C2003/2568, Transcript of Proceedings [2003] AIRCTrans 3354 (7 August 2003)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 3819

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2003/2568

THE INGHAMS ENTERPRISES PTY LIMITED
SUPERANNUATION AWARD 1987

Application under section 113 of the Act
by National Union of Workers to vary the
above award re wages and conditions of
employment

MELBOURNE

1.05 PM, WEDNESDAY, 23 JULY 2003

Continued from 26.6.03

PN12

MR P. RICHARDSON: I appear on behalf of the National Union of Workers.

PN13

MR K. HARVEY: I appear on behalf of the Australian Services Union.

PN14

MR L. REES: I appear on behalf of the Australian Manufacturing Workers Union.

PN15

THE VICE PRESIDENT: Thank you. Mr Richardson, where is this matter up to?

PN16

MR RICHARDSON: Your Honour, I am unsure. Perhaps if I could just, in the first instance, detail the actions of the union since we were last before you. When we were last before you there was some discussion in conference and then subsequently some directions from the Bench. The effect of those directions was for the union to serve a further notice in respect of today's hearing upon each of the respondents to the award. You may recall that the award in its current form identifies some 15 or so organisations, most of which are now other organisations by virtue of amalgamations and deregistrations and the like.

PN17

Specifically, in addition to serving the notice upon what the union believes to be the current organisations with an interest in the award, the union was asked to make at least those organisations that weren't based in Melbourne aware that a video conference facility would be arranged if necessary. An affidavit that was filed on 7 July and sworn by Mr Sword of the union on the same date should appear upon the file attesting to those actions. Since that time the union has received communication only from two organisations, and I omit the organisations that appear at the bar table from that number.

PN18

Firstly, from the Australian Workers Union, they forwarded a copy of correspondence to your chambers indicating that they had no objection to the application but would not be present and, secondly, about 30 minutes ago a phone conversation with the CEPU indicating consent but raising one minor issue. So in terms of the unions that are respondent to the award, certainly my organisation is unaware of any objection.

PN19

In terms of the employer, who you may recall on the last occasion was represented by Mr Jones as an agent, I can indicate to the Commission that yesterday afternoon I had a final conversation with Mr Jones, where he indicated consent to the variation and I was led to believe from that conversation that given that he was Brisbane based, he would communicate that consent to the Commission and would not attend. Now, in discussion with your associate I have been made aware that there is no communication. So I am unsure, well, in the first instance I am unsure as to how we should proceed, that perhaps that could be explored.

PN20

THE VICE PRESIDENT: Well, in terms of Mr Jones' position we can make inquiries and ask that he confirm in writing the position on behalf of the employer respondent. But perhaps initially if we hear from the ASU and the AMWU about their position.

PN21

MR RICHARDSON: If the Commission pleases.

PN22

THE VICE PRESIDENT: Thank you. Mr Harvey?

PN23

MR HARVEY: Your Honour, the ASUs position is that it supports the application to vary in the terms of the draft order which was previously provided. Mr Richardson has provided another one this afternoon. I am not sure what the substantive difference is but just subject to checking that, we are happy to consent to a variation of the award in the terms sought by the NUW and apparently agreed to by the employer. If the Commission pleases.

PN24

THE VICE PRESIDENT: Thank you, Mr Harvey. Mr Richardson, have you got a copy; is there a new draft order?

PN25

MR RICHARDSON: Yes. If I could tender that, and in doing so indicate that it just simply seeks to correct two typographical errors.

PN26

THE VICE PRESIDENT: Does it take care of the CEPUs concern?

PN27

MR RICHARDSON: No, it doesn't.

PN28

THE VICE PRESIDENT: Perhaps if you would go to that before I hear from the AMWU. I am sorry, I will mark the new draft order.

EXHIBIT #NUW1 NEW DRAFT ORDER

PN29

MR RICHARDSON: Your Honour, the concern raised by the CEPU goes to the proposed definition of ordinary time earnings and that is, in essence, at the heart of the application, it goes to the heart of the application itself. The draft order defines ordinary time earnings in a manner that we say is consistent with the hospitality decision in print P7500 at pages 19 and 68. The concern raised by the CEPU is that they believe that the definition of ordinary time earnings should also extend to allowances that are work related, by way of example, a leading hand allowance.

PN30

That is a matter that the union generally concurs with but did not wish to express a view about to any finality with the CEPU, given that Mr Jones had previously indicated consent to the order in the form as previously discussed. It would be, subject to these proceedings, the view of the NUW that if the Commission were mindful to grant this variation subject to Mr Jones' confirmation, that the matter could always be recalled or a subsequent application made to address the CEPUs concern. If the Commission pleases.

