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Australian Industrial Relations Commission Transcripts |
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:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N VT1722
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
JUSTICE GIUDICE
SENIOR DEPUTY PRESIDENT WATSON
COMMISSIONER RAFFAELLI
C No 75644 of 1998
SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION
and
$2 AND UNDER and OTHERS
Notification pursuant to section 99 of the Act
of a dispute re failure of said employers to accede
to a letter of demand and log of claims sent to the
employers on 26.8.98
MELBOURNE
10.06 AM, MONDAY, 17 FEBRUARY 2003
Continued from 25.10.02
PN5899
JUSTICE GIUDICE: I might take the appearances again.
PN5900
MR S. MOORE: I seek leave to appear for the Shop, Distributive and Allied Employees' Association.
PN5901
MR P. EBERHARD: I appear on behalf of the Victorian Employers' Chamber of Commerce and Industry.
PN5902
MR S. WHITE: I appear on behalf of the Australian Retailers' Association, Victoria.
PN5903
MR T. KLEMIS: I appear on behalf of the Bread Manufacturers' Industrial Association and I seek leave to appear on behalf of the Baking Industry Association.
PN5904
MR E. COLE: I appear for the Minister on behalf of the Commonwealth.
PN5905
MS S. DAVIS: I appear for the Australian Industry Group.
PN5906
MS L. YILMAZ: I appear for the Victorian Automobile Chamber of Commerce.
PN5907
MS W. JONES: I appear on behalf of the Restaurant and Catering Association of Victoria.
PN5908
JUSTICE GIUDICE: Thank you. Yes, Mr Moore.
PN5909
MR MOORE: Thank you, your Honour. If the Commission pleases, the SDA apprehends that there are two matters to be attended to in the listing of the matter today. The first is the making of an award in line with the bench's decision in this matter of 17 January this year and the second is to address the matters referred to by the bench in paragraph 89 of its decision, namely the fixing of an appropriate rate of remuneration in what I will call the new award, that is the roping-in award in respect of work performed during ordinary hours on Sunday.
PN5910
If I might deal with the first issue at the outset, being the making of the award. There are two particular aspects of that. One is the actual terms of an award and the second is the finalisation of a list of the respondents to that award. If I might deal with the terms of the draft order. In line with the bench's direction, the SDA has prepared a draft order and has circulated that order to the parties. There has been some exchange of views about the terms of the draft order and a number of issues worked through.
PN5911
I can't say, unfortunately, that we are in agreement about the terms of that draft order. I do believe, however, that many issues which perhaps were between the SDA and some of the employer associations have been resolved, but nonetheless I am not in a position to say that the document I am about to seek to tender is a document which the other parties consent to. If I might hand up the terms of the draft order.
PN5912
JUSTICE GIUDICE: We will mark that for identification.
MFI #36 TERMS OF DRAFT ORDER
PN5913
MR MOORE: In summary, the Commission will see that the roping-in award is in what is hoped to be conventional form. What it does in substance is to adopt the terms of the parent award, save and except for certain special provisions, being the matters addressed expressly by the bench in its decision. If I might take the bench through the terms of the order. Clause 1 of the award is its title. Clause 2 is the manner in which the items contained in the award are arranged. The parties bound provision is at clause 3, which is in line with other roping-in awards and I apprehend in line with normal Commission practice. Clause 4 is the application provision and I just draw the bench's attention to the words at the start of that paragraph:
PN5914
Subject to that which is otherwise provided for in this award.
PN5915
Clause 5 is the operation of the award. It is dealt with in a two-step process. In paragraph 5(a), provides that the award is to operate from today's date, subject to the qualification in 5(b) and 5(b) then identifies certain specific matters which have a delayed commencement operation being 17 May and that is in line with the bench's decision. The matters there identified are the penalty rates in respect of ordinary hours of work on Sundays.
PN5916
Now, there is one omission in that clause 5(b) that I will return to, if I might be able to, once I have completed these submissions, just one last matter that has been drawn to my attention by my friend, Ms White, from the ARAV which I need to address, but in substance that is the structure that is set up. The award commences from today's date subject to the exceptions identified, which exceptions concern or intended to concern penalty provisions, penalty rates for Saturday and Sunday work.
PN5917
The special provisions are then set out at clause 6; 6(a) identifies the definition of class A exempt shops in this new award and the Commission will recall that in its decision, the substance of the decision was to return to the wider class A listing which was prior to the time the award was simplified by Commissioner Hingley and that is the lengthy definition of class A shops that then existed. I don't understand there to be any dissent about what is there set out.
PN5918
Clause 6(b) provides for certain awards, clauses of the award, the parent award, not being operative; 4.2 is a particular limitation on the definition of class A shops. Clause 4.2 and I am here referring to 6(b) of the draft order, clause 4.2 is a further limitation on the class A definition concerning the trades undertaken by persons in class A shops and that restriction is removed in effect and 4.3 there referred to is the class B definition which the bench may recall arises because of the definition of ordinary hours to include Sunday.
PN5919
There is no longer any need for a class B definition. 6(c) deals with casual employees and their rate of pay for Saturdays and the qualification at the start which is subject to subclause 6(m), 6(m) is a savings type provision which I will come to at the end or perhaps it is convenient to look at at this juncture, which provides and this also emerges from the bench's decision that the rate of pay paid by employers bound by this award to employees employed at the date of the making of this award in respect of ordinary hours worked on Saturdays or Sundays shall not be reduced on the making of this award.
PN5920
6(d), going back to the body of the document, refers to Sunday work for casuals and it specifies an interim rate of time and a half for work between nine and six and for work before nine and after six, double time. One omission that I need to address is the fact that the delayed operation of the penalty rate provisions is in respect of ordinary hours performed on weekends, that is not work outside ordinary hours such as before nine am and after six pm on a Sunday.
PN5921
It is not the intention that the overtime penalties, as it were, have a delayed operation. Unfortunately, on the way this draft order is prepared at the moment and I am here referring to clause 5(b), the effect of it is to also delay the overtime penalty and with the Commission's indulgence, when I take my seat, I will perhaps adjust the terms of the order to make that accommodation.
PN5922
JUSTICE GIUDICE: Mr Moore, the way this is drawn at the moment, what governs the rates to be paid on weekends, for example, prior to - - -
PN5923
MR MOORE: 17 May, your Honour?
PN5924
JUSTICE GIUDICE: Yes.
PN5925
MR MOORE: I have turned my mind to that, your Honour, and the way it is intended to work is this. By reason of the terms of clause 4 of this draft, the terms of the parent award apply, subject to that which is otherwise provided for. The effect of that means that any of the provisions of the parent award dealing with penalty rates on weekends are otherwise dealt with by this draft order. Thus, those provisions of the parent award don't apply and the provisions of this draft order apply and the second issue is, of course, the timing at which those provisions apply and the timing is dealt with in clause 5, so it is certainly not the Association's intention that the parent award provisions in respect of penalty rates somehow are enlivened from today if the award is made.
PN5926
JUSTICE GIUDICE: No, I wouldn't accuse you of that, but I am just wondering whether, as it is drafted, that might be a possible outcome. Anyway, it is something other people can raise if they are concerned about it.
PN5927
MR MOORE: Yes, certainly, your Honour, and it was a matter to which we were alive and on our consideration, the matter is addressed in the way that I have just outlined.
