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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 6720
A 22.4.04
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER MANSFIELD
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, 2425,
2426, 2429, 2434, 2435, 2441, 2443
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
BANKING SERVICES - ANZ GROUP -
AWARD 1998
BENDIGO BANK AWARD 1999
CREDIT UNION AWARD 1998
NATIONAL AUSTRALIA BANK GROUP
AWARD 2002
THE NOTE PRINTING AUSTRALIA
AWARD 2000
SUPERPARTNERS AWARD 2004
INSURANCE INDUSTRY AWARD 1998
Applications under section 113 of the Act
by Construction, Forestry, Mining and Energy
Union-CFMEU, FFTS Union SA Divisional Branch
and Others to vary the above awards re the
public holiday clause in relation to Anzac Day
MELBOURNE
10.13 AM, WEDNESDAY, 7 APRIL 2004
PN1
SENIOR DEPUTY PRESIDENT WATSON: Yes, we will take appearances in the first instance and then move on to interventions. I wonder if we could be advised which matters the parties are appearing in.
PN2
MR T. LYONS: Your Honour, the unions had a collective appearance to enter for all of the matters which was the way we wanted to do it. I appear for the National Union of Workers and the other applicant unionists with me is R. FRENZEL for LHMU, N. NIVEN for VTHC, K. WILD for the AMWU seeking leave to intervene, MR SMITH for the TWU, MS SVENDSEN for the ASU, MS V. WILES for TCFUA, MR RICHARDS for CPSU, MR D. MARTIN and Ms M. MALONEY for FSU, MS L. KELLY for the ANF, and MR BRYANT for the CEPU.
PN3
MR A.J. O'BRIEN: I appear with MR J. WOODGATE for the Minister for Employment and Workplace Relations on behalf of the Commonwealth, intervening in the public interest pursuant to section 44(1) and our intervention is in relation to all of the matters, your Honour.
PN4
SENIOR DEPUTY PRESIDENT WATSON: And it is purely as an intervener.
PN5
MR O'BRIEN: As a right, yes, your Honour.
PN6
SENIOR DEPUTY PRESIDENT WATSON: Yes, well, I notice that you have advised us of the intention to intervene but you are not a party to any of the - - -
PN7
MR O'BRIEN: No, as an intervener, your Honour.
PN8
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, we will come back to the interveners.
PN9
MS J. MacLEAN: I seek leave to appear in matters C No 2004/2250 and C No 2004/2413 for the State employer.
PN10
MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry. I appear in C No 2004/1024, 1025, 2239, 2240, 2251, 2252, 2253, 2268, 2269, 2270, 2279, 2281, 2282, 2288, 2289, 2290, 2412, 2414, 2416, 2420, 2429, 2443, 2444, 2456, 2457 and also 2278.
PN11
MR R.MARASCO: I appear for the Australian Industry Group, representing our member companies who are respondents to various awards. I appear in matters numbers C2004/1024, 1025, 2239, 2251, 2252, 2253, 2268, 2270, 2279, 2281, 2288, 2289, 2290 and 2429.
PN12
MS S. WHITE: I appear for the Australian Retailers Association, Victoria, and appearing with me is MR WELDERS of the Association. We appear in matters 1024, 1025, 2270 and 2290 on behalf of respondent members to those award and also in respect of the matters 2252.
PN13
MR F. PARRY: I seek leave to appear for the ANZ Banking Group Limited in respect of matter 2425 of 2004.
PN14
MR S. WOOD: I seek leave to appear on behalf of Telstra Corporation Limited in C No 2285 of 2004, which is the matter involving the Telstra Corporation (General Conditions) Award 2001.
PN15
MR M. WATSON: I appear for the Tasmanian Chamber of Commerce and Industry, appearing on behalf of members respondent to matters C No 2004/1024, 1025, 2253, 2268, 2288, 2289 and 2290.
PN16
MS J. VAICIULIS: I appear for the Australian Postal Corporation in relation to matter C No 2004/2284.
PN17
MS. E. WATT: I appear in matters 1024 and 1025 on behalf of respondent members.
PN18
MR M. RAHILLY: I seek leave to appear for respondents who are clients of Clare Dewan and Associates in matter C No 2004/2420.
PN19
MR R. CORBOY: I appear for VHIA; it is a change of appearance and I am appearing in matters 2414 and 2420.
PN20
MR D. BLANKSBY: I appear on behalf of the Glass Merchants and Glaziers Association in matter one matter, 2379 - sorry, 2279.
PN21
MR N. HARRINGTON: I seek leave to appear for the Returned Services League Victorian Branch in all matters.
PN22
MR. P. RONFELDT: I seek leave to appear on behalf of Australian Business Industrial and its members who are bound by the following matters, 1024, 1025, 2251, 2252, 2253, 2268, 2270, 2277, 2281, 2282, 2288, 2289, 2290, 2443.
PN23
MR R. WATTS: I appear on behalf of the ACTU, seeking leave to intervene in all matters.
PN24
MR C. HARNATH: If we are into interveners, I appear for Master Plumbers and Mechanical Services Association of Australia, and I seek leave.
PN25
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Harnath. Are there any further appearances as parties or interveners? Very well, is there any objection to the granting of leave to counsel where relevant?
PN26
MR LYONS: No, your Honour.
PN27
SENIOR DEPUTY PRESIDENT WATSON: Yes, leave is granted in all instances. Now, as I understand it we have the Commonwealth intervening as of right, the ACTU, AMWU and RSL are all seeking to intervene, is there any objection to intervention in respect - I am sorry, and Master Plumbers represented by Mr Harnath - is there any objection to intervention in respect to any of those groups?
PN28
MR LYONS: Not in respect to those that are industrial associations, your Honour, but we would seek some clarification. We were not advised prior to these proceedings that the RSL intended to appear. In the circumstances we ask that they give us some indication of the capacity in which they appear and what they wish to put, whether that is an employer. We were provided with that some seconds before your Honours entered the Court.
PN29
SENIOR DEPUTY PRESIDENT WATSON: I see. Well, I think that probably deals with the basis advanced for intervention; Mr Harrington, would you like to address on that?
PN30
MR HARRINGTON: Yes, your Honour. We rely upon the written submissions that were filed in the Commission yesterday and served on certain parties this morning. The RSL is an incorporated association, it is not a registered association under the Act, as I think has been indicated. It represents approximately 61,000 members in Victoria.
