C2002/3926, Transcript of Proceedings [2003] AIRCTrans 764 (11 March 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2002/3926
C2003/809
C2003/810
C2003/811

MOTELS, ACCOMMODATION AND RESORTS AWARD 1998

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

SYDNEY

11.12 AM, FRIDAY, 14 FEBRUARY 2003

PN1

THE COMMISSIONER: I note one change in appearance. Would you like to give me your appearance again, Mr McDonald?

PN2

MR T. McDONALD: If it please the Commission I have with me MS T THOMPSON from Motor Inn, Motel and Accommodation Association. I appear on behalf of that association, the Queensland Motel and Accommodation Association and the Victorian Employers Chamber of Commerce and Industry. I should also indicate, Commissioner, that I h ave with me two of the board members of the Motor Inn, Motel and Accommodation Association, Mr Morby and Mr Baw.

PN3

THE COMMISSIONER: Thank you, Mr McDonald. There is no appearance from ABI, Australian Business Industrial, is there? I will come to that. These four matters were last dealt with on 30 January when matter C2002/3926 was listed for report back in conciliation. Matters C2003/809, 810 and 811 were listed for mention given their very short notice and listing. One matter that did arise on the last occasion was the representative role of Australian Business and its involvement in these proceedings. Australian Business Industrial was given 14 days in which to identify its members whose interests it sought to represent in each of the four matters. I can say that no advice or notice to the Commission has been received to day and the 14 days has expired. In those circumstances any leave to appear granted to Australian Business Industrial on behalf of its members, if it had any, respondent to the award is hereby revoked.

PN4

The proceedings on the last occasion were adjourned to allow the parties the opportunity to confer on issues first raised in the union's application to vary the award and on the various issues raised in the association's applications to vary the award. Mr Swancott, perhaps at first instance you might brief me on where things have developed?

PN5

MR N. SWANCOTT: Commissioner, the parties have met since we were last before you and had a lengthy meeting. To cut to the chase there is very little prospect of agreement being reached while the Motels Association application is pressed in its current form. The union did raise with the association some of its concerns that go to jurisdictional matters and I should indicate that we have not had any advice of any modification from the Motels Association of its position which, as we understand it, is an intention to try to link the matters set out in its three applications with that set out in the LHMUs applications in matter 3926 of 2002.

PN6

While that linkage is pressed the union has very little room to move. It seems that if the matters are being pressed then a full on arbitration will be required. In saying that we don't rule out the possibility of conciliation assisting in this matter but I would be less than honest if I were not to say that there is very little prospect of any agreed position on the positions put by the parties to date.

PN7

THE COMMISSIONER: Thank you, Mr Swancott. Do you have anything to add, Mr Watts?

PN8

MR R. WATTS: No, I don't on the record, Commissioner.

PN9

THE COMMISSIONER: Mr McDonald?

PN10

MR McDONALD: Commissioner, I wouldn't disagree with Mr Swancott as to the progress of matters in our discussions insofar as the substantive issues of flexibility in relation to part time work and also the casual conversion claim of the union and their other claims. There did seem to be some areas though where common ground may be able to be achieved in relation to the application about various corrections to the award. It seemed as though that may not be as controversial. Similarly, the overnight stay allowance provisions subject to appropriate words being determined. Some other aspects of the application seem to have some room for further discussion. So, in terms of those areas where there might be some prospect of the parties becoming closer we think that certainly conciliation would assist if not in relation to the other matters between the parties. If it please the Commission.

PN11

THE COMMISSIONER: Thank you Mr McDonald. Ms Bergmann-Hanna?

PN12

MS BERGMANN-HANNA: Thank you, Commissioner. We are still considering the applications made by memo a couple of weeks ago and don't have any further comment at this stage. If it please the Commission.

PN13

THE COMMISSIONER: What's your position in respect of the union's application?

PN14

MS BERGMANN-HANNA: We are still having to consider and consult in respect of the applications.

PN15

THE COMMISSIONER: Well, Mr McDonald, whilst we're still on the record what are the issues which you believe may be able to be progressed with assistance of the Commission by way of conciliation?

PN16

MR McDONALD: The changes to the public holiday provisions for part time employees and the ..... of the public holiday test case. The overnight stay allowance would seem to be matters upon which upon which perhaps most progress could be made but we would certainly like to conciliate in relation to the other matters if that was convenient. And also the corrections to the award I think were uncontroversial.