PN5928
JUSTICE GIUDICE: Yes.
PN5929
MR MOORE: Returning to the body of the draft order, 6(e) deals with - these are consequential matter which I don't believe to be in dispute dealing with the rate to apply to casual employees on Saturdays and here there is a differential in subclause (i) and (ii) between particular shops listed in class A in the list and the reason that has occurred is because that really returns to what the terms of the award were prior to its simplification by Commissioner Hingley, so it is an attempt to return to what the provisions were at that time.
PN5930
6(f) dealing with 18.1.2, that is the provision providing for payment of minimum three hours for evening work and that doesn't apply. 6(g) deals with Saturday work for permanent employees. 6(h) deals with 18.2.3 which is the provision of the award which is a savings provision going back to the old IRCV which doesn't have any application here, concerning Saturday work. 6(i) deals with Sundays and it deals with Sundays in respect of rates and in totality for permanent employees being for ordinary hours of work between nine and six, for overtime, that is when overtime is worked between nine and six and for work performed before nine and after six.
PN5931
It might be convenient for me to raise one matter at this juncture. The way that 6(i) is drafted is that the provision there to be inserted is in lieu of clause 19.1 of the award. Clause 19.1 of the award provides for the penalty rate for Sunday work. That is, 19.1 provides the special rate for all work done on Sunday shall be double time, so these provisions are to be inserted in lieu of that in line with the decision. 19.2 is the provision in the award that provides:
PN5932
An employer shall not require any employee to work on a Sunday, but an employee may elect to work on a Sunday.
PN5933
Now, it is not the intention of this draft order to supplant or remove subclause 19.2 of the award dealing with voluntary work. I raise this issue because it is a matter which I understand the ARA will raise with the bench. The reason that it is not the intention of the draft order and the draft order does not supplant the voluntariness provision, if I can call it that, in 19.2 is that upon our reading of the decision of the bench, the matter is not dealt with or perhaps I will restate that.
PN5934
The Full Bench did not decide to remove the voluntary provision in respect of Sunday work. Going back to the draft order, 6(j) is that provision - it deals with clauses 23.2.1 and 23.2.2 of the award which are the provisions of the award identifying ordinary hours of work for non-exempt shops and class B exempt shops which are consolidated as it were by the provision there set out. That is, the effect of that then is that in shops other than class A exempt shops, the ordinary hours of work are as there set out and the provisions as to ordinary hours of working class A exempt shops remain unaffected, being those set out in 23.2.3 of the award.
PN5935
6(k) of the award deals with 38.10.1 of the award which deals with work on holidays in class A exempt shops and as I am instructed, the only change in the provision there set out as against what the award currently provides is in the first line where the reference is to class A exempt shops (i) to (vi) and again that is a consequential change to bring it in line with the reversion to the wider definition of class A exempt shops arising from the bench's decision. Otherwise the provision is the same, as I am instructed.
PN5936
6(l) in lieu of clause 23.4.1 of the award, this deals with rostering. The only change in the provision which is set out in 23.4.1 as affected here is the reference in the first line to 23.3 of the award and that is really - well, perhaps typographical error might be an incorrect way to describe it, but the current provision provides notwithstanding 23.1. That is what it says and I am instructed that the reference ought to have been to 23.3. You see there will be a need to make that correction in the body of the parent award in due course.
PN5937
6(m) is the savings provision which is also referable to the bench's decision and 6(n) - I apologise for the rather smudged copy - provides that 23.4.2 is a provision dealing with rostering and provides once in four weeks an employee shall be rostered off on a Saturday and a Sunday unless otherwise requested by the employee in writing for the employer and that clause, the effect of 6(n) is that that clause applies to class A exempt shops and non-exempt shops.
PN5938
Finally, clause 7 is an offsetting payments provision. A provision of this type which I don't believe to be in dispute has been contained in a number of earlier roping-in awards made with reference to the interim award and it provides essentially a means of an employer setting off payments made under the contract of employment in respect of award obligations.
PN5939
The terms of the draft order we seek to be made, if the Commission pleases, it might be appropriate for me now to deal with the question of the respondents to the award. Respondency arises in this way. In clause 3 of the draft order, it provides that it is binding upon all of the employers listed in schedule A so I am here referring to what constitutes schedule A. The hearing, the Commission might recall that exhibit SDA1 was a folder of all of the names of the employers against whom the Association sought an award to be made and that folder contains some 17,628 employers.
PN5940
Since the hearing and since the decision of the bench, there has been some communications between employer representatives and the Association towards reviewing that list to ensure that it is accurate. If I might hand up to the bench this document, a copy of which I have provided.
PN5941
MR MOORE: As the title to this document indicates, these are the employers who are listed on SDA1 who should be removed from it, being the employers against whom no award should be made in this proceeding.
PN5942
JUSTICE GIUDICE: We had evidence from somebody from Donut King, didn't we?
PN5943
MR MOORE: I think we did. Yes, I think the evidence was about the price of coffees at a shopping centre and donuts.
PN5944
JUSTICE GIUDICE: Yes. So he didn't need to come.
PN5945
MR MOORE: Well, I am not sure, your Honour. I don't think anything was in vain in this case. I really don't have any instructions about Donut King other than what is on this document.
PN5946
JUSTICE GIUDICE: Yes. It probably doesn't matter.
PN5947
MR MOORE: I believe there to be 395 employers listed in SDA37. The effect of deducting those employers from SDA1 is that there are some 17,233 employers against whom, or who should be listed in schedule A to the draft order. I have with me two disks, being the listing of SDA1 minus SDA37, being the 17,233 employers who should be listed in schedule A. Perhaps I might tender that. I only have one other copy of the disk with me, but I am happy to provide it to other parties, of course. It might be that the Association can e-mail that list to all the other parties.
PN5948
JUSTICE GIUDICE: Does that list in 37 include the members of the Restaurant and Catering Victoria, a letter which was sent I think to Mr Donovan on 13 February?
PN5949
MR MOORE: Yes, I am instructed - well, not instructed, I am advised from the representative of that Association that SDA37 does contain members from that Association.
PN5950
JUSTICE GIUDICE: Well, perhaps, Ms Jones, that resolves the issue in relation to that list, does it?
PN5951
MS JONES: It resolves the issue, your Honour. Thank you.
PN5952
JUSTICE GIUDICE: Thank you. Yes.
PN5953
PN5954
MR MOORE: Thank you, your Honour. Now, under the heading ARAV 38 members, fast food, I think there is 30-odd employers there identified. I am instructed that they are employers whom it has been requested not form part of schedule A to the draft award. We have not yet been able to reach agreement about the exclusion of those employers from the schedule A to the award. What we would propose, subject to the bench's view, of course, is that the employers there listed on SDA39 form part of a reserve list, constitute a reserve list.
[10.34am]
PN5955
Obviously the nature of the task, given the number of employers, has been a rather burdensome and difficult one in terms of working through who is in and who is out and there is these 30-odd employers whom no agreed position is able to have been reached at this time. That does lead me just to clarify my earlier remarks. Exhibit SDA1, being the folder of 17,628 respondents, is equal to the sum of SDA39 being those that I have just referred to plus those listed on SDA37. The effect of that is that those listed on SDA37 who are not to be made respondent to this new award is something less than the 395 I think I might have indicated to the Commission.
