C7564/498, Transcript of Proceedings [2003] AIRCTrans 726 (6 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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TRANSCRIPT OF PROCEEDINGS


O/N VT1690
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

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

1.06 PM, MONDAY, 17 FEBRUARY 2003

Continued from 12.08 pm before
Justice Giudice, Senior Deputy President
and Commissioner Raffaelli

PN6175

MR A. BURKE: I appear on behalf of the Shop, Distributive and Allied Employees Association.

PN6176

MS S. WHITE: I am from the Australian Retailers Association that also encompasses the Hairdressing and Beauty Association.

PN6177

PN6178

MR P. EBERHARD: I am from the Victorian Employees Chamber of Commerce and Industry and I appear on behalf of those members of the organisation who are potentially respondent to this claim.

PN6179

THE COMMISSIONER: Well, this matter was on some time ago and it was adjourned awaiting the simplification of the parent award, if I might call it that, and when that was - when that occurred on 5 April, the President issued a simplified award, and an award that had been dealt with under item 51, by that time we would - the principal, $2 and Under litigation or proceedings were on foot and I think I understood that the applicant was happy to await the outcome of that before proceeding further. Now, that is the background as I see it. Mr Burke, what do you think should happen now?

PN6180

MR BURKE: Well, Commissioner, we say should happen is that the Commission go to make a new award which would a roping-in award which ropes in a number of establishments that we have, in a proposed draft order. We have spoken with the ARA late last week, unfortunately Mr Eberhard - when I found out about this matter I found that he was away last week so I have only just seen him briefly before the hearing.

PN6181

We have - I wasn't at the matter this morning, the Full Bench matter, but in mind with what was put forward in that matter we have proposed a similar draft order, a similar roping-in order which we have had some discussions with the ARA about and the purpose of that would be to rope the list of respondents into the existing award with an operative date no earlier than 17 March for one part and 17 June for some other parts and it follows on from the decision of the Full Bench back in January so what I propose to do in the meantime perhaps is hand up a copy of the proposed order and perhaps take it from there.

PN6182

THE COMMISSIONER: This is still technically the same matter as - not technically, this is still the same matter or the same dispute finding that the Full Bench is dealing with so it is probably better if we call this exhibit Burke 1. Yes.

EXHIBIT #BURKE1 DRAFT ORDER

PN6183

MR BURKE: In relation to this - I am not sure if you want me to take you through it, it basically sets out the title and arrangement, the parties bound, application, some provisions in relation to existing employees and off-setting payments which are found in the award or the roping-in award that was before the Full Bench this morning. There is an issue of annual leave loading included there, reserve matters in relation to the penalty rate on Saturday and then the operations of the award.

PN6184

Something that I understand was discussed this morning and I haven't included in at this stage is in relation to point number 4, "Application". I understand the words:

PN6185

Sought by the ARA at the end of that being with the exception of clause 22, Superannuation".

PN6186

That issue was discussed before the Full Bench and I understand Mr Moore did agree to the insertion of those words. As I wasn't present there this morning I had left those words out. I fully intended to find out what happened so we would add those words if that is what we have agreed to in the other matter. Then with the schedule A it does list a large number of hairdressing establishments, all those that were in the original log, with a couple of points to make about that.

PN6187

Firstly, I might just provide to the Commission, a list of three names, three establishments which I understand have been - they may be in the proposed roping-in award in the matter that was on this morning, they are actually hairdressing establishments and they should in fact be in this matter and we have included them in our schedule A so - - -

PN6188

THE COMMISSIONER: They are in schedule A, are they?

PN6189

MR BURKE: In this schedule A, yes.

PN6190

THE COMMISSIONER: Yes, okay.

PN6191

MR BURKE: Yes, I understand that they are - - -

EXHIBIT #BURKE2 SCHEDULE A

PN6192

MR BURKE: So we have a large schedule of employers attached to this roping-in award. I understand from Ms White this morning that there may be some employers that shouldn't be in this list for whatever reason. There is, I understand, a letter sent to the President pointing out - from the President to the ARA pointing out some establishments that shouldn't be in here. I unfortunately only became aware of this matter last Thursday and so have put together the draft order and was - and then found out from our national office the list of respondents that we were claiming should be in.

PN6193

Obviously we haven't had time for both parties, all parties, to look at the draft order and to look at the schedule and make sure that the list of respondents is correct so I think Ms White may go to that matter in a minute. Unfortunately I have only just put together the list that was provided to me, if there are - and added in the three that we were told about in the other matter.

PN6194

If anyone does need to come off, we are happy to discuss with ARA and VECCI, if those establishments, for example, don't exist any longer or perhaps they might have a change of address or something like that and that may need to be amended but basically our intention would be to have a roping-in award made in the terms that we have sought here. We would like to discuss with the employers the draft order and perhaps have a period of time for it to be discussed and the following that hopefully the draft orders is correct and any amendments could be sent back to yourself and finalised. They are the short submissions I would like to make this morning, Commissioner.

PN6195

THE COMMISSIONER: In respect of clause 9, 9A, is their operative 17 May? I thought you said 17 March.

