C2004/1024, Transcript of Proceedings [2004] AIRCTrans 1251 (2 April 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 10864
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/1024, 1025, 2239,
2240, 2250, 2251, 2252,
2253, 2268, 2269, 2270,
2277, 2278, 2279, 2281
2282, 2283, 2284, 2285,
2288, 2289, 2290, 2412,
2413, 2414, 2415, 2416,
2420, 2423, 2424, 2425,
2426, 2427, 2428, 2429,
2430, 2431, 2432, 2433,
2434, 2435, 2436, 2437,
2438, 2439, 2440, 2441,
2442, 2443, 2444, 2445,
2446, 2447

TIMBER AND ALLIED INDUSTRIES AWARD 1999

FURNISHING INDUSTRY NATIONAL AWARD 2003

BUILDING SERVICES (VICTORIA) AWARD 2003

SECURITY EMPLOYEES (VICTORIA) AWARD 1998

PUBLIC SERVICE (NON EXECUTIVE STAFF -
VICTORIA) CONDITIONS AWARD 2001

GROCERY PRODUCTS MANUFACTURE - MANUFACTURING
GROCERS AWARD 2003

STORAGE SERVICES - GENERAL - AWARD 1999

RUBBER, PLASTIC AND CABLE MAKING INDUSTRY
- GENERAL - AWARD 1998

TRANSPORT WORKERS AWARD 1998

TRANSPORT WORKERS (LONG DISTANCE DRIVERS)
AWARD 2000

CLERICAL AND ADMINISTRATIVE EMPLOYEES
(VICTORIA) AWARD 1999

PILKINGTON (AUSTRALIA) OPERATIONS LIMITED
AUTOMOTIVE DIVISION, PRODUCTION AND
WAREHOUSING AWARD 1998

BAX GLOBAL (AUSTRALIA) PTY LIMITED
AUTOMOTIVE DIVISION AWARD 2003

GLASS MERCHANTS AND GLAZING CONTRACTORS
GENERAL (VICTORIA) AWARD 1997

TECHNICAL SERVICES PROFESSIONAL ENGINEERS
(GENERAL INDUSTRIES) AWARD 1998

SCIENTIFIC SERVICES PROFESSIONAL
SCIENTISTS AWARD 1998

TECHNICAL SERVICES - ARCHITECTS - AWARD 2000

AUSTRALIA POST GENERAL CONDITIONS OF
EMPLOYMENT AWARD 1999

TELSTRA CORPORATION GENERAL CONDITIONS
AWARD 2001

FOOTWEAR INDUSTRIES AWARD 2000

TEXTILE INDUSTRY AWARD 2000

CLOTHING TRADES AWARD 1999

NURSES (AUSTRALIAN NURSING FEDERATION
- PRIVATE PATHOLOGY VICTORIA) AWARD 1995

DEPARTMENT OF HUMAN SERVICES (NURSES)
AWARD 2002

THE NURSES (VICTORIAN MEDICAL CENTRES
AND CLINICS) AWARD 2000

VICTORIAN INDEPENDENT SCHOOLS - NURSES -
AWARD 2003

NURSES (ANF - VICTORIAN LOCAL GOVERNMENT)
AWARD 2002

NURSES (VICTORIAN HEALTH SERVICES)
AWARD 2000

AGC FINANCE COMPANY AWARD 2000

AMP EMPLOYEES AWARD 2002

BANKING SERVICES - ANZ GROUP - AWARD 1998

BENDIGO BANK AWARD 1999

CLERICAL AND SALARIED STAFFS (AGRIBUSINESS)
AWARD 1999

COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES
AWARD 1999

CREDIT UNION AWARD 1998

FINANCE INDUSTRY - FINANCE COMPANY
EMPLOYEES AWARD 2001

HSBC BANK AUSTRALIA AWARD 1999

LABOUR UNION INSURANCE AND SUPERANNUATION
EMPLOYEES AWARD 2002

MACQUARIE BANK AWARD 1999

NATIONAL AUSTRALIA BANK GROUP AWARD 2002

THE NOTE PRINTING AUSTRALIA AWARD 2000

PERPETUAL TRUSTEES AWARD 2000

RESERVE BANK OF AUSTRALIA SALARIED
EMPLOYEES AWARD 2000

THE COLONIAL GROUP ENTERPRISE AWARD 2003

COLONIAL RETAIL NETWORK MULTI-SITE
FRANCHISE INTERIM AWARD 2000

ST GEORGE BANK EMPLOYEES AWARD 2002

SUPERPARTNERS AWARD 2004

TRUST COMPANY AWARD 2001

INSURANCE INDUSTRY AWARD 1998

TRUSTEE INDUSTRY AWARD 1999

UNISYS PAYMENT SERVICES LIMITED AWARD 2000

VICTORIAN WORKCOVER AUTHORITY AWARD 2002

WESTPAC EMPLOYEES AWARD 2002

Applications under section 113 of the Act to vary the
above awards re public holiday clause

MELBOURNE

10.07 AM, TUESDAY, 23 MARCH 2004

PN1

THE COMMISSIONER: Good morning, and thanks to those who appear at very short notice for the purpose of this mention. Just as a very very broad preface, given the nature of the applications, I would think it is fairly obvious that they be dealt with as expeditiously as practical in order to provide as much certainty to industrial parties affected by the applications as possible in relation to the subject matter of the applications.

PN2

Given that there are a large number of applications listed for mention this morning, what I propose to do is ask the parties to each matter to announce their appearances. It is impractical to make an appearance diagram this morning. However, could I just also draw to your attention that I hope to have distributed shortly a table of all of the matters and I would ask that parties appearing in those matters record their appearance in the table which will be distributed as well as announcing their appearance which will be recorded in the transcript of the proceedings.

PN3

Yes, so what I propose to do is, I hope there are enough copies of the list which I asked to be distributed this morning, the list of matters, and that the parties can follow the list and announce their appearance in relation to the matters which are listed in the order in which they are listed. What I hope to do is shortly be able to call the matters simply by their number but, if that becomes impractical and if there is anybody confused in relation to the matter -I don't have access to a copy of the list - they should let me know. I first propose to take appearances in 2004/1024 which is the Timber and Allied Industries Award matter.

C2004/1024

TIMBER AND ALLIED INDUSTRIES AWARD 1999

PN4

MR R.A. LOWE: I appear for the CFMEU in this matter.

PN5

MR D. GREGORY: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN6

MR R. MARASCO: I appear for the Australian Industry Group.

PN7

MS S. WHITE: I am from the Australian Retailers Association, and with me is MR N. WELDON also from the Association.

PN8

MS E. RADLEY: I seek leave to appear on behalf of the respondent employers, members of Australian Business Industrial.

PN9

THE COMMISSIONER: I might deal with that application for leave now. Is there any objection to the application for leave on behalf of the applicant?

PN10

MR LOWE: No objection, Commissioner.

PN11

THE COMMISSIONER: Leave is granted.

PN12

MR P. RYAN: I seek leave to appear on behalf of the Victorian Association of Forest Industries.

PN13

MR LOWE: No objection, Commissioner.

PN14

THE COMMISSIONER: Leave is granted, Mr Ryan.

PN15

MS E. WATT: I appear for the Timber Merchants Association.

PN16

THE COMMISSIONER: I should record that I have received a letter on behalf of the Timber Trade Industrial Association requesting an adjournment of the matter. I will return to that issue in due course. What I propose to do now is to call the next matter. Once all the appearances - I beg your pardon.

PN17

MR R. WATTS: I appear for the ACTU seeking leave to intervene. I would indicate that I will be seeking leave to intervene in all subsequent matters but, if it please you, I will stand up on each occasion.

PN18

THE COMMISSIONER: If you are seeking leave to intervene in all matters, I think it might be better to defer the application as foreshadowed and I will ask the applicants in due course and the other parties to all of the applications whether or not they have an objection generally to the ACTUs intervention. Are there any other parties proposing to intervene in this or all of the applications?

PN19

MR N. NIVEN: I appear on behalf of the Victorian Trades Hall Council on behalf of all the union applicants here today.

PN20

THE COMMISSIONER: Right, and you will be seeking leave to intervene in all of these matters?

PN21

MR NIVEN: Yes, and I have also been advised by some affiliates to appear directly in relation to some of those C matters that are listed here today as well.

PN22

THE COMMISSIONER: All right. Well, that will have to be dealt with separately. Well, I will assume they are applications for intervention in relation to all matters; it need not be announced on each occasion.

C2004/1205

FURNISHING INDUSTRY NATIONAL AWARD 2003Y

PN23

THE COMMISSIONER: I now call C number 2004/1205 which is the Furnishing Industry National Award.