PN5956
JUSTICE GIUDICE: So the number in SDA39 are not on the disk, or they are on the disk?
PN5957
MR MOORE: SDA39 are on SDA1 and it is intended that they be excised and form a reserve list. They are not on SDA37.
PN5958
JUSTICE GIUDICE: The disk you handed up which we have marked 38 - - -
PN5959
MR MOORE: No, they are not on that.
PN5960
JUSTICE GIUDICE: They are not on that?
PN5961
MR MOORE: No. I am sorry, your Honour. Your Honour, I need to correct what we have indicated. The disk, SDA38, containing 17,233 employer names does contain those employers listed in SDA39. For fear of confusing the situation further, I have another disk to tender which excludes those listed on SDA39, if I might tender that.
PN5962
JUSTICE GIUDICE: Why don't we just substitute it? Do we need the other one?
PN5963
MR MOORE: No. That would be a better course, I believe. Thank you.
PN5964
COMMISSIONER RAFFAELLI: Mr Moore, does that mean that on this new exhibit SDA38 there is now less than 17,233?
PN5965
MR MOORE: That is correct. There is 17,198, Commissioner. Hopefully all these numbers are adding up. I believe they do. If the Commission pleases, I don't have anything more to say about respondency. The only other matter which I need to address the bench about is the second issue concerning the question of the determination of an appropriate rate for work performed on Sundays during ordinary hours. Is it convenient for me to indicate how the SDA believes that matter should be dealt with?
PN5966
JUSTICE GIUDICE: Yes.
PN5967
MR MOORE: At paragraph 89 of the bench decision, it is indicated that the parties should be provided with an opportunity to produce submissions or provide submissions on this issue and if necessary to call further evidence. The SDA does seek to make submissions dedicated to that question and also will file further evidence on that matter. Some of the material already filed in this proceeding does pertain to that question, but there is additional evidentiary material the SDA will seek to adduce on the question of the determination of an appropriate rate for Sunday work during ordinary hours.
PN5968
There is some considerable efforts need to be involved in bringing that material together. The timetable that we have in mind which I understand that the ARA at least does not object to is that that material, being the Association's outline of argument and any evidence and any documents upon which the Association intends to rely be filed in some six weeks which I have chosen the date of 1 April which is six weeks plus a day, given the Labour Day holiday and not for other reasons associated with 1 April. Providing the same time for other parties results in the date of 16 April having regard and adjusted by reference to Easter and Anzac Day, then an opportunity for the Association to file reply material a period of three weeks, that is by 6 May.
PN5969
JUSTICE GIUDICE: I think you may have cut them a bit short there.
PN5970
MR MOORE: It does appear that I have unfairly prejudiced the employer parties unintentionally. I apologise for that. In fact, I think it should be 16 May.
PN5971
JUSTICE GIUDICE: Yes.
PN5972
MR MOORE: And a further three weeks after that time.
PN5973
JUSTICE GIUDICE: D Day.
PN5974
MR MOORE: D Day, your Honour?
PN5975
JUSTICE GIUDICE: 6 June is D Day.
PN5976
MR MOORE: It sounds appropriate, your Honour. Obviously the question of estimating the length of any hearing in stage two as it were of this matter is difficult to do at this time, impossible to do, perhaps. My observations, for what they are worth, would be that it would be difficult to conceive of this second rung of the case being dealt with in less than two days, impossible perhaps to see that occurring and it may be that a week would be required. Now, those estimates are of course not based upon any precise assessments about the number of witnesses, but that is my general assessment.
PN5977
JUSTICE GIUDICE: I suppose it is fair to say that this was really an opportunity to make sure that nobody was taken by surprise, that might have wanted to make submissions. We are conscious of the fact that it was an issue in the case, but I suppose we were hoping it might be a reasonably short exercise, but experience might indicate that would be perhaps a bit optimistic.
PN5978
MR MOORE: Yes.
PN5979
JUSTICE GIUDICE: Anyway, the opportunity is there, so I suppose nobody wants to throw away the opportunity.
PN5980
MR MOORE: Well, certainly the Association doesn't and it has approached the case as it has been to date on perhaps what I might call a typical, albeit atypical in this particular circumstance of this case, roping-in type case.
PN5981
JUSTICE GIUDICE: Yes.
PN5982
MR MOORE: But if stage two is to concern, as it appears it will, determination of the appropriateness of the Sunday penalty - - -
PN5983
JUSTICE GIUDICE: Which may affect other awards, yes.
PN5984
MR MOORE: Indeed. It is a serious matter for the Association that it does wish to be heard fulsomely about.
PN5985
JUSTICE GIUDICE: Yes. We understand that.
PN5986
MR MOORE: It may be - I am not sure if the bench is in a position to be able to put any time aside at this time. I am just conscious of the difficulty in finding a time when all members of the bench might be available. It might be that one way to proceed is to put a week aside subject to the parties advising by a certain date as to if less time will be required, but I would be surprised. I could see this section stage of the case running for three, four or five days.
PN5987
JUSTICE GIUDICE: Yes.
PN5988
MR MOORE: Unless there are any matters the Commission wishes to raise with me, they are the submissions. The only matter I do need to revisit in the draft order tendered is the matter I foreshadowed before about the operative date provisions and ensuring that the draft order does not result in a delayed introduction for overtime penalty rates which I believe it may do on its present drafting and I can remedy that now when I take my seat. If the Commission pleases.
PN5989
COMMISSIONER RAFFAELLI: Mr Moore, I am probably reading this wrongly, but how does 6(m) work with 7?
PN5990
MR MOORE: Well, I don't believe there to be a conflict in the operations of the provisions, Commissioner. 6(m) prevents a reduction in the rates for ordinary hours on Saturdays or Sundays occasioned by the introduction of the award, i.e. those employees who happen to receive more than the new rates prescribed here, perhaps the old - - -
PN5991
COMMISSIONER RAFFAELLI: Yes, double time.
PN5992
MR MOORE: Yes, or higher rates for Saturday which are currently in the parent award which are not in the new award, so prevents a reduction in those rates and the effect of clause 7 is to entitle some offsetting between the award terms and what an employee might be provided under their contract of employment. I don't see that there is a tension in those provisions. They serve different ends, as I see it. They clearly serve different ends and I don't think their operation is in conflict.
PN5993
COMMISSIONER RAFFAELLI: Yes, in any case, that is not an area that is being opposed?
PN5994
MR MOORE: As I understand clause 7 isn't and nor do I believe is 6(m).
PN5995
COMMISSIONER RAFFAELLI: Thank you.
PN5996
MR MOORE: If the Commission pleases.
PN5997
JUSTICE GIUDICE: Thank you, Mr Moore.
PN5998
MR KLEMIS: Your Honour, if I could intrude - - -
PN5999
JUSTICE GIUDICE: Yes.
PN6000
MR KLEMIS: I would seek your indulgence to be excused. The only reason I am here is to - we were rather surprised to be served with the notice because our understanding is that the Bread Manufacturers' Industrial Association and the Baking Industry Association of Victoria were deleted from the dispute finding, but we were served with the notice and if we can just place that on record and I seek your indulgence to be excused to other matters in the Commission today.