PN31
In those written submissions at paragraph 6 certain of the purposes and powers of the branch are set out. If I might just take the bench to that now. I have also an attachment that I don't think the bench would have received. It is simply the part III purposes and powers of the branch; if I might just hand up three copies to the bench at this point. The relevant purposes have been replicated, produced at paragraph 6.
PN32
PN33
MR HARRINGTON: Thank you, your Honour. If I might just first take the bench to 3.1(a). One of the purposes of the RSL Victorian Branch is to provide to the sick, helpless, wounded, aged, disabled, destitute and needy among those who are serving or have served in the Australian Defence Forces, the various British Commonwealth Defence Forces, Members of Allied Defence Forces and their dependents. At 3.1(d), and this is most important in respect of seeking leave to intervene today:
PN34
Preserve the memory and records of those who suffered and died for Australia, erect monuments to their valour, provide them with suitable burial places and establish and preserve in their honour the annual commemoration day, known as Anzac Day.
PN35
Members of the bench, in respect of the leave to intervene application today the RSL sees itself, and may I say in my submission rightly so, as the custodian of the day, Anzac Day, 25 April. The submissions at paragraph 16 onwards give some historical background to that day. The RSL in its role as custodian oversees commemorative activities on 25 April each year and those activities are principally the Stand To - or the dawn service - and of course, as well known to everyone in this room - the march.
PN36
Given the size of its membership, given the role that it plays as an organisation in this community with respect to this very specific public holiday, it is the submission of the RSL Victorian Branch that it does have an interest in anything, any matter, any variation to any Federal award that may impact upon the celebration or the commemoration, I should say, of Anzac Day each year, and it is the submission of the RSL, at least in so far as it seeks to intervene, that the possibility that there might be a substituted public holiday has potential impact upon the way in which the day, Anzac Day, is commemorated in the community, particularly in Victoria, obviously, each year.
PN37
SENIOR DEPUTY PRESIDENT WATSON: Very well. Does anyone else which to address the application for intervention? Mr Lyons?
PN38
MR LYONS: Well, your Honour, the position we take is we don't think what has been raised, with great respect to the RSL, is strictly relevant to the proceedings before the bench and provided it is not taken as a concession that the historical status of the day ought be determinative of our application in the circumstance it may be not unreasonable that the RSL be allowed to make its submission as long as it is made clear from the commencement that we don't regard that as a concession about the nature of the day and the proper approach by the bench to awards of the Commission. If the Commission pleases.
PN39
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, leave is granted, Mr Harrington.
PN40
MR HARRINGTON: If it please the Commission.
PN41
SENIOR DEPUTY PRESIDENT WATSON: There were a number of other parties of interveners who have corresponded with the Commission, indicating intention to appear or at least put a position by correspondence; perhaps I can deal with each of those in turn. Unions Tasmania, the Tasmanian branch of the ACTU, has corresponded with the Commission and put what appears to be a brief submission supporting the adoption of the new national standard asserted by the applicant unions through submissions of Mr Lyons and Ms Frenzel, and it appears there is no intention for them to otherwise appear.
PN42
PN43
SENIOR DEPUTY PRESIDENT WATSON: There is correspondence from the National Australia Bank in respect to C No 2004/2434 and it is in similar terms except that the bank adopts submissions of groups such as the AIG, VECCI, rather than those of the applicant union. Is there any objection to that being accepted as submission of the bank in those terms in that matter? No. We will mark that exhibit NBA1.
EXHIBIT #NBA1 SUBMISSIONS FROM NATIONAL BANK OF AUSTRALIA IN MATTER 2004/2434
PN44
SENIOR DEPUTY PRESIDENT WATSON: There is correspondence from EMA Consulting on behalf of Wilson Group Services, a respondent to the Security Employees Victoria Award 1998. It is advises that that respondent wishes to make no submissions in relation to the application and simply seeks to be excused from further participation in these proceedings. We will mark that WGS1.
EXHIBIT #WSG1 CORRESPONDENCE ON BEHALF OF WILSON GROUP SERVICES
PN45
SENIOR DEPUTY PRESIDENT WATSON: There is a correspondence from Hall and Wilcox, lawyers for Bendigo Bank, a respondent in C No 2004/2426. That correspondence indicates that the bank understands employer organisations such as VECCI and AIG will be putting submissions concerning the applications. The bank opposes the application in that matter and relies on and adopts the submissions of the employer organisations in these proceedings. Unless there is any objection we will mark that VB1, a submission of the Bendigo Bank in that matter.
PN46
SENIOR DEPUTY PRESIDENT WATSON: And finally, there is correspondence from Agribusiness Employers Federation, which foreshadows an intention to intervene in the current proceedings and to provide a submission by fax and e-mail today. An application has been made in relation to a relevant award but is not one of those referred by the President to the Full Bench as currently constituted. Is there any objection to AEF being granted intervention in the matter and the receipt of their written submission later today - on the basis that is provided to all parties?
PN47
MR LYONS: No, we didn't receive that, your Honour, but I don't really take objection in the circumstances.
PN48
PN49
SENIOR DEPUTY PRESIDENT WATSON: I think that concludes appearances and interventions. We will go to the applicant unions unless there are any other matters.
PN50
MS VAICIULIS: Yes, there is, Senior Honour, and that is there is a threshold issue as far as the Australian Postal Corporation is concerned in relation to Matter C No 2004/2284, which is the application by the CEPU to vary the Australia Post (General Conditions of Employment) Award 1999. The threshold - - -
PN51
SENIOR DEPUTY PRESIDENT WATSON: And that goes to the bargaining period?
PN52
MS VAICIULIS: Sorry?
PN53
SENIOR DEPUTY PRESIDENT WATSON: That goes to the bargaining period issue.
PN54
MS VAICIULIS: It does go to the bargaining period. Perhaps I will cut short the submission and say to your Honour, in as much as the union provided an assurance that the matter of the substitution date for Anzac Day will not form part of its negotiation agenda as far as the current bargaining round is concerned, so in those circumstances the threshold issue is no longer a threshold issue but it did relate to the section 170N and the exercise by the Commission of its habitual powers during the negotiating period.
PN55
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you for that, Ms Vaiciulis. There is a further issue. We note a number of parties have provided witness statements and there is a question of how they are dealt with. One witness statement has been provided in the applicant's submissions, it raises a question of whether there is any desire to cross-examine in relation to that by any of the other parties, and equally there are a number of witness statements included within other submissions of and on behalf of respondents to the various awards, and that raises a question of whether there is any desire to cross-examine in relation to those materials. Mr Lyons?