PN24

MR R.A. LOWE: I appear for the CFMEU in this matter, and in respect of the National Furnishing Industry Award I would just advise the Commission that in respect of the ACT the award is common rule award. If the Commission pleases.

PN25

MR D. GREGORY: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN26

MR R. MARASCO: I appear for the Australian Industry Group.

PN27

MR N. CRAVEN: I am from the Furnishing Industry Association; I seek leave to appear in this matter.

PN28

MR LOWE: No objection to - - -

PN29

THE COMMISSIONER: Mr Craven; leave is granted.

PN30

MS E. RADLEY: I seek leave to appear on behalf of the respondent employers, members of the Australian Business Industrial.

PN31

MR LOWE: Again, Commissioner, no objection.

PN32

THE COMMISSIONER: Leave is granted.

PN33

MS E. WATT: I seek leave to appear on behalf of the Cabinetmakers Association.

PN34

MR LOWE: Commissioner, no objection.

PN35

THE COMMISSIONER: Leave is granted, Ms Watt.

PN36

MS S. WHITE: I am from the Australian Retailers Association; with me is N. WELDON.

C2004/2239

BUILDING SERVICES (VICTORIA) AWARD 2003

PN37

MS R. FRENZEL: I appear for the LHMU in this matter.

PN38

MR D. GREGORY: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN39

MR R. MARASCO: I appear for the Australian Industry Group.

C2004/2250

PUBLIC SERVICE (NON EXECUTIVE STAFF -
VICTORIA) CONDITIONS AWARD 2001

PN40

MR R. RICHARDSON: I appear in this matter on behalf of the CPSU. We have provided a letter to the - to your Associate prior to today's hearing. I have got a commitment in another hearing and the Secretary of the organisation has duly authorised Mr Niven from the Trades Hall Council to appear on our behalf. I have to leave prior to the - - -

PN41

THE COMMISSIONER: So you appear with Mr Niven, do you?

PN42

MR RICHARDSON: Sorry?

PN43

THE COMMISSIONER: You appear with Mr Niven.

PN44

MR RICHARDSON: That is correct.

PN45

THE COMMISSIONER: Very well, thank you.

PN46

MR V. GOSTENCNIK: I seek leave to appear in 2250 for the State of Victoria.

PN47

THE COMMISSIONER: Is there any objection to that?

PN48

MR RICHARDSON: No, there is no objection.

PN49

THE COMMISSIONER: Leave is granted, Mr Gostencnik.

C2004/2251

GROCERY PRODUCTS MANUFACTURE - MANUFACTURING
GROCERS AWARD 2003

PN50

MR T. LYONS: I appear for the National Union of Workers.

PN51

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN52

MR R. MARASCO: I appear for the Australian Industry Group.

PN53

MS E. RADLEY: I seek leave to appear on behalf of the respondent employers, members of Australian Business Industrial.

PN54

THE COMMISSIONER: Thank you.

C2004/2252

STORAGE SERVICES - GENERAL - AWARD 1999

PN55

MR T. LYONS: I appear for the National Union of Workers.

PN56

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN57

MR R. MARASCO: I appear for the Australian Industry Group.

PN58

MS S. WHITE: I am from the Australian Retailers Association, with MR N. WELDON.

PN59

MS E. RADLEY: I seek leave to appear on behalf of the respondent employers, members of Australian Business Industrial.

PN60

THE COMMISSIONER: No objection to leave?

PN61

MR LYONS: No, no objection.

PN62

THE COMMISSIONER: Leave is granted. Just pardon me for a moment.

C2004/2240

SECURITY EMPLOYEES (VICTORIA) AWARD 1998

PN63

THE COMMISSIONER: I just want to re-visit C number 2004/2240. There may be some confusion about the appearances in this matter. Could they have them announced again, please.

PN64

MS R. FRENZEL: I appear for the LHMU in this matter.

PN65

MR M. CUSAK: I seek leave to appear in this matter on behalf of Wilson Group Services, Group 4 Securitas and National Security personnel.

PN66

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN67

MR R. MARASCO: I appear for the Australian Industry Group.

PN68

THE COMMISSIONER: Thank you.

PN69

MS FRENZEL: We have no objection to leave being granted, Commissioner.

PN70

THE COMMISSIONER: Leave is granted in those cases.

C2004/2253

RUBBER, PLASTIC AND CABLE MAKING INDUSTRY
- GENERAL - AWARD 1998

PN71

MR T. LYONS: I appear for the National Union of Workers.

PN72

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN73

MR R. MARASCO: I appear for the Australian Industry Group.

PN74

MS E. RADLEY: I seek leave to appear on behalf of the respondent employers, members of Australian Business Industrial.

PN75

MR LYONS: No objection to leave, Commissioner.

PN76

THE COMMISSIONER: Leave is granted.

C2004/2268

TRANSPORT WORKERS AWARD 1998

PN77

MR N. NIVEN: I seek leave to appear on behalf of the Transport Workers Union in relation to this matter.

PN78

MR D. GREGORY: I appear on behalf of respondent members, I am from the Victorian Employers Chamber of Commerce and Industry.

PN79

MR R. MARASCO: I appear for the Australian Industry Group.

PN80

MS E. RADLEY: I seek leave to appear on behalf of the respondent members of Australian Business Industrial.

PN81

THE COMMISSIONER: Thank you. If there is no objection to leave being granted, it is granted.

C2004/2269

TRANSPORT WORKERS (LONG DISTANCE DRIVERS)
AWARD 2000

PN82

MR N. NIVEN: I seek leave to appear on behalf of the Transport Workers Union in this matter.

PN83

MR D. GREGORY: I appear for the Victorian Employers Chamber of Commerce and Industry on behalf of respondent members.

PN84

MR R. MARASCO: I appear for the Australian Industry Group.

C2004/2270

CLERICAL AND ADMINISTRATIVE EMPLOYEES
(VICTORIA) AWARD 1999

PN85

MS S. SVENSON: I appear on behalf of the Australian Services Union.

PN86

MR D. GREGORY: I appear on behalf of respondent members of VECCI.

PN87

MR R. MARASCO: I appear for the Australian Industry Group.

PN88

MS E. RADLEY: I seek leave to appear on behalf of the respondent members of Australian Business.

PN89

THE COMMISSIONER: Leave is granted.

C2004/2277

PILKINGTON (AUSTRALIA) OPERATIONS LIMITED
AUTOMOTIVE DIVISION, PRODUCTION AND
WAREHOUSING AWARD 1998

PN90

MR R.A. LOWE: I appear for the CFMEU.

PN91

MS E. RADLEY: I seek leave to appear on behalf of Pilkington (Australia) Operations Limited.

PN92

MR LOWE: No objection, Commissioner.

PN93

THE COMMISSIONER: Leave is granted.

C2004/2278

BAX GLOBAL (AUSTRALIA) PTY LIMITED
AUTOMOTIVE DIVISION AWARD 2003

PN94

MR R.A. LOWE: I appear for the CFMEU.

PN95

MR R. IRONMONGER: I appear on behalf of Bax Global with Mr Gribble.

C2004/2279

GLASS MERCHANTS AND GLAZING CONTRACTORS
GENERAL (VICTORIA) AWARD 1997

PN96

MR R.A. LOWE: I appear for the CFMEU.

PN97

MR D. BLANKSBY: I appear on behalf of the Glass and Glazing Association of Victoria.

PN98

MR R. MARASCO: I appear for the Australian Industry Group.

C2004/2281

TECHNICAL SERVICES PROFESSIONAL ENGINEERS
(GENERAL INDUSTRIES) AWARD 1998

PN99

MR N. NIVEN: I seek leave to appear on behalf of APESMA in relation to this matter.

PN100

THE COMMISSIONER: You are authorised to appear by them, as I understand it from communication from their office.

PN101

MR NIVEN: Yes.

PN102

THE COMMISSIONER: Yes, thank you, Mr Niven.

PN103

MR W. WADE: I am from the Australian Mines and Metals Association.

PN104

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN105

MR R. MARASCO: I appear for the Australian Industry Group.

PN106

MS E. RADLEY: I seek leave to appear on behalf of the respondent, members of the Australian Business Industrial.

PN107

THE COMMISSIONER: Thank you. Leave is granted.

C2004/2282

SCIENTIFIC SERVICES PROFESSIONAL
SCIENTISTS AWARD 1998

PN108

MR N. NIVEN: I seek leave to appear on behalf of APESMA in relation to this matter.

PN109

MR W. WADE: I am from the Australian Mines and Metals Association.

PN110

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN111

MR R. MARASCO: I appear for the Australian Industry Group.

PN112

MS E. RADLEY: I seek leave to appear on behalf of respondent employers, members of the Australian Business Industrial.

C2004/2283

TECHNICAL SERVICES - ARCHITECTS - AWARD 2000

PN113

MR N. NIVEN: I seek leave to appear on behalf of APESMA in relation to this matter.