PN6001
JUSTICE GIUDICE: Yes, certainly, Mr Klemis. Thank you. Ms White.
PN6002
MS WHITE: Thank you, your Honour. Your Honour, SDA36 that we have seen this morning has not previously been seen. I took the opportunity, there being some areas of dispute, to prepare a draft to reply to the previous SDA draft we received on Friday afternoon and I might hand that up, but there has been some amendments made that might mean there is a little bit of confusion because it is addressing the earlier draft, your Honour.
PN6003
As I said, your Honour, some of the concerns outlined in the ARAV draft have been taken account of in SDA36, some have not. I have bolded and italised areas where we disagreed with the earlier draft and I will try and take you through those and take account of the amendments as I go, your Honour.
PN6004
JUSTICE GIUDICE: Well, you stand condemned along with the SDA for misspelling my name.
PN6005
MS WHITE: I am very sorry, your Honour.
PN6006
JUSTICE GIUDICE: It is a long list.
PN6007
MR MOORE: Apologies, your Honour.
PN6008
PN6009
MS WHITE: Your Honour, the first matter I would like to draw your attention to is relatively a minor matter under the section 3 parties bound provision. ARAV is proposing that in that provision the words be inserted:
PN6010
Engaged in the performance of work within the incidence of this award.
PN6011
The reason we are doing so is that it is a reasonably common provision to suggest that it is only in respect of the work that is being performed and I might just say as an aside the SDA and the ARA have also been discussing the terms of the hairdressing matter that is before Commissioner Raffaelli this afternoon and I understand that in respect of the hairdressing roping-in, there is no objection to those words being inserted, so subject to what else I suppose Mr Moore might have to say, we are seeking the insertion of those words.
PN6012
In respect to the application provision, we would also seek one alteration and that would be as is indicated with the exception of superannuation clause 21. Now, your Honour, the reason that we are doing that is at the time the Full Bench made a dispute finding in this matter, there was some question as to whether superannuation should be included in that dispute finding.
PN6013
The conclusion of the Full Bench at that time was that it would be excluded from the dispute finding and if I might just hand up a copy of that decision and take you to the relevant paragraphs. Your Honour, in paragraph 3 on page 2 of the document, Mr Trew who was then acting on behalf of the SDA indicated that they did not intend - sorry, paragraph 4 - did not intend to pursue a dispute finding against non-members of the SDA. The bench actually ended up finding and the reference is in paragraph 13, towards the end of paragraph 13 and I read the last couple of sentences:
PN6014
We have given consideration to this position and are of the view that the question ...(reads)... claim accordingly will be excluded from the dispute finding at this stage.
PN6015
SENIOR DEPUTY PRESIDENT WATSON: That is an issue that hasn't since been returned?
PN6016
MS WHITE: Not to my knowledge, your Honour, so that is why we are seeking that amendment to the application clause. There are some minor reference matters that we are suggesting in clause 5, operation, and I think they probably go to slightly different drafting between ourselves and the SDA. Look, I might not say anything more about those. At the end of the day, it shouldn't be contentious. It is simply which provisions actually of the proposed roping-in have some different operative date in line with the Commission's decision and the reference there should be to those provisions that have a different operative date from 17 February. The reason that I have also included there at the end of 5(b):
PN6017
unless otherwise stated -
PN6018
is because the preferred drafting of the SDA has included reference to overtime in respect of those provisions as well as ordinary time. Since the operative dates are different, that reference is suggested to be included, as it will make it clear that whilst for example 6(d) deals with both overtime and ordinary time, that there are two different dates, so the idea being, Commissioner, just to say unless otherwise stated, it is 17 May and there are some clear references in this ARAV draft to 17 February, so that there is no confusion.
PN6019
In terms of the matter raised by yourself a little bit earlier, your Honour, about what would apply to those new respondents who between 17 January and 17 May, what would happen to them in respect of the ordinary time rate, I think that perhaps it is best if it is made clear in the order and I might suggest that in 5(b) the words be added somewhere there something appropriate that would ensure that the existing terms and conditions of the respondents, that they are currently providing for ordinary time on Saturday are maintained until 17 May.
PN6020
JUSTICE GIUDICE: But that is not really what you are aiming at. What you are aiming at is stopping the operation of the penalty provisions in the award.
PN6021
MS WHITE: Yes, your Honour. Perhaps the wording could actually make that clear.
PN6022
JUSTICE GIUDICE: Yes. Anyway, there is no argument about it. It is just the way in which to best express it.
PN6023
MS WHITE: On page 3 of the ARAV draft, your Honour, clause 6(c) I believe should read:
PN6024
subject to clause 6(n) -
PN6025
rather than as it currently stands at 5(n). That is a minor typographical error. In clause 6(d), we are proposing a couple of additions in respect of this clause, one being a reference to clause 19 in addition to clause 10.4.2 which is the provision in the award that currently deals with the entitlement to rates of pay for casual employees on Sunday. The reason that we are seeking it to read "and clause 19" is because clause 19 also applies to casual employees.
PN6026
There is no exclusion to casuals from that clause and if it was to be left out, I believe that there might be some ambiguity in that the rates in 10.4.2 would provide for time and a half for casual employees, but then read in conjunction with the main award, it would provide for double time. To remove that confusion, I think the reference should probably be to clause 19 as well. The issue mentioned by Mr Moore previously about voluntary work I will get to in respect of the full-time and part-time employees. I don't believe it has any impact on casual employees. In clause 6(e), again we have got a couple of minor alterations that make clear the distinction between overtime applying from 17 February and the ordinary time rates for Saturday applying from 17 May for casuals. In 6(g), again I think the reference there should be:
PN6027
subject to clause 6(n) -
PN6028
rather than 5(n). In 6(i) of the ARAV draft, the ARA are proposing that instead of the clause saying in lieu of 19.1, that it actually read in lieu of clause 19 in its entirety and the reason for that is that the ARAV are of the view that the decision of the bench was reasonably clear in respect to Sunday being included as part of the ordinary hours for work that an employee could be required to work. There was no distinction in the decision drawn between Sunday ordinary hours and any other ordinary hours in our view and in support of that, I might just take you, your Honour, to page 16 of your decision and I don't have copies of this, I am sorry, but right at the first paragraph, in making your decision you say:
PN6029
In this case we must take into account that for the vast majority of employees of the potential respondents, the possibility of being required to work on Sundays as part of their ordinary working week and without penalty payments is presently a reality.
PN6030
JUSTICE GIUDICE: I am sorry, which paragraph is that, Ms White?
PN6031
MS WHITE: Sorry, paragraph 86 on page 16 of the decision, your Honour, the OSIRIS copy, your Honour.
PN6032
JUSTICE GIUDICE: Yes.
PN6033
MS WHITE: So we are seeking in terms of 6(i) that the reference be in its entirety to clause 19, so in effect there will be a requirement for employees to work their ordinary hours on Sunday as opposed to the current provision in the award for class A shops, which creates an election. For both class A shops and for non-exempt shops, we are asking that the requirement be there and incorporated into this draft order and as you can see on page 4 of ARAV43, we have added a clause in there expressly saying that an employer may require an employee to work during the ordinary hours of nine am to six pm on a Sunday.