PN17

THE COMMISSIONER: Yes, they are mainly machinery changes, aren't they from recollection?

PN18

MR McDONALD: Yes, Commissioner.

PN19

THE COMMISSIONER: Are you privy to the union's jurisdictional points that it intends to raise in opposition to your three applications?

PN20

MR McDONALD: I wouldn't say - it certainly has been raised that there are jurisdictional concerns. I'm not sure of the detail of those, Commissioner. I understand there is - - -

PN21

THE COMMISSIONER: Given that there is a timetable for the parties to file and serve their respective first round documents by Thursday of next week one would have thought that you would have sorted the jurisdictional issues out already or are you waiting for each other to show your full hand of cards next week to which each party will then have an opportunity to respond within a month?

PN22

MR McDONALD: Commissioner, we have raised no matters of jurisdiction in relation to the union's application. They have foreshadowed that there may be some in relation to ours. It would assist if we knew some detail as to what they were and whether they were matters which may require some preliminary consideration.

PN23

THE COMMISSIONER: Well, you could have picked up the phone, Mr McDonald, before you came here today. I heard on the last occasion Mr Swancott foreshadowed some jurisdictional objections. I don't know what they are. He hasn't clarified them to me in any proceedings to date and you still don't know.

PN24

MR McDONALD: Commissioner, the only one that I am a bit unclear on is an estoppel issue raised in relation to the superannuation threshold application. I am not sure whether that has been included as being a jurisdictional impediment.

PN25

THE COMMISSIONER: I think that word was used on the last occasion. If it's in the context of your particular claim in respect of superannuation then so be it. But perhaps we all need clarity as to what the jurisdictional objections are. I certainly need some clarity and I need to consider those before I would consider dealing with the matter further by way of further conciliation or whether I simply leave it to you to press your respectful cases. All right, thanks, Mr McDonald. Just one point, are you in a position, can you clarify for me as much as for the employers as to what perhaps the generic term, your jurisdictional objections might be?

PN26

MR SWANCOTT: Commissioner, the view that we've expressed to MIMA in relation to regular part time employment and the provisions in the award which are in identical terms to those arbitrated by the full bench in the Award Simplification case in relation to the Hospitality Award is that the MIMA application attracts the statement of principles and requires them to make a special case application. Because the operation of section 106 of the Act prevents the Commission constituted by a single member from departing from the full bench decision which as the Commission will know in the Award Simplification case, was made on the basis that section 106 and the similar provisions in the transition provisions of the WROLA Act covered the decision of the full bench.

PN27

So in short the application in relation to regular part time employment seeks to vary the safety net. It does so in a manner inconsistent with a decision of the full bench which attracts section 106 and as a preliminary issue it seems to us that the Motels Association is required to make a special case. Seek reference of the matter to the president for consideration as to whether a full bench should be constituted. The above or the below the safety net principle also applies in relation to the public holidays provision that is sought to be changed. Although in relation to that in discussions the union has put an alternative proposal to the Motels Association which is - I will advise the Commission to what that is.

PN28

That proposal is that as the Hospitality Award Public Holidays clause has been subjected to something like six arbitrations in the past eight years, it now more than any award can claim the honour of fully representing the test case standards. The most appropriate resolution to the public holidays application made by MIMA is to replace the clause in the Motels Award with that that now appears in the Hospitality Award because it has absolute unshakeable credentials, that clause.

PN29

I have not had a response to that. It seems to us that that's a more appropriate way to deal with the issues than to attack them piecemeal. Another part of the MIMA application seeks to extend the Federal minimum wage to another class of employees now entitled to higher wages. That would seem to us clearly to be a matter that is effected by the statement of principles and an application to vary the award below the award safety net.

PN30

They are the issues that we have foreshadowed to MIMA in negotiation. In relation to superannuation we acknowledge that our primary argument is one that goes to merit as to whether the Commission should hear the case or alternatively whether it should dismiss it on merit. We don't raise any concept of issue estoppel in the legal sense because we recognise that the Commissions duty is to resolve disputes and that issues of estoppel are very rarely appropriate in the industrial arena.

PN31

But as to merit, we say that that application is without merit in light of undertakings and consent positions that were adopted at the time the award was last amended in relation to superannuation.

