C0090/899, Transcript of Proceedings [2003] AIRCTrans 830 (13 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT KAUFMAN

C No 00908 of 1999
C2002/6155

LHMU - ACM DETENTION CENTRES OFFICERS (INTERIM) AWARD 1997

Review under item 51, part 2, schedule 5,
Transitional WROLA ACT 1996 re award simplification

Application under section 113 of the Act
to vary the above award re award simplification

SYDNEY

10.14 AM, WEDNESDAY, 26 FEBRUARY 2003

Continued from 6.1.03

Hearing continuing

PN3429

THE SENIOR DEPUTY PRESIDENT: Good morning, are there any changes in appearances?

PN3430

MS SCHOFIELD: Appearing with me, your Honour, is Mr Neil Swancott from the LHMU.

PN3431

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Schofield. Mr Douglas, this hearing is all your doing.

PN3432

MR DOUGLAS: Yes, it is, your Honour. There are two matters of concern before your Honour, one in relation to the award and one in relation to section 149(1)(d). The award matter, your Honour, is, as we see it, of considerable importance and it was for that reason that I made the request that I be given an opportunity to address you in open hearing today and I will do that now, your Honour.

PN3433

The award matter concerns the wording of the redundancy clause that will be included in the simplified award. There is no doubt, in my submission, that the award - the simplified award - as does the interim award - there is no doubt that the simplified award must contain a redundancy clause that meets the Commission's current standard. There is such a clause and it derives from the TCR cases in 1984. The question before your Honour is should the redundancy clause include a transmission of business subclause consistent with the wording of the current TCR model, if I can describe it thus, in circumstances where that subclause has been held to be allowable in terms of section 89A9(1) and (2)?

PN3434

The union's position on this matter, your Honour, is set out in the letter to your Honour dated 10 February.

PN3435

THE SENIOR DEPUTY PRESIDENT: Yes, the union seems to put in contention that there is a standard clause?

PN3436

MR DOUGLAS: Yes, your Honour, yes, and I that is one matter that I want to address.

PN3437

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN3438

MR DOUGLAS: I will just briefly go to that letter.

PN3439

THE SENIOR DEPUTY PRESIDENT: That is the letter of 10 February, Mr Douglas?

PN3440

MR DOUGLAS: 10 February, your Honour. About the middle of the first page the union said:

PN3441

Primarily we note that the exhibit ACM3 reflects an agreed draft of the parties which was submitted...(reads)...and hasn't done so.

PN3442

And then reference is made to a decision of Mr Commission Wilkes in relation to the simplification of The Security Employees Victoria Award 1998 - or it became the 1998 award - and point 2 of the union's letter says:

PN3443

Rather, ACM3 reflects the current provision of the Security Employees Victoria Award 1998 as arbitrated by that Commissioner.

PN3444

THE SENIOR DEPUTY PRESIDENT: That is correct, isn't it?

PN3445

MR DOUGLAS: Yes, that si correct, your Honour. That award does not contain the relevant subclause.

PN3446

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3447

MR DOUGLAS: And I will demonstrate in a moment, your Honour, that Commissioner Wilkes was wrong when he did that and, in fact, he should now, on his own motion, vary the award to include the subclause, but that is another matter.

PN3448

THE SENIOR DEPUTY PRESIDENT: Yes, I won't buy into that one.

PN3449

MR DOUGLAS: No, but at the end of the day, your Honour, I submit that I will convince you, your Honour, that would be the right course for him to follow. Then in point 3 the union said:

PN3450

We note that a number of other awards of the Commission do not contain the transmissions of business provisions.

PN3451

That also is true and those awards are, therefore, also lacking in the decisions which resulted in the transmission of business subclause being deleted.

PN3452

THE SENIOR DEPUTY PRESIDENT: Yes, that sentence - and Ms Schofield can tell me if I'm wrong - seems to me to mix up the 149 type transmission of business clause that one sometimes finds in awards and the type of clause about which you are speaking.

PN3453

MR DOUGLAS: Exactly, your Honour, and we come to that in point 4 where the union says: There is no uniform approach - in the last sentence:

PN3454

This reflects a broad view of a Bull Bench on transmission of entitlements and consistent with section 149.

PN3455

And then in paragraph 8, again, the union says:

PN3456

Employees' rights are protected by the operation of section 149 of the Act.

PN3457

THE SENIOR DEPUTY PRESIDENT: That is not what this clause is about.

