C2003/5330, Transcript of Proceedings [2003] AIRCTrans 4747 (29 October 2003)

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TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C2003/5330

CHILDREN'S SERVICES (VICTORIA) AWARD 1998

Application under section 113 of the Act
by the Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary the
above award re the termination, change and
redundancy test case

MELBOURNE

2.58 PM, MONDAY, 13 OCTOBER 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good afternoon. I'll take the appearances, please.

PN2

MS R. FRENZEL: Good afternoon, your Honour. Ruth Frenzel, appearing for the LHMU in this matter.

PN3

MRS R. WAITE: If the Commission please, I appear on behalf of the Victorian Children's Services Association. My name is Waite, Mrs R.

PN4

THE SENIOR DEPUTY PRESIDENT: Of the Victorian Children's Services - - -

PN5

MRS WAITE: Services Association.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Moloney?

PN7

MR L.E. MOLONEY: If the Commission pleases, Moloney, L E, of Livingstones Australia. I seek leave to appear as agent on behalf of the Australian Childcare Centres Association Union of Employers - with me is MRS ANN YOUNG, the President; and also the Childcare Centres Association of Victoria - with me is MR FRANK KARZMANO, the Chief Executive Officer.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, leave is granted, Mr Moloney.

PN9

MR P. EBERHARD: If the Commission pleases - - -

PN10

THE SENIOR DEPUTY PRESIDENT: I'm sure nobody objects.

PN11

MR MOLONEY: I should hope not.

PN12

MR EBERHARD: I'd better not stand up, then. If the Commission pleases, Eberhard, initial P, from the Victorian Employers' Chamber of Commerce and Industry, and I appear on behalf of the respondent members to this award.

PN13

THE SENIOR DEPUTY PRESIDENT: And you don't object? Yes. Yes, Ms Frenzel, this is a consent application, as I understand it?

PN14

MS FRENZEL: Yes, that's right, your Honour. The parties have had fruitful discussions regarding this matter. I might just briefly take the Commission to the background of the matter, and indicate that the Children's Services Victoria Interim Award 1994 in fact contained the transmission of business provision in the TCR - or, sorry, in the redundancy provision of that award. I'll tender a copy of the award, with the spot marked for the ease of the Commission.

PN15

THE SENIOR DEPUTY PRESIDENT: That's the current award?

PN16

MS FRENZEL: No, that's the former - - -

PN17

THE SENIOR DEPUTY PRESIDENT: The former award.

PN18

MS FRENZEL: - - - pre-simplified award.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MS FRENZEL: And the relevant clause is clause 13.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes.

PN22

MS FRENZEL: And you'll see at the bottom of page 10, (c), and that's the transmission of business provision as it existed in the 1994 award. The award was simplified and, unfortunately, as has happened with a few awards, the transmission of business provision was simplified out of the award, which was a bit unfortunate, but nonetheless - - -

PN23

THE SENIOR DEPUTY PRESIDENT: I'm glad to see that the member involved was not me. Yes?

PN24

MS FRENZEL: So what the application seeks to do, obviously, is to insert the now simplified provision with respect to transmission of business in the redundancy clause back into the award. I will tender a draft order which has got some amendments on it - mainly numbering and grammatical amendments, which are agreed between the parties as well.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes. Have you seen the letter from Kindergarten Parents Victoria Incorporated?

PN26

MS FRENZEL: No, I haven't, your Honour.

PN27

THE SENIOR DEPUTY PRESIDENT: They seem to note - well, they consent to the application. They also note that re-numbering needs to be dealt with, and they also say this:

PN28

Employees with less than one years' service: I also raised this issue with the LHMU last week -

PN29

This is a letter from Mr Plungers, and it's dated 13 October.

PN30

I also raised this issue with the LHMU last week, and I've not as yet received any indication if the LHMU will be seeking to have this sub-clause also inserted into the award, as derived from the TCR test case statements are made that employees with less than one year's service have no entitlement to the provisions covered by the TCR provisions, other than informing those employees of the impending redundancy. Similar provisions appear in -

PN31

and a couple of awards are set out -

PN32

I have requested the LHMU to consider inserting such a sub-clause into their application. However, I have not be informed whether or not the LHMU consented to my request.

PN33

And then there's an apology for not attending, and so on.

PN34

MS FRENZEL: I might deal with that matter first, your Honour, and indicate that Mrs White raised the same issue with me prior to the hearing, and I drew her attention to clause 13.3.1 of the 1998 Children's Services Award, which sets out the entitlement to severance pay based on years of service, and it says, "One year or less"- - -

PN35

THE SENIOR DEPUTY PRESIDENT: Yes.

PN36

MS FRENZEL: - - - and then it says, "Nil", and we say that's perfectly covered by that: somebody with - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MS FRENZEL: - - - with one year or less service is not going to get an entitlement under this award to any severance pay, and we think that deals with the KPV matter.

PN39

THE SENIOR DEPUTY PRESIDENT: I'm not so sure, but seeing that they haven't bothered to attend, I don't know. They seem to talk about all of the provisions other than an entitlement to be informed, so there are other parts of the redundancy clause that would have application to people with less than one year's service, unless such a statement was inserted - transfer to lower paid duties, employees leaving during notice period, and so on. But I take it that that's not part of the application that's in front of me?