PN32

THE COMMISSIONER: On the last occasion I think you mentioned that there had been a determination by Vice President Ross some years ago and I think you commented at the time that you believed the current application in respect of superannuation contradicted that, is that the case?

PN33

MR SWANCOTT: Yes, Commissioner.

PN34

THE COMMISSIONER: Could you narrow what that reference is, what was the decision of Vice President Ross?

PN35

MR SWANCOTT: Yes, Commissioner, the supplementary decision of Vice President Ross on 3 July 1996 is set out in print N3056. It followed an arbitration by his Honour on superannuation issues in relation to the Hospitality Industry Award which is set out in print N3056.

PN36

THE COMMISSIONER: That's the same reference you just gave me.

PN37

MR SWANCOTT: It is too, I am sorry. The supplementary decision - yes, I have just picked up a second copy of the supplementary decision, my apologies. The original decision which is some 35 pages is in print N1387 in May 1996. In brief the argument in the original decision concerned an application by the Australian Hotels Association to increase the superannuation threshold from $200 to $450 a month. The award required employers to pay superannuation into the industry funds when an employees earnings exceeded $200 in a particular month.

PN38

The application was to increase that threshold to $450 a month in line with the statutory threshold of $450.

PN39

THE COMMISSIONER: What was the outcome?

PN40

MR SWANCOTT: The outcome was that Vice President Ross rejected the application determining that the award provision gave benefits to employees who would otherwise lose them and that, in short, and I don't think I am doing any injustice to the decision, that there were two sources of rights. One was the legislation, the other the award. The employers could obey both. There was no justification for removing the superannuation entitlement for the lower paid workers.

PN41

As a consequence the parties went into conference and in print N3056 in July the parties reported that in light of the decision the parties had agreed on a compromise the effect of which was to increase the $200 per month threshold to $350 per month and that is the current provision. In that print, at page 2 of the print, Vice President Ross reported that the AHA advised that:

PN42

The consent order proposed was also supported by the Motor Inn Motel and Accommodation Association and the Victorian Employers Chamber of Commerce and Industry.

PN43

Vice President Ross then went on to say he was satisfied that he should agree to that consent compromise position and he varied the Awards accordingly. The Hospitality Award and subsequently the Motels Award.

PN44

The point that we have made to the Motels Association is that that threshold was fixed by agreement involving MIMA at a point when the statutory threshold was $450. That is still the case. The statutory threshold remains at $450. The parliament has not seen fit to alter that threshold. There is no justification in our view for MIMA walking away from the consent position reached then. They were the issues foreshadowed by the union at the time and they will be part of the arguments that we advance in relation to that part of MIMA's application.

PN45

In relation to the part time work, the other issue that we foreshadowed to MIMA - regular part time employment - is that in our view the variation that is proposed by MIMA, apart from being inconsistent with the Full Bench decision is also contrary to the legislative intention and in short is not permitted by the legislation. Thank you, Commissioner.

PN46

THE COMMISSIONER: What are your responses to those matters, Mr McDonald?

PN47

MR McDONALD: My concern is particularly goes to issues that might prohibit me from dealing with matters further under section 106 and also to matters which Mr Swancott asserts are contrary to legislative standards.

PN48

Commissioner, in relation to whether matters may require reference, I wasn't addressing that on the jurisdictional question, that had been explained by Mr Swancott, I think there are aspects of the union's application which may require a reference if that was to be arbitrated, such as the changes they seek to casual minimum engagements to increase those and also part time minimum engagements and maybe that aspects of our application in their current form may also attract that. But we were hopeful that there may be progress made in relation to both applications before that may become an issue for determination.

PN49

In relation to the other matters that have been raised, as to superannuation, we accept what Mr Swancott has put that it was a matter that was finally agreed between the parties in 1996 and that people should be slow to move away from those agreements. What we have sought to do in our application is to continue superannuation threshold in real terms for those people who were at the $350 mark. Since 1996 there has been an $82 increase in wages as a result of Safety Net adjustments. It is anticipated that there may be further increases this year which would take it up to the $450 or close thereto. So that is an issue which we would like to further discuss with the union.