PN3458

MR DOUGLAS: And it has got absolutely no connection what so ever with section 149.

PN3459

THE SENIOR DEPUTY PRESIDENT: Yes, I think I made the point to Mr Serong on the last occasion that it is a misnomer to talk about it as a transmission of business clause.

PN3460

MR DOUGLAS: Absolutely, your Honour, and I want to take your Honour to the very special history of this subclause and I must say that - I say this with certainty - that I am the only person practising, whether a member of the legal profession or not, who is familiar with the - as to how that clause became the transmission of business subclause in the TCR standard and, in fact, I had a hand in the drafting of the provision in the very late 1950s when I was employed at Mill Hamilton and Verum.

PN3461

THE SENIOR DEPUTY PRESIDENT: Well, none of us here are old enough to go back that far, I suspect.

PN3462

MR DOUGLAS: No, that is so, your Honour, but I will trace the history - I can do it by documentation - and demonstrate the accuracy of what I am putting. In any event, your Honour, the current position is that the present award that is binding on ACM, the one that is before your Honour for simplification, does contain the transmission of business subclause. So the reality is that the union is seeking to have that taken out.

PN3463

THE SENIOR DEPUTY PRESIDENT: How is that, Mr Douglas?

PN3464

MR DOUGLAS: If you go to the interim award. Have you got a copy of that, your Honour?

PN3465

THE SENIOR DEPUTY PRESIDENT: I think I do have.

PN3466

MR DOUGLAS: I can hand up a copy. I have got a copy here, your Honour.

PN3467

THE SENIOR DEPUTY PRESIDENT: Yes, I thought I had it. Thank you.

PN3468

MR DOUGLAS: Now, this award, your Honour, is currently in operation because it hasn't yet been varied by your Honour, according to the simplification process.

PN3469

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN3470

MR DOUGLAS: I take you to clause 3:

PN3471

The wages and conditions of employment applicable to the persons employed under this award...(reads)...in the schedule hereto.

PN3472

And in the schedule, clause 37 is referred to of the 1993 award, being redundancy.

PN3473

THE SENIOR DEPUTY PRESIDENT: Yes. That award no longer exists.

PN3474

MR DOUGLAS: But for the purposes of - if that award no longer exists, your Honour, then none of the elements in the schedule would have any application, therefore in reality, there is no award operating but, I would submit, that is not the true position. The true position is that this interim award, by adoption, has, instead of setting out in full, has simply by adoption, continued in existence those provisions referred to in the schedule of the 1993 award.

PN3475

The variation by Commissioner Wilkes by simplifying that award has had no impact on the actual content of this interim award.

PN3476

THE SENIOR DEPUTY PRESIDENT: Yes, it doesn't refer to the 1993 award as varied from time to time.

PN3477

MR DOUGLAS: That's right, that's right, and that is the position, your Honour, and therefore the transmission of business subclause is currently in the award.

PN3478

THE SENIOR DEPUTY PRESIDENT: Well, I probably do have, somewhere in all of these papers, a copy of the 1993 award.

PN3479

MR DOUGLAS: I will hand that up - one up to you, your Honour. I should say that in 1996 the 1993 award was varied with respect to, I think, family leave and that resulted in a renumbering of the award so clause 37 became clause 38 of the 1993 award but for the purposes of interpretation, clause 37 of the 1993 award picks up the redundancy clause as set out in this document that I have handed to your Honour. If you go the - - -

PN3480

THE SENIOR DEPUTY PRESIDENT: And that was not altered by the 1996 variation?

PN3481

MR DOUGLAS: No, your Honour.

PN3482

THE SENIOR DEPUTY PRESIDENT: In terms of numbering?

PN3483

MR DOUGLAS: That is right so if you then go to - it's about 10 or 12 pages from the back - to clause 38 where it was renumbered - and this after the 1996 variation.

PN3484

THE SENIOR DEPUTY PRESIDENT: What does that make of your earlier submission that it is the 1993 award as it was at the time? So, I go to 37 of the old 1993 award?

PN3485

MR DOUGLAS: Yes.

PN3486

THE SENIOR DEPUTY PRESIDENT: Which is the same as 38 in this award?

PN3487

MR DOUGLAS: That is right. That's the position, your Honour.

PN3488

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3489

MR DOUGLAS: And then if you turn to - - -

PN3490

THE SENIOR DEPUTY PRESIDENT: I'm still getting there, Mr Douglas.

PN3491

MR DOUGLAS: Have you found that clause?