[11.00am]
PN6034
In terms of clause 6(j), there is an issue here in that we would like to see the words included in the spread of hours for non-exempt shops to include the provision that exists in the award currently for newsagents which is a starting time of five am in lieu of seven am. Now, this might take just a little bit of explaining, your Honour. The terms of the current award that came out of the simplification process had some unusual drafting that I think altered this provision from the predecessor awards and the expired State awards and I might just take you to that. Would it be convenient to hand up a copy of the award and the provisions, your Honour?
PN6035
JUSTICE GIUDICE: Yes. Well, do we need the whole award?
PN6036
MS WHITE: Probably not, your Honour.
PN6037
JUSTICE GIUDICE: If you have got it there, it is all right, you can hand it up. Thank you.
PN6038
MS WHITE: The provision I am referring to is the times of beginning and ending work, clause 23.2, your Honour, and I believe it is on page 41 of the award. You will see here, your Honour, that the provision relating to newsagents falls in under 23.2.3 in class A exempt shops. Now, whilst it would appear that therefore that provision is some way only attached to class A exempt shops, we don't believe that to be the case. We are of the view that during the simplification proceedings, when the award was redrafted, reformatted, that the previous drafting in the predecessor awards didn't conveniently fit and somehow now the provision has ended up under class A exempt shops, when it was never supposed to and in support of that, your Honour, this is a copy of that provision for newsagents which existed in the Booksellers and Stationers Interim Award prior to the consolidation and simplification proceedings.
PN6039
And you will see that the way that the provision was drafted, times of beginning and ending work, was that the spread was the subject of clause 6(c)(b) and then the three different provisions for exempt shops and non-exempt shops were spread out as subsections of clause (b), then right at the bottom we have the requirement for newsagents which was attached to clause (b) in its entirety and, look, we believe the drafting was also similar to that in the expired State General Award. I will hand it up, if you like, your Honour, but it is almost identical to the drafting in the Booksellers and Stationers Award. Now, if we don't include the provision for newsagents in the draft order, your Honour, it may have the effect of meaning that only if I am a class A exempt newsagent will I get the benefit of the five am start. Now, whilst most newsagents are probably - - -
PN6040
JUSTICE GIUDICE: Ms White, was this an issue in the case before us?
PN6041
MS WHITE: No, it wasn't.
PN6042
JUSTICE GIUDICE: Couldn't this be remedied by an application to vary the parent award, if I could - - -
PN6043
MS WHITE: That may well be a suitable course of action and we might undertake to do that, your Honour, but for the purposes of the draft order, we think that it should be included.
PN6044
JUSTICE GIUDICE: Yes, but we heard submissions and proposals as to the ways in which the award we made should vary from the interim award and I may be wrong, but I don't think this was an issue that was raised.
PN6045
MS WHITE: It wasn't raised, your Honour, and if you think that is an appropriate course, we will make an application quite quickly.
PN6046
JUSTICE GIUDICE: Yes. I mean, if there were consent to this course, then that would be a different matter, but if it is an issue as to, really, what the terms of the interim award itself should be, then that is probably the better place to argue that point.
PN6047
MS WHITE: Okay, your Honour, we will leave that there.
PN6048
JUSTICE GIUDICE: I am not ruling against you, Ms White. I am just sort of telling you that you might be up against it a bit.
PN6049
MS WHITE: Okay, thank you, your Honour. We will probably take your advice on that issue. There is only a few remaining differences between what the ARA and the SDA are proposing.
PN6050
PN6051
MS WHITE: The next bone of contention, your Honour, comes to clause 6(l) of the ARAV draft and you will see that in terms of the rostering provisions to apply, in line with our earlier submissions regarding work on Sunday being required, we have included in that provision where a full-time employee elects or is required to work ordinary hours on a Sunday, the employee may be employed on one of any of the following rosters.
PN6052
The roster provisions there are the roster provisions that apply to the exempt shops currently in the interim award. Now, I don't believe there is any bone of contention or dispute about the applicability of that to non-exempt shops in this matter, Sunday now having been included in the spread of hours. What is contentious is how much of the clause should actually apply. The SDA have indicated that of the current award, clause 23.4.1 should apply and in their amended draft supplied this morning, they have indicated also that 23.4.2 would apply where a weekly employee is required to work their ordinary hours on Sunday, but that leaves the provisions of clause 23.4.3 and 23.5 out of the equation.
PN6053
Now, we say that those should be included for these proposed respondents or now respondents, your Honour, because to simply take part of the provisions applying from the exempt shop clause without looking at them in their entirety is not a preferred course of action and not one that we would advocate. The small shops alternative roster contained in clause 23.5 is an alternative to the provisions of the exempt shops clause.
PN6054
Now, if you are going to apply the exempt shops rostering provisions, the SDAs approach is to then take some and not the others. To limit that, we say that they should be taken in their entirety as an alternative and would therefore seek the inclusion of 23.4 and 23.5 in their entirety for the purposes of the draft order. That probably concludes our areas of disagreement, your Honour.
PN6055
Now, in terms of the lists, it would appear, given the information provided this morning, that there has been an attempt at least to remove those businesses on ARA38, 39 and 40. Obviously, we might need a little bit of time to confirm that is actually the case, so I will endeavour to get back to the Commission and if it is that those businesses on ARA38, 39 and 40 have been removed, we would not have any further objection to the list.
PN6056
In respect of those businesses the SDA are proposing should go on the reserve list, we would continue to suggest that they are inappropriate for inclusion in the shops award and are more appropriately included in the fast food award, but except I guess at this point in time, if they were to go on a reserve list, that could be later argued. In terms of the proposed timing for the hearing of the time and a half matter, your Honour, whilst we have no objection in principle to the scheduling that has been proposed, we do have one concern and that means that we will be getting a decision in respect of the Sunday ordinary time rate later than the interim rate is supposed to apply from, so we will get a decision somewhere in June or later, but the interim rate of time and a half is supposed to apply from 17 May.
PN6057
Now, in fairness to the proposed respondents who will need some certainty, we would be suggesting that it might be a fairer course of action to say that if the matter proceeds beyond 17 May, that those respondents are not I guess disadvantaged in having to make any back pay should the ultimate decision be for an amount higher than time and a half.
PN6058
JUSTICE GIUDICE: Well, that would be a matter for submissions in due course, I think.
PN6059
MS WHITE: And I will leave that for due course, your Honour.
PN6060
JUSTICE GIUDICE: Yes.
PN6061
MS WHITE: If the Commission pleases.
PN6062
JUSTICE GIUDICE: You have flagged your concern about that. Can I just take you back to - - -
PN6063
MS WHITE: If you will indulge me for just a moment, your Honour. There might be a minor problem in terms of the ARAV drafting in clause 6(i) of our proposed award. It currently reads:
PN6064
Provided these rates shall apply until 17 February.
PN6065
I think it is meant to read shall not apply until 17 February.
PN6066
JUSTICE GIUDICE: From?
PN6067
MS WHITE: From, your Honour, rather than until. That concludes my comments, your Honour.
PN6068
JUSTICE GIUDICE: Yes, I just wanted to ask you a question about 6(n) and I will ask Mr Moore about this in a moment, but why does there need to be any reference to clause 23.4 or clause 23.5?
