C2003/571, Transcript of Proceedings [2003] AIRCTrans 2718 (30 June 2003)

AUSCRIPT PTY LTD
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Level 2, 16 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N WT0418

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2003/571

COCOS ISLANDS EMPLOYEES
AWARD 2003

Application under section 113 of the Act
by the Australian Liquor, Hospitality
and Miscellaneous Workers Union to
vary the above award re Safety Net
Review - Wages May 2003

PERTH

10.18 AM, TUESDAY 17 JUNE 2003

THIS HEARING WAS CONDUCTED BY TELEPHONE CONFERENCE

PN1

THE SENIOR DEPUTY PRESIDENT: Miss Freeman, are you there?

PN2

MS FREEMAN: Yes I am sir.

PN3

THE SENIOR DEPUTY PRESIDENT: Are you located in Perth?

PN4

MS FREEMAN: I am sir.

PN5

THE SENIOR DEPUTY PRESIDENT: Oh I expected you were going to be here today.

PN6

MS FREEMAN: No, no, I'm in Perth.

PN7

THE SENIOR DEPUTY PRESIDENT: So am I. I'm in Perth too.

PN8

MS FREEMAN: Well, then there is some confusion sir, because I was coming in, but then we got a request about a telephone number and so I stayed here.

PN9

THE SENIOR DEPUTY PRESIDENT: All right.

PN10

MS FREEMAN: I apologise for that sir.

PN11

THE SENIOR DEPUTY PRESIDENT: That's all right.

PN12

MS FREEMAN: I was already to go and then my assistant came and said that your associate was asking for a telephone number.

PN13

THE SENIOR DEPUTY PRESIDENT: All right, okay. Mr O'Grady, are you there?

PN14

MR O'GRADY: Yes sir.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes, can you hear my all right. Now, have you received a copy of the application to vary the award and a copy of the draft order?

PN16

MR O'GRADY: I have said.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, have you had an opportunity to examine that?

PN18

MR O'GRADY: Only briefly sir. When I first looked at it I thought this was just the follow up of the changes in the award that we agreed to a month or so ago.

PN19

THE SENIOR DEPUTY PRESIDENT: This in fact is the variation of the rates of pay to make adjustment for the safety net increases that were granted in May this year.

PN20

MR O'GRADY: Yes, I see that sir. I'm just looking at it, that is what confused me with this living wage 2003. So, this is another application to increase it another $17 a week?

PN21

THE SENIOR DEPUTY PRESIDENT: Yes, but that was an increase that was given in all awards - or for all awards in the last Full Bench safety net adjustment that was handed down in May this year.

PN22

MR O'GRADY: All right, well I'm not very happy about paying any more increases. I'm struggling with the previous round of increases - it increased it nearly $40 to $60 a week as it is. I mean you are forcing me into a real corner now. I didn't realise, I thought this one was just a follow up of that previous adjustment.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. Well, you can make application to be exempt from the increases or to have some modification in relation to the payment of the increases if they cause you economic hardship.

PN24

MR O'GRADY: Some distress, well they would sir, I've already had to put off two people - the previous one. And this would just mean more losses.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. Tell me Ms Freeman, the award simplification process, that was completed just recently wasn't it?

PN26

MS FREEMAN: Yes sir, it was completed and the decision was handed down on 30 April 2003, although it was a long process. And during that process - we started in 2001, as I recall and there was, you know, a 2002 and 2003 safety net adjustment. And those were, as I understand, explained to Mr O'Grady how the yearly safety net adjustments operate. He - the safety net adjustments hadn't been put into this award for some significant time since 1997. And I suppose out application to put this safety net adjustment in the award is so that we don't get into that similar situation.

PN27

I was going to argue for an operative date as of today's date on the basis of section 10 and outline special circumstances which I think are available. But given Mr O'Grady's distress - and we've always tried to be reasonable about Cocos Islands, and unfortunately what that resulted in was about five years - or at least three years worth of safety net adjustments not being processed. So, on the basis that the award simplification decision was determined on 30 April 2003, we are happy for this not to have an operative date until 30 April 2004. Mr O'Grady just needs to be aware that we will put in a similar application next year and the operating date won't be until a year later. And that may cause his some difficulty in recall, that is the difficulty he will face if we do it in such a manner.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. If that was only passed on 30 April 2003, you have to wait 12 months in any event don't you?