PN3492

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3493

MR DOUGLAS: If you turn to subclause (I) under the heading of Transmission of Business.

PN3494

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3495

MR DOUGLAS: That clause follows the TCR standard. I should read it to your Honour because I will refer to it in terms of its history and I don't want to read it again.

PN3496

THE SENIOR DEPUTY PRESIDENT: Sure.

PN3497

MR DOUGLAS: It says:

PN3498

Where a business is, before or after the date of this award, transmitted from an employer...(reads)...of the employee with the transmittee.

PN3499

Now, there is no difficulty in understanding what that is about. It is intended to deem a person as non redundant in a given situation and then subclause (2) and this is the thing that - the definition is the thing that makes it clear that this subclause is about issues other than of the type referred to in section 149(1)(d).

PN3500

THE SENIOR DEPUTY PRESIDENT: Yes, well, I accept that.

PN3501

MR DOUGLAS: Yes.

PN3502

HIS HONOUR: That seems to me to be clear.

PN3503

MR DOUGLAS: Can I point - in historical terms, your Honour, it is relevant that the definition of business includes trade, process or occupation which can be employee activities as well as employer activities, particularly occupations. So that in terms of this subclause, you can have a seamless - you can have what I would call a seamless transmission of unemployment of an occupation or a group of occupations from employer A to employer B.

PN3504

THE SENIOR DEPUTY PRESIDENT: Well, putting it in the context of what is actually occurring with ACM and Group 4, what this means, if it goes into the award as varied, is that an employee of ACM is working at a detention centre that is taken over by Group 4 and is employed by Group 4, is not entitled to any redundancy pay because the employment of that employees deemed continuous and all entitlements accrued by working for ACM transfer to Group 4. Is that the way it would operate in practice?

PN3505

MR DOUGLAS: That, on the face of it, your Honour, is the correct position. Of course, the employment changes by offer and acceptance.

PN3506

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3507

MR DOUGLAS: But, yes, the two deeming provisions result in that situation that a person who joins Group 4 in these circumstances, from ACM, is not entitled by reason of this subclause and what we have is a transmission of an occupation, for example, in terms of this subclause but we may very well not have a transmission of business in terms of section 149(1)(d). The transmission of business there is more likely to be from the Commonwealth to Group 4 rather than from ACM to Group 4. Your Honour understands - - -

PN3508

THE SENIOR DEPUTY PRESIDENT: That may well be an argument for another day and another person.

PN3509

MR DOUGLAS: That is so but you can have a transmission - you can have an event which gives rise to a transmission that fits this subclause that will not fit section 149(1)(d).

PN3510

THE SENIOR DEPUTY PRESIDENT: Yes, well, to put it in a nut shell, it is designed to relieve ACM of the obligation of making redundancy payments to employees who secured employment with Group 4 and it is designed to ensure that those employees suffer no detriment in the sense that their employment with ACM is taken into account for any period of time should they be made redundant by Group 4, say?

PN3511

MR DOUGLAS: That is right and their service is preserved for - - -

PN3512

THE SENIOR DEPUTY PRESIDENT: Those purposes.

PN3513

MR DOUGLAS: - - - future redundancy if that comes about.

PN3514

THE SENIOR DEPUTY PRESIDENT: Yes, yes.

PN3515

MR DOUGLAS: And that is very different, your Honour, to the facility that is in awards and if you go back to subclause E?

PN3516

THE SENIOR DEPUTY PRESIDENT: Of that clause?

PN3517

MR DOUGLAS: Of that clause.

PN3518

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3519

MR DOUGLAS: Under the heading Alternative Employment:

PN3520

An employer in a particular redundancy case may make application to the Commission...(reads)...for the employee.

PN3521

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3522

MR DOUGLAS: Now, that is designed to deal with a situation very different to the one that the transmission of business provision is directed at because, on the one hand, the person - the employee who is caught by the benefits of the transmission of business clause and the preservation of the employment and so on, those persons are deemed not redundant for the purposes of this clause, but people who are found employment, in circumstances where this is no such transmission, are in a different situation and prima facie they are entitled to redundancy pay.

PN3523

THE SENIOR DEPUTY PRESIDENT: Unless exemption is sought and obtained?

PN3524

MR DOUGLAS: Yes, that is right, your Honour. So could I then come to the history, your Honour? Firstly, I will hand up a copy of an extract from the second TCR decision, the one of December 1984. If your Honour goes to the second page, page 129 of the print or the report, you will see a heading Transmission of Business and the Bench said this:

PN3525

The only difference between the parties in relation to transmission of a business is whether the...(reads)...the date of any award.