PN56
MR LYONS: Your Honour, there are a variety of statements that were put in by respondents and interveners. We don't seek to cross-examine in respect to any of those. We do reserve our position in respect of one additional statement that was provided to us by Mr Parry shortly before the commencement of these proceedings in respect of his client, ANZ. Ms Maloney from the FSU is still reviewing that; I doubt our position will be different but we haven't completed that but - - -
PN57
SENIOR DEPUTY PRESIDENT WATSON: When you say additional, that was in addition to those - - -
PN58
MR LYONS: Served last evening, sir.
PN59
SENIOR DEPUTY PRESIDENT WATSON: Served last evening, yes.
PN60
MR LYONS: Now, as I say, I doubt our position will be different but until Ms Maloney has completed a review of that I think it is prudent to reserve our position but at this time we would not seek to cross-examine any of the deponents of the material filed.
PN61
SENIOR DEPUTY PRESIDENT WATSON: Thank you. Mr Corboy?
PN62
MR CORBOY: If it pleases the Commission, VHIA will seek to cross-examine Ms Morphy who provided a witness statement in support of the AEF application.
PN63
SENIOR DEPUTY PRESIDENT WATSON: So VHIA would, did you say?
PN64
MR CORBOY: Would like to cross-examine.
PN65
SENIOR DEPUTY PRESIDENT WATSON: Yes. Mr Lyons?
PN66
MR LYONS: Thank you, your Honour. I have to say that places us in some difficulty with Ms Morphy. If your Honour has read the statement, the deponent is a resident of Albury, is not present in the Court, and we were not advised in advance that there would be a request to cross-examine as I think would have been common courtesy in the circumstances, particularly as a review of the material indicated the locality of the deponent.
PN67
As I say, it places us in some difficulty. I would need to get some instructions from the ANF about whether it is possible, which I strongly doubt that the deponent would be made available for cross-examination. Perhaps if we can reserve that point at this juncture. It may well be that we are in the position of having to withdraw the matter.
PN68
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Mr Corboy, I take it Mr Lyons is right and no early notice was given to the - - -
PN69
MR CORBOY: I don't believe so, your Honour. I have just taken from Ms Bicknell; I am not sure of what she advised the Trades Hall about that submission or the ANF, so I cannot say what we advised and if any prior notice was given.
PN70
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Yes, well, perhaps we will leave that matter at this point and perhaps if some discussions could be had between the ANF and VHIA to ascertain the nature of any cross-examination required and whether there are any means of dealing with that issue.
PN71
MR LYONS: Thank you, your Honour. We will undertake to do that at the first adjournment of the proceedings.
PN72
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Unless there is any further matters we would propose to hear from Mr Lyons at this point.
PN73
MR LYONS: If the Commission pleases, the unions have filed in respect of all of the applications written submissions which - in accordance with the directions issued by the bench, and we rely on those submissions in support of the applications that we make. Will it be your Honour's position to mark each of those?
PN74
PN75
MR LYONS: I am sorry, your Honour, I didn't - - -
PN76
SENIOR DEPUTY PRESIDENT WATSON: I will mark it VTHC1.
PN77
MR LYONS: Thank you, your Honour. VTHC1 is what we submit is a comprehensive submission dealing with the matters that are before you today and we do rely on those. I was intending to say we rely on the affidavit of Morphy but we will leave that question to the side, based on the position of VHIA. I also have for the Commission three copies of each of the authorities to which we refer in VTHC1.
PN78
SENIOR DEPUTY PRESIDENT WATSON: Thank you.
PN79
MR LYONS: The final matter to hand up at this point, your Honour, relates to notification of certain parties which are not present in these proceedings but which the unions took the step of notifying, and those are the State and Territory authorities other than the State of Victoria which appear before you today. We took the step of notifying each of the other five States and two territories and we served on them the material that was filed in the registry of the Commission, and I can hand up an affidavit as to service by an administrative officer of the VTHC to that effect.
PN80
PN81
MR LYONS: Thank you, your Honour. We intend to take the bench to various components of the material in VTHCF1. In particular, we propose to commence with some discussion as to the safety net and concept of the safety net in general, make some observations about what we say is the proper circumstances for the Commission to revisit the safety net and to adjust the safety net where appropriate.
PN82
We then consider the existing safety net as it exists in respect of public holidays and the adjust we say that would need to be made to the test case standard to properly reflect what we say the safety net ought be. We then make some observations about - that are specific to Anzac Day and Anzac Day regulation, and finally make some general submissions of the grounds in support of the claim.
PN83
The bench will note that we do put a position in VTHC1 that it is open for the bench - and we would urge this course should you be minded not to come with us on the substantive application to make interim orders in respect of Anzac Day 2004 - in essence we say there are a number of options open to the Commission in order to come with us on our claim.
PN84
The first is to accept our principal submission, which is that the safety net test case ought be varied to provide for substitution per se of Anzac Day when it falls on a Saturday or a Sunday, that is for both days. The second option which would be open to the Commission is to agree to an ongoing variation of the safety net but have that variation apply only to the Sunday and not the Saturday.
PN85
The third option is the making of interim orders to deal with the urgent situation which we are faced with, in particular in Victoria and Tasmania, on Monday 26 April 2004. Those interim orders could be limited in effect to that day and for a short period as the bench determined to do in the 1993 circumstances of the Christmas/New Year period in Victoria. So one of those courses of action is what we urge the Commission to take.
PN86
Now, the position in respect of interim orders is slightly different to that that appears in part G of our submissions. I need to take account of some of the material that was filed. We would have indicated that earlier to the parties and the Commission but in receipt of much of that material late last evening I am in the position of doing it this morning.
PN87
If the Commission has had the opportunity to examine some of the responses to our material you will see that a good deal of it is what we would characterise as histrionic. In that material we are accused of everything from causing chaos in the State of Victoria, permanent damage to the economies of various States and Territories, we are accused of being disrespectful to the memory of fallen servicemen - I might add, an allegation that the unions find deeply offensive and not supported by our material.
PN88
The reality, however, is that our application is far more prosaic than that in that it actually deals with a very limited and discrete issue which we submit the Commission has, based on VTHC1,proper grounds to intervene and to remedy what is a very great injustice that will be suffered by Victorian and Tasmanian workers without the intervention of this Commission.