PN29

MS FREEMAN: Unless I can convince you sir, that it is a special circumstance, yes that's right.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, well I think that might be difficult in the circumstances. In fact, can you make the application even before the 12 months has expired. I suppose you can can't you?

PN31

MS FREEMAN: Certainly. And certainly we have had a similar situation occur with our St John Ambulance Award, which had been held up for a number of years in an appear and then just - then the other - the respondents withdrew their appeal and so we went ahead and had to put into place, I think about another 4 or 5 safety net adjustments at one stage. And then we had a new one come shortly after that and so we were at that situation where we put the application in and just put an operative date 12 months later. My concern is sir, that it will end up getting into a situation as has occurred previously, where the safety nets don't - they just sit as open applications and don't get pursued.

PN32

And that is probably worse for Cocos Islands in terms of their - you know - the way that - you know, it has led to Mr O'Grady having a situation where he has had a $40 to $60 increase, instead of a regular $8 or $10 increase of which he could manage. So, I suppose him being made aware and if we make as an operative date of 30 April 2004, you know that's - at least he's got that awareness. The next decision will come down in May, so there will obviously be an indicator for him because we would be putting in an application at that time. Well one assumes another decision will come down in May.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, well - - -

PN34

MR O'GRADY: I mean even - I even question whether we - I don't know I'm just at a loss, I'm staggered. I'm just at a loss that the living wage would go up $17 in a year.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, it did though Mr O'Grady, I can assure you of that. It went up $17 for people on a specified amount which I just don't recall off hand and then - - -

PN36

MS FREEMAN: $731.80.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, it was a C10 wasn't it?

PN38

MS FREEMAN: Yes.

PN39

THE SENIOR DEPUTY PRESIDENT: And people above that rate got $15 a year. So, it did go up the amount that is being sought. But I suppose what I'm concerned about is that Ms Freeman has rightly conceded that it shouldn't have an operative date before 30 April 2004. The question though is - you have indicated economic hardship. Is that going to be charged by 30 April 2004 or not, or don't you know or what?

PN40

MR O'GRADY: Well, we certainly are very quiet up here and one big project that was going ahead has now been cancelled - or delayed indefinitely. And we are really struggling. I mean we're - I would say that the next probably two years will be make or break for the co-op. Very, very difficult - extremely difficult.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, well - - -

PN42

MR O'GRADY: I accept what Janine is saying there, that if we had a bit of prior warning that it was going to happen on 30 April '04, I could try and adjust my prices before then and get them in. I've just given everybody a round of shipping increases and other things up here to cope with that last one. And I increased my carpenters rates and promptly lost all the work so I have no carpenters now. I'm a little bit nervous of increasing the freight again. I could do, but yes it is very difficult.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, do you think though with the starting date being - of this increase being 30 april 2004, you could cope with that.

PN44

MR O'GRADY: Well, it would give me - certainly give me some breathing space, but if you impose this order on me know it would be just devastating, it really would. I'm sorry that I didn't read this. When I first looked at it I saw that it was increasing the meal allowances and other minor matters there and I saw the rate - I didn't check the rate. I looked at those rates and I thought: oh yes, and this was just a - I thought that this was just something confirming out previous agreement. You were tidying up some legal matters or something. I didn't realise that it was another application for a further increase. I certainly didn't expect that.

PN45

THE SENIOR DEPUTY PRESIDENT: Ms Freeman, would you be prejudiced in any way if I perhaps adjourned this matter until October. I intend to visit Christmas Island in October and perhaps I could, on that occasion, hop across to Cocos and I could arrange a telephone hook up to you if you can't be on Cocos and have Mr O'Grady appear in person and if he needs to make any plea about his situation then he can do so. Otherwise, if he is agreeable to the variation taking effect on 30 April 2004, I'll just make the award then?

PN46

MS FREEMAN: No, sir, there will be no prejudice given that we've not had an increase at that point in time. Obviously if we feel strongly about that then we'll put a position to you regarding, you know, if he wants to argue that there is economic incapacity, we need to be aware of that. Probably if you are going to adjourn it in October - until October, prior warning of whether Mr O'Grady intends to argue economic incapacity would be worthwhile. I would hate to make the trip all the way up to Cocos to have - - -

PN47

THE SENIOR DEPUTY PRESIDENT: Oh of course, in fact I would hope if Mr O'Grady doesn't want at that stage to pursue a claim of economic incapacity that he would let us know and it will save me having to make the trip over there as well.