PN3526

Then they set out the subclause and your Honour will notice that the terms of that subclause are identical with the terms of the subclause that I have just taken your Honour to in the 1993 Security Employees Award.

PN3527

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3528

MR DOUGLAS: Now, how then did the Commission get to that position in the second TCR case? And I hand up a copy of an extract of the - this is from the first decision which is in August 1984. Now, one of the interesting things, your Honour, about this is that Moore J presided over the two TCR Benches when I think he was the President of the Commission. He was also a member of the Long Service Leave Test Case Bench in 1963/64 and his involvement does, in a sense, provide the key to where this transmission of business subclause came from. If you go to the bottom of page 48 of this extract from the first decision, they said:

PN3529

Two particular instances which the employers argued might warrant an application for relief...(reads)...as service with the employer.

PN3530

Now, that is all in relation to the acceptable alternative employment facility.

PN3531

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3532

MR DOUGLAS: You can come to the Commission and seek relief. Then they go on and talk about the transmission of business point and this is not one of the two particular instances, this is a third instance:

PN3533

However, we would make it clear that we do not envisage severance payments being made in cases of succession, assignment or transmission of a business.

PN3534

Very importantly, your Honour, the use of the words in the next sentence:

PN3535

We intend to provide for transmission of employment in terms similar to clause 5(5) of the Metal Industry Long Service Leave Award 1976.

PN3536

So that, the Bench, although it calls it transmission of business, is really in reality referring to transmission of employment because this case was about employee entitlements in relation to redundancy situations as was the long service leave test case back in 1963/64. So they - - -

PN3537

THE SENIOR DEPUTY PRESIDENT: It is in the context of a succession, assignment or transmission of a business.

PN3538

MR DOUGLAS: That is right but it's the transmission of the employment that they seek to deal with by the subclause.

PN3539

THE SENIOR DEPUTY PRESIDENT: Well, perhaps a better way to put it is it's the situation where there is continuity of employment when a business is transmitted.

PN3540

MR DOUGLAS: In - transmitted in the sense that they are talking about in terms of the award, yes your Honour, and that is why the definition itself is relevant and important because that definition goes beyond section 149(1)(d). Now, 5(5) of the Metal Industry Long Service Leave Award 1976, you then have to go to that because you will see that that, in fact, was in terms - subject to machinery changes where one was dealing with long service leave, the other redundancy - became the subclause - the redundancy subclause. The wording was precisely the same.

PN3541

Now, the history of clause 5(5) in the Metal Industry Long Service Leave Award 1976 is this: that clause, as I have said, became the precedent in terms of the precise wording for the transmission of business subclause in the TCR decision and, as I have mentioned, his Honour, Moore J, had an involvement in both TCR and long service leave. Now, there were, in 1964 - well, let me go back a bit. In 1958/59, the employers ran a long service leave case before a Full Bench of the Commission seeking a national standard award - the making of a national standard award that can apply generally.

PN3542

The trade union movement - the ACTU - opposed that and argued, under section 41(D), the public interest section, the Commission should refrain. The Commission did so refrain and did because of it coming to the conclusion that there was substantial uniformity in relation to long service leave throughout the Commonwealth by reason of state legislation.

PN3543

Subsequent to that, the New South Wales Parliament changed the standard for New South Wales and that created - disrupted the uniformity.

PN3544

The employers ran another case in 1963/64 and after considerable debate and visits to the High Court on questions of jurisdiction, a Full Bench of the Commission - being one which his Honour, Moore J, sat on - turned the 1959 section 41(D) decision around and then proceeded to make a model long service leave award - in fact, two model long service leave awards - which would become the instruments for long service leave throughout the country and those two awards were the long service - the Graphic Arts Long Service Leave Award 1964 and the Metal Industry Long Service Leave Award 1964.

PN3545

Now, both of those awards had in them as clause 5(5), like a transmission of business subclause, identical to the transmission of business subclause in 5(5) of the Metal Industry Long Service Leave Award 1976. In other words, the 1976 award was simply a replacement award. Now, could I hand up to your Honour a copy of the 1959 decision - Full Bench decision? Your Honour will notice that Mr Aird with Mr Dyer appeared for the employers in that case and if you go to page 565, come to the discretionary decision which was given on 18 August 1959 and then to page 567, there is a short passage that I want to read to your Honour because it is relevant to this history. This is the decision where they decided to refrain from further hearing. In any event, at about point 7 on page 567 the Bench said:

PN3546

In these proceedings the employers have not, in any way, challenged the principle of long service leave...(reads)...it would establish.