PN50

The other matter we would raise is that in 1996 agreement was also reached in relation to the 38 hour week and the minimum starts for casual employees, and an offset was a reduction for casual minimum staff from 3 hours to 2 hours which the union in its application now seeks to change. So, I think it's fair to say - - -

PN51

THE COMMISSIONER: When was the minimum engagement reduced to 2 hours ?

PN52

MR McDONALD: In 1996 as part of an agreed 38 hour week off set.

PN53

THE COMMISSIONER: And the union is now seeking to raise that? Aren't you seeking to reduce that?

PN54

MR McDONALD: No, Commissioner, we are seeking to keep that at it's existing position of 2 hours and the union seeks to increase it in line with the pre-1996 position.

PN55

In relation to the part-time work clause changes that we have proposed, we wouldn't see it at all as being inconsistent with the Full Bench decision, the Awards Simplification case. The part time clause considered in that case and the various other clauses were generally to be considered as a guide and the Full Bench mentions that in its decision. Of course numerous Federal Awards have different part time provisions, they don't all reflect exactly the terms of that case and there are many decisions of the Commission which address that, in our submission.

PN56

I should say also, Commissioner, that at the time that the clause from that case was put in, the rights of the parties were reserved in relation to the particular provisions, including the sorts of changes that we are now proposing in relation to part time work.

PN57

THE COMMISSIONER: Mr McDonald, given that I'm hearing two parallel, but opposing views, where do you see is the scope for conciliation?

PN58

MR McDONALD: Commissioner, it may be that one matter that does seem to have scope for some negotiation is the overnight stay allowance and also the changes to the public holiday provisions, which are certainly significant issues that could be progressed. In terms of the other aspects of the application, the discussions between the parties I think have been fairly limited given the size and significance of the issues that have been raised.

PN59

THE COMMISSIONER: When are these negotiations or discussions going to be continued and exhausted? Given that you have less than a week to now in which to prepare your complete first round submissions and your three applications - likewise Mr Swancott has one week to prepare his full submissions in respect to the union's application - when is this further negotiation and/or conciliation going to take place?

PN60

MR McDONALD: It is a difficulty, Commissioner. We had our meeting on 6, and there were matters that we expected to hear back from the union about which we haven't. There are matters under discussion in the context of the Hotels Award which we are not aware of, but seeing that the union's mind to impact upon any discussions that they may potentially have with us, we believe those discussions need to go further. However there is a timetable in place and we will naturally meet that, but we were hoping that in the conciliation to date perhaps those discussions could be progressed further.

PN61

THE COMMISSIONER: Well I don't hear too many conciliatory noises I have to say that. Is there any you wish to contribute at this point Ms Bergmann-Hanna?

PN62

MS BERGMANN-HANNA: Thank you Commissioner. Just to make a comment in respect of superannuation seeing as that is being discussed today. The AHAs position hasn't changed from those agreements in 1996. I don't wish to make any comments about any other application. If it please the Commission.

PN63

THE COMMISSIONER: So you don't support the Motels Association application to increase the threshold from 350 to 450?

PN64

MS BERGMANN-HANNA: As I understand, the position as it has been expressed to me, I wasn't around at that time working with the AHA then but the position hasn't changed from that agreed agreement made in 1996.

PN65

THE COMMISSIONER: So I can read into that what I like can I? That to me sounds as though the AHA does not support this application by the Motels Association to increase the threshold from 350 to 450.

PN66

MS BERGMANN-HANNA: I would reserve our position in relation to that until I receive further instructions.

PN67

THE COMMISSIONER: Do you have any comment to make on the variation to the part time provisions or the public holiday provisions as proposed by the Motels Association?

PN68

MS BERGMANN-HANNA: Those parts of the application are still under consideration and we don't have a position on those if it please the commission.

PN69

THE COMMISSIONER: All right. Well obviously there are a number of issues there that need to be dealt with. You all have a very limited period of time in which to deal with them. Mr Watts?

PN70

MR WATTS: Thank you, Commissioner. The ACTU endorses the position of the LHMU in regard to in particular the need for an application under 106. We're concerned that we seem to be going around in circles in these matters. The position that has been put is serious position that the MIMAs applications will indeed have to be made under 106. That no doubt will be expanded upon at some stage but I think that the response - well, we just don't think that is the case. It needs to be expanded upon.

