN51

MR SIMPSON: Yes, thank you.

PN52

THE COMMISSIONER: Would that be correct, Mr Simpson?

PN53

MR SIMPSON: Absolutely, Commissioner, yes.

PN54

THE COMMISSIONER: I have interrupted your submissions, my apologies.

PN55

MR SIMPSON: That is okay. I was pretty much done, Commissioner, unless you would like to hear me on something specifically those are my submissions.

PN56

THE COMMISSIONER: Yes, and of course you will give me a submission that the AWU have - are due to advise me that they consent to the application under 170MD(6) of the Act to vary the agreement to remove an ambiguity and an uncertainty.

PN57

MR SIMPSON: Yes, thank you, Commissioner, that is correct.

PN58

THE COMMISSIONER: Yes, thank you. Yes, the application as I have just outlined made by Omni Leisure Operations Limited is to seek a variation to the Dreamworld Certified Agreement Number 4 2001 under section 170MD(6) to remove an ambiguity or uncertainty in that agreement due to circumstances which have now evolved, and having heard Mr Simpson's submission on behalf of the employer and on behalf of the AWU as advised by Mr Simpson in relation to the application, I am satisfied that the statutory requirements in regards to a variation under 170MD(6) have been met.

PN59

The draft order Mr Simpson will file this afternoon; however, that draft order is reflective of the proposed order filed on 10 June 2003 and has been allocated a number before the Commission as exhibit A1. The order that will be filed this afternoon reflective of A1 will be made by order of the Commission and that order will be effective from today's date, 11 June 2003, and the order shall remain in force until 30 September 2004. Is there nothing further at all?

PN60

MR SIMPSON: No, thank you, Commissioner. I would just like to take the opportunity to thank you for bringing this matter on quickly.

PN61

THE COMMISSIONER: Yes. Thank you, Mr Simpson, the Commission is adjourned.

ADJOURNED INDEFINITELY [9.14am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 PROPOSED ORDER ATTACHED TO EMAIL 10/06/2003 PN40