PN89
Significant negative consequences have befallen workers in this State and the State of Tasmania because of the inaction of their State Governments and their State Governments choosing to stand entirely outside a national consensus about the way in which Anzac Day is treated.
PN90
SENIOR DEPUTY PRESIDENT WATSON: Is that an ongoing National consensus? Is it possible, for example, at some future point other States and Territories might deviate from the approach currently taken to substitution of public holiday?
PN91
MR LYONS: The position at present, your Honour, in respect of Sunday is that where 25 April falls on a Sunday it automatically gazettes to the Monday by virtue of the operation of the legislation we refer to in our submission without the need for ministerial activity.
PN92
SENIOR DEPUTY PRESIDENT WATSON: In relation to each of the - - -
PN93
MR LYONS: In relation to each of the other jurisdictions.
PN94
SENIOR DEPUTY PRESIDENT WATSON: So it would require legislative change to alter that situation?
PN95
MR LYONS: It would, it would. So it is not a matter certainly in respect to 2004 and Sunday, your Honour, it is not a matter where it is simply at the whim of a Minister to make a different decision in 2009, which is the next instance where it - sorry, 2010 which is the next instance on which it falls on a weekend, it is a fixed position.
PN96
Our researches in fact revealed, your Honour, that the position of automatic substitution by legislation for Sunday has applied since at least the middle of the 1970s, certainly since the 1976 Public Holidays Test Case before this Commission, and in some States before that but certainly for an indefinite period. For an indefinite period Sunday has been the subject of automatic substitution.
PN97
It is the essence of our submission, your Honour, that the unions have identified a hole in the safety net. The hole in the safety net is employees are entitled to the 10 plus 1 standard; a number of those 10 days are variable days by operation of the calendar but alone among those variable days this Commission does not by its awards provide for substitution.
PN98
Now, there seems to us no logical reason for that situation to continue, particularly when the Commission in coming with us in respect of Sunday has on its side six of the eight Australian jurisdictions. Now, the Commission will be aware that there are 35 matters directly before the bench. There were an additional 15 matters not the subject of a 107 reference but were originally before Mr Commissioner Lewin.
PN99
Because of some adjournment sought those matters were not referred by the President. In addition to those applications I am instructed that the applicant unions before you and other unions have lodged in excess of 250 applications in the same terms. I attempted, sir, to quantify exactly how many applications there were but the registry is unable to collect information in that way, that is - - -
PN100
SENIOR DEPUTY PRESIDENT WATSON: The numbers keep changing too, that is the other problem.
PN101
MR LYONS: Yes, that is right. The AMWU have informed me, for example, that they alone have lodged some 100. So there are a very significant number of applications which hang off the decision of this bench and we say would be in large part determined by the decision that the Commission in these matters makes.
PN102
SENIOR DEPUTY PRESIDENT WATSON: Will that number deal exhaustively with Victorian and Tasmanian awards?
PN103
MR LYONS: It is the - - -
PN104
SENIOR DEPUTY PRESIDENT WATSON: Or awards operating in Victoria and Tasmania?
PN105
MR LYONS: Your Honour, it is the intention of the applicant unions and the unions in general to ensure that applications for all awards applying in those States are heard and determined prior to 26th of this month. Now, we intend to make applications in respect of all those matters. It will of course be open for the Commission action on its own notion to plug any obvious gaps, but it is certainly the responsibility would rest with the unions and we would be intending to take all necessary steps to resource that process if the bench comes with us on our application.
PN106
Now, we say that essentially the two key elements of what we put to you is that there is a nationally established standard, a quantum of leave. It is not about the identity of the days it is a quantum of leave and it is 11 days. Absent urgent intervention by the Commission, Victorian and Tasmanian workers in 2004 will not enjoy that standard and for no reason beyond an accident of the calendar.
PN107
The Commission will note that we extract prior to the table of contents of our submission some quotations from the history of Government consideration of this issue of national observance of public holidays. We are in the curious position, I think, of arguing a case where the broad national interest really ought come to the fore, and we say it has been commonly recognised since, I think, Mr Stanley Melbourne Bruce was Prime Minister in 1921, if I am not mistaken, and some 70 or more years ago that where we have a national day it is in the interests of everybody, employers, employees, Government, business and consumer, that those days be observed on a common basis.
PN108
Obviously, matters such as Melbourne Cup Day or local show days have to be observed on a local or regional basis but where we have a national day it ought be observed on the same day. In fact, as the extract we reprint there from COAG in 1993 indicates, the Governments then believe that this was a micro-economic reform as well as being just plain common sense.
PN109
And we do appeal to the bench to take that approach to these matters. We say it would be rewarding - sorry, I withdraw that. To adopt the approach taken by Victoria and Tasmania and endorse that would essentially be to go contrary to what is demonstrably, inarguably with public policy; where we have a national day it ought be commonly observed.
PN110
And we note that it is instructive that none of the material put against us deals with that point at all. We also submit that there has been a 30-year trend towards common observance of days. That is demonstrable through the decisions of the Commission which are contained in the folder we provide for you, including the most recent decisions of this Commission in respect of public holidays.
PN111
SENIOR DEPUTY PRESIDENT WATSON: What is meant in that context by observance? Isn't observance the undertaking of activities related to the day?
PN112
MR LYONS: Yes, and I think in examining some of the respondents' material I think possibly observance was not meant in the sense of - perhaps it is unfortunate that we are using particularly Anzac Day as the example - but we were not intending that to be a reference to observance of remembrance or religious festivals, observance in the sense of the day being a holiday for the purposes of the economy, a public holiday.
PN113
No one is suggesting, for example, that because there is a substitute day for 26 December that people celebrate Christmas on 28th for example. The observance of the festivity of Christmas, if people are involved in that, still occurs on 25th but the public holiday that arises as a result of that day ought be commonly held or observed. So we do mean observed in a different sense than the religious or the historical, I think.
PN114
If we can take the Commission to section B of our submission, entitled The Safety Net. We note that the safety net as it exists in relation to public holidays is set out in that series of decisions which are contained behind tabs 1 to 3 of the folders I have provided the Commission with. They are collectively known as the Public Holidays Test Case and they are well-known to the Commission and the parties present today.