PN6069
MS WHITE: Your Honour, if we read the proposed roping-in in conjunction with the interim award at the moment, if an employee is not required to work their ordinary hours on Sunday, the provisions of clause 23.3 of the main award would apply. Alternately, if they were required or elected to work their ordinary hours on Sunday, the award already has a mechanism in place that has been developed for rosters in those circumstances that has previously applied in the exempt shop provisions. Given that all these respondents will now have the right to roster on Sunday, we think it appropriate that the mechanisms already developed in the award to take account of that be applied in their entirety. They include a more favourable provision where there are small shops.
PN6070
JUSTICE GIUDICE: Yes, I understood your submission about it, but is there a need to refer to 23.4.1 in order to make it clear that there is an election to work ordinary hours? Well, leave that aside for a moment. Does the SDA draft exclude the operation of 23.4.2, 23.4.3 and 23.4.5?
PN6071
MS WHITE: Look, I think it does when it is read in conjunction because if you have a look at SDA36, it says in lieu of 23.4.1 which means 23.4.2, 23.4.3 and 23.4.5 would apply, but they will only apply if you are an exempt shop because that is the provision, exempt shops alternative rosters. They will not apply if you are not an exempt shop.
PN6072
SENIOR DEPUTY PRESIDENT WATSON: So they would apply to exempt shops as is intended.
PN6073
MS WHITE: Yes, they will apply to class A exempt shops, but those other respondents who have the ability now to roster on Sunday will have the benefit of 23.4.1 by virtue of the roping-in order, but will not have the benefit of 23.4.2, 23.4.3 or 23.4.5 by virtue of the fact that they are not class A exempt shops, so only part of the provisions will apply to non-exempt shops and it is my contention that it should apply in its totality.
PN6074
SENIOR DEPUTY PRESIDENT WATSON: To non-exempt shops?
PN6075
MS WHITE: A non-exempt shop is any other shop that is not a class A shop for these respondents. The class B shops don't apply, so any business that is not a class A exempt shop, any business that is not on the list proposed in 6, special provisions, or if it is in there, if it has more than 20 employees, will then be left outside the provisions that we have talked about, 23.4.2, 23.4.3 and 23.4.5. Now, that was the logic. If part was to apply, then probably all should apply.
PN6076
JUSTICE GIUDICE: But isn't the structure of the SDA draft order that the terms of the order do apply unless they are excluded?
PN6077
MS WHITE: I think they are excluded by the fact that the clause only applies to exempt shops in the interim award, your Honour.
PN6078
JUSTICE GIUDICE: Yes.
PN6079
MS WHITE: So that you would not be able to utilise those provisions if you didn't meet the definition of an exempt shop. They are in the interim award, but only for exempt shops.
PN6080
JUSTICE GIUDICE: Yes.
PN6081
MS WHITE: So I believe that it would probably or at least likely operate the way that whilst class A exempt shops having someone roster on Sunday would be entitled to all of 23.4 and 23.5, those other individuals who are not class A exempt shops would then be entitled to the provisions of 23.4.1, but not the other aspects of that provision that has been set up, including the small shops alternative roster and I probably don't have a lot more to say about it than that, your Honour, other than the fact that I think not only will it add confusion if you are entitled to part of the clause, but not all of it, that it is preferable that they do have the benefit of it being set up as a regime to deal with rostering on Sunday.
PN6082
JUSTICE GIUDICE: Ms White, I am sorry to be obtuse about this, but I can't quite follow your point. Let me say what I understand the draft that the SDA have produced, how that operates and then see if perhaps I am making a mistake in that respect. If you look at clause 4 of the draft:
PN6083
Subject to that which is otherwise provided in this award, the interim award shall apply.
PN6084
Then when you go to 6(l), it says:
PN6085
In lieu of clause 23.4.1 of the award, the following shall apply -
PN6086
now, that doesn't exclude the operation of any other part of 23.4 or any other part of 23.5.
PN6087
MS WHITE: Your Honour, if I might use another example of the exempt shop provisions to assist you here, there are more favourable provisions existing in the interim award for class A exempt shops, one of them being that for example in class A exempt food shops, you get the pay the ordinary time rate of pay until 10 o'clock on a Saturday night. Now, I mean, I think that probably from the employer's point of view, all the new respondents would like to be entitled to the class A shop exempt provisions, but if that was the case, it would in some way negate the need for class A exempt shop provisions being included in the roping-in order.
PN6088
If a new respondent who did not meet the definition of a class A exempt shop was entitled to the provisions of exempt shops alternative rosters, they would also be entitled I would think to the provisions for Saturday night, for the extended spread perhaps, for a number of provisions that apply if you are saying that perhaps all of the terms of the interim award apply to all of these new respondents, even though the interim award actually limits their operation to particular shops. Now, that is the difficulty that I have come to in trying to apply this provision to make sure the new respondents had access to all of the provisions and weren't limited in some way. It could be easily rectified, your Honour, perhaps if clause 6(l) repeated the provisions in their entirety.
PN6089
JUSTICE GIUDICE: What is there in the SDA draft that excludes the operation of 23.4.2?
PN6090
MS WHITE: 23.4.2 has been taken account of in the revised document that we have seen this morning, SDA36, but clause 23.4.3 and 23.5 have not been.
PN6091
SENIOR DEPUTY PRESIDENT WATSON: What is there that limits the operation of those provisions arising out of the SDA draft?
PN6092
MS WHITE: Only by virtue of the interim award itself, your Honour, that actually says that these provisions only apply to exempt shops. The meaning of exempt shops here was to apply to class A exempt shops and class B exempt shops. That didn't need to be set out. They were collectively called exempt shops.
PN6093
SENIOR DEPUTY PRESIDENT WATSON: But your provision 6(n) seeks to apply provisions which only operated in respect to exempt shops to non-exempt shops as well. Is that - - -
PN6094
MS WHITE: I am sorry, your Honour?
PN6095
SENIOR DEPUTY PRESIDENT WATSON: Is the effect of your 6(n) attempt to apply to non-exempt shops provisions which only operated in respect to exempt shops under the award?
PN6096
MS WHITE: That is right, your Honour, because what the SDA has proposed to do - - -
PN6097
SENIOR DEPUTY PRESIDENT WATSON: Well, why would we do that?
PN6098
MS WHITE: Well, you are going to apply part of the provisions that applied to exempt shops in putting in clause 23.4.1. That is an exempt shop provision. I think there is a logic to its inclusion and that would be that if we look at clause 23.3, your Honour, that clause is specifically geared to the exclusion of Sunday from part of the ordinary hours that can be worked and it says that you can work on either basically a Monday to a Friday or a Tuesday to a Saturday with the rostered day off being either a Monday or a Saturday.
PN6099
That was the provision that applied to non-exempt shops and does apply to non-exempt shops in the interim award. If we are prepared to then say, well, okay, because that is an inappropriate clause because now there is Sunday and that needs to be taken account of somehow in the rostering provisions and the suitable means or vehicle for doing that is to apply the exempt shop provisions, then all I am saying is let us not apply just part of it, let us apply all of it. The SDA is proposing that we apply part of it.
PN6100
JUSTICE GIUDICE: Yes.
PN6101
MS WHITE: I hope that that has cleared up the position a little bit, your Honour.
PN6102
JUSTICE GIUDICE: Yes, I understand. Thank you. Mr Eberhard.
