C2004/1968, Transcript of Proceedings [2004] AIRCTrans 1110 (24 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 10008
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2004/1968

HORTICULTURAL INDUSTRY (AWU) AWARD 2000

Application under section 113 of the Act
by The Australian Workers' Union to vary
the above award re clause 26.2.6

SYDNEY

10.00 AM, FRIDAY, 12 MARCH 2004

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

THE COMMISSIONER: Can I have appearances here in Sydney first please.

PN2

MR G. BEARD: If it pleases the Commission, I appear on behalf of the Australian Workers Union.

PN3

MR M. MEAD: May it please the Commission, I appear on behalf of the Australian Industry Group.

PN4

THE COMMISSIONER: In Canberra please.

PN5

MS D. HARRIS: Yes, thank you, Commissioner. I am from the National Farmers Federation and representing the VFF Industrial Association, the Tasmanian Farmers and Graziers Industrial Association, the South Australian Farmers Federation Industrial Association and the Australian Dried Fruits Association.

PN6

THE COMMISSIONER: In Melbourne please.

PN7

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry.

PN8

THE COMMISSIONER: Yes, Mr Beard.

PN9

MR BEARD: Thank you, Commissioner. I can advise you that the parties that are listed in the substituted service application that was attached to this application were advised of today's hearing through correspondence forwarded on 20 March [sic] this year. The correspondence included a copy of the application, the details in regard to today's hearing and a draft order in regard to the Union's objective with the application. The correspondence was forwarded by registered post and a statement to that effect, together with a covering letter and a receipt for registered post, have been prepared for your file as proof of proper service. I will hand that document to you.

PN10

THE COMMISSIONER: Thank you. I won't mark that Mr Beard but I will place it upon the Commission's file.

PN11

MR BEARD: Thank you, Commissioner. The application Commissioner, seeks to vary the Horticultural Industry (AWU) Award 2000 by deleting the word that currently appears in clause 26.2.6 "weekly". The insertion of that word changes the meaning of the overtime provision in regard to casual employees and part time employees under this award. The brief history of this award, Commissioner, is that on 30 October 1995 Commissioner Oldmeadow in print number M6349 made the Fruit and Vegetable Growing, Storing, Packing and Processing (AWU) Award 1995 and the provision in the hours clause 13(g) at that time read:

PN12

All time by an employee in excess of the ordinary hours prescribed above shall be deemed to be overtime.

PN13

I do have a copy of the covering page for that award, together with the hours clause just to make things a little bit easier for you Commissioner.

PN14

The award made by Commissioner Oldmeadow was then subject to the item 51 simplification exercise and Commissioner Merriman on 13 December 1999 issued a new award that was known as the Fruit and Vegetable Growing, Storing, Packing and Processing (AWU) Award 1999 and that was F0358.

PN15

The Commissioner then applied the item 51 review to the then dried fruits award and the Fruit and Vegetable Growing Award and the Dried Fruit Award were then put together to make the current Horticultural Industry Award. My recent investigations have shown that, in fact, when Commissioner Merriman made the 1999 Fruit and Vegetable Growing Award, that was when the word "weekly" was inserted into that hours provision and, again Commissioner, I have a copy of that for you.

PN16

On 15 August 2000 in AWU 784867 Commissioner Merriman issued the Horticultural Industry (AWU) Award 2000 and on that same day in print S9194 he set aside that 1999 award. Again I have copies of that document for your file. It appears as though the word "weekly" was introduced into the Fruit Growing Award with the 1999 item 51 review matter and then was continued into the Horticultural Industry Award 2000. The parties have had some preliminary discussions in regard to the matter Commissioner and we believe that further time is required in order to delve into the history of this particular matter. At this stage the Union believes that it could be an administrative error that the insertion of that word came into the award because it seems unlikely that, through the simplification process, an overtime provision would be varied. However, as I say, the parties do require further time to ascertain the correct situation.

PN17

I was having a discussion just before the hearing with Ms Harris and her involvement also means that Mr Keith Rice from the Tasmanian Farmers and Graziers Association will also be involved. He is overseas at present and likely to be back in Australia within a couple of weeks, which will then take us to Easter and I believe it would be appropriate to re-list the matter for report back. Maybe the last week in April. We have Anzac Day on the 26th.

PN18

THE COMMISSIONER: I'm on leave for April, Mr Beard. It would have to be the beginning of May. I don't know if that's going to cause any difficulty to people.

PN19

MR BEARD: I think there's not a lot we can do about it. We do require a proper time to correctly investigate this issue and it seems to me that the last week of April would provide that time, however that's inconvenient to the Commission and it might be pertinent to go off the record following listening to the other submissions.

PN20

THE COMMISSIONER: Yes, I will listen to the other parties and then perhaps it might be useful to do that.

PN21

MR BEARD: In summary, we seek to have the matter re-listed at some stage in the future Commissioner, if it please the Commission.

PN22

THE COMMISSIONER: Thank you, Mr Beard. Mr Mead.

PN23

MR MEAD: Commissioner, my submissions are brief. We would support my friend's line of processing in terms of having the matter set down for report back at this early stage. We have an added opportunity to delve into the history of exactly why the word "weekly" was inserted into the award and we'd have no objection to a report back somewhere around the first week in May, Commissioner.

PN24

THE COMMISSIONER: Thank you. Ms Harris.

PN25

MS HARRIS: Thank you, Commissioner. The National Growers Federation has had preliminary discussions with our members and they are of the opinion that we cannot yet form a view in terms of our position in respect to this application until such time as we have looked at the archival material with respect to this application. It will mean a increase in entitlements to the employees and a cost impact on employers, so obviously we need to ensure that there is a passage to argue that it is an administrative error as opposed to a simple application to increase the entitlements for employees.

PN26

We do have a resourcing issue. I'm involved in a number of matters at the moment including the wage case which has got a week of hearings in a week's time and Keith Rice is overseas, so we are seeking some four to six week period to look at our archival material and consult with our members to form a view to then respond to the AWU in respect to the application before you. We would, as Mr Beard said, be seeking that timeframe for discussion.

PN27

We've only just received this application. There had been no prior consultation with the parties prior to the application being brought before the Commission, hence it is a relatively new concept for us to be considering so we would certainly ask that the matter be re-listed when we do go into discussion about dates. I do have a particular problem with May as I am getting married on 1 May but I can certainly see whether or not Mr Rice would appear on behalf of our members. Thank you.

PN28

THE COMMISSIONER: Thank you, Ms Harris. Mr Eberhard.

PN29

MR EBERHARD: I have nothing really to add. I would just support the timeframe that is being proposed by all the parties Commissioner.

PN30

THE COMMISSIONER: Right, so there's no difficulty for any of you if we go off the record to discuss dates. Ms Harris you don't have a problem with that?

PN31

MS HARRIS: No.

PN32

THE COMMISSIONER: Mr Eberhard you don't mind if we go off the record?

PN33

MR EBERHARD: No, that is fine, Commissioner.

PN34

THE COMMISSIONER: Thank you.

OFF THE RECORD [10.12am]

RESUMED [10.15am]

PN35

THE COMMISSIONER: After discussions with the parties off the record it's been decided that the matter will report back in Sydney and, as necessary, video links elsewhere to be decided closer to the time at 2 pm on 5 May and if there is nothing further the matter is now adjourned.

ADJOURNED UNTIL WEDNESDAY, 5 MAY 2004 [10.16am]