PN71

In relation to superannuation, once again our concern is that we don't want to waste the Commission's or any other party's time on this matter but any proper investigation of the issue in terms of what the governments position in relation to thresholds and the government's previous opposition to an expansion of a percentage increase in terms of superannuation guarantee act has been put in relation to the rise in wages in real terms or other terms and the government's position that they have had are generally not supportive of further increases in superannuation guarantee because of the fact that wages are in fact increasing.

PN72

So in effect, in terms of the governments policy, it doesn't support MIMAs application and I wouldn't think in the context of previous agreements for each - we're a little concerned whether some of these applications are in fact genuine or whether they've muddied the waters a little as part of the ambit process and I think it is getting very late - - -

PN73

THE COMMISSIONER: I mentioned ambit on the last occasion, Mr Watts but there is nothing unusual about that.

PN74

MR WATTS: There isn't Commissioner I think we are getting to the stage where we have to start getting real what some of these matters are. If MIMA in fact is going to run 106 it needs to make application to do so. It is a matter which is not to be taken lightly but these are serious matters, they are serious applications no doubt but in fact indeed if they are they need to be pursued probably in a different manner in which they currently are as opposed to we would see them as perhaps a little chafe in the air to cloud the original application. If they are genuine they need to be pursued, we would say in a different manner. Certainly we support Mr Swancott's position in particular to 106 matters. If the Commission pleases.

PN75

THE COMMISSIONER: Yes, what is your view about conciliation and its likely impact at this point in time?

PN76

MR WATTS: Commissioner, I think the respective applicants are probably direct applicant would be best to provide an answer in relation to that but the ACTU encourages conciliation at every opportunity and would like to play a role in assisting the parties to come to some resolution. That is why I think it is about time we started getting - it may be of assistance I think if we rolled up our sleeves to deal with some of these issue but if we are going to do so I think we need to concentrate on those things which the parties are genuine about and that they have a genuine desire to progress and they believe aren't inhibited by jurisdictional or process matters.

PN77

THE COMMISSIONER: You are not going to express the view at this time having heard the parties to date to indicate that I would not be willing to attempt to conciliate at this time given so many loose ends still in the are and challenges or genuineness or otherwise. I would prefer to see to use that colloquial phrase, "the colour of your money" on each side, in other words, the precise claims and the supporting material and I think that each party and the Commission is made aware of the scope and the grounds in support of the claims. That will create a climate more conducive to conciliation.

PN78

Again I simply remind you that clock is ticking and you have to have those first round documents finalised by the close of business Thursday of next week, 20 February. In stating what I've just said I'm not closing off the concept of conciliation in any way. I make myself available to assist the parties as and when they seek that assistance any time after 20 February up to an including of course, the then looming deadline for your reply documents which is 20 March. I will leave that thought with you and invite your responses.

PN79

MR SWANCOTT: Commissioner if you permit me, you will recall that in an earlier matter this morning the Commission consented to a joint proposal from the unions and the AHA to vary the filing date from 20 February to 26 February in relation to that matter. The material that the LHMU has been putting together in relation to these two applications in the hospitality and motels awards does have a fair amount of common material in it and it would apart from stretching the Commission's filing capacities it would make sense if we were to bring those dated together and the material that was common could be included in the material that was specific to the two awards could be identified in that material. If the Commission has no objection to that we would ask that the filing dates be varied to 26 February and 26 March respectively. Thank you, Commissioner.

PN80

THE COMMISSIONER: Mr McDonald, any responses?

PN81

MR McDONALD: Commissioner, in terms of what we have been anticipating today was that there would be a report and as we understood it from the union that we would be here conciliating with being prepared for that purpose. The fact that we're prepared to conciliate and it should be taken that we are in any way not serious about the totality of our application.

PN82

THE COMMISSIONER: I don't think anybody takes you here as being not serious, Mr McDonald, it is a question of what scope there is for conciliation if there is scope. If not then there is an inevitability about the timetable and you will be required to file and serve documents and then deal with the matters during the period of the days that we've set aside for arbitration in April.

PN83

MR McDONALD: Commissioner, insofar as those dates are concerned, as to filing by the 20th, we are certainly in a position to do that. That date has been set for some time in relation to the union's application. We don't seek an extension but at the same time would not oppose that. However, we would seek if there is going to be some - by the time that the parties be directed to have some conferences prior to that time and we would also seek that perhaps a conciliation date be set at this time following the filing of the material, if it pleases.