PN3547

Now, that national code had been the subject of some discussion between the employer, national employer groups, and the ACTU in trying to develop an agreed position on long service leave and, by and large, they were almost there when the New South Wales Legislation was changed. Now, then I would hand up to your Honour a copy of the 1964 decision and this is the Full Bench that Moore J sat on. If your Honour goes to the second page, page 413, you will notice that this time I am Mr Aird's junior.

PN3548

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3549

MR DOUGLAS: If you then go to page 426, right at the bottom, this is the decision with respect to merit. They said on the following day, 30 August 1963:

PN3550

Mr McGarvey announced that for the rest of the hearing he would, as a matter of courtesy to the Commission, remain in attendance but would address no argument to us.

PN3551

Now, in effect, the ACTU decided, having lost its position in relation to section 41(D) in this case, that it would take its bat and ball away from the Commission and not take part in the proceedings. That, on my recollection, your Honour, resulted in the Commission itself carefully examining the National Code, being a document that was referred to in the 1959 decision, because at that stage the National Code was being put forward by the employers as the draft award, so to speak, and it contained the transmission of business subclause. If you go to the middle of page 427, they said:

PN3552

The employers claim that our prescription should be in the form claimed by them in the document...(reads)...appropriate standard.

PN3553

Now, that decision resulted in the making of two awards, as I've said; the Graphic Arts Long Service Leave Award and the Metal Industry Long Service Leave Award as model long service leave as standards for the Commission. I hand up a copy of the 1964 Graphic Arts Long Service Leave Award. I did have a copy of the Metal Industry Award, your Honour, but unfortunately I left it in Melbourne but I can say, with certainty, that the Metal Industry Award is in precisely the same terms as this award.

PN3554

THE SENIOR DEPUTY PRESIDENT: Yes, so I go to 5(5) on page 447, do I?

PN3555

MR DOUGLAS: Yes, if you go to 5(5) on page 447. The Metal Industry Award also had a 5(5) in identical terms and you will notice that that clause subject to the words, the 11th of May 1964, are identical to the words that found their way into the subclause in the transmission of business provision in the redundancy clause in 1984.

PN3556

So, that's where the provision came from when the TCR Bench referred to the 1976 Metal Industry Award but that is not the end of the history, your Honour. The subclause didn't come out of thin air and could I hand up a copy of the relevant division of the Labour and Industry Act 1953, which was a Victorian piece of legislation dealing with long service leave. Now, this legislation was enacted by the Caine government - labor government - just prior to the split that resulted in the formation of the DLP and obviously it would have had some trade union involvement in the drafting of the bill which became the legislation. If you go to page 637 and it is section 151, subsection (iii) and you will see that the transmission of business provision there is identical to the one that was inserted in the Long Service Leave Awards in 1964, it was in the Long Service Leave Award in 1976 and became the subject provision in the redundancy determination by the Commission in 1984.

PN3557

Now, just to complete that picture I hand up a copy of the 1958 Labour and Industry Act - same subject - to show, your Honour, that this provision was, in fact, in existence in that legislation in the Victorian Act dealing with long service leave. It is still section 151(iii) - subsection (iii). It is unchanged. This is the piece of legislation existing at the time the National Code was put together.

PN3558

So that is where the transmission of business subclause came from when it was inserted in the National Code and which then gave it life in the long service leave awards which ultimately, because of Moore Js involvement and understanding of what it was intended to do, protect entitlements for the future - employee entitlements for the future. That is why it is in TCR and that is why it is a fundamental provision of the TCR standard.

PN3559

Therefore, in my submission, that is why the award simplification Bench was wrong - and I hand up a copy of its decision - it was wrong when that Bench moved the transmission of business subclause to the parties bound clause. I must say, your Honour, one must concede that the members of this Bench would not have been privy to the history that I have just put to your Honour. In fact, unless you were involved in the proceeding, you would come to a full stop in trying to determine where the thing came from when you looked at the Metal Industry Award 1976. You really wouldn't - there was nothing in the record to take you back to the Labour and Industry Act 1953, unless you were personally involved.

PN3560

When, if you go to the bottom of the first page, page 285, the Bench says:

PN3561

Clause 19(9) transmission of business should be moved to the proposed clause 6.