PN114

MR R. IRONMONGER: I appear on behalf of ACCA and VECCI with MR GREGORY. May I be excused, Commissioner? I have got another matter to attend to.

PN115

MR R. MARASCO: I appear for the Australian Industry Group.

C2004/2284

AUSTRALIA POST GENERAL CONDITIONS OF
EMPLOYMENT AWARD 1999

PN116

MR E. KEANE: I appear for the CEPU Communications Division.

PN117

MR T. VEENENDAAL: I appear for the CPSU.

PN118

MR P. RYAN: I appear for Australia Post in this matter.

C2004/2285

TELSTRA CORPORATION GENERAL CONDITIONS
AWARD 2001

PN119

MR E. KEANE: I appear for the CEPU Communications Division.

PN120

MR T. VEENENDAAL: I appear for the CPSU.

PN121

MR D. TRINDADE: I appear, with MR F. GERDTZ, for Telstra Corporation.

C2004/2288

FOOTWEAR INDUSTRIES AWARD 2000

PN122

MS V. WILES: I appear on behalf of the TCFUA.

PN123

MR R. MARASCO: I appear for the Australian Industry Group.

PN124

MS E. RADLEY: I seek leave to appear on behalf of respondent employers, members of the Australian Business Industrial.

PN125

THE COMMISSIONER: Yes, Ms Radley, leave is granted.

C2004/2289

TEXTILE INDUSTRY AWARD 2000

PN126

MS V. WILES: I appear on behalf of the TCFUA.

PN127

MR R. MARASCO: I appear for the Australian Industry Group.

PN128

MS E. RADLEY: I seek leave to appear on behalf of respondent members of Australian Business Industrial.

PN129

THE COMMISSIONER: Thank you. Leave is granted.

C2004/2290

CLOTHING TRADES AWARD 1999

PN130

MS V. WILES: I appear on behalf of the TCFUA.

PN131

MR R. MARASCO: I appear for the Australian Industry Group.

PN132

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN133

MS E. RADLEY: I seek leave to appear on behalf of respondent members of Australian Business Industrial.

PN134

THE COMMISSIONER: Leave is granted, Ms Radley.

PN135

MS S. WHITE: I am from the Australian Retailers Association, together with MR N. WELDON.

C2004/2412

NURSES (AUSTRALIAN NURSING FEDERATION
- PRIVATE PATHOLOGY VICTORIA) AWARD 1995

PN136

MS L. KELLY: I appear for the Australian Nursing Federation.

PN137

MR D. GREGORY: I appear on behalf of respondent members of the Victorian Employers Chamber of Commerce and Industry.

C2004/2413

DEPARTMENT OF HUMAN SERVICES (NURSES)
AWARD 2002

PN138

MS L. KELLY: I appear for the Australian Nursing Federation.

PN139

MR V. GOSTENCNIK: I seek leave to appear in that matter for the Department of Human Services.

PN140

THE COMMISSIONER: No objection to leave being granted, it is granted.

C2004/2414

THE NURSES (VICTORIAN MEDICAL CENTRES
AND CLINICS) AWARD 2000

PN141

MS L. KELLY: I appear for the Australian Nursing Federation.

PN142

MR D. GREGORY: I appear on behalf of respondent members, from the Victorian Employers Chamber of Commerce and Industry.

PN143

MS E. BICKNELL: I appear for the Victorian Hospitals Industrial Association.

C2004/2415

VICTORIAN INDEPENDENT SCHOOLS - NURSES -
AWARD 2003

PN144

MS L. KELLY: I appear for the Australian Nursing Federation.

C2004/2416

NURSES (ANF - VICTORIAN LOCAL GOVERNMENT)
AWARD 2002

PN145

MS L. KELLY: I appear for the Australian Nursing Federation.

PN146

MR D. GREGORY: I appear on behalf of respondent members, from the Victorian Employers Chamber of Commerce and Industry.

C2004/2420

NURSES (VICTORIAN HEALTH SERVICES)
AWARD 2000

PN147

MS L. KELLY: I appear for the Australian Nursing Federation.

PN148

MR D. GREGORY: I appear on behalf of respondent members, from the Victorian Employers Chamber of Commerce and Industry.

PN149

MS E. BICKNELL: I appear for the Victorian Hospitals Industrial Association.

C2004/2423

AGC FINANCE COMPANY AWARD 2000

PN150

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2424

AMP EMPLOYEES AWARD 2002

PN151

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN152

THE COMMISSIONER: My Associate informs me that AMP advised my office this morning they did not wish to attend the hearing this morning but would wish to remain appraised of the progress of the proceedings.

C2004/2425

BANKING SERVICES - ANZ GROUP - AWARD 1998

PN153

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN154

MR G. COOPER: I seek leave to appear for the respondent in that matter.

PN155

MS MALONEY: No objection to leave.

PN156

THE COMMISSIONER: Leave is granted, Mr Cooper.

C2004/2426

BENDIGO BANK AWARD 1999

PN157

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN158

MR K. ROZENBERGS: I seek leave to appear on behalf of the respondent.

PN159

MS MALONEY: No objection.

PN160

THE COMMISSIONER: Leave is granted, Mr Rozenbergs.

C2004/2427

CLERICAL AND SALARIED STAFFS (AGRIBUSINESS)
AWARD 1999

PN161

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN162

MR S. BILLING: I seek leave to appear for the Agribusiness Employers Federation.

PN163

MS MALONEY: No objection.

PN164

THE COMMISSIONER: Leave is granted.

C2004/2428

COMMONWEALTH BANK OF AUSTRALIA EMPLOYEES
AWARD 1999

PN165

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN166

MR N. OGILVIE: I seek leave to appear on behalf of the Commonwealth Bank of Australia.

PN167

MS MALONEY: No objection, sir.

PN168

THE COMMISSIONER: Leave is granted, Mr Ogilvie.

C2004/2429

CREDIT UNION AWARD 1998

PN169

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN170

MR D. GREGORY: I appear on behalf of respondent members from the Victorian Employers Chamber of Commerce and Industry.

PN171

MR R. MARASCO: I appear for the Australian Industry Group.

C2004/2430

FINANCE INDUSTRY - FINANCE COMPANY
EMPLOYEES AWARD 2001

PN172

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2431

HSBC BANK AUSTRALIA AWARD 1999

PN173

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2432

LABOUR UNION INSURANCE AND SUPERANNUATION
EMPLOYEES AWARD 2002

PN174

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2433

MACQUARIE BANK AWARD 1999

PN175

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2434

NATIONAL AUSTRALIA BANK GROUP AWARD 2002

PN176

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN177

MR J. O'BRIEN: I appear on behalf of the National Australia Bank Limited.

C2004/2435

THE NOTE PRINTING AUSTRALIA AWARD 2000

PN178

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN179

THE COMMISSIONER: My Associate informs me that the respondents advised my office this morning they were unable to attend but wished to be appraised of future proceedings in relation to the matter.

C2004/2436

PERPETUAL TRUSTEES AWARD 2000

PN180

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2437

RESERVE BANK OF AUSTRALIA SALARIED
EMPLOYEES AWARD 2000

PN181

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2438

THE COLONIAL GROUP ENTERPRISE AWARD 2003

PN182

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN183

MR N. OGILVIE: I seek leave to appear on behalf of the respondents named in clause 5 of that award, the Colonial Group Employers.

PN184

THE COMMISSIONER: No objection, leave is granted.

C2004/2439

COLONIAL RETAIL NETWORK MULTI-SITE
FRANCHISE INTERIM AWARD 2000

PN185

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN186

MR N. OGILVIE: I seek leave to appear on behalf of the respondents named in schedule A to that award.

PN187

MS MALONEY: No objection, sir.

PN188

THE COMMISSIONER: Leave is granted.

C2004/2440

ST GEORGE BANK EMPLOYEES AWARD 2002

PN189

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2441

SUPERPARTNERS AWARD 2004

PN190

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN191

MR SMETHURST: I appear on behalf of Superpartners.

C2004/2442

TRUST COMPANY AWARD 2001

PN192

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2443

INSURANCE INDUSTRY AWARD 1998

PN193

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN194

MS E. RADLEY: I seek leave to appear on behalf of respondent members of Australian Business Industrial.

C2004/2444

TRUSTEE INDUSTRY AWARD 1999

PN195

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2445

UNISYS PAYMENT SERVICES LIMITED AWARD 2000

PN196

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

C2004/2446

VICTORIAN WORKCOVER AUTHORITY AWARD 2002

PN197

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN198

MS M. BUTLER: I appear on behalf of the Victorian WorkCover Authority.

C2004/2447

WESTPAC EMPLOYEES AWARD 2002

PN199

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN200

MR L. LEVINE: I seek leave to appear on behalf of Westpac Banking Corporation.