PN6196

MR BURKE: I am sorry, yes, I should have pointed that out. Ms White did mention it. It is 17 May we are putting in the - - -

PN6197

THE COMMISSIONER: I see, okay.

PN6198

MR BURKE: Yes, I am sorry.

PN6199

THE COMMISSIONER: Okay.

PN6200

MR BURKE: Yes, it is. The draft order was - I think the operative dates are agreed, certainly with ARA.

PN6201

THE COMMISSIONER: Yes. Just for my own - what is 9 - I see, so it is proposed that this roping-in award be effected from 17 May, that is from your point of view, the principal award will apply to all of these schedule A companies and - but that the terms of clause 23.2.2, was that - - -

PN6202

MR BURKE: They are the hours of work?

PN6203

THE COMMISSIONER: Yes.

PN6204

MR BURKE: Clause 28 is Saturday work and clause 29 is Sunday work so those two provisions will start one month later, that was at the request of ARA.

PN6205

THE COMMISSIONER: But they are rates which are at odds with the outcome of the principal case, aren't they?

PN6206

MR BURKE: In relation to this matter there is a reserve matter in relation to Saturday work so there is still one matter to be - that is still being determined.

PN6207

THE COMMISSIONER: Yes. No, I am talking about - let us talk about Sunday. You are saying that on 17 June, clause 29 will apply and that would mean that the penalty rate for working on a Sunday would be double time.

PN6208

MR BURKE: Yes.

PN6209

THE COMMISSIONER: Let us say - well, that is - I am saying again, that is at least at odds with the current Full Bench decision, isn't it? It may be that the Full Bench may decide otherwise in due course but we are not to know that yet but - and that is my question.

PN6210

MR BURKE: I don't wish to sound ignorant, Commissioner, but I actually haven't read the decision.

PN6211

THE COMMISSIONER: No, but I mean why wouldn't this be at least for the time being at least reflective of what the Full Bench said which would essentially be for Sunday, double time and a half and - yes, with a - and then somehow a review date in line with perhaps or following the outcome of the Full Bench decision. There seems to be some - well, there seems to be some optimism here that one would think is well placed at least - as I look at the situation now.

PN6212

MR BURKE: I think we have got a different situation. This is - they are ordinary hours in this award on Sundays so we are not talking about - it is not perhaps like with like in that sense.

PN6213

THE COMMISSIONER: I see, yes.

PN6214

MR BURKE: The position being put in the draft order is what has been discussed with at least ARA and in their view the reserve matter relates back to Saturday.

PN6215

THE COMMISSIONER: I see. Well - - -

PN6216

MR BURKE: The award has been simplified and it is - as I say, I don't wish to sound ignorant but I haven't really read the decision and in relation to this award - it is an award that has been in existence for a while and the matters that have been - to be discussed further are those that are in the draft order.

PN6217

THE COMMISSIONER: Yes.

PN6218

MR BURKE: If the Commission pleases.

PN6219

THE COMMISSIONER: Yes, okay. Yes, thank you for now, Mr Burke. Yes, Ms White.

PN6220

MS WHITE: Commissioner, yes, Mr Burke, having conceded that the reference to superannuation should be included in four of the proposed roping-in award, ARAV is not opposed to the businesses being listed in schedule A being roped into the award with one matter that I think probably needs to be resolved at some point and I might just get back to that in a moment, Commissioner.

PN6221

In respect of this award, the Hairdressing and Beauty Services Victoria Award 2001, is a consent award. It came into existence in December 1996 through the consent of the SDA and the AR - then RTAV or subsequently became ARA. It, as a consent award has a number of different provisions that operate differently from the SDA Victorian Shops Interim Award 2000. The Full Bench decision of 17 January came out of an application by the SDA to rope some 17,000 businesses into the terms of the Victorian Shops Interim Award.

PN6222

The decision and all of the submissions put in respect of that matter applied to that particular award. There was no consideration given of this award and the outcome has no direct bearing on the Hairdressing and Beauty Services proposed respondents. As I said, Commissioner, it is a consent award, there are specific features of the industry and hairdressing that are different from the retail industry but with a view to there being some possibility of an argument being run in respect of Saturday, it has been agreed with Mr Burke that a reserve matter in the roping-in be clause 28, the penalty rate for ordinary work on Saturday and that possibly may be the subject of some further application on behalf of the ARAV in time, Commissioner.

PN6223

Aside from that, the operative dates are as Mr Burke has indicated. Aside from the ordinary time penalty for Saturday and where there is individual facilitation for Sunday work, double time, which will operate from 17 June, the main provisions of the award will operate from 17 May. the only other feature of this that I think needs to be probably pointed out, Commissioner, you may recall that the SDA had endeavoured to serve the log of claims back in 1998 on a number of hairdressing businesses already respondent to the Hairdressing and Beauty Services Industry Award.