PN84

THE COMMISSIONER: My point being about not being prepared to conciliate at this time is that I have to say I don't know the scope of each parties claims apart from what I have in writing and I want to see the full cases of grounds in support, particularly where there is likely to be challenges to jurisdiction or registered limits or whatever. It is really for each side to make their first round case and to then give some scope for conciliation.

PN85

You don't object to extending the timetable, whilst you didn't openly support an extension of the timetable for the filing of documents you, really don't oppose it.

PN86

MR McDONALD: No, Commissioner.

PN87

THE COMMISSIONER: Ms Bergmann-Hanna, do you have any comments to make?

PN88

MS BERGMANN-HANNA: No, Commissioner.

PN89

THE COMMISSIONER: Mr Swancott, differentiating this matter from the Hotels Award, I am now asked by Mr McDonald to set a date for conciliation having regard to that and your application to amend the timetable of filing of first round documents, do you have any difficulties if we endeavour off the record to try and set a firm date for conciliation some time after 26 February?

PN90

MR SWANCOTT: No difficulty at all, Commissioner. I am just looking at my diary.

PN91

THE COMMISSIONER: We might do that off the record then.

PN92

MR McDONALD: Commissioner, if I may raise one further matter. Given that there may be - it is likely that there will be scope for perhaps consent in relation to two of the three applications, that being in relation to the public holiday test case and the corrections, perhaps on a day that might be set for conciliation, perhaps those two applications might be set for hearing on that day, if it is convenient.

PN93

THE COMMISSIONER: I have to say that I am not hearing that there is a lot of consent around this morning, Mr McDonald, why all of a sudden do you believe that there is scope to deal with anything other than the machinery amendments to the award that you seek by way of consent?

PN94

MR McDONALD: Certainly in relation to - well that does form the basis for one of the applications. In relation to the public holiday test case, I understood from what the union was putting that that would be agreed by them if the provisions of the Hotels Award as to public holidays were also to be picked up by us, that's something that we will certainly have to consider.

PN95

THE COMMISSIONER: That's a reasonable proposition that at the same time to utilise our time more effectively is to list those two matters for hearing, at the same time as conciliation in the outstanding matters. That makes sense. Any objection to that, Mr Swancott?

PN96

MR SWANCOTT: Well, we do, Commissioner. I mean I don't see how the job lot that was served up to us by MIMA at the eleventh hour so to speak, the last time we were before you, can be broken up into digestible pieces to suit MIMAs interests.

PN97

THE COMMISSIONER: They were separate applications. They're either dealt with by consent or they will be dealt with on the basis of material provided. I sense from what Mr McDonald is saying, he believes that the machinery amendments, for want of a better word, and the amendments concerning public holidays might very well be dealt with by consent and therefore could be got rid of so to speak in a hearing some time after 26 February. I don't see how that in any way detracts from the content of your application or the then the remaining content of MIMAs applications.

PN98

MR SWANCOTT: In relation to the machinery matters I am currently advised that there will probably not be any opposition to those typographical amendments, etcetera. In relation to the other matters the LHMU takes the view that they are interconnected and have to be seen as a whole. I know I am not as currently advised able to indicate consent to any of those aspects on a piecemeal basis so we would have no objection to listing I think it's 809 which is the machinery application but we would think it is premature at this stage to list 810 or 811. Certainly we would think that the conciliation should proceed and any piecemeal approach to the various matters. It may be that if all parties come into the conciliation with open minds and good will etcetera that the whole matters can be sorted out on that day.

PN99

THE COMMISSIONER: Is the public holiday test case issue, is that a separate application?

PN100

MR SWANCOTT: I think it is, yes.

PN101

THE COMMISSIONER: Is that correct, Mr McDonald?

PN102

MR McDONALD: Yes, it is, Commissioner.

PN103

THE COMMISSIONER: And that's the matter that you, whilst not giving ground, that you indicated that if consent could be reached on that matter that could be dealt with in effect at the same time as the machinery amendments?

PN104

MR McDONALD: Yes, Commissioner.