PN201

MS MALONEY: No objection.

PN202

THE COMMISSIONER: Leave is granted, Mr Levine.

[10.45am]

PN203

THE COMMISSIONER: There are a number of matters affecting the Finance Sector where there has been no appearance on behalf of the respondents.

PN204

MS MALONEY: Sir, I do have a set of documents in terms of correspondence that we forwarded to the employers accompanied with the application and notice of listing which I can hand to the Commission to verify that the FSU has advised all employers of - - -

PN205

THE COMMISSIONER: I am going to come to the question of service in a moment. It will be along those lines but could I just ask, did that include an indication of the fact that the matter was for mention today?

PN206

MS MALONEY: Yes, sir, including both a letter and we attached the notice of listing for today's - and they were faxed out to the employers yesterday, sir, and I do have copies of that documentation.

PN207

THE COMMISSIONER: Directions for service were issued by the Commission, were they not?

PN208

MS MALONEY: Sir, in three awards there were orders for substituted service sought and granted by the Commission, and they were served accordingly. Yes, sir.

PN209

THE COMMISSIONER: Yes. There was also a direction, was there not?

PN210

MS MALONEY: In respect to the service of - - -

PN211

THE COMMISSIONER: As well as the service order there was a direction, was there not?

PN212

MS MALONEY: Yes, sir, in - - -

PN213

THE COMMISSIONER: And you recall the contents of the direction?

PN214

MS MALONEY: Sir, I can find them.

PN215

THE COMMISSIONER: So my question was, did you actually comply with both the substituted service order and the terms of the direction?

PN216

MS MALONEY: Yes, sir, we served the listing, we served the application that was lodged, a notice of listing, and also a copy of the order for substituted service on the respective employers. And we do have a set of documentation if that assists.

PN217

THE COMMISSIONER: All right. Well, just wait for a moment. I am inclined to, in light of the short notice to some of the - well, to many of the parties and to some in particular, depending upon the time and date of the filing of the applications, to actually adjourn those applications where there has been no appearance on behalf of the respondents; but only for a brief time, probably until Friday. So I indicate that I will do in relation to 2442, 2444, 2445 and 2423.

PN218

MR OGILVIE: If the Commission pleases, just on that matter I appear on behalf of the Commonwealth Bank and the Colonial in three matters. We only received a notification of the hearing of the application shortly after quarter past six last night. The bank has not had a chance to consider the application so we would be making submissions later that the matter be adjourned for a week is what I would be seeking, given of course the other matter - - -

PN219

THE COMMISSIONER: I don't want to open up that now because I want to deal with this in some sort of order, otherwise we will just have a very disorganised response. What I prefer to do is to return to the top of the list for the time being. I want to get a bit of an overview of the proceedings before I deal with each and every procedural issue that the parties wish to raise. But there will be an opportunity for procedural matters, such as applications for adjournment that have been foreshadowed, to be dealt with.

PN220

PN221

Whilst I appreciate that it may be in some respects caught up with the question of service and potential applications for adjournment and some representatives of parties may not be in a position to deal with this others, no doubt, will be. Could anybody who intends to object to leave being granted to the ACTU or the Trades Hall Council - - -

PN222

MR LYONS: There may be one other issue, sir. Mr Ironmonger, in the appearance he entered, did say he appeared for ACCI, I wonder whether that was only in respect of one matter or whether a similar action in respect of a peak council is made as to - - -

PN223

THE COMMISSIONER: Well, I didn't hear it that way, I only heard that Mr Ironmonger registered an appearance in a particular matter, is that right, Mr Gregory, with you?

PN224

MR GREGORY: That is correct, Commissioner. And, in fact, it was not ACCI I think it was the ACCA, the Association of - the Architects Association, whatever they are called.

PN225

THE COMMISSIONER: Yes, thank you, Mr Gregory.

PN226

MR LYONS: I apologise. I thought it was prudent to deal with all the intervenors at once, sir, if there was one.

PN227

THE COMMISSIONER: All right. Yes. No. So that, bearing in mind that I will return to issues of adjournments that parties wish to make, those who are represented and are able to respond to the application for intervention on behalf of the ACTU and the Trades Hall Council, are there any objections? I reserve that for the time being. Are there any applications for adjournment in the order of the list, please? So that my understanding is that the applications for adjournment largely foreshadowed come from the finance sector, is that right?

PN228

MS BUTLER: If the Commission pleases, I know we are well down the list but we would be seeking an adjournment, we received very late notice - - -

PN229

THE COMMISSIONER: Yes, you will need to remind me. Unfortunately, it is - - -

PN230

MS BUTLER: Sorry, the Victorian WorkCover Authority. We are in matter 2446.

PN231

THE COMMISSIONER: Right. Could I hear first of all from the people in the finance sector? I gather there are at least two applications for adjournment from finance institutions. Mr Ogilvie?

PN232

MR N. OGILVIE: Yes, Commissioner. In relation to matters 2004/2428 in relation to the Commonwealth Bank Employees Award. As I foreshadowed before, the Commonwealth Bank of Australia seeks an adjournment of this matter. My instruction is to seek an adjournment for a week but Friday would be appropriate, Commissioner. We received notification - I have received notification for listing the direction for this matter. A copy of the application by fax at about 6.17 pm last night and I haven't had a chance to ..... the matter. A similar application was made in C2004/2438 which relates to the Colonial Group Enterprise Award 2003 and also C2004/2439, the application to vary the Colonial Retail Network Multi-Site Franchise Award. The - - -

PN233

THE COMMISSIONER: Three applications?

PN234

MR OGILVIE: Three applications, if the Commission pleases.

PN235

THE COMMISSIONER: On similar grounds?

PN236

MR OGILVIE: On the same grounds, Commissioner.

PN237

THE COMMISSIONER: Any other applications for adjournment in the finance sector?

PN238

MR BILLING: Yes, Commissioner. I appear in 2004/2427, the Agribusiness Award. I am instructed that the federation received notification by fax about 6.15 last evening. Their offices are in Adelaide. There was no opportunity to address the application, no opportunity to consult with members of the federation and therefore we would seek an adjournment.

PN239

THE COMMISSIONER: Are you understanding the nature of the proceedings at this point?

PN240

MR BILLING: No, we don't, Commissioner, we haven't been served with the application.

PN241

THE COMMISSIONER: Right. Are there any other applications for adjournment in the finance sector?

PN242

MS BUTLER: Commissioner, The Victorian WorkCover Authority in matter 2004/2446. We also received very late notification last evening of this matter. We have not had an opportunity yet to have a discussion with the FSU who served the application and consequently seek an adjournment ..... We would be proposing an adjournment for a week, Commissioner, if the Commission pleases.

PN243

THE COMMISSIONER: Ms Maloney, could I see what it was that you forwarded to all of the respondents to the award in respect of which you appear?

PN244

MS MALONEY: Sir, can I just have a few minutes? We had a pile and I have got them in order for you.

PN245

THE COMMISSIONER: Mm.

PN246

MS MALONEY: Sir, if I can hand up the documents?

PN247

THE COMMISSIONER: Just one moment, please. You didn't forward the parties a copy of the direction, did you?

PN248

MS MALONEY: Yes, sir, it is attached - the directions are attached to the listing. We forwarded - - -

PN249

THE COMMISSIONER: Oh, I see. You did forward a copy of that to the parties, yes.

PN250

MS MALONEY: Yes, sir. In respect to all the - in respect to ANZ, Westpac and National Australia Bank we, firstly, wrote to the bank advising them that we were intending to lodge the application. Then, in respect to all of the awards, once we lodged the applications and received the notice of listings we forwarded a covering letter explaining the background to the application, the copy of the notice of listing, the attached directions, a copy of the application and also, sir, attached to each of those documents is a copy of the facsimile receipt confirming that they received the documentation.

PN251

THE COMMISSIONER: Yes, all right. I was just going to give you this back for the moment because I intend to do something that will affect all of the applicants in a short time.

PN252

MS MALONEY: Well, sir, can we - - -

PN253

THE COMMISSIONER: I am just about to ask you what you have to say about the adjournment?

PN254

MS MALONEY: Well, sir, we oppose the applications for adjournment. Based on the material that has been served on the employers it is quite clear that we have explained what the purpose of the application to vary is, in both our covering letter and also the application to vary is quite detailed in terms of the nature of the application. Also, sir, in terms of the nature of the proceedings this morning they are listed for mention and as the directions make it quite clear they are listed for the purpose of considering whether or not the applications that are before the Commission should be dealt with by a Full Bench of the Commission in accordance with provisions under the Workplace Relations Act and the relevant principles determined by the Commission.