PN3562

which is the parties bound clause.

PN3563

THE SENIOR DEPUTY PRESIDENT: Just bear with me for a moment.

PN3564

MR DOUGLAS: That is at the very bottom of this extract of this decision, your Honour.

PN3565

THE SENIOR DEPUTY PRESIDENT: And what was clause 19(9)?

PN3566

MR DOUGLAS: 17(9) transmission of business.

PN3567

THE SENIOR DEPUTY PRESIDENT: But what - - -

PN3568

MR DOUGLAS: That is the transmission of business clause in the redundancy clause. So they moved it out of the redundancy clause and put it in the parties bound clause - and that's all they said about it - in the mistaken belief, I would suggest, that some how or other the transmission of business clause and the redundancy clause had something to do with section 149(1)(d) because - - -

PN3569

THE SENIOR DEPUTY PRESIDENT: By putting that clause - what was the proposed clause 6, Mr Douglas?

PN3570

MR DOUGLAS: Parties bound.

PN3571

THE SENIOR DEPUTY PRESIDENT: And what effect did it have by moving it into the parties bound clause?

PN3572

MR DOUGLAS: Well, your Honour, it has adverse effects on a number of other provisions in the award.

PN3573

THE SENIOR DEPUTY PRESIDENT: In what sense? I'm just trying to think of an example.

PN3574

MR DOUGLAS: It could impact on annual leave, it could impact on, for instance, sick leave, your Honour.

PN3575

THE SENIOR DEPUTY PRESIDENT: Taking sick leave, the impact would be that an employee would take his or her sick leave entitlements and liabilities with them to the new employer?

PN3576

MR DOUGLAS: Precisely. It would have - I mean, it's a - one doesn't have to determine precisely what the impact would be but certainly it is open to argue, your Honour, that the impact would be contrary to the original intention of the subclause, certainly, yes.

PN3577

THE SENIOR DEPUTY PRESIDENT: Because it was in the transmission of business.

PN3578

MR DOUGLAS: It was in the transmission - - -

PN3579

THE SENIOR DEPUTY PRESIDENT: It was in the redundancy - in the TCR clause.

PN3580

MR DOUGLAS: It was in the redundancy clause. Where TCR had put it, this Bench took it out because they, no doubt, had some view that it some how or other was related to who would be bound by the award. Now, the award can't have any impact one way or the other on section 149(1)(d), it operates or doesn't operate.

PN3581

THE SENIOR DEPUTY PRESIDENT: Unless there is something in the award to displace - - -

PN3582

MR DOUGLAS: Unless there is an order, subject to - that's right, your Honour. But if there is no such order, then it is meaningless, in a parties bound sense, but certainly having it in the general body of the award, rather than a specific clause, gives rise to an impact that was never intended.

PN3583

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3584

MR DOUGLAS: Now, I must say, your Honour, that I have, in relation to another matter - - -

PN3585

THE SENIOR DEPUTY PRESIDENT: Just interrupting you there again, that is not an issue in this case. Nobody is intending for it to go to the parties bound clause.

PN3586

MR DOUGLAS: No. In fact, that position has been rectified, your Honour.

PN3587

THE SENIOR DEPUTY PRESIDENT: I am sorry - - -

PN3588

MR DOUGLAS: It has been the subject of some consideration by a Bench presided over by his Honour, the President, and I hand up a copy of the decision in relation to the Building and Construction Industry Northern Territory Award, 22 September 1998. I go to the first page, third paragraph, your Honour:

PN3589

The first ground related to the transmission of business provisions in clause 142 of the...(reads)...the redundancy clause.

PN3590

Now, again, your Honour, that Bench would not have been privy to the history that your Honour has been taken to this morning.

PN3591

THE SENIOR DEPUTY PRESIDENT: No but the decision is effectively that it should be located in the redundancy clause rather than in the parties bound clause.

PN3592

MR DOUGLAS: That is so and in addition to that, your Honour, I would submit that what I have demonstrated this morning has shown, quite clearly, that the transmission of business subclause is a significant element of the TCR standard. It is certainly allowable and it should not be not in the award, as Commissioner Wilkes did. Now, in another matter, your Honour, I have examined the position. There is a mixed bag situation in relation to this matter. Some awards don't have the subclause in the redundancy clause because it has been taken out like Commissioner Wilkes has done, some other awards it is in the parties bound clause following the literal intent of award simplification and in others, it is in the redundancy clause where it should be.

