C2003/4257, Transcript of Proceedings [2003] AIRCTrans 3399 (13 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 3876
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2003/4257

WOOL SCOURERS AND CARBONISERS AWARD 1987

Application under section 113 of the Act
by Benalla Properties Pty Ltd trading as
Melbourne Scouring Company Pty Ltd to
vary the above award re Benalla
Properties

MELBOURNE

10.05 AM, MONDAY, 28 JULY 2003

Continued from 16.7.03 (Not Transcribed)

PN1

MR C. HARTIGAN: I seek leave to appear on behalf of Benalla Properties.

PN2

MR C. WINTER: I appear on behalf of the Australian Workers Union.

PN3

THE VICE PRESIDENT: Let us go to Mr Hartigan. Can you tell me where the matter is up to?

PN4

MR HARTIGAN: Yes, your Honour. Following the conference before yourself there was a further meeting at the site and discussions with the Australian Workers Union and I might hand up an amended letter of offer that my friend has.

PN5

THE VICE PRESIDENT: Do you want me to mark that?

PN6

MR HARTIGAN: If you would, your Honour, I don't believe we have any exhibits.

PN7

THE VICE PRESIDENT: No, we don't.

EXHIBIT #A1 AMENDED LETTER OF OFFER

PN8

MR HARTIGAN: You have a copy of two identical letters, your Honour, and if you just turn to the second page of the first one, which is the letter of offer to Tony Johnston, you will see at paragraph 2 there is a change where it says, it is, "Store worker grade 2", and if you will recall these workers are forklift drivers. It is clarified there that the core duties of work in the offered position would be forklift driving.

PN9

THE VICE PRESIDENT: Right.

PN10

MR HARTIGAN: In the employment status you see that the commencement date is now nominated to be 4 August, which is next Monday. Under paragraph 7 there was a paragraph indicating - which is part of general conditions for other workers - that the employee might be required to work a variety of shifts and the employer, Melbourne Logistics, has agreed to delete that so to clarify that and that their hours of work will be 7 am to 3.30 pm which is under point 4. Under Redundancy, there is a change which says that:

PN11

...if they are made redundant within a period of two years from the date of commencing employment, or upon the certification of the next certified agreement for the Melbourne Logistics site, whichever is the latter...

PN12

And I think it is anticipated to be in about two years from the middle of this year - is the renegotiation, but as we note, renegotiation sometimes takes a little bit of time. So that gives them a sunset clause on the higher redundancy payout figure of 60 weeks per year if they qualify for that. Now, there was a meeting last week where this was discussed and Mr Collett who is here again today from Melbourne Logistics says he has met again with the workers today and it is his understanding that broadly there is clear understanding of it.

PN13

He doesn't actually have those signed letters back which, as we know, is not necessarily the point but the letters and offers have certainly been amended and the workers now have the opportunity to consider them. I, just for the purposes of the record, ask that the witness statement of Susan Rechenberg-Dupe be marked as an exhibit, your Honour, which explains the background of the offers prior to the conference. Do you have a copy of that?

PN14

THE VICE PRESIDENT: Yes, I do.

EXHIBIT #A2 WITNESS STATEMENT OF SUSAN RECHENBERG- DUPE

PN15

THE VICE PRESIDENT: I take it, in view of the agreement between the parties, there is no desire to cross-examine the witness?

PN16

MR WINTER: No, your Honour.

PN17

THE VICE PRESIDENT: Thanks.

PN18

MR HARTIGAN: Now, one further thing I would like to hand up, your Honour, which is a draft order - - -

PN19

THE VICE PRESIDENT: Is that different from the one that you filed earlier?

PN20

MR HARTIGAN: It was, following the conference. There is one minor amendment to it, your Honour.

PN21

THE VICE PRESIDENT: Yes?

PN22

MR HARTIGAN: And the amendment is under paragraph (b) where it says:

PN23

This order shall come into force from 1 July 2003 and shall remain in force for a period of three months, at which time the order will cease to have effect.

PN24

which, I understand - - -

PN25

THE VICE PRESIDENT: So the idea is that it, rather than by force of section 143 of the Act continuing to operate after its nominal term, it will cease on the expiry of the three months. Is that the position?

PN26

MR HARTIGAN: That is correct, your Honour. Might we mark that as an exhibit? Is that necessary or - - -

PN27

THE VICE PRESIDENT: I am happy to.

EXHIBIT #A3 DRAFT ORDER

PN28

MR HARTIGAN: So just in brief summary, your Honour, it is certainly the applicant's intention only to limit this application to this specific circumstance. It is the intention of Benalla Properties purely to organise ongoing employment for these employees, if possible, and, as we discussed last time - it may have been in conference - that the offers of employment actually include the possibility, through retraining, to something like $150 a week higher salary for them performing forklift duties, combined with higher base rates plus the possibility of bonus payments that I am instructed most of the workers already obtain; that the company, Melbourne Logistics, where the offer comes from, is an associated company; it is not a controlled entity of the current employer but it is an associated company.

PN29

Benalla Properties has procured very directly this offer of employment. So in the circumstances, it meets all of the necessary prerequisites for the purpose of obtaining the variation of the award. But I just stress that my client's primary intention is, if possible, to obtain ongoing employment for the relevant workers and the offer of employment is indicative of that situation. In those circumstances and, as I understand, with the consent of the union, it would be our submission that the variation of the award should be made.

PN30

THE VICE PRESIDENT: Thank you, Mr Hartigan. I have only got one question. The draft order, exhibit A3, is to come into force from 1 July 2003. Is there a reason for retrospectivity in this case or would it be sufficient if it was to operate from today's date?

PN31

MR HARTIGAN: I think now, in the circumstances, the two relevant people are still employed, so there is no particular moment with that. I think the original form of the order was related to when the original application was made. So we would certainly have no objection to it being today's date.

PN32

THE VICE PRESIDENT: Thank you. Mr Winter?

PN33

MR WINTER: Thank you, your Honour. I can confirm after some discussions with the company that the two employees concerned in relation to this matter have accepted the offer of alternative employment based on terms and conditions outlined in exhibit A1 that Mr Hartigan has gone through, including the variations in relation to A1. I also note that there has been the variation to the draft order as outlined in A3 and that the draft order shall remain in force for a period of three months, at which time the order will cease to have any effect. It is clear that one of the issues in dispute was any ongoing association with this application. Now that the two matters have been resolved, we would support the variation outlined in the draft order, A3. If your Honour pleases.

PN34

THE VICE PRESIDENT: Thank you. Well, I am satisfied on the material before me that, firstly, I have jurisdiction to make the order in the terms sought and, secondly, the merits support the making of the order in those terms. I am satisfied that the order sought is consistent with the relevant test case standard and within the scope of the statement of principles. I will issue an order in the form sought as set out in exhibit A3. The order will come into force from 28 July 2003 and remain in force for a period of three months, at which time the order will cease to have effect. There is nothing further. Thank you. I will adjourn.

ADJOURNED INDEFINITELY [10.13am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AMENDED LETTER OF OFFER PN8
EXHIBIT #A2 WITNESS STATEMENT OF SUSAN RECHENBERG-DUPE PN15
EXHIBIT #A3 DRAFT ORDER PN28