PN115
Those cases, and in particular relevance to these proceedings is L4534, do not provide for awards to be varied consistent with our claims in respect of these matters and we therefore seek a departure from L4534 in as far as it deals with Anzac Day. But we say quite openly that we don't seek a departure from the logic of that decision.
PN116
In fact, we seek the extension of the logic provided for in that decision, which is that substitution for variable days is at the core of the safety net. We don't seek in our submission an extension to the quantum of days, we merely seek to ensure that by the operation of the calendar employees are not disadvantaged by a reduction in quantum.
PN117
There is never a circumstance, your Honour, where employees get an extra day because of the operation of the calendar, but there is presently a circumstance in the safety net where we receive one less. That is unfair and ought be the subject of proper remedy by variation to the safety net standard and awards.
PN118
We note that in rejecting certain union claims for the maintenance of days that had been abolished by State Governments the Commission made the observation in the test case that the safety net wasn't the status quo and these things are not cast in stone and in appropriate circumstances can be revisited.
PN119
We say the current circumstances are just such an example of a circumstance where the status quo in respect of public holidays deserves being revisited. And we say that not because the legislation has changed because it hasn't, as the discussion I had with his Honour indicates. But it is quite clear from the provisions of L4534 that the bench was under some misapprehension and no doubt contributed to or created entirely by the parties.
PN120
They describe the situation in respect of Anzac Day at page 20 of that decision as follows:
PN121
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 Sunday. This accords with current practice in most States and with respect to those States is accepted by the unions.
PN122
Well, your Honours and Commissioner, it is simply not the case, and wasn't in 1994, that the amount of leave is reduced by one day when Anzac Day falls on a Sunday. In fact, the situation was exactly the same as it is now, and that is, that other, absent Victoria and Tasmania, everyone is getting Monday 26 April.
PN123
SENIOR DEPUTY PRESIDENT KAUFMAN: But they don't all get the Sunday, do they, Mr Lyons - because in some States it is substituted and in other States it is added, as I understand it?
PN124
MR LYONS: Yes, your Honour is right. In some States it has the effect of creating an additional day; in some States it is a straight substitution and what ever normal arrangements that are applied to Sundays apply.
PN125
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes, so those people who are rostered to work on that Sunday work on that Sunday, it is not a holiday for them in those States; do I understand that correctly?
PN126
MR LYONS: Yes.
PN127
COMMISSIONER MANSFIELD: Where it is substituted, Mr Lyons?
PN128
MR LYONS: Sorry?
PN129
COMMISSIONER MANSFIELD: Where it is substituted, they don't get the holiday on the Sunday.
PN130
MR LYONS: Where it is substituted rather than one additional day, yes, that is right, that is right.
PN131
SENIOR DEPUTY PRESIDENT KAUFMAN: And as I understand the situation that applies in the Northern Territory, New South Wales and the Australian Capital Territory; am I right about that?
PN132
MR LYONS: If my memory serves me correct, your Honour is correct about that, that is right, yes. The net effect, however, is that all of the workers in those States do receive a day on Monday 26th. Now, while we understand that there are significant groups of people that work on a Sunday, the holiday on the Monday has the predominant effect in terms of the work-forces.
PN133
Now, to demonstrate that the bench was mis-advised in respect of 1994 one only needs to go to print C7199, which was the 1976 test case, which is in the folder which I have provided to the Commission behind tab - - -
PN134
COMMISSIONER MANSFIELD: Ten.
PN135
MR LYONS: Tab 10; thank you, Commissioner.
PN136
COMMISSIONER MANSFIELD: I think. I may be wrong.
PN137
MR LYONS: And at page 492 at paragraph 5 the Commission there summarises the position as it existed in 1976, and say:
PN138
The positions obtaining in 1976 in respect of substitution of Anzac Day as a result of statute or proclamation in New South Wales, Queensland, South Australia and the ACT is not new. The only new circumstance is the West Australian Public and Bank Holidays Act and the Northern Territory Holiday Ordinance 1973.
PN139
Now, the effect of the Northern Territory ordinance was as his Honour has described and the effect of the WA legislation was to provide a substitute day for both Saturday and Sunday. So the legislative circumstance which is before you is the same as it was in 1976 but was not correctly - I think - reported to the Commission in 1994 and certainly not correctly reflected in the judgment of the Commission.
PN140
SENIOR DEPUTY PRESIDENT WATSON: In respect to Sunday?
PN141
MR LYONS: In respect of Sunday, yes. Now, the approach that we would ask the Commission to take in relation to the examination of the safety net is exactly the one that his Honour the President of the Bench described in the redundancy test case released last week, and we reprint an extract from that at paragraph 14 of our submissions when the Commission has this to say:
PN142
In every case in which an improvement is sought it is a question of balancing all the considerations, including whether any improvement is appropriate.
PN143
These matters, in our submission, are always a balancing Act for the Commission. It is always possible for a party to come before the Commission and speak of an adverse impact or some or other sectional grouping. It is a matter of weighing that against the broad interest and the effect that the non-intervention of the Commission would otherwise have on employees - employees in this case but employers in certain others.
PN144
We also submit that the Statement of Principles gives some support to our applications. We say that the safety net warrants alteration because of changes to the economic, social and industrial circumstances. Each of those we say, and we return to that in grounds at the conclusion of our submission, support a variation in the manner sought.
PN145
Part C of our submissions deal with the issue of periodic re-examination of an adjustment of the safety net. I don't propose to go to that in detail, save to make a couple of quick observations. The Full Bench in Re Local Government Officers (Western Australia) Award 1988, which we extract at paragraph 18, I think need be described the effect of the test case provision, that is, it serves as a point of reference for all federal awards.
PN146
It is our submission that the test case standard in respect of Anzac Day is no longer an appropriate point of reference because it is so far out of step with the practical realities as exists in the States and Territories. And the point of reference should properly reflect long-standing national custom and practice.
PN147
In particular, we say having the federal award safety net so profoundly out of step with the practical situation in most of the country is unfair on particular groups of employees and really, in essence, quite unjustified. We note also simply by way of observation that one of the applicant unions, the CFMEU, is the subject of some considerable criticism by Mr Commissioner Smith in proceedings the last time this issue specifically arose for taking industrial action to attempt to pursue this claim. And the Commissioner did note there were more proper avenues open for the unions to seek to pursue this claim and in this circumstance that is exactly what we have fixed upon doing.