PN255

Sir, I would submit that the applications for adjournment are premature and once the Commission hears the submission by the VTHC on behalf of a number of the applicants, in terms of the proposal that is being put forward we don't think it appropriate for those applications to be adjourned. The employers respondent to those awards will have adequate time, in terms of the proposal that has been put forward, adequate time to consider the application and to put their submissions accordingly in respect to what has been put forward. So we would submit, sir, that the application for adjournment is premature and should not be granted.

PN256

THE COMMISSIONER: For those applying for adjournments in relation to the finance sector, is it the case that they are aware of the fact that the hearing today is a mention and the subject of whether or not the application should be dealt with by a Full Bench was to be considered?

PN257

MR OGILVIE: Commissioner, that is correct. We received a facsimile from Don Petty, Industrial Officer for the FSU, which was sent to the Commonwealth Bank Group at 6.18 last night. That related to the three applications - the Commonwealth Bank application, the Commonwealth and the two Colonial Awards. Attached to that was a notice of listing, a copy of the directions that were issued by the Commission yesterday together with the application to vary the award.

PN258

My clients position - they have not had an opportunity to consider what has been served on them late last night or to receive any advice from us in relation to those proceedings so I am unable to - if the matter was to proceed I am unable to get any instructions in relation to our position in those matters and we reserve our position if they proceed. Yes, we understood the matter was to deal with - that it be referred to a Full Bench but that is as far as - our instructions for today. If the Commission pleases.

PN259

THE COMMISSIONER: Mm.

PN260

MR BILLING: Commissioner, in the Agribusiness matter, my instructions as of - they were received at 9.45 this morning, from Adelaide, was that there had been a notice of listing faxed about 6.15 last night, 5.45 Adelaide time, but no copy of the application was received and therefore the federation is in no position to proceed this morning whatsoever and our submission, there couldn't possibly be any semblance of a fair hearing in relation to this particular application heard this morning.

PN261

MR TRINDADE: Commissioner, if I might mention the matter of Westpac, C2004/2447. Our position is very similar to that of the Commonwealth Bank. I believe we received the - or my client received the application a little bit earlier yesterday afternoon, by about 6 o'clock or so. But our position is that we haven't had time to consider the application at all and we would seek an adjournment for the same reasons as advanced by the Commonwealth Bank.

PN262

MS BUTLER: Commissioner, on behalf of the Victorian WorkCover Authority we were aware that this matter was for mention and it was the intention of the union, as per the directions, to have this matter listed before a Full Bench. However, our award is subject to - re-negotiation of all of the award at the moment and we are in discussions with the union with respect to that and in seeking to vary one clause before the rest of the award we would have thought that we would have an opportunity to have some discussion with the union prior to being served with a notice for the matter to go before a Full Bench with respect only to one clause. And it is on that basis that we seek an adjournment to allow ourselves ..... for discussions with the union, if the Commission pleases.

PN263

THE COMMISSIONER: When did you know that today's proceedings for the purpose of considering whether or not this application should be referred to a Full Bench?

PN264

MS BUTLER: I was notified at 8.45 this morning.

PN265

THE COMMISSIONER: Right.

PN266

MS MALONEY: Sir, can I just say in respect to the submission on behalf of the Agribusiness Award, a copy of the application to vary was faxed and we have a copy of what was faxed to the relevant employers. Just in respect to the additional submissions being made about the negotiation of an award and more time, sir, the subject matter of the application is quite clear. It is seeking to insert a clause for a substitute day in lieu of Anzac Day. We are all quite aware when Anzac Day falls, it falls on the 25 April. Today is the 23 March. There is obviously a degree of urgency in terms of dealing with these applications due to the time constraints and, of course, in the middle of that period falls Easter. Sir, we think, as we say, we think basically - the submissions that have been put trying to adjourn the application is to try and prolong the determination of the matters and we would ask that the adjournments be opposed. And we also think it is vexatious, of course, in terms of what they are seeking. To grant them another adjournment would only delay it - - -

PN267

THE COMMISSIONER: I don't think I have granted any adjournments previously - - -

PN268

MS MALONEY: Sorry, sir, to grant any adjournment. Sir, we are used to these applications in the finance industry so we are - but, sir, we would re-state that the applications for adjournment should be opposed.

PN269

THE COMMISSIONER: Well, you oppose them, but I gather you think I shouldn't grant them. I just wanted to hear from the parties to those applications as to whether or not it might actually be more convenient if the applicant is seeking a reference to a Full Bench that that application be made out and I hear the respondents on Friday in relation to that matter only. It is procedural in nature.

PN270

MR LYONS: Well, perhaps, Commissioner, if I could inform the Commission. The unions have - all the applicant unions have a joint position seeking reference to a Full Bench. That goes to all the applications which are on foot and I agree with you, sir, it is proper that you hear why we say a Full Bench ought be convened. It may well be, for example, that the objectors can then seek instructions which don't go counter to that - - -

PN271

THE COMMISSIONER: Yes. Well, it might help me to hear from them. I am minded to actually hear what it is that the applicants have to say in relation to those matters that they have sought the adjournment in respect of. It does seem to me that, given that those parties are represented here this morning, that the most efficient course of action is to hear the grounds and bases for the application for reference without having to respond this morning and being provided with an opportunity to be heard on that question at a later time. Would that be convenient? I notice that there is - well, unless it is inconvenient I will assume that that course of action is acceptable.

PN272

I would be inclined to hear this matter at 10 o'clock on Friday further to that extent - or hear those matters in respect of which the adjournment is sought. I appreciate that the applicants for the adjournments have mentioned a period of a week, however, the only matter that would be heard on Friday is the procedural question which will be outlined today and in my view given the procedural nature of the issue between now and Friday should be a reasonable time to instruct the clients in relation to what the issues are having heard the application for reference. All right. Well, I am going to proceed accordingly. I will hear the applicants in relation to the reference and I will adjourn those applications in respect of which an adjournment has been sought for the purpose of response to the application for reference till 10 am on Friday this week.

PN273

Are there any other issues? Yes. Could you please announce your name again?

PN274

MR RYAN: Commissioner, I should point out - - -

PN275

THE COMMISSIONER: Could you please announce your name again and the matter in respect of which you are appearing - - -

PN276

MR P. RYAN: Commissioner, it is in relation to matter C2004/2284, and I should point out that Australia Post and the - - -

PN277

THE COMMISSIONER: Perhaps you could come to the bar table, please?

PN278

MR RYAN: I should point out that Australia Post and the CEPU are in a bargaining period and I haven't got the bargaining period notice to hand up but - - -

PN279

THE COMMISSIONER: Yes. Does that affect the question of whether the matter should be heard - - -

PN280

MR RYAN: No, it doesn't.

PN281

THE COMMISSIONER: - - - by a Full Bench.

PN282

MR RYAN: No, it doesn't.

PN283

THE COMMISSIONER: I mean, isn't that an issue for whoever hears it to decide when the substantive aspect of the application is - - -

PN284

MR RYAN: Well, it is just a matter of whether we should proceed as a party. Yes.

PN285

THE COMMISSIONER: Whether we should be here at all, yes. Look, I understand that but I must say that I think it is better to leave that to a later time.

PN286

MR RYAN: If the Commission pleases.

PN287

THE COMMISSIONER: It may be a matter for the President to consider if there is an application for a reference, or it may be a matter for the Full Bench to determine.

PN288

MR BILLING: Commissioner, might I be excused until 10 am on Friday?

PN289

THE COMMISSIONER: Yes. We will try and make the transcript available to you as soon as practicable but it is a matter for you, if you wish to hear the application for reference. I cannot guarantee you that you will have access to the transcript today. I would hope that access to the transcript would be available at the latest tomorrow and I am certainly doing all I can to make it available to you tomorrow, but you are welcome to stay in order to ascertain what response, if any, should be made on behalf of your client to the application for reference.

PN290

Very well. I grant leave to the ACTU and the Trades Hall Council to intervene in the proceedings. Now, I do have also an application from AEF in relation to the Clerical and Salaried Staffs' Award from Mr Platt in Adelaide and Mr Platt is seeking that the matter be adjourned for the purpose of discussing the application with the FSU and obtaining instructions. That application is made by a facsimile and I intend to follow the same course in relation to Mr Platt's opportunity to respond. It seems to me that there be limited prejudice to the applicant to follow that course of action.

PN291

Now, is there a convenient way forward?

PN292

MR LYONS: The applicant unions, sir, have had some consultation in respect to this matter (EXTRACT CONTINUES FROM THIS POINT)

PN293

MR LYONS: The applicant unions, sir, have had some consultation in respect to this matter and I think it falls to me to outline to the Commission and the respondents and interveners to the nature of the applications.

PN294

THE COMMISSIONER: So you are authorised to make an application for reference - or to speak to an application for reference on behalf of all of the applicant unions, are you, Mr Lyons?