PN6224

Now, the rationale behind that was that the dispute finding that gave rise to that award excluded annual leave loading through a number of decisions of the Commission. The SDA's logic was to go back and re-log or attempt to re-log those businesses so this draft order, Commissioner, has probably two purposes. One is to rope the - to rope a number of businesses who are not now respondent to the Hair Award into the Hair Award and for those businesses that also appear in schedule A that are already under the terms of the award, that those businesses will apply the 17 and a half per cent annual leave loading, that is the operation of the document as is stands, Commissioner.

PN6225

Now, the matter that I foreshadowed I would get back to has to do with the proposed list in schedule A. As part of the simplification proceedings, Commissioner, the President who simplified the Hairdressing Award put it to the parties that there were a number of businesses that he believed could potentially be out of business at the time a notice of listing was served on those businesses during the simplification. It related to rather a large number of businesses and if I might, because it was somewhat convoluted, the process that the parties went through at that time, I might just hand up the President's decision in respect of this because it does indicate the process that he went through in the deleting those businesses and I think it might be helpful, Commissioner, it is print PR903099.

PN6226

THE COMMISSIONER: Yes, I have got that. We are using that format, yes, okay.

PN6227

MS WHITE: Yes. If I could bring your attention, Commissioner, to page 5 of the decision at the second last paragraph:

PN6228

The respondency list has been updated using the following method. Notice of these proceedings was sent to all of the approximately ...(reads)... and a number of other alterations have been made.

PN6229

It might be helpful, your Honour, we have not had the opportunity to review schedule A of the proposed roping-in to ascertain if any of those 200 businesses that were deleted continue to appear on this list and I think that that is at least a distinct possibility. We would like that opportunity and in the meantime I think it might be helpful if the Commission has a couple of documents that were documents in the simplification proceedings that actually named the businesses that were under review.

PN6230

I tender this one, firstly, this is the businesses that - not all of the businesses on this list were eventually deleted and I will explain that, Commissioner, in terms of they were the businesses under consideration by the President as to whether they should be deleted or otherwise amendments made to their business address or name. The President's decision in respect of what he did with those businesses and his ultimate conclusion is in correspondence to the ARA of 21 February and the two documents really need to be read in conjunction to actually ascertain who should be in schedule A and who should be removed.

PN6231

So it is a little bit of a convoluted exercise but I think the President, having come to the conclusion that some businesses no longer existed and having them removed from the respondency of the present award, it would be undesirable for those businesses to now be roped into the award if in fact the decision has already been reached that they don't exist so with that exception, Commissioner, the ARA does not oppose the roping-in on the terms in the draft order. We don't consent as such but are not opposed to the provisions contained in the draft order. If the Commission pleases.

EXHIBIT #WHITE1 LETTER TO ARA OF 21/02/2002

EXHIBIT #WHITE2 LIST OF BUSINESSES

PN6232

THE COMMISSIONER: Can I take it that very few hairdressers work on Sundays?

PN6233

MS WHITE: Commissioner, it isn't a common feature of the industry.

PN6234

THE COMMISSIONER: No, unlike the rest of the industry, the general - - -

PN6235

MS WHITE: Yes.

PN6236

THE COMMISSIONER: Yes. Yes, Mr Eberhard.

PN6237

MR EBERHARD: Commissioner, whilst I have been aware of this matter for some time, I haven't, until about an hour ago, received any of the proposed roping-in awards from either the ARA or from the SDA in regards to this matter. I would request that we be given a period of time and I have discussed this with Mr Burke, given the length of the prospective operation of the actual date of the roping-in award, I would submit that if we could be granted two weeks to check the list and should we have any other concerns or questions in regards to the proposed roping-in award, we would seek to raise them with the SDA in that period of time as well but if we could be given two weeks to correspond with the SDA to confirm the position with respect to the - both the roping-in and also the list, that would certainly provide us with some assistance. If the Commission pleases.

PN6238

THE COMMISSIONER: Yes, thank you. Well, contrary to what I said, do you before, Mr Burke, it seems as if the - your proposed draft - it doesn't seem to have the difficulties that we have found it the other area. Consequently and given that the parent into which - or to which reference is made in the roping-in is an award dealt with appropriately in accordance with the Act in recent times, the Commission sees no basis for not in fact roping-in these many hairdressing establishments in terms of exhibit Burke 1 and that is subject to being advised by the SDA within a period of three weeks that the draft order to which is attached schedule A is in fact a finally checked and agreed document with the two employer associations.

PN6239

Now, assuming that that is the case and they are happy with it or you have made certain changes to reflect their concerns, then it would be my intention to make the awards with the operative date as set out in clause 9. If in fact there is outstanding difficulties of one kind or another, then we will deal with that by listing it either by video conference or face to face but hopefully that will not be necessary and anyway until we are advised further, I intend to adjourn these proceedings. Thank you.

ADJOURNED INDEFINITELY [1.30pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #BURKE1 DRAFT ORDER PN6183
EXHIBIT #BURKE2 SCHEDULE A PN6192
EXHIBIT #WHITE1 LETTER TO ARA OF 21/02/2002 PN6232
EXHIBIT #WHITE2 LIST OF BUSINESSES PN6232