PN148
In terms of the existing and proposed safety net, I have already taken the Commission to that part of L4534 which details the current position of the safety net, but we would extract two fundamental principles from the test case which are relevant to these proceedings about what constitutes the safety net. The first is the 10 plus 1 standard, the ten national days and the one locally observed day.
PN149
The second is that the safety net as it exists in respect of public holidays is about quantum not identity of days. That largely removes the questions of religious and historical significance, in our submission. When the safety net is approached in that way it becomes, in our submission, possible to sustain an argument that the safety net in respect of a certain group of workers should be lower in one year than it is the year before and the following year.
PN150
No other element of the Commission's safety net works in that way. For example, severance pay is not lower in 2003 than it will be in 2004, as it will be in 2005. The safety net is the safety net and ought be provided to employees.
PN151
SENIOR DEPUTY PRESIDENT WATSON: The 10 plus 1 standard was subject to the specific caveat that the leave is reduced by one day, was it not?
PN152
MR LYONS: Yes, it was. But it doesn't appear from the decision, your Honour, that there was any great - I am sorry, I will withdraw that. It does not appear from the decision that the issue of Anzac Day and the result in reduction was the subject of debate or claim by the unions before that bench. Now, I suspect - our research has revealed that the unions may have simply made a mistake in relation to that issue, it appears, in not asking for it in respect of Sunday.
PN153
But I think more probably, if your Honour recalls the circumstances of that case, the live issue concerned Christmas and New Year and Australia Day due to some actions of the then State Victorian Government in making very significant changes to public holiday arrangements in this State and so the ball that was in the air, if you like, was about something other than Anzac Day and I think that is why - it frankly wasn't on the radar, I think, from the majority of the parties, your Honour. I think that is a proper reading of the decision.
PN154
SENIOR DEPUTY PRESIDENT WATSON: Notwithstanding the fact that Anzac Day had occurred on a Saturday two years earlier and a Sunday the year earlier?
PN155
MR LYONS: Yes. Well, a couple of observations to make about that. The first is that it did occur in the period prior to the test case and in the case of Victoria prior to the operation of the new State legislation. That is, it was a whole different arrangement in respect to public holidays still at that point in the State of Victoria and a number of additional days were still enjoyed by employees - the Easter Tuesday issue, the Show Day issue, some of these matters.
PN156
The substance of the decision, I think, supports an interpretation that the parties were - and the Commission as a result of the submission of the parties - were dealing principally with the matters concerning the Christmas/New Year period and Australia Day as a secondary issue. Ought it have been the subject of more submission, I think yes is the answer. Could the unions have put the arguments we put today to the '94 bench, the answer is yes, but we didn't.
PN157
SENIOR DEPUTY PRESIDENT KAUFMAN: Isn't the error, if it be an error, more properly characterised as being an error about what happened in the other States? In other words, the submission or the belief that there was no substitution in other States?
PN158
MR LYONS: Yes, your Honour, but the only reasoning provided for the exclusion of Anzac Day from the substitution principle is that it doesn't happen in the other States. That is the sum total of the reasoning.
PN159
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, that is a comment made but the error is not that it wasn't realised that there would be a diminution of the so-called standard each time Anzac Day fell on a Saturday or Sunday.
PN160
MR LYONS: Oh, no, I agree, your Honour; no, the reduction itself wasn't the error but the reduction is clearly in the decision grounded in what the bench understood to be the operation of State legislation and so one error became the other - or one error begat the other. And I do note that it appears that the only reasoning provided for the exclusion of Anzac Day from substitution is that State legislation or what the bench understood to be the position.
PN161
So to address the elements of what the safety net are in turn, we say our applications are directed to ensuring that Victorian and Tasmanian employees receive what is properly the quantum of leave that has already been fixed by the Commission, which is the 10 plus 1. We don't think it is proper to characterise our applications as forming an extension or enlargement of the safety net; more properly, it is simply to ensure that what is already the safety net is received by employees.
PN162
Now, the focus on quantum that is in the 1994 case is - and we describe it as the essential feature of the safety net - in our submission represents the final break with the traditional, and his very old approach to public holidays, which was concerned with the historical religious nature of holidays and brings the second element of - the second core element of the safety net into sharp relief and that is substitution because once there has been a break, a logical break between the identity of days, the historical and religious significance, then substitution follows almost automatically because if it is not about the individual calendar day it is about a quantum of leave, there is no reason not to substitute, because to do otherwise is to simply take an entitlement off employees.
PN163
Now, a number of the respondents and interveners make great play of the decision of the Victorian and Tasmanian Governments not to substitute the days. Now, we deal with that material at paragraphs 29 and following of our submission but the essence of our submission is contained at paragraph 33. We reprint there an observation again from L4534 concerning substitute days. The test case observed, and I quote:
PN164
Further the Commission doe snot trespass on the State's authority if it prescribes that when a specified day such as Christmas Day or Australia Day falls on a Saturday or a Sunday there will be a holiday on the next Monday in lieu of the actual day. Such a prescription is limited of course to the Commission's awards.
PN165
We take a couple of important principles from that observation. The first is that there is no barrier to this Commission acting regardless of the inaction of the two States. The second is, it is no barrier to this Commission acting, the fact that its determinations obviously have effect only in respect of persons who are employed pursuant to one of its awards. In the past neither of those two matters in respect of substitution have been held to be a reason for this Commission not to act in granting union claims.
PN166
Now, we note in particular that the granting of our claims in respect of Victoria will be unique in the Commonwealth, particularly efficacious in actually delivering paid time to persons. The report of the Victorian Industrial Relations task force with which I am sure the Commission is familiar, indicated that the best available figure suggested that some 67 per cent of Victorian employees were covered by Federal awards leaving around about 500,000 covered by schedule 1A so approaching 70 per cent of the employees in this State would potentially be caught by a determination made by this Commission and that is a unique position among the States and Territories of Australia and indicates that really the determination of this Commission would be quite effective in granting the day to employees.
PN167
Now, I sought some information, your Honours and Commissioner, about the penetration of Federal awards in respect of Tasmania and we have had some difficulty locating them but the submission of the TCCI at paragraph 14 on page 2 indicates that some 55 per cent of employees in that State are Federal award employees with some 25 per cent covered by State awards and 15 to 20 per cent regarded as award free, so again in respect to the two States where the applications have practical effect in 2004 we have a very high density of Federal award employees and the applications would be effective in gaining - effective in granting persons time off.