PN295

MR LYONS: Yes. Yes, I am, Commissioner. I believe that in respect of - not all of the applications was a formal request put to his Honour the President in respect to that issue - - -

PN296

THE COMMISSIONER: There are a number of them, yes.

PN297

MR LYONS: - - - but certainly in respect of our own applications and those of the LHMU and others. The application that I make, sir, covers all of the applications that are before you. In respect of that issue, we have taken liberty of preparing a written outline in respect of the grounds we see for the convening of a Full Bench, and I cheerfully admit, sir, that I don't have enough copies of this for every respondent, but I have around about 16 or so which I am happy to make available to as many as possible.

PN298

Given that not everybody in the court, Commissioner, is going to have this in front of them, I do intend to take you to various components of it. We do refer through there, sir, to a number of authorities which I am happy to make a copy available to the Commission and ..... to such parties as requested. Sir, each of the applications, and they vary slightly in their terms on my instructions, but they all go to the same subject matter, they all seek insertion in awards of this Commission a provision that will provide for the substitution of the Anzac Day public holiday where it falls on a Saturday or Sunday.

PN299

As the Commission is aware, and as referred to in your opening, this matter has some considerable urgency due to the fact that 25 April 2004 is a Sunday and therefore the applications of each of the unions, if granted, would have practical effect in this calendar year.

PN300

The Commission will also be aware that it is not a standard provision in awards of this Commission to make allowance for a substitute holiday for Anzac Day. There are a number of awards of the Commission that do provide for it, but they are limited in number, and provisions of that nature are outside the standard prescription in respect of public holidays which exists in awards of the Commission.

PN301

The applications range across a variety of industries; they also affect multiple states. For reasons that I will come to, the practical effect of the applications is limited to the State of Victoria and in respect of some, at least, of the awards, the State of Tasmania. In respect of all other states, the matter is in hand; that is, there will be a public holiday on 26 April 2004 by various Acts of the State Government.

PN302

If I can turn to the grounds we set out at paragraph 14 and following, we make some observations there, sir, about the nature of the Full Bench reference power, but I think in general the approach - this is reasonably well known by the parties represented in these proceedings. In general, we would say that the applications that we make are outside what exists presently as the safety net of awards of this Commission. The existing safety net which is contained in those decisions which are collectively referred to as the Public Holidays Test Case, do not provide for the substitution of Anzac Day.

PN303

The Commission will recall, of course, the Public Holidays Test Case identified that the safety net was concerned with the quantum of leave rather than the exact designation of the days. We say the issue on foot here does go to quantum of leave in respect of this year, 2004, and would have effect in subsequent years including relevantly 2009, 2010.

PN304

We note in support of our section 107 application that the bench that heard the Public Holidays Test Case was itself convened under section 107 of the Act as a result of references by the then President on a large number of applications by unions covering what we would submit is a similar breadth of awards as appears before you in these proceedings today. We note that that bench convened under section 107 actually specifically considered the question of Anzac Day, and that is in print L4534. We also note that - and we seek a departure from that decision in respect of the model clause it provides at its conclusion.

PN305

We also note that both in the decision I have referred to and in subsequent proceedings to do with non-standard hours and other matters, equivalently broad applications to vary awards of the Commission with this subject matter have been considered appropriately dealt with by a Full Bench, and we say in respect of that, that nothing ought be dealt with differently in respect of these proceedings.

PN306

In respect of the statement of principles of this Commission, we say that clearly the Public Holidays Test Case collectively and in particular the print to which I have referred, are a test case within the meaning of paragraph 4 of the principles and have been recognised as such. The extract we provide there at paragraph 16 demonstrates that the provisions relevantly of L4534 are a test case and, as such, we are seeking a departure from those principles, and on that basis it is appropriate that a further Full Bench be convened to hear those applications.

PN307

We set out at 17, what the existing test case standard is, and we extract the reasoning of the bench as it related to Anzac Day, and this is instructive, because it is the basis on which the unions have made this claim, sir. You will see there it says, and I quote:

PN308

That when a prescribed holiday, other than Anzac Day, falls on a Saturday or Sunday, a substitute day is provided. An effect of the above provisions is that the amount of leave is reduced by one day in those years wherein Anzac Day falls on a Saturday or a Sunday. This accords with current practice in most states, and with respect to those states, is accepted by the unions.

PN309

That is, sir, at the time of the Public Holidays Test Case over '94/95, there was no common national standard in relation to Anzac Day, and the unions did not seek that substitution for Anzac Day be included in the Commission's awards as a matter of right, as part of the test case. It is our submission that in the intervening period circumstances have changed, such that there is a prevailing national standard which ought be reflected in the awards of the Commission. And that is our principal submission about why the issue ought be re-agitated, and why it is appropriate that be done in the form of a Full Bench.

PN310

Essentially, sir, at the time that this matter was last before the Commission in this form, the majority of states did not substitute Anzac Day. In 2004, the exact reverse of that proposition is true. All states, with the exception of the State of Victoria, and Tasmania, do provide for substitution. We make the observation consistent with the original test case, sir, that Tasmania, and I mean this not in a tongue-in-cheek sense, sir, Tasmania is different, and has unique arrangements for public holidays. In particular, sir, it still observes Easter Tuesday by virtue of the operation of the State Public Holidays Act, which is in excess of the safety net standard.

PN311

THE COMMISSIONER: Tuesday?

PN312

MR LYONS: Easter Tuesday.

PN313

THE COMMISSIONER: Easter Tuesday.

PN314

MR LYONS: It also observes, sir, one additional local day. The Commission will recall that the test case standard is a national standard plus one local day. In respect of Tasmania, there are two local days observed which vary from locality to locality; for example, in the metropolitan Hobart area, both Show Day and something which glories under the title of Regatta Day, are still observed.

[11.15am]

PN315

In all other jurisdictions 26 April is being observed and so it is on that basis that we submit there is a common national standard. Now, that varies from jurisdiction to jurisdiction, sir. In some cases this has occurred by virtue of an automatic function of the relevant legislation. In some states it has occurred by ministerial fiat; that is a decision by a minister in the relevant government gazette of the day. We have to hand up a compound exhibit and we would seek to have that marked.

EXHIBIT #A EXTRACTS FROM RELEVANT GOVERNMENT AUTHORITIES DEMONSTRATING 26 APRIL IS A PUBLIC HOLIDAY IN 2004

PN316

MR LYONS: Commissioner, exhibit A is a an exhibit with a series of attachments from all jurisdictions other than Tasmania and Victoria; that is the other states and the two territories. In each case it is an extract from the relevant government authority, red page indicating which days have been gazetted and either an extract or a full copy of the relevant state legislation demonstrating that 26 April is a public holiday in 2004. And it is that evidence, sir, that we rely on for our submission that there is a common national standard, excluding Victoria, other than the State of Tasmania, which has previously been recognised as having its own unique arrangements which exist largely unaffected by the arrangements provided for by this Commission.

PN317

Now, we say that the proper course is for the Commission - or for his Honour, the President, to refer the matter to a Full Bench because there are no clearly applicable principles which individual Commission members would be able to apply to these myriad of applications which vary across sectors and employers. That is because the principles as laid down by the test case do not deal with the current practical situation which exists on the ground for the industrial parties and in the circumstances it is, therefore, appropriate the matter be reconsidered.

PN318

We note, of course, that the Public Holidays Test Case itself indicated that it did not regard the safety net as being the status quo; that is a set of circumstances as they exist at a fixed point in time, but that the safety net itself is subject to variation depending on circumstances. We say that the current situation is such an example where the safety net in respect of public holidays has changed and ought be reconsidered by this Commission. That, of course, is consistent with the statement of principles of the Commission which in describing the safety net notes that it changes "in response to economic, social and industrial circumstances".

PN319

We also note that it is, of course, consistent with the objects of the Act and the proper approach of this Commission, which is charged with the maintenance of the safety net which entails within it, we say, a periodic reconsideration of what constitutes the safety net. Of course, upstairs, sir, there is proceedings which are dealing with the monetary aspects of the level of the safety net and we are agitating before you simply another - what we say is another element of the safety net which ought be reconsidered, given circumstances.

PN320

Beyond the submission about change of circumstances, sir, we do note the particular observation the Bench chose to make about Anzac Day, and we reprint this at paragraph 22 of our submissions, that the day in question, that is Anzac Day, is what the Bench described as a day of national significance and, accordingly, we say that goes to the public interest test in section 107 and increases the public interest component which is contained or which arises as a result of the applications. I have referred briefly, Commissioner, to the scope of the applications. I think that is clear from the amount of time it took to enter the appearances.