PN31

THE VICE PRESIDENT: All right. Thank you. Mr Rees?

PN32

MR REES: Your Honour, along the same lines as Mr Harvey's remarks, the AMWU supports the NUWs application and the order as it is currently in NUW1. I take note of the comments that Mr Richardson has raised in relation to the CEPU and note that the ordinary time earnings definition in the Metal, Engineering and Associated Industries Superannuation Award 2000 does make mention of tool allowance, leading hand allowance and the like.

PN33

Given that Mr Jones isn't here today - I don't have any instructions on that but given Mr Jones isn't here today and I don't have any instructions about our position as it stands for the Inghams Enterprises Superannuation Award, we are happy to have the order varied in the terms that Mr Richardson has put forward and if it means down the track that we will need to vary that order, then we deal with it then. If the Commission pleases.

PN34

THE VICE PRESIDENT: Okay. Thanks. Mr Richardson, just in the way in which the work related allowance issue has been raised, I wonder if this course might be appropriate - well, I can give you two options, if you like. I would indicate that on confirmation from Mr Jones as to the company's position I would grant the application and issue an order in the form sought in NUW1. I am satisfied it is consistent with the relevant test case provisions. But given the issue that has been raised as to work related allowances, the alternative course would be to provide you with an opportunity to raise that with Mr Jones and seek to get a resolution on that issue and then forward an amended draft order if you do reach an agreement with him, or with the company, to include the work related allowances point that has been raised. That would obviate the need for any further proceedings to vary it if a party wishes to at some time in the future.

PN35

MR RICHARDSON: Your Honour, I think that would be an appropriate course of action. I think that the only issue - there is certainly no disagreement, as I have indicated, from the NUW that the definition of ordinary time earnings could encompass such allowances. The issue, though, is that by inserting the definition as proposed in exhibit NUW1, it does actually result in an increase in costs to the employer, given the current definition of ordinary time earnings within the award, and that award operates to the exclusion of, for want of a better term, each of the industry awards.

PN36

So it would seem prudent to discuss with Mr Jones on behalf of the company whether the issue of work related allowances results in a cost impact. I am confident that that can be resolved and perhaps we can undertake to advise the Commission within seven days of today's date. If the Commission pleases.

PN37

THE VICE PRESIDENT: Mr Harvey, I might just check something with you, and forgive my ignorance in relation to this, but what is the ASU's full title?

PN38

MR HARVEY: It is the Australian Municipal, Administrative, Clerical and Services Union.

PN39

THE VICE PRESIDENT: Okay. Because the organisation listed in appendix A, which is presumably the ASU, the Allied Services Union of Australia.

PN40

MR HARVEY: I think we are there.

PN41

THE VICE PRESIDENT: I see. You are in the second from the top.

PN42

MR HARVEY: Yes. Australian Services Union, which is sort of our trading name.

PN43

THE VICE PRESIDENT: I see. And it is the CEPU and Allied Services Union trading name, yes, much like the National Union of Workers presumably.

PN44

MR HARVEY: Yes. It is probably better actually to have the full name in there.

PN45

THE VICE PRESIDENT: Well, I think that is probably right because the full name of the CEPU is in there.

PN46

MR RICHARDSON: If Mr Harvey gives it to me, I will gladly insert it.

PN47

THE VICE PRESIDENT: All right. Well, I can leave that to you to give some consideration to as well. Just in relation to the cost impact, does that mean that this is a matter that I should bring to the President's attention under principle 10?

PN48

MR RICHARDSON: Your Honour, it would be our submission that there would be no need. The application, as we have indicated, and the draft order are consistent with several Full Bench decisions, including the Hospitality decision, but also print L5100, being the superannuation test case. Whilst it does seek to vary the definition of ordinary time earnings, it doesn't, in effect, create an entitlement that would be above the award safety net or above the relevant decisions in respect of superannuation. As such, we would say it is unnecessary. If the Commission pleases.

PN49

THE VICE PRESIDENT: Thank you. Well, Mr Richardson, I will adjourn it on this basis, that I will wait to hear from you about the outcome of your discussions with Mr Jones. In the event that you reach an agreement with him that has the effect of expanding the definition of ordinary time earnings to include work related allowances, then I would issue an order in those terms. If not, then I would issue an order in the terms of NUW1.

PN50

I think I can safely take it that if you do reach an agreement with Mr Jones as to an expanded definition, it is highly unlikely there would be any objection from any of the union respondents to the award. So I don't think there is a need to separately serve in that regard and if their interest was sufficiently excited then I would have heard from them by now. So I will adjourn on that basis and wait to hear from you. Thank you.

ADJOURNED INDEFINITELY [1.17pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 NEW DRAFT ORDER PN29