PN168
COMMISSIONER MANSFIELD: Mr Lyons, if there is an enterprise bargaining agreement in place which does not provide for substitution what would the effect of an award variation be?
PN169
MR LYONS: Commissioner, it is impossible to answer that question without reference to an individual agreement. It may well be that certain agreements which had the effect of covering the field would render, in respect to that issue or totally, would have the effect of rendering an award variation ineffective, but that would be a case by case circumstance, it depends on first of all whether the enterprise agreement deals with the question of public holidays at all and secondly, whether or not it deals with the question of Anzac Day in particular.
PN170
COMMISSIONER MANSFIELD: Good, thank you.
PN171
SENIOR DEPUTY PRESIDENT WATSON: Could that not lead to some issue of contention at particular work places as to what the effect of an enterprise agreement is; it could create some dissension or practical problems in terms of programming Anzac Day, if you like.
PN172
MR LYONS: Well, I think the observation we make is that any variation to a parent award - sorry, I withdraw that. Where any variation is made to a parent award it would be necessary for the parties to an enterprise agreement to ascertain to what effect they would be - that varies their rights and entitlements.
PN173
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN174
MR LYONS: The circumstances before you are no different to any other variation made to the parent award and is not in itself a reason not to vary the awards.
PN175
SENIOR DEPUTY PRESIDENT WATSON: Except it has been contended by a number of employers in their submissions that there are already practical difficulties in relation to rostering and various others in working out, in effect, what is going to happen come 25, 26 April, that might simply heighten the problem in some enterprises.
PN176
MR LYONS: It may do but it is an unquantifiable problem, your Honour. I mean, if it is enough for employers to say look, this variation may cause some problem because we have an enterprise agreement, it is a remedy - or it is a submission that would require the Commission to never vary awards because the argument would always be on foot. The only additional issue that I think arises here is the issue of the timing of the variation which we will address in an appropriate circumstance but I think it has no more capacity to cause disputation than any other variation to a parent award which addresses rights and entitlements.
PN177
It would be our submission that in most instances the parties are - who have made agreements, are quite clear about the relationship between the awards and agreements because it is an ongoing issue that they have in respect of all the entitlements and awards so to take the example that was raised by the Commissioner, if there is an agreement which covers the field and it is commonly accepted and has been for some time by the parties that the agreement covers the field, the answer is the award variation will be ineffective.
PN178
SENIOR DEPUTY PRESIDENT WATSON: Yes. I suppose it is the timing that raises the issue and the employer submissions raise it in those very terms. It would be problematic if the Commission were confronted with a number of section 170LW applications on 22 or 23 April.
PN179
MR LYONS: And I appreciate that, your Honour, but the same was true in 1993, Christmas time in 1993.
PN180
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN181
MR LYONS: I mean, we did have enterprise bargaining at that time. A large number of employees covered by Federal awards were also covered by enterprise bargaining agreements.
PN182
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN183
MR LYONS: The legislative regime was not that dissimilar in terms of the provisions of the Act to either the relationship between awards and agreements or not relatively different. Now, it did not, is the reality, cause industrial chaos when the Commission made interim orders providing for the substitution of the Christmas and New Year holidays that year because in all but a limited number of cases it would be our submission the parties would have a common understanding about the relationship between the various industrial instruments and wouldn't be departing from that.
PN184
We turn to the issue of substitution in general. We say once the nexus is broken between public holidays and historical or religious reasons for those days then the case for substitution in our view becomes irresistible. It is our submission that substitution has become the default position for variable public holidays that form part of the safety net and an examination of proceedings, the decisions of this Commission, over a considerable period, and we reprint these at paragraph 35, indicate that there has been a gradual extension of substitution in awards over the course of the last 50 years. The matters we put to you today are simply a logical extension of that.
PN185
Now, we reprint at - or below paragraph 38 of or submission. If I could take the bench to this, a table of variable national public holidays. Does the Commission have that?
PN186
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN187
MR LYONS: The table replicates each of the days which ordinarily form part of the safety net which vary from year to year depending on the operation of the calendar. The Commission will see that the test case standard is the last row and provides for substitution for each of those days on an automatic basis regardless of the activities of the State Government. The Commission will also note that in respect of Victoria the legislation is still profoundly out of step with that test case and in fact has not been varied since the amendments made by the Kennett Government that occasioned the test case in the first place.
PN188
The Commission will also notice that in respect of New Years Day, Australia Day, Christmas Day and Boxing Day, New South Wales and Queensland stand apart from the position both of the test case and the other jurisdictions save and except for Victoria and we say this visually indicates that substitution for variable days is now the norm. It forms a key part of the safety net and there is no reason for the continued exclusion of Anzac Day, certainly in respect of Sunday, from that position.
PN189
The alternative is that from time to time workers in two States receive lower than the established quantum of the safety net. At part E of our submissions we make some observations about Anzac Day regulation. We note that the test case describes Anzac Day as one of the days of special significance for the community, we also note of the other two one is Good Friday, which obviously doesn't have the substitution question, but Christmas Day does and does substitute, so the issue of the day being of special significance is not in itself a bar to substitution.
PN190
We note that the substitution of the day for the purposes of awards ought not be intended or seen to be preventing or hindering the proper observance of the traditions of Anzac Day, of 25 April, for example, those matters which are addressed in the RSL submission, the dawn service, the marches and other remembrance activities. Action by the Commission is requested by the unions will not stop those activities in Victoria and Tasmania any more than they are stopping them in other States and have done for the last 30 years.
PN191
The reality is there will still be a dawn service and a march past in Brisbane, despite the fact that the Monday, the 26th is observed as a public holiday; the same position will occur in respect of Victoria and Tasmania should the Commission grant the applications. We do know, and we deal with these in our submission, that there have been some periodic attempts in 1976, 1973 and 1981 for the unions to make applications in similar forms to these before you today. We reprint at paragraph 44 some observations of the bench which we say are instructive and indicate what we say to be the ongoing trend in respect of substitution. Their Honours said, and I quote:
PN192
While we reject the union's applications, we should say this: from what we have heard there seems to be much to commend a move away from dependence on State legislative bodies for substitution of holidays, and for the adoption of a standard clause giving effect to this objective. We think that the parties to all awards of this Commission should give consideration to the use of a substitution proviso in respect of all variable public holidays to cover those occasions when any occur on Saturdays or Sundays.