PN48

MS FREEMAN: I'm not - I don't have a problem with that. We have the application on foot and obviously I don't want to be placed in a similar situation that obviously a lot of my colleagues have been placed in, where, you know, we have allowed it to lapse and I think that is where it has placed Mr O'Grady in a difficult situation and us in a situation that we don't see as a particularly good one either. So, I don't have a problem with that as long as there is some prior warning so that if I need to come up to Cocos argue against economic incapacity, then I'll have the capacity to do that.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, yes. Well, Mr O'Grady, what I will do is adjourn this matter to a date in October, which I will give you notice of and I will list it in fact for hearing on Cocos Island. But in the event that you, prior to the date of the hearing, feel that you will not be - or you will be in a position to be able to apply the safety net adjustment from 30 april 2004, and you don't wish to plead economic incapacity at that time. If you could let Ms Freeman and my associate know so that we don't have to make the trip to Cocos Island, that would be very helpful.

PN50

MR O'GRADY: All right your Honour, I shall give it some further thought. Not having had plead that argument before, I'll have to investigation how I would see such a matter. But other than that, if I don't wish to we're saying that if we can introduce it on the 30th of the 4th '04, that would give me another 12 months breathing space and then I know that I'm up for that increase, correct?

PN51

THE SENIOR DEPUTY PRESIDENT: That's right. Well, 30 April 2004, you would have to pay this increase. If you didn't - - -

PN52

MR O'GRADY: And straight away another application would go in for another further increase for the one - - -

PN53

THE SENIOR DEPUTY PRESIDENT: In 2005.

PN54

MS FREEMAN: But in terms of that Alan, at this present time there is a 12 month lag between increases. So, it does give you an ability to manage that.

PN55

MR O'GRADY: Yes.

PN56

MS FREEMAN: That 12 month lag continues unless there is a change in the principles, such that it's not so - such arduous circumstances to have argued before the Commissioner that the 12 months shouldn't apply.

PN57

MR O'GRADY: Sure, yes.

PN58

MS FREEMAN: The Commissioner already gave me an indication that I wasn't going to have success today. So, I doubt that he is going to give me success next year.

PN59

MR O'GRADY: No, no, all right I - that - I appreciate that and I'll just have to dwell upon it a bit more and then I'll have a bit of a come back. So, I will get advice from the Commission saying when they're going to - they're going to adjourn it to a date in October, unless I - I contact somebody beforehand?

PN60

MS FREEMAN: Yes, unless you do.

PN61

THE SENIOR DEPUTY PRESIDENT: Ms Freeman, would you have any objection to me providing to Mr O'Grady, a copy of the relevant principles about safety net adjustments?

PN62

MS FREEMAN: None sir, but they're available on the net in any event, so yes, no I don't have a problem with that.

PN63

THE SENIOR DEPUTY PRESIDENT: Good oh, all right. Well, Mr O'Grady, when I send out the notice of listing we will forward to you a copy of the Commission principles which deal with safety net adjustments so that you might have a better understanding about the 12 month lag and the principle of economic incapacity.

PN64

MR O'GRADY: All right, thanks very much for that, I'd appreciate that.

PN65

THE SENIOR DEPUTY PRESIDENT: All right.

PN66

MS FREEMAN: Sir, I again apologise for not coming down.

PN67

THE SENIOR DEPUTY PRESIDENT: No, that is quite all right. There has been some confusion obviously about the phone - telephone connection. I perhaps should have made it clear that the telephone connection would be made to Cocos Island and not to everybody - just to Cocos Island.

PN68

MS FREEMAN: Yes, no - well considering that I now have an 11 o'clock - I need to get up and come down to the Commission for an 11 o'clock hearing, I think that is quite humorous really.

PN69

THE SENIOR DEPUTY PRESIDENT: Well, that is my misfortune for not having seen you Ms Freeman.

PN70

MS FREEMAN: Yes.

PN71

THE SENIOR DEPUTY PRESIDENT: Okay.

PN72

MS FREEMAN: Thank you very much.

PN73

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN74

MS FREEMAN: See you later.

PN75

THE SENIOR DEPUTY PRESIDENT: Bye now.

ADJOURNED INDEFINITELY [10.35am]