[11.24am]
PN6103
MR EBERHARD: Your Honour, I haven't really had a great chance to have a look at either the ARAVs or the SDAs draft order on the basis that I was away for three days last week and I didn't receive it until today, but we would be certainly supporting the submissions made this morning by the ARAV. With respect to the timing of the proposed Sunday decision, we would support that proposition with respect to the timing and that would conclude our submissions. If the Commission pleases.
PN6104
JUSTICE GIUDICE: Thank you. Ms Davis, do you have any submissions?
PN6105
MS DAVIS: Yes, your Honour. If it pleases the Commission, we don't propose to make substantive submissions in this matter, but merely to support the submissions made by the ARAV in this matter. If it pleases.
PN6106
JUSTICE GIUDICE: Thank you. Are there any other submissions? Ms Yilmaz.
PN6107
MS YILMAZ: If it please the Commission, our interest at this stage is only insofar as checking of the disk and I understand that Mr Moore will send us a copy of that. Early on in the proceedings VACC had identified more than 50-odd members that were in fact excluded from the dispute itself. However, given that the task itself has been very complex and we have found that sometimes unfortunately names have found themselves inadvertently in the list, so we would just simply like to take the opportunity to check that list, to ensure that our members are still ..... from that list. If it please the Commission.
PN6108
JUSTICE GIUDICE: Yes. Mr Cole.
PN6109
MR COLE: Your Honour, if I could make a very brief comment. Ms White referred to paragraph 86 of the decision. Could I indicate that we had also taken paragraph 86 to strongly intimate that it was the intention of the bench that ordinary hours on Sundays could be worked not just by volunteers, that the passage that Ms White read to the bench does refer to the fact that for the vast majority of employees of the potential respondents, the possibility of being required to work on Sundays as part of the ordinary working week and without penalty payments is presently a reality. We think there is a very strong implication in that paragraph that it was not the intention of the bench that the decision should confine Sunday ordinary hours to volunteers. If the Commission pleases.
PN6110
JUSTICE GIUDICE: Yes, do you have any submission about the program which Mr Moore suggested for the further matters?
PN6111
MR COLE: It seems to accommodate everybody else's needs and requirements and we are happy to fall in with it, your Honour.
PN6112
JUSTICE GIUDICE: Yes, thanks, Mr Moore.
PN6113
MR MOORE: Just dealing with the issue last touched upon by Mr Cole on the question of voluntary work on Sundays, can I simply draw the bench's attention to these parts of the decision? Paragraph 79 of the decision, the bench there identifies the issues as it were, the specific issues which require the separate consideration after the bench records its view that an award should be made in principle at least and states:
PN6114
The issues which we intend to examine are the following -
PN6115
and the first dot point is:
PN6116
The conditions to apply to Sunday work.
PN6117
and then the other matters are identified and in paragraph 80 there is a description of the award in respect of Sunday work and I just note that it there states:
PN6118
The interim award currently provides that for shops other than class A exempt shops and newsagents, Sunday is not part of ordinary hours and that Sunday work is voluntary and attracts a penalty rate of double time.
PN6119
That fact, that award provision was obviously the subject of submissions between the parties. The only other reference which then arises in the decision to any requirement to work on Sundays is that part in paragraph 86 of the decision and otherwise the decision on its face does not identify any determination by the bench contrary to the existing award provisions and the reference in paragraph 86, we would say, is that paragraph 86 there addresses the Full Bench here assessing and contextualising as it were Commissioner Hingley's earlier simplification decision and a recognition of the context in which the present matter has progressed. There is no indication there that the bench made any decision to vary as it were the parent award provisions dealing with voluntary work.
PN6120
JUSTICE GIUDICE: Would there be awards in which ordinary hours were voluntary?
PN6121
MR MOORE: Yes, your Honour. I quickly looked into that and the others at the bar table will get the name of this award right, but it is the hairdressing award, the 2001 award and that award provides - I will just identify the provision. I don't have the provision with me, but I did read that award this morning and it provides for ordinary hours able to be performed on Sunday, that is employees who volunteer to do such work. The wording is different to the current award as I recall reading it, but its effect is the same.
PN6122
It is only volunteers who can work on Sundays. The other point I make in that regard is that it should be noted that the parent award already provides for voluntary work on Sundays, that is, as the bench would be well award, class A and class B shops under the parent award can employ employees on Sundays and ordinary hours for class A shops includes Sunday hours. The provision is clause 19.2 which is the provision here in question has general application, is unqualified or unrestricted.
PN6123
It is identification of a general right of employees that work on Sundays be voluntary and that has been the case for decades, going back through the award history, that to the extent that there has been Sunday trading and a right to employ employees on ordinary hours on Sundays in line with class A exemption status, the voluntary requirement has been present since that was inserted in the award which, as I recall, isn't decades, is about the early 1990s in one of the three IRCV decisions which are the subject of some submissions. I have made a note of that clause.
PN6124
It is 23.2.2 of the Hairdressing and Beauty Services Victoria Award 2001 which I have already referred to. If I might just deal with the draft order proposed by the ARAV and just make some comments. Before I do that, I had indicated that there was one amendment to SDA36 that needed to be made to recognise that the parent award provisions in respect of overtime work performed on weekends do have immediate operation. The amendment I would suggest is in paragraph 5(b) of SDA36 and if at the commencement of that subparagraph the following words were inserted:
PN6125
Other than where otherwise indicated -
PN6126
comma -
PN6127
JUSTICE GIUDICE: That is at the commencement or the end?
PN6128
MR MOORE: The commencement, your Honour. In retrospect, to deal with this issue, it would have been more helpful if some of the provisions dealt with in SDA36 had subparagraph numbering, but in any event, working within the current format, if those words were inserted and then the relevant clauses are 6(d) and the second reference there being the words:
PN6129
Before 9 am and after 6 pm on Sunday - double time.
PN6130
I propose inserting after that in brackets:
PN6131
This provision shall apply from 17 February 2003.
PN6132
Close brackets and then 6(i), the last two references there which are for the provisions to be inserted:
PN6133
For overtime between 9 am and 6 pm - double time.
PN6134
And then the next provision which is:
PN6135
For work performed before 9 am and after 6 pm - double time.
PN6136
In respect of both those provisions, I would propose inserting the same words that I quote before, in brackets, which I have read out in reference to 6(d), that is:
PN6137
This provision shall apply from 17 February 2003.
PN6138
Going back to the draft order proposed by the ARAV, if I might just respond to some of the matters there raised. Clause 3 dealing with parties bound and the word in bold there:
PN6139
Engaged in the performance of work within the incidence of the award.
PN6140
That goes without saying. It was surplus in our view in that the parent award is adopted. The parent award contains that provision. In respect of clause 4, application, and the words in bold there, I see the force in the ARAVs position in line with the earlier decision. In 6(d), I think the valid point there which arises from what the ARAV submits is that clause 19 has general application and so there is some scope I concede for some uncertainty. That being the case, we wouldn't object to the words "and clause 19" going in, as long as the reference was to subclause 19.1 and that limits the controversy to the question of penalty rates and not to the question of voluntariness of work. Within 6(d) there is a drafting issue here in that the ARAV has inserted words to the effect:
PN6141
Provided that this rate shall not apply until 17 May 2003.