PN321

The applications range across a large number of industries, affect a large number of employers and a very large number of employees. They also deal with both the private sector employees, corporatised government entities and the public sector. Given the involvement of all of those employers and employees and applicant unions, that too lends itself to the importance of the matter and suggests that a Full Bench ought be convened. We say that it is also in the public interest that the matters be heard and determined together for a number of reasons, not the least of which that that would be consistent with the Commission's obligations to perform its functions as quickly as practicable in a fair way to each of the respondents and interveners.

PN322

The Commission referred at the outset to the urgency in relation to these matters. It is our submission that were the matters to be referred off to individual panel heads for allocation to individual members of the Commission, it is likely that what will occur is some of these will be heard and determined to finality prior to 26 April and some will not be. Some may be the subject of appeal. The likely result of that is that some awards of the Commission may be varied - I am sorry, Commissioner, there is another option which is some individual members of the Commission approve the applications and some do not. That is not an outcome in our submission that would be in the public interest.

PN323

The public interest would be served by a single determination of what amounts to the same claim across a variety of the industries, and we deal with that at paragraphs 25 and 27 and following, sir. We note the observations that were made by the High Court in relation to a not dissimilar set of circumstances in some ways, that the remission of matters to single members in the absence of proper principles can be a recipe for chaos and we say that may be what would occur in the event that a Full Bench was not convened to hear all the applications.

PN324

We note that the vagaries of leap years being what they are, this matter last arose in relation to the year 1999 and certain applicant unions in Victoria were the subject of quite considerable criticism from this Commission by - for mounting campaigns on the job about this issue that involved industrial action and we refer to a decision of Mr Commissioner Smith where he in criticising the CFMEU for pursuing the matter in the field, invited - or referred to the fact that the unions would have the ability to come to this place and seek to agitate the claim in some form, and so the unions have chosen to do that in respect of this year.

PN325

I might add the reason that the circumstances are different again from '99 is the factual situation I have outlined to you and made out in exhibit A was not in existence in 1999, sir. So we rely on the written submissions and, if I understand the proceedings correctly, sir, the way it works, if you like, is that you make a report to his Honour, the President, about the matters that are put to you today and his Honour then makes a determination about whether to convene a Full Bench. We say for all the reasons that we have outlined that it is appropriate to convene a Full Bench, not only for the matters that go to merit and the proper establishment of principles, but also for the purely administrative reason that it is in our view the only way in which these matters can be heard and determined in a timely and efficient fashion.

PN326

The applicant unions - and I am in your hands, sir, about when you wish us to raise this with you, but we do have some proposals to put in relation to the conduct of the matter in the event that his Honour was minded to convene a Full Bench. I don't know whether you wish me to go to that now or subsequent to what any of the parties and interveners may say; it is a matter of what is convenient to the Commission. There is probably one other matter I need to deal with, sir. There are - in addition to the matters that are in the list today, there are, I am instructed, a series of other applications that are either in the pipe or about to enter the pipe.

PN327

The unions propose that informally, at least, we would indicate to the Commission that there would be a deadline for the lodging - for filing of applications which we would seek to have heard in conjunction with these matters. We propose that that is a tight timeframe of the order of Monday of next week so that there is a finite list of matters that would be joined to this. Some of the unions which seek to become involved in this matter have had difficulty accessing authorised officers to sign applications, I am instructed, and so have either only just filed or are in the process of filing today, applications.

PN328

So there are some other matters which are entirely on the same basis and our view would be if his Honour was minded to convene a Full Bench the Commission should simply join those matters. While I note what you have said in relation to hearing from parties about whether or not a reference Bench ought be convened, I note it is open to his Honour, the President, to simply determine that on the papers without hearing from the parties, which I understand to have been a course of action which has been periodically adopted by presiding members; that is, there is no requirement for the conduct of the hearing, the requirement is only that pursuant to the rules the Commission publish - I am sorry, that the President publish his determination. And we note in respect of that that no prejudice is suffered by any respondent.

PN329

THE COMMISSIONER: The proceeding does have to be before a member though, doesn't it?

PN330

MR LYONS: Well, I think it is open to the President if an application is made to him for a reference - perhaps it falls more into section 108.

PN331

THE COMMISSIONER: Yes.

PN332

MR LYONS: But the power is the same, sir. The President can make that determination on the basis of his view about the subject matter of the application and whether or not it is in the public interest.

PN333

THE COMMISSIONER: That is a matter entirely for him though.

PN334

MR LYONS: It is. But we simply for the sake of completeness do foreshadow that there are those other applications coming and the applicant unions would seek they be dealt with in the same manner that I proposed to you today.

PN335

THE COMMISSIONER: I don't think I can say or do anything about that.

PN336

MR LYONS: No, no, we are simply seeking - - -

PN337

THE COMMISSIONER: I think that you have got to deal with the situation here under the provisions of section 107.

PN338

MR LYONS: I agree Commissioner. I simply ask then if you could communicate that to the President, that there will be more applications. If you are minded just to leave it - - -

PN339

THE COMMISSIONER: I think I can only deal with the matters that are before me.

PN340

MR LYONS: If the Commission pleases. That only leaves then the procedural elements.

PN341

THE COMMISSIONER: What the parties wish to do in relation to communicating with the President about anything is not a matter for me to consider.

PN342

MR LYONS: If the Commission pleases. We will do that from our side. Does the Commission wish me to address our procedural proposal at this point?

PN343

THE COMMISSIONER: It might be useful if you could just outline how you would propose to proceed if the matter were referred to a Full Bench.

PN344

MR LYONS: If the matter was to proceed to a Full Bench, sir, we propose that - the matter is quite narrow in one sense and it is our submission that it would lend itself, particularly given the timeframe involved, to the preparation and filing of reasonably extensive written submissions dealing with what the parties wish to say, including any evidentiary material that needs to be put on. We would propose a short timeframe for that, that the applicant unions file by Wednesday of next week, which is the 31st. Now, we were saying that before the Commission approved the adjournment applications this morning, so the dates - although I think the unions will be working on this regardless of the conduct of those proceedings.

PN345

THE COMMISSIONER: Well, the only matter that has been adjourned is the opportunity to those who applied for an adjournment to respond to the application for reference.

PN346

MR LYONS: Yes.

PN347

THE COMMISSIONER: I think you are talking about the substantive application

PN348

MR LYONS: We are.

PN349

THE COMMISSIONER: - - - in the event that a reference is granted.

PN350

MR LYONS: Well, what I was going to say, Commissioner, is that we don't think that that will need to delay the substantive programming of the proceedings if the Commission was minded to convene a Full Bench. So that the applicants would file and serve any material and written submissions on which they rely by the 31st. Any interveners and respondents would file by the following week, which is the 7th. That would allow, subject to the convenience of the Commission, a hearing of the matter. If comprehensive written material is filed, which we anticipate it will not be difficult to do, that we suspect one day may be sufficient in relation to the matter.

PN351

So short oral argument on the basis of the papers and that that would be able to occur in either the short week immediately following the Easter break or as soon after as possible at the convenience of the Commission. I note, of course, that it probably wouldn't be in the interests of anybody of orders were issued in respect of this very shortly before the relevant day if we were successful in our applications, as there would need to be sufficient time for the industrial parties on the ground to be aware of any amendment to entitlement. So that is the proposal that we would like to make, sir, in respect of the conduct of the matter if his Honour convenes a Bench. Unless you have any questions we would leave it there. If the Commission pleases.

PN352

THE COMMISSIONER: Thank you, Mr Lyons. Well, I treat that as a submission made on behalf of all of the applicant unions. Are any of - I beg your pardon - you wish to make a submission?

PN353

MR WATTS: Yes, Commissioner, if I may. The ACTU supports the application for reference. We view it is a significant matter, whether it is a matter for test case - whether it is a test case in itself is another matter and immaterial to whether there is a reference or not. That is perhaps a matter that needs further consideration by the ACTU and other parties and indeed the Commission itself. I would certainly like to indicate that the ACTU supports the reference, Commissioner.

PN354

THE COMMISSIONER: All right. Is there any opposition to the reference? No opposition is expressed. Is there any support for the reference application?

PN355

MR GREGORY: Commissioner, our position is one of support for the reference and given that this hearing is simply for the purpose of determining whether the matter should be dealt with by a Full Bench or not, there is much that I can indicate that from the point of view of the matters that we are involved in there are a number of matters that we can agree with Mr Lyons on in terms of the submissions that he has made. I am prepared to make some brief additional comments if it would assist in terms of your subsequent report to the President and any future considerations of the matter, I will keep my comments brief.

PN356

In terms of where this matter is finally dealt with in terms of which ever forum it finally comes to be determined in I can indicate that our position at the moment is that we will be opposing the applications. And our position is that the state government has already made a decision about the observance of the Australia Day public holiday in 2004 and it has made a decision about some related issues as well. Commissioner, I can hand up a press release issued by the Victorian Government, and particularly issued by the Small Business Minister Marsha Thomson on 9 February.

