C0075/898, Transcript of Proceedings [2003] AIRCTrans 4250 (29 September 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C No 00758 of 1998
C No 00769 of 1998

AUSTRALIAN DEFENCE FORCE ACADEMY (GENERAL STAFF)(UNIVERSITY COLLEGE)(INTERIM) AWARD 1988

METALS AND ENGINEERING WORKERS' UNION - AUSTRALIAN DEFENCE FORCE ACADEMY (UNIVERSITY COLLEGE)(INTERIM) AWARD 1988
Y
Review under Item 51, Part 2 Schedule 5,
Transitional WROLA Act 1996 re award
simplification

SYDNEY

9.38 AM, WEDNESDAY, 10 SEPTEMBER 2003

Continued from 30.7.03

Adjourned Sine Die

PN113

THE SENIOR DEPUTY PRESIDENT: Are there any variations in this matter?

PN114

MR K. McALPINE: If it please the Commission, I seek leave to intervene.

PN115

THE SENIOR DEPUTY PRESIDENT: Yes, Mr McAlpine. Any other changes? What's the attitude to that application, Mr Clarke?

PN116

MR CLARKE: We have no objection to any intervention, your Honour.

PN117

THE SENIOR DEPUTY PRESIDENT: Is there any objection from any of the union parties?

PN118

MR MENDELSSOHN: No, your Honour.

PN119

THE SENIOR DEPUTY PRESIDENT: Very well, granted Mr McAlpine. Who's going to lead off?

PN120

MR CLARKE: Your Honour, I'll lead off it you like.

PN121

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Clarke.

PN122

MR CLARKE: I believe that not much has changed since our last meeting on 30 July, your Honour. It's my understanding at the conclusion of that hearing it was agreed between the parties that all matters have been resolved in terms of the content of the award and that the only matter except one matter which related to the relationship of the HECE Award, with the particular award that is to be made, and it was agreed between the parties and your Honour that we would accept whatever decision emanates from the University of New South Wales General Staff Award and apply that decision in respect of that particular award.

PN123

Other than that, at this stage, there may be other matters come to light as a result of us hearing the next matter that may impinge on the ADFA Award, but I wouldn't like to make any further comment than that at this stage.

PN124

THE SENIOR DEPUTY PRESIDENT: So I take it from that that what you would see is the appropriate course is for these matters to be adjourned to a date which we will sort out later on today and at that stage what's to happen will be clearer.

PN125

MR CLARKE: I think that is the position, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: One other matter, just before you go on, is the position of the parties still that it should be possible for there to be one award to replace the two awards that - - -

PN127

MR CLARKE: Yes, as I understand it, your Honour. Your Honour, I would hope though that the parties may be in a position later today to have the award made. I'm not sure, but there is a possibility of that occurring. I guess we will wait and see what happens.

PN128

THE SENIOR DEPUTY PRESIDENT: All right, thank you, Mr Clarke. Mr Mendelssohn?

PN129

MR MENDELSSOHN: Yes, thank you, your Honour. There's only one qualification I would wish to make to what Mr Clarke has told your Honour and otherwise I concur with what he said. But that is that at some stage on the last occasion, I couldn't find it in the transcript, so perhaps your Honour said it when we were in conference, but your Honour asked the question of whether the fact that one was being done as an application under section 111(1)(b) of the Act and the other was being done straightforwardly as an item 51 review, whether that made any difference.

PN130

THE SENIOR DEPUTY PRESIDENT: The ADFA one.

PN131

MR MENDELSSOHN: On reflection I've come to the view that it does, but I think that is a matter which perhaps we could, in relation to the ADFA Award, see if we can resolve in conference if that is in fact still a live issue at that point.

PN132

THE SENIOR DEPUTY PRESIDENT: Is that likely to emerge today?

PN133

MR MENDELSSOHN: Well, I suppose it depends, really, your Honour, on what your Honour decides in relation to the issues still in contention in relation to the University of New South Wales Award. If your Honour goes one way, then the issue in relation to ADFA disappears. If your Honour goes the other way, the issue in relation to ADFA then becomes a live one and at that stage I would be suggesting the parties perhaps go into conference under your Honour's chairmanship to see if we can resolve it.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, I've gleaned from that Mr Mendelssohn, that as far as the CPSU is concerned what happens in the University of New South Wales matter is still primary, in the sense of coming first, significance in relation finally dealing with the ADFA matters.

PN135

MR MENDELSSOHN: Yes, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Kentish?

PN137

MR KENTISH: Your Honour, the AMWU agrees with and supports the submissions which have just been put by the CPSU.

PN138

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Kentish. Yes, Mr McAlpine?

PN139

MR McALPINE: Yes, the NTEU agrees with what Mr Mendelssohn said.

PN140

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN141

MR CLARKE: Your Honour, could I make one further statement? I'm not sure this is relevant because I haven't had a chance to read it, but I think there was a statement made in your decision of 21 November 2001 in regard to the simplification of the HEGS Award. At paragraphs 52 and 53 - - -

PN142

THE SENIOR DEPUTY PRESIDENT: What is the print number, Mr Clarke?

PN143

MR CLARKE: Print number PR911627 and, bear with me, I'm not sure the context in which it was made, but in your decision at paragraph 53 your said:

PN144

The procedure outlined by the Full Bench in the paid rates review decision ...(reads)... conferred by section 111(1)(b).

PN145

Now, I don't know whether that address is the particular issue to which you're referring.

PN146

THE SENIOR DEPUTY PRESIDENT: I think it opens it, but I don't think it addresses it, if you understand that. I think it acknowledges that the point is there, but it doesn't rule one way or another.

PN147

MR CLARKE: No, but I think it gives you that discretion, does it not?

PN148

THE SENIOR DEPUTY PRESIDENT: Subject to argument. All I was doing, I think, in that decision and that's reaching a bit far back for me, is opening up the possibility that that could be a matter that would be subject to further discussion.

PN149

MR CLARKE: I just make that point.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes, it's consistent with what Mr Mendelssohn has said, that there's obviously been in my mind at least a continuing interest in the possibility that there's a difference between an item 51 proceeding and a section 111(1)(b) whether it's initiated by a party or whether section 33 is relied on. I think that the end result of that report is that I should adjourn these matters with a view to subsequently fixing a date for further report or further conference or whatever emerges as a result of our consideration of the following matter in the list which I will now have called.

ADJOURNED INDEFINITELY [9.46am]