PN6142
And that is throughout the document. That is not the drafting approach we have adopted, but the words under that:
PN6143
Before 9 am and after 6 pm on Sunday - at double time -
PN6144
they are also in SDA36. I have dealt with the issue of 6(i) concerning the reference to in lieu of clause 19, rather than the SDAs draft of 19.1 and that is the issue of giving effect to the decision re voluntariness of work. 6(j) and the words there referred to, I note what the ARAV says in that respect about going back to the predecessor awards. I am not in a position to be able to enter into that debate. The view we would adopt is in line with what your Honour the President indicated, that any matters of concern in that regard are better addressed by way of an application to vary the parent award, rather than in this order.
PN6145
JUSTICE GIUDICE: Do you have any instructions about it? I mean, having raised the question with Ms White as to whether it was an appropriate forum, I suppose one might say, well, it looks like a pretty simple point on what she has raised.
PN6146
MR MOORE: Yes, I have instructions in that my client has seen those words and the instructions were to oppose that, but I am unable to take it any deeper than that as to the rationale for it, your Honour.
PN6147
JUSTICE GIUDICE: Yes. It appears to be something which has occurred by mistake.
PN6148
MR MOORE: Yes, and that being the case, I would doubt that my client would have any difficulty in coming to a resolution about the issue in some consensual way.
PN6149
JUSTICE GIUDICE: Yes.
PN6150
MR MOORE: The other issue is 6(l). There was some perhaps confusion about this issue. The intention of SDA36 is to adopt the award provisions unless otherwise excluded, so the parent award provisions in respect of rostering apply. Now, the only purpose of 6(l) as I am instructed was to correct a typographical error in the parent award in that in the first line the reference should be notwithstanding clause 23.3 rather than 23.1. That was the only purpose of 6(l), rather than any substantive change, to what the parent award provisions apply. In respect of 6(n), it may be that those provisions apply by force of the parent award. They are not expressly excluded. It might be and I would make this revision to our primary submissions, that paragraph 6(n) of SDA36 just come out.
PN6151
JUSTICE GIUDICE: It seems to me that the correction, what you refer to as the error, the reference to 23.1, is in fact not the only change and Ms White is quite right that it extends the operation of that alternative roster provision beyond exempt shops to non-exempt shops, understandably because under the interim award there is no provision for ordinary hours on Sunday in non-exempt shops and one could see how some provision would have to be made for that change. It eventually dawned on me.
PN6152
MR MOORE: Yes.
PN6153
JUSTICE GIUDICE: It may be something that might be useful to have some discussions about.
PN6154
MR MOORE: I think that is right, your Honour. I think there are a number of uncertainties about the operation of those provisions, not least in my mind. It may be that that can be sorted out.
PN6155
JUSTICE GIUDICE: Yes. You see, 23.3, the rostering provision, doesn't currently provide except in exempt shops for ordinary hours, a rostered ordinary shift on a Sunday, if shift is the right word.
PN6156
MR MOORE: Well, it may be that it is just a question of crystallising between the ARAV and the Association what the intention and purpose is and there may be less controversy about this than I currently believe there might be. I think that may be the best way to deal with those provisions, being 6(l) and 6(n) of SDA36. The only other issue I would just address, I think an issue was raised by Ms White of some concern about if the second stage of this matter, as it were, extends out past 17 May, what the consequences will be then for the new respondents.
PN6157
That is a matter that will be the subject of submissions, no doubt. It would be difficult, I would imagine, for the SDA to establish the exceptional circumstances which might make out retrospectivity, so it would only be in those circumstances. That is the prejudice and concern I would understand that Ms White is concerned about is about the final penalty rate having retrospective operation and that is a matter about which I don't have any final instructions, but it would be a matter for submissions about retrospectivity. Unless there are any other matters, your Honour, they are the submissions of the SDA.
PN6158
JUSTICE GIUDICE: Thank you. We intend to adjourn for a short time, until noon, and when we come back we will say what we have decided to do.
SHORT ADJOURNMENT [11.48am]
RESUMED [12.02pm]
PN6159
JUSTICE GIUDICE: In relation to the further hearing of the Sunday rate, we will issue directions in line with the program suggested by Mr Moore to which there has been no real dissent and we would hope when we do so to give a date for hearing of the matter. We can't give that date this morning, unfortunately.
PN6160
In relation to the order in settlement of our decision, we request the SDA to take all steps to ensure that the list which is on SDA38 is an agreed list. Now, I think that probably only involves directly the VACC, but we want to ensure that there are no errors. With such a large number, we think it is important to get that right. We don't ask the SDA to go beyond the parties to the proceedings, of course, but we would so far as possible like to have an agreed list and if that can't be done today, as soon as practicable thereafter. Supplying of the list on disk is, of course, acceptable and probably preferable.
PN6161
In relation to the terms of the order itself, we do not intend and did not intend by our decision that work in ordinary hours on Sunday should remain voluntary and I just give a reference to paragraph 88 of our decision. That seems to be the main issue for resolution this morning. I mention also, however, the operation of clause 23.4 and 23.5 which I think it has been foreshadowed there can be some discussions about.
PN6162
We request the SDA and the ARAV at least, but I think they probably are the important parties, to confer immediately on the terms of the draft order and to supply us by the end of the day with one document, with any remaining disagreements noted on that document. We will on receipt of that order resolve any outstanding issues without sitting again and then once the list of respondents is available, we will publish the award.
PN6163
MR MOORE: If your Honour pleases, just one matter.
PN6164
JUSTICE GIUDICE: Yes.
PN6165
MR MOORE: I am conscious of the need to attend to these matters quickly and I am just dealing here with the direction to confer as soon as possible.
PN6166
JUSTICE GIUDICE: Do you have something else on today?
PN6167
MR MOORE: That is not my difficulty, actually, your Honour. My difficulty is that Mr Donovan, the State Secretary of the Association, is in Perth. I have instructions to a certain extent, but some of these detailed matters are perhaps at the outer limit of my instructions and I would need to avail myself of his greater wisdom and experience in some of these issues. I am not sure, certainly he is in telephone contact to some extent, but I am not sure the extent to which I am able to get his input onto these matters today.
PN6168
JUSTICE GIUDICE: Well, when would you be able to get it?
PN6169
MR MOORE: Unfortunately, he is away all week, your Honour. That sounds like too long a period to stall the resolution of these issues. It may be that I can - perhaps if I was to be given overnight, until tomorrow, I might be able to get there with Mr Donovan so to speak.
PN6170
JUSTICE GIUDICE: Mr Moore, we appreciate that difficulty. Look, it doesn't appear to us that there are significant issues here that are left and I would simply urge you to do what you can. Now, if it turns out that you are unable to get instructions that are needed to finalise it, then it will simply be a question of submitting a document which represents the last instructions you have got, but we would prefer to have one document with the differences of view clearly marked.
PN6171
MR MOORE: Certainly, your Honour.
PN6172
JUSTICE GIUDICE: We will give you the indulgence, as it were, of dealing with that tomorrow, but - - -
PN6173
MR MOORE: If I could have tomorrow to deal with that, I would be as confident as I can be that we can have a document as most advanced as it can be, in any event.
PN6174
JUSTICE GIUDICE: Is there anything else? Thank you all for your assistance.
ADJOURNED ACCORDINGLY [12.08pm]
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