PN105

THE COMMISSIONER: Well, it certainly is filed as a separate application, it could be dealt with separately. It is really up to the parties how they wish to deal with it. I can certainly deal with it as separate applications and I really can't have any real objection to an application may be dealt with separately. It would seem to me that in matter 809 Mr Swancott, if you got your way by having the Hotels Award test case standard into the Motels Award you achieve an outcome that you want.

PN106

MR SWANCOTT: Yes, maybe so, Commissioner, although I am a little bit concerned about the award being varied on a sort of fortnightly basis. It is already confusing enough in our office to find out what is actually in all of these awards. If it's possible - - -

PN107

THE COMMISSIONER: Well, put in separate applications, I queried that at the time as to why they were separate applications and not an all embracing application to make a number of variations but be that as it may they are separate applications and may possibly be able to be dealt with as simply as that, as separate applications. At least then we would all rid of them out of our respective offices.

PN108

MR SWANCOTT: Commissioner, clearly I am in your hands but I am also subject to direction from my employers. As I indicated - - -

PN109

THE COMMISSIONER: Well, I will give you the opportunity of responding to that. It is a general proposition that if before us at the present moment. That is I relist all of the matters for conciliation on a fixed date and for the possible listing of two of the matters for determination and finalisation of them. If you could within perhaps seven days from today seek those directions and advise me accordingly and I will decide then as to whether I will list them as separate applications for hearing and determination on the day along with the conciliations.

PN110

We will go off the record for the moment.

OFF THE RECORD

PN111

THE COMMISSIONER: Whilst off the record I've discussed with the parties the availability of all of the parties for conciliation with regard to some of the issues that arise from the present applications and the possibility of hearings of consent applications on the same day. It is now agreed that Friday, 28 February we set aside for that purpose and I will effect a relisting after I've received advice from Mr Swancott within seven days of today as whether his organisation objects to or consents to a common hearing date for the conciliation of the contested matters and the hearing of the consent matters. Before concluding is there anything further for the public record today, Mr Swancott?

PN112

MR SWANCOTT: No, Commissioner. I am not sure that you officially varied the filing dates, or did you?

PN113

THE COMMISSIONER: Thank you for reminding me. I have considered the application by Mr Swancott which was not opposed by Mr McDonald but the file date for the first round of documents to be filed and served in matter 3926 and 809, 810 and 811 be amended to the close fo business on 26 February and the second round filing date to be amended to 26 March, the previously agreed arbitration dates will remain the same.

PN114

MR McDONALD: If I may, the three dates for arbitration were set. We would anticipate that significantly longer might be required for the hearing of the matter.

PN115

HIS HONOUR: Yes, you foreshadowed that on the last occasion too. Do you have any further idea at this time as to what hearing dates or the nature of the hearing might be? Is it going to necessitate hearings in regional centres or inspections of anything?

PN116

MR McDONALD: At this stage we would expect that hearings could be conveniently held in Tasmania, Victoria and New South Wales. I am not sure whether there will be a need for much regional travel although there may be some inspections.

PN117

THE COMMISSIONER: In which case we will need to set aside further days in respect of - we had better have the say set aside than not have them set aside and then have to chase some more dates. Would it be possible to do the Tasmanian, you said hearings in Tasmania, would it be possible to do them in Melbourne?

PN118

MR McDONALD: Yes, Commissioner.

PN119

THE COMMISSIONER: Consolidate Victoria and any victorian issues and Tasmanian issues in a single hearing in Melbourne>

PN120

MR McDONALD: Yes, Commissioner.

PN121

THE COMMISSIONER: I don't have any dates in mind at this time. Mr Swancott have you got any comments to make about that?

PN122

MR SWANCOTT; We might be in a better position, Commissioner, on 28 February to make an assessment of the volume of the case.

PN123

THE COMMISSIONER: That's a fair comment to make.

PN124

MR SWANCOTT: The need for interstate travel, etceteras.

PN125

THE COMMISSIONER: All right. Can I put you on notice to be available to comment on the need for an expanded arbitration timetable and the likely need for inspections and/or hearings in locations other than in Sydney. You can provide me with that detail on 28 February. In the meantime, I direct the parties to confer on the respective agendas arising from the applications to vary the motels award and to be in a position to properly inform me of the scope of agreement as much as the scope of disagreement on 28 February. That concludes the proceedings and the Commission will adjourn.

ADJOURNED INDEFINITELY [12.10pm]