C2003/4271, Transcript of Proceedings [2003] AIRCTrans 5373 (4 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 4404

A: 3.12.03

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT MARSH
COMMISSIONER DEEGAN

C2003/4271

CHILDREN'S SERVICES (VICTORIA) AWARD 1998

Application under section 113 of the Act
by Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary the
above award

MELBOURNE

12.09 PM, THURSDAY, 28 AUGUST 2003

PN1

MS V. ILIAS: I appear on behalf of the LHMWU, along with MR B. DALEY, Secretary of the Victorian Branch of the LHMWU.

PN2

MRS R. WAITE: I appear on behalf of the Victorian Children's Services Association.

PN3

MR D. MORPHETT: I appear on behalf of the Victorian Private Childcare Association.

PN4

MR P. EBERHARD: I appear for the Victorian Employers' Chamber of Commerce and Industry. I appear on behalf of those members respondent to this award.

PN5

MR R. CORBOY: I appear for the VHIA on behalf of our respondent members.

PN6

MR D. PLOENGES: I appear on behalf of Kindergarten Parents Victoria, an organisation seeking leave to appear on behalf of our members who are respondent to the award.

PN7

MR L. MOLONEY: I seek leave to appear as agent on behalf of the Australian Childcare Centres Association and also the Childcare Centres Association of Victoria.

PN8

THE VICE PRESIDENT: Thank you. Anybody else? Is there any objection to any of the applications for leave to intervene or leave to appear?

PN9

MS ILIAS: No, your Honour.

PN10

THE VICE PRESIDENT: Leave is granted in each case. As was indicated, the matter has been listed for short mention primarily to raise two issues. The first is, as we understand it, in the proceedings at first instance or, rather, below, before the referral, there was a programming schedule which had been tabled by the LHMU and marked as exhibit LHMU3. There was no agreement as to that program or schedule at that time, so there is the issue of the programming of this matter, including matters going to evidence, the exchange of witness statements, inspections, if any, how many and where, etcetera, as well as if after the evidentiary case then there are written submissions and an opportunity for oral argument. So that is the compass by - what I mean by the programming of the matter.

PN11

The second issue relates to correspondence that has been drawn to our attention regarding a matter in relation to the ACT award. I think it is one of the employer interests in those proceedings raising a question about the joinder of that matter with this matter. I think a difficulty in that regard is there is nothing we can do about that at this stage. A Full Bench can't as it were just pluck a first instance matter, no matter what the connection, with the matter before the Full Bench.

PN12

If the parties interested in the ACT matter want to pursue that issue, then an option for them would be - I think one section 107 application has already been made, but to make a further 107 application and drawing attention to the fact that this matter has been referred to a Full Bench, if that is done, it will be a matter for the President. If the President decides to refer it to a Full Bench, again it will be a matter for him as to whether to refer it to this one or a differently constituted Full Bench, but those are issues you could canvass in a 107 application dealing with that matter.

PN13

In relation to the general programming, we will provide you with an opportunity to say whatever you wish to say shortly. At the moment we don't intend to determine any program at this stage. What we propose to do is to give you a short opportunity to express a view. We have discussed the matter with Commissioner Smith who has some knowledge of the municipal childcare proceedings and he has indicated a preparedness in a facilitative way to have a conference of all of the interested parties with a view to reaching an agreed outcome as to the programming issues that I mentioned before.

PN14

The Commissioner would also be available for conciliation on the substantive application if the parties wanted to avail themselves of that, but certainly we see some utility in the parties, as it were, sitting around a table with a facilitator to come up with an agreed position in respect of the programming schedule, so with those preliminary remarks, is there anything any party wishes to say about the position that they might have or concerns they might have about the programming at this stage or, indeed, if they have any concerns about anything else I have mentioned? Ms Ilias.

PN15

MS ILIAS: Yes, your Honour, it was my intention to actually put up an alternative to our program schedule that was presented to Commissioner Deegan at the last hearing. What I have endeavoured to do was extend the period of time for lodgment of evidence to a 12-week turnaround period, so to allow the parties and the respondent parties a bit more time in preparing their evidence.