PN3593

Now, your Honour, the position that I have put to you is supported totally by a recent understanding reached by the National Employers, AACI and the AIG with the ACTU representing, one would presume, all ACTU affiliates including the OHMU and could I provide your Honour with an extract of a copy of appendix B which has gone forward, as I understand it, with Senior Deputy President Marsh's report to the current Termination and Redundancy Test Case Bench. This is the agreed position with respect to a number of matters and this, as I understand it - we obtained this from the Registry so it must be a public document, your Honour.

PN3594

THE SENIOR DEPUTY PRESIDENT: And this is in relation to the current case that is seeking an extension of the period of redundancy pay out?

PN3595

MR DOUGLAS: Yes, your Honour.

PN3596

THE SENIOR DEPUTY PRESIDENT: Or the amount of redundancy pay out?

PN3597

MR DOUGLAS: Yes and I have only put in the relevant parts - the extracts. If you go to 441, Definitions, you will see the definition of business and transmission contains identical wording to the definition in the current TCR subclause, transmission of business subclause. Then the adequate alternative employment provision, the second sentence there makes it absolutely clear that this facility is something very different to transmission of business:

PN3598

This provision does not apply to circumstances involving transmission of business as set out in 445.

PN3599

So, that is a clarification consistent with what I put to your Honour. The agreement also has taken a slightly different approach to alternative employment.

PN3600

Then if you go over the page to 446, transmission of business, you will see that there is an agreed position modifying the situation so that not only do people who go from employer A to employer B in the way that we have been talking about, not only are they not entitled to severance pay, but people who refuse such employment offers will not be entitled and that is the agreed position and this union is party to the agreement and one would have thought that this would become the national standard within six months or so. I will just read the provision:

PN3601

Provisions of clause 44 are not applicable where a business is, before or after the date of this award, transmitted -

PN3602

and 44 is the severance pay provision:

PN3603

...transmitted from an employer, the transmittor, to another employer, the transmittee, in any of...(reads)...with the transmittee.

PN3604

And the Commission may vary this if it gives rise to an unfair situation.

PN3605

THE SENIOR DEPUTY PRESIDENT: So the gloss on the current situation, as you say it is, is that the terms of conditions with the new employer should be substantially similar?

PN3606

MR DOUGLAS: Yes, that is so, your Honour, but certainly the thrust of the current standards there and certainly the employers and the ACTU see the transmission of business subclause as being a significant element to the standard.

PN3607

Finally, your Honour, could I hand up a copy of one of the applications - and there were a series of applications filed by various unions - to give rise to this current test case and I provide you with the one that has been filed by the ACU. This, of course, was pre the agreement that has gone forward and if you turn to clause 14.5, you will see an intention to have an alternative employment provision:

PN3608

An employer in a particular redundancy case may make application to the Commission...(reads)...alternative employment.

PN3609

and then there are other conditions. Then if you go over to the last page 410, transmission of business, and you will see it was the intention to the union - this union and other unions, because all of the other applications are in identical form - to continue with the standard that is currently TCR and the modification that has gone forward with her Honour's report has come about as a result of a conciliation process and changes required by the employers, no doubt.

PN3610

So, that is the position, your Honour. We say it is overwhelming that the Commission should continue to have the transmission of business subclause in its current form in this simplified award and, of course, it will then need to be varied some time later in this year to comply with the new standard when it is given effect to.

PN3611

As to the other matter, your Honour, I simply say that your Honour will have noticed in the letter from - correspondence from EMA Consulting on behalf of Group 4 that they have withdrawn from the position that they put forward in paragraph 7 of their letter of 11 February to your Honour.

PN3612

THE SENIOR DEPUTY PRESIDENT: Yes, so where does that leave me? I wasn't quite sure what all that meant?

PN3613

MR DOUGLAS: Well, all they are saying, as I understand it, your Honour, is that they don't object to the transmission of business subclause being in our award but they continue to press for an order under section 149(1)(d) to the effect that the ACM award shall not apply to Group 4 by the operation of that section.

PN3614

THE SENIOR DEPUTY PRESIDENT: Yes.

PN3615

MR DOUGLAS: Now, the letter of 13 February, your Honour, says:

PN3616

Please ignore point 7. The fact that the transmission provision was in the 1993 version of...(reads)...the issue now.

PN3617

And I am not sure what that means but - - -

PN3618

THE SENIOR DEPUTY PRESIDENT: Nor was I.