PN40

MS FRENZEL: No, that's right.

PN41

THE SENIOR DEPUTY PRESIDENT: And none of the employers represented seek such a clause?

PN42

MS FRENZEL: Well, I'm not sure about the - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Well, we'll find out.

PN44

MS FRENZEL: - - - the employers themselves, but my view would be that, if the employers want that provision in, then they should make an application to insert the provision.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes.

PN46

MS FRENZEL: Now, the draft order we've tendered, your Honour, has a few handwritten changes, somewhat hurried, I might add, handwritten changes arising out of discussions between the employers and myself. Firstly, we're seeking to insert a new clause, 13.11, so we're putting the transmission clause at the end of the provision.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes.

PN48

MS FRENZEL: And then obviously the subsequent numbering with respect to the insertion of clause 13.11; and then there's also, consistent with the simplified transmission of business privilege and redundancy clauses, the deletion of the word, "on", in the new clause 13.11.1.

PN49

THE SENIOR DEPUTY PRESIDENT: Yes, I see that.

PN50

MS FRENZEL: And the deletion of the word "shall" in 13.11.2.

PN51

THE SENIOR DEPUTY PRESIDENT: Yes.

PN52

MS FRENZEL: And the amendment of the word "include" to now read "includes".

PN53

THE SENIOR DEPUTY PRESIDENT: Yes, I see that. Thank you.

PN54

MS FRENZEL: And we say this very briefly in support of the LHMUs application: that, firstly, it is the implementation of a test case. It was somewhat unfortunate the award didn't have this provision inserted, or remain in it when it was simplified, but this isn't the first award I've come across with this problem. The Security Employees (Victoria) Award also had the same problem.

PN55

And it appears that around that time, in 1998, when these awards were being simplified, some parties believed that transmission of business provisions of the Act applied, and effectively the transmission of business provision in the Redundancy clause wasn't necessary, whereas if you look at later simplified awards, such as, for example, the Building Services Award, which the Commission as presently constituted did, the transmission clause remained firmly in the redundancy clause, because by then people had realised that the transmission clause in the award operates somewhat differently to the transmission provision in the Act.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, the transmission provision in the Act means that a new employer, a transmittee of the business, is bound by the award is a completely different - - -

PN57

MS FRENZEL: That's right.

PN58

THE SENIOR DEPUTY PRESIDENT: It has a completely different effect to the clause that is sought to be re-inserted into this award.

PN59

MS FRENZEL: That's right.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MS FRENZEL: And that was what we've come across. So, your Honour, we'd say this firstly: that it does comply with the wage-fixing principles with respect to the implementation of a test case provision; secondly, it was an inadvertent omission at the time of simplification; and thirdly, the employees' interests are not compromised in any way by the insertion of this clause, and finally, it is consistent with section 89A(2) of the Act, and on that basis I would commend the application to the Commission.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Frenzel.

PN63

MS FRENZEL: Thank you, your Honour.

PN64

THE SENIOR DEPUTY PRESIDENT: Mrs Waite?

PN65

MRS WAITE: Yes, your Honour, if the Commission pleases, I note that that clause that KPV mentioned to you, it was our thoughts that it should also go back in. I note it's been there for a very long time in the redundancy clauses. I found in my old files, the 1988 award, when it was in the Day Childcare Workers' Award, going back, even then, but it's not a matter that I think our association would wish to hold up these proceedings as a consent matter, as far as we're concerned.

PN66

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN67

MRS WAITE: Thank you.

PN68

THE SENIOR DEPUTY PRESIDENT: Mr Moloney?

PN69

MR MOLONEY: Yes, your Honour, the application relies on the past award provisions, the TCR decision of 2 August 1984, as well as section 89A(2)(m) of the Act. The wording that you've been provided with in the draft - or the amended draft order - is consistent with the current clause adopted by the Commission, in conjunction with the wage fixation principles, and we'd leave the decision to the Commission's determination. If the Commission pleases.

PN70

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Eberhard?

PN71

MR EBERHARD: Your Honour, with the changes that have been made there through discussions prior to the formal proceedings occurring, VECCI would not be opposing the application as sought by the LHMU in these particular proceedings.

PN72

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I'll mark the correspondence from Kindergarten Parents Victoria Incorporated as exhibit KPV1.

EXHIBIT #KPV1 CORRESPONDENCE FROM KINDERGARTEN PARENTS VICTORIA INCORPORATED

PN73

THE SENIOR DEPUTY PRESIDENT: And despite the matters that are raised in that letter, I will make the variation as sought by the union, with the changes indicated. I'll mark the draft order that Ms Frenzel handed up as exhibit LHMU1, and the order will be made in those terms, operative from today's date.

EXHIBIT #LHMU1 DRAFT ORDER

PN74

THE SENIOR DEPUTY PRESIDENT: Unless there's anything else, we'll adjourn.

ADJOURNED INDEFINITELY [3.09pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #KPV1 CORRESPONDENCE FROM KINDERGARTEN PARENTS VICTORIA INCORPORATED PN73
EXHIBIT #LHMU1 DRAFT ORDER PN74