PN16

THE VICE PRESIDENT: It would be useful to tender that, then the other parties will be in a position of at least knowing where you are coming from and they can respond appropriately. I don't think we need to mark that at this stage.

PN17

MS ILIAS: The only other thing at this stage, your Honour, is that the list of services that was presented to Commissioner Deegan at the last hearing is the list of centres that we still require inspections from the bench.

PN18

THE VICE PRESIDENT: Does anyone else have a preliminary view they wish to express? Bearing in mind we won't be determining anything at this stage, but if there is anything you wish to say, you should feel free to do so.

PN19

MR MORPHETT: If it please the Commission, the letter that has been forwarded to the Commission and representing one of the organisations in the ACT who has an interest in that matter and certainly our inquiry from the ACT was one simply based around the fact that since Commissioner Deegan has received both submissions from both parties and has already programmed that matter to be heard in October that since the issues extensively are the same and, indeed, the application made in the ACT and substantially the application made in Victoria are very similar. I don't have any instructions right now as to whether or not to seek a 107 at this point in time, so I will have to go and get instruction on that.

PN20

THE VICE PRESIDENT: In any event, any of those applications would be directed to Commissioner Deegan rather than this bench.

PN21

MR MORPHETT: And certainly we had had some preliminary discussions with some of the employers in Victoria and we were going to make a suggestion and I will put that on the table to see if any of the other parties are interested or even if the Full Bench is prepared to even considered it. Fundamentally, this case builds around the 1990 case that dealt with establishing external and internal relativities in the childcare industry.

PN22

Having looked at that case pretty extensively dealing with the ACT matter, that matter was dealt with initially by Commissioner Lange in terms of carrying out investigations and gathering information and taking that information back to the Full Bench and then the Full Bench progressing the matter from there and since Commissioner Deegan has dealt with the matter in the ACT and has also been dealing with up to this point in time the matter in Victoria, we were wondering if we might be so bold as to suggest that perhaps that might be a way forward in a similar way.

PN23

THE VICE PRESIDENT: I am not sure how enthusiastic Commissioner Deegan is likely to be about that, but certainly by all means raise the issue and we can hear from the other parties. It is probably a little early to deal with that issue now. We wouldn't need to make any determination about how the evidence is to be dealt with. I think at this stage we need to set down some sort of program, whether it is for three of us on the inspections or one or whatever is a matter that we can give consideration to, but have you had an opportunity to discuss that issue with anyone at this stage?

PN24

MR MORPHETT: Only with one of the other principal representatives and, of course, I guess the substance of our concern from the ACT is that part of the combined employer submission was an initiation of some discussions or a suggestion as to a way forward in terms of a negotiated settlement of the issues and certainly to address if not all of them, then a majority of them and we were concerned that if we don't - with the advent of the Full Bench in Victoria, that tends to stymie those sorts of discussions in the ACT and also, of course, the added costs to all parties in running ostensively the same argument in two different locations at the same time.

PN25

THE VICE PRESIDENT: Yes, I can understand the concern. I was really just relaying our inability to do anything about it and that there is another avenue that I think you would need to explore if you wanted to pursue that issue.

PN26

MR MORPHETT: Yes, thank you.

PN27

THE VICE PRESIDENT: Anybody else at this stage?

PN28

MRS WAITE: If the Commission pleases, when we appeared before Commissioner Deegan a couple of weeks ago, there was discussion about the number of services, licensed services and I have the information from the Department of Human Services which I thought it might be useful to hand to you.

PN29

THE VICE PRESIDENT: Thank you.

PN30

MRS WAITE: I have left it in the original condition with the cover sheet from the Department. Its source is clear. Thank you.

PN31

THE VICE PRESIDENT: Anybody else at this stage? Mr Moloney.