PN3619

MR DOUGLAS: As I understand it, your Honour, they are not seeking to put it to the Commission that there is some connection between the transmission of business subclause and section 149(1)(d). We support, in general terms, your Honour, the philosophy that an employer should be entitled to, if the Commission deems it appropriate, obtain an order from the Commission to the effect that some other employers' award, particularly in this day and age of enterprise awards, should not apply to it by reason of the operation of section 149(1)(d) and we would suggest, your Honour, that in the current circumstances, that such an order would be appropriate.

PN3620

That doesn't have any impact whatsoever on the transmission of business subclause and the redundancy clause argument that I have put to your Honour.

PN3621

THE SENIOR DEPUTY PRESIDENT: The operation of section 149(1)(D) doesn't really impact on your client?

PN3622

MR DOUGLAS: No, that is so. So for those reasons, your Honour, I submit that it is overwhelmingly apparent that the Commission retain the standard - the TCR standard - as it is and that is inclusive of the transmission of business subclause.

PN3623

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Douglas. Ms Schofield, one of the advantages to you of having had this hearing is that instead of you not having a right to comment on Mr Douglas' reply, I will give you that right.

PN3624

MS SCHOFIELD: Yes, thank you, your Honour. If it is at all possible, your Honour, I would seek just a short adjournment so that we can just deal comprehensively with the issues that Mr Douglas has raised.

PN3625

THE SENIOR DEPUTY PRESIDENT: Yes, I will grant you that adjournment and indeed we will just go off the record for a moment.

SHORT ADJOURNMENT [11.05am]

RESUMED [11.3Oam]

PN3626

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Schofield?

PN3627

MS SCHOFIELD: Thank you, your Honour, and thank you for that adjournment. Your Honour, there are a number of issues that we have in relation to matters that have been put by ACM and we would suggest that it might be appropriate for the parties to adjourn into conference before we put any submissions to the Commission.

PN3628

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Douglas, are you happy with that?

PN3629

MR DOUGLAS: No problem.

PN3630

THE SENIOR DEPUTY PRESIDENT: Very well, we will adjourn into conference.

SHORT ADJOURNMENT [11.31am]

RESUMED [12.32pm]

PN3631

THE SENIOR DEPUTY PRESIDENT: During the conference with the parties we have been able to narrow some of the issues so that an order making a new award will be able to be made. There are several clauses that are still in contention, most matters having been agreed between the parties and reflected in exhibit ACM3. Of the matters in issue, clause 8.3, which relates to the employment of part-time employees, that clause will remain - sorry, I withdraw that. Clause 8.3 will be in the terms for which the union contends in clause 8.3 and I grant liberty to ACM to apply to vary that clause during the currency of the award which I will make.

PN3632

In relation to the proposed classifications and wage rates, I reserve my decision on that matter and that clause will not form part of the award to be made. The classifications and wage rates as they are in the interim award will continue to apply and to ensure that the record reflects what I mean by the interim award, the interim award is the LHMU-ACM Detention Centres Officers (Interim) Award 1997.

PN3633

In relation to clause 12 of ACM3, which deals with allowances, the allowances in respect of first aid and leading hands will be determined only after the issue of classifications and wage rates have been dealt with. Accordingly, those clauses will not be dealt with in the - those clauses in the award which I am to make will be as the currently appear in the interim award and will not form part of this award and similarly, clause 23.4, the loading on annual leave, in so far as that loading is to take into account first aid and leading hand allowances, that will not be part of this award pending my decision.

PN3634

The issue of whether or not a transmission of business provision should be included in the redundancy clause is a matter upon which I reserve my decision and accordingly that clause will not form part of the award that is now to be made and the interim award provision in relation to that will continue to apply.

PN3635

The remaining matter to be determined is whether or not this award should exclude the operation of section 149(1)(D) of the Act and that is a matter upon which I will also reserve.

PN3636

Ms Schofield has indicated that she wishes to make written submissions in relation to the redundancy matter and the exclusion of section 149(1)(D) of the Act and I give her leave to do so and this matter will be adjourned to a date to be fixed which we will discuss in conference now.

PN3637

On that basis, I think we can adjourn the Commission - just before we do adjourn to discuss dates, I should indicate that the award will be operative from today's date and remain in force for a period of three months and the parties are directed to provide a draft reflecting the position reached this morning. On that basis, we will now adjourn, thank you.

ADJOURNED ACCORDINGLY [12.38pm]