PN357

I don't have any additional copies but perhaps just to read a brief extract from that release in terms of the way in which it dealt with the situation in regards to Anzac Day.

EXHIBIT #R PRESS RELEASE BY SMALL BUSINESS MINISTER MARSHA THOMSON DATED 9 FEBRUARY

PN358

MR GREGORY: The Small Business Minister indicates in her statement in part released on February 9 this year:

PN359

ANZAC Day 2004, which also falls on a Sunday, will continue to be observed on April 25 as it has in the past. This decision is in keeping with the historical ...(reads)... all party parliamentary inquiry into laws that apply to Anzac Day which concluded that the day be observed as a public holiday on April 25 each year.

PN360

The release also then goes on to make some further statements about some further arrangements later in this year in regards to the unusual situation where there are a number of public holidays that do fall on a weekend in 2004-2005, that they are the specific comments that are made in that release by the state government in regards to Anzac Day 2004. That outcome is one that we as an organisation have accepted. It is in line with past practice in this state in regards to the observance of Anzac Day. We believe it is soundly based and provides appropriate certainty for employers in this state.

PN361

Commissioner, we do believe that Victorian firms and businesses deserve certainty about trading and holiday arrangements so that staffing, rosters and other arrangements can be organised reasonably in advance and confirmed. We do not believe that Victorian employers should be in a situation where they are left hanging in limbo as a result of an eleventh hour attempt to create new entitlements in this state. Commissioner, in regards to the future conduct of this matter I don't think I need to say too much more. As Mr Lyons has indicated, and we would support that view, there were a series of decisions in the middle of the 1990s which I think have been quite clearly acknowledged as a series of decisions regarding the establishment of a safety net in regards to public holiday observance in federal awards.

PN362

We believe that those decisions and their significance as creating a safety net have been acknowledged in subsequent decisions, again some of those have been referred to by Mr Lyons. Principle 4 of the Commission's current principles have already been made reference to. I think principle 8 is also relevant in the context of an application being made to increase entitlements over and above the existing safety net, again a matter which I think would support the referral of this matter to the President for his consideration that the matter be determined by a Full Bench.

PN363

Commissioner, in our view, in terms of the referral and the President's considerations, we believe that the decision that is made should be that the matter is to be referred to a Full Bench. I have no further instructions or submissions to make at this stage about the way in which that process should take place. Mr Lyons has outlined a process whereby the matter is to be dealt with, we acknowledge, obviously given the time frame, that it has got to be dealt with reasonably expeditiously. I guess facetiously our preferred position might be for a hearing in the first week of May, but that is probably unlikely.

PN364

I don't have a further submission at this stage about the process other than that we would acknowledge that the matter does need to be dealt with within a fairly limited time frame. If the Commission pleases.

PN365

THE COMMISSIONER: Thank you, Mr Gregory. Is there any submission in support of the reference?

PN366

MR GOSTENCNIK: Very briefly, sir, and my submissions are confined to the two matters in which I am instructed to appear. The first is to simply point out that whilst we support the reference we don't support it for all of the reasons outlined in the applicant's outline. But the application is an appropriate one in the circumstances, it is appropriate because we regard the application to vary the awards as an application for conditions above the safety net, and it is consistent with principle 10 that the President at least give consideration to whether the matter should be dealt with by a single member or the Full Bench.

PN367

And we say that it is in the public interest that this matter be dealt with by a Full Bench given the circumstances in which the parties find themselves. The final matter, Commissioner, I have had some discussions with my friends from the unions about the programming and we don't have any objection to the course outlined by Mr Lyons, we think that again in the circumstances it is an appropriate timetable subject of course to the date on which the President makes a decision as to whether or not he will refer the matter or leave it here. If the Commission pleases.

PN368

THE COMMISSIONER: Thank you, Mr Gostencnik. Mr Marasco.

PN369

MR MARASCO: If the Commission pleases, on behalf of the Australian Industry Group I just submit to you that we would not oppose the reference to the Full Bench in this matter. We believe that it is appropriate as stated in the submissions by the NUW, but we particularly support the submissions made by Mr Gregory on behalf of VECCI. It is the - in my instructions on behalf of the Australian Industry Group - though to oppose the application to vary the various awards. Apart from that though, Commissioner, I would support the submissions made by VECCI and have got no further submissions to make at this stage. If the Commission pleases.

PN370

THE COMMISSIONER: Thank you.

PN371

MS RADLEY: If the Commission pleases, I would just note it is the position of Australian Business Industrial that it is appropriate for this matter to be referred to a Full Bench. And also in relation to matter number C2004/2277, Pilkington Australian Operations Limited, I make those submissions on behalf of Pilkingtons. Thank you.

PN372

THE COMMISSIONER: Good, thank you. Any further submissions in support of the reference?

PN373

MS WHITE: Yes, Commissioner. The ARA is in support of a reference to this matter to go to a Full Bench primarily for the reasons as have already been outlined by Mr Gregory. The applications represent what would be a departure from an established test case standard and for that reason we think it appropriate to go to a Full Bench. We also believe it is an application that will be for something above the safety net and therefore under principle 10 should also go to a Full Bench for that reason.

PN374

And in addition that if the applications were to be granted they will have the effect of usurping a state government decision in Victoria, and I think that is a public interest argument that means that these matters should appropriately be dealt with by a Full Bench. In addition the applications don't just go to this particular Anzac Day in 2004, but seeks to have a substitute day in respect to Saturdays and Sundays and that would be a significant departure not only from an existing test case standard but also from what some state governments are doing in respect of Saturday. So we believe that for that reason also it should go to a Full Bench, Commissioner, and for the other reasons I think Mr Gregory has outlined. If the Commission pleases.

PN375

THE COMMISSIONER: Thank you.

PN376

MR WADE: Commissioner, we would support Mr Gregory's submissions. The AMMA would support the submissions made by VECCI, however the issue we do have is with the timetable that has been outlined by the unions. As with a number of other respondents, we received these applications late yesterday afternoon/early evening, as a matter of fact I was only aware of them at 8 o'clock this morning. We have not had time to consult with our membership, nor I would suggest have any other employer organisation. The time frames as outlined by the unions, I would submit, are far too tight for that to occur and we could seek, while supporting the reference, we would reject obviously the application and also the time frames as sought by the unions. If the Commission pleases.

PN377

THE COMMISSIONER: Well, yes.

PN378

MR RYAN: In relation to matter C2004/2284, Australia Post views that the application should be referred to a Full Bench. Our attitude is that a decision in the public - - -

PN379

THE COMMISSIONER: I am sorry, could you come forward please? Your voice isn't quite carrying to the microphones from down - it is a long way away really, where you are. Will you start again please, on behalf of Australia Post?

PN380

MR RYAN: Yes, it is in relation to matter 2004/2284. Our view is that the matter should be referred to a Full Bench. The Commission's decision in the public holiday test case in print L4534 was quite deliberate in relation to Anzac Day and not having an automatic substitute day when the actual day falls on a Saturday or a Sunday. Now having regard to that this application seeks to establish a new standard and for public holidays, and in circumstances where a Full Bench of the Commission has prescribed that standard, and which forms part of our award safety net, our view is that any application to vary this standard should only be considered by a Full Bench. If the Commission pleases.

PN381

THE COMMISSIONER: Thank you very much for that.

PN382

MS BICKNELL: If the Commission pleases, Victorian Hospitals Industrial Association would so support the reference of the matter to a Full Bench for the reasons advanced by Mr Gregory and Ms White.

PN383

THE COMMISSIONER: Thank you. Well if there are no further submissions I am obliged by section 107 - I beg your pardon.

PN384

MR LYONS: Commissioner, we do have a couple of observations to make arising out of what was said. If the Commission pleases, part of what - - -

PN385

THE COMMISSIONER: There didn't seem to be any opposition to the reference.

PN386

MR LYONS: No, but there was a matter raised which we wouldn't want to infect the decision making process in respect of that issue, which is that this is somehow the prerogative of the statement government. If the Commission is convinced those are the matters of merit - - -

PN387

THE COMMISSIONER: It is not a procedural issue, it is a matter of merit.

PN388

MR LYONS: If the Commission pleases.

PN389

THE COMMISSIONER: Thank you. I am obliged by section 107(4) to refer these applications to the President, and I shall do so. No doubt the parties will be advised of the President's decision in due course. Thank you, these proceedings are adjourned.

ADJOURNED INDEFINITELY [11.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A EXTRACTS FROM RELEVANT GOVERNMENT AUTHORITIES DEMONSTRATING 26 APRIL IS A PUBLIC HOLIDAY IN 2004 PN316
EXHIBIT #R PRESS RELEASE BY SMALL BUSINESS MINISTER MARSHA THOMSON DATED 9 FEBRUARY PN358