PN32

MR MOLONEY: Yes, thank you. If the Commission pleases. I think we would share in Mr Morphett's view and we are grateful for the advice from the bench in relation to the ACT matter. Certainly that is something that has been exercising our minds as to which particular matter should progress and at what rate and at what stage without trying to dictate to the Commission how that should be done. I would certainly be seeking some urgent instructions from my two associations about that and conferring with the other employers in relation to that matter.

PN33

The issue about the availability of Commissioner Smith to convene a conference, we would certainly see some utility in that, particularly for the purposes of the programming schedule and perhaps to allow the parties to at least identify what are the issues that are agreed, perhaps not agreed and what are the issues that need to be done. I might only say, it may be a bit premature at this stage, but in terms of inspections and evidence, we would be foreshadowing a submission that perhaps the bench should consider whether or not a member of this bench should take the evidence and conduct those inspections. I must say from a practical point of view, the Full Bench inspections in the ASU Local Authorities matter were very difficult with the number of people involved and, in fact, didn't serve a particularly useful purpose in trying to get information.

PN34

That was our practical experience there, but, yes, we would support that and perhaps commend to the bench that there should be some consideration about a member of the bench conducting that exercise in a not dissimilar fashion to the exercise conducted by Commissioner Lange in 1989 and 1990. Our concern, as I think we have expressed to Commissioner Deegan some weeks ago, is that in the Victorian award, the size of the award, the size of the respondents and the number of employees that are covered by it, we have some concerns that if a decision is made in the ACT matter prior to this matter going ahead, then we are back in the same situation of a bit of a tail wagging the dog, so to speak, with respect to the ACT.

PN35

THE VICE PRESIDENT: I am not sure how the ACT feels about that, but I understand the problem.

PN36

MR MOLONEY: I need to think of a better analogy.

PN37

THE VICE PRESIDENT: I understand the issue you have raised and that was why it was drawn to the parties' attention that if joinder is sought, then it will need to be pursued in another way.

PN38

MR MOLONEY: Certainly. We also express the view to the bench that we would still hold some optimistic hopes about conciliation in this matter between the parties and we would certainly be happy to follow that path. If the Commission pleases.

PN39

THE VICE PRESIDENT: All right. Anyone else at this stage? Ms Ilias.

PN40

MS ILIAS: Yes, your Honour, just in relation to the idea that Mr Morphett raised, we do not have a view in particular, but we are happy to consider the options that he was mentioning.

PN41

THE VICE PRESIDENT: We think the most productive way to proceed would be this, that if the employer interests can respond to the union in respect of its programming schedule draft that has been provided this morning by the end of next week and then the parties to meet directly the following week to seek to resolve or clarify any issues. Once that is done, if the parties perhaps can indicate one person to co-ordinate at it were the employer interests and Ms Ilias from the LHMU can contact Commissioner Smith as to a convenient time to deal with any issues that require further discussion in relation to the programming and we would also encourage the parties to consider Mr Moloney's suggestion that conciliation in respect of the substantive matter may also be a worthwhile objective and that also can be raised with the Commissioner.

PN42

We will advise the Commissioner as to where the matter has got to this morning and that the employers will be responding by the end of next week, there will be a discussion between the parties themselves and then he will be contacted subsequently. If there is nothing further, if something arises and the parties wish the matter to be brought on for further mention and programming in relation to any issue, then they can make that application. If not, we will be advised by Commissioner Smith as to when the programming issue has reached a point where we ought to reconvene or if there is any other reason for us to reconvene.

PN43

In the event that the ACT application is made and there is a decision in relation to it, then we will advise all of the parties of that fact and if you - we are getting a little ahead of ourselves, but if it gets to that point or, Mr Morphett, it is likely to be you, I imagine, or perhaps Mr Moloney as well, given that you represent the interests involved in the ACT matter, if you can have discussions with the other parties as to joinder issues if, indeed, the matter is referred to a Full Bench. Nothing further? We will adjourn.

ADJOURNED INDEFINITELY [12.27pm]