PN193
I end the quote there. And then in the final paragraph of the reprint they said, and I quote:
PN194
The concept we have in mind is a fundamental change in approach to public holidays regulation throughout awards of the Commission, and as such should be canvassed, not only by the parties to awards currently before us, but should be drawn to the attention of peak councils of employees and employers.
PN195
End quote. Now, it is our submission that the course of action that was urged upon the parties in 1976 is exactly what has subsequently occurred. Now, sometimes - and in a limited number of cases, by consent, but in general the march towards substitution of variable days has been inexorable, and for some reason which is frankly beyond explanation to those employees that otherwise do not get the day, Anzac Day remains excluded from that standard. We examine at 45 and 46 the circumstances of the 1993 Victorian legislation and also the relevant State and Territory Acts which impact on the matter at 46.
PN196
COMMISSIONER MANSFIELD: Mr Lyons, I notice that each of those references in 46 refer to substitution. In a response to SDP Kaufman earlier on I think there was a distinction made between substitution and an additional holiday. I am looking at those and thinking that some of those might not be totally accurate.
PN197
MR LYONS: No, that - - -
PN198
COMMISSIONER MANSFIELD: They are accurate in the sense that they do provide for an extra holiday on the Monday, but - - -
PN199
MR LYONS: Yes. I think in respect of New South Wales and the two Territories, that more properly indicates - the Commissioner is correct, in the exchange I had with his Honour - that there is an additional day provided on the 26th where the 25th is a Sunday.
PN200
COMMISSIONER MANSFIELD: Yes.
PN201
MR LYONS: Now, we note that there are already a significant number of Federal awards that already provide for Anzac Day substitution, even though it is not strictly in accordance with the test case. We don't say they are determinative of the matter, but we do reprint some of the industries in which they occur. In addition to those that are set out in paragraph 49, I am instructed by the AMWU that the Confectioners Award also provides - and that doesn't appear in our list - also provides for Anzac Day. So there already is a significant number of Federal award employees in this State and Tasmania that will already enjoy the day by virtue of the operation of their awards, so we already have a situation where some Federal award employees will be enjoying the day and some will not.
PN202
We also note at paragraph 50 that there were some circumstances where awards of the former Victorian Commission that became Federal awards formerly provided for substitution - continue to provide for substitution now they are Federal awards made in largely the same terms. However, any worker that was formerly covered by one of those awards but is not now employed by a respondent to those awards, and therefore subject to schedule 1A, has lost that condition in the intervening period.
PN203
Paragraphs 51 and following, we summarise the grounds that we put in support of the applications. As I indicated, the core of the submission is the 10 plus one standard, and we say our applications are necessary to protect that standard. We also note that public holidays is a traditional area of award prescription and it is therefore appropriate that the Commission intervene in those circumstances in a matter of that nature.
PN204
Paragraph 53 we refer to the decision of the Full Bench in VECCI v LHMU where the bench approved the concept of making a remedial variation to awards to ensure that the safety net is properly protected and not undermined. That sort of course of action is consistent with what we say is the Commission's obligations and to ensure the maintenance of an effective safety net. That is, an effective safety net which has holes in it is not effective. We rely on the stated intention of the 1994 test case, which was that the definition of standards - sorry, I withdraw that. We rely on the stated intention of the 1994 test case which was, and I quote:
PN205
The definition of standards normally appropriate for awards of the Commission.
PN206
End quote. We say that substitution of variable days is at the core of the definition of appropriate standards that was arrived at. In particular we say that the ongoing move to substitution, the notion of the safety net, the focus on the quantum of days, and the fact that we say the Full Bench in '94 was led into error, are all factors which warrant the Commission to take a different approach to that which was taken in 1994.
PN207
Now, we urge the Commission to accept, or to grant the applications because we say it would end an inconsistency of approach to variable days, because absent some submission based on the historical significance of Anzac Day, which is, in our submission, a discredited approach to public holidays, there is no basis to exclude Anzac Day from substitution. As we say, alone among the variable days, it does not substitute by operation of a test-case standard. Now, in 1994 no orders in respect of Anzac Day substitution were sought by the unions. I think that is clear from the terms of the 1994 case.
PN208
SENIOR DEPUTY PRESIDENT WATSON: Nor in 1999, Mr Lyons. Is there any explanation for that?
PN209
MR LYONS: As far as I can tell, your Honour, proceedings of this nature were not lodged in 1999, no.
PN210
SENIOR DEPUTY PRESIDENT WATSON: And you are not aware of any background to that?
PN211
MR LYONS: No, I am not, no.
PN212
SENIOR DEPUTY PRESIDENT WATSON: Very well.
PN213
MR LYONS: The only observation I make is that the - well, we are here now, perhaps is the way I put it, and our failure to agitate the matter in 1999 shouldn't prejudice the applications now we have brought them to the attention of the Commission.
PN214
COMMISSIONER MANSFIELD: Mr Lyons, a number of the employer parties have expressed concern about the effect of the acceptance of the union claims at what is a relatively late stage prior to Anzac Day, and if we assume that this matter is going to go through today and through tomorrow, perhaps, that leaves nine working days until Anzac Day. Is there any particular reason why the application was lodged as late as it has been? When did the Victorian Government make public its intention not to substitute a holiday for Anzac Day? I think it was early this year.
PN215
MR LYONS: I will get you - the exact date of the Minister's press releases is 12 February.
PN216
COMMISSIONER MANSFIELD: Yes.
PN217
MR LYONS: Commissioner, we have something to say in particular about whether there is enough time remaining, but the first issue you raised is concerning the actions of the State Government. We became aware of that when the matter was publicly announced. The first step of the unions - I think some material attesting to this fact is actually contained in some of the employers attachments - the first step the unions took was to seek to get the Government to reverse its decision.
PN218
The matter that we hadn't - our first step, that is, was to go the easy way, because our claims are within the grant of the Minister for Small Business, and more particularly the Premier of the State of Victoria and the Premier of Tasmania. So our first step was to do that, and I can provide to the Commission letters from - exchanges of letters from the course of February between the Trades Hall Council and Mr Bracks. I understand there to be similar correspondence in the State of Victoria, but our first step was attempt to lobby.
PN219
Why hadn't we done it? I think one of the respondents makes the observation that the fact that this situation was coming could be seen by reference to a calendar, and that is true. Frankly, sir, we hadn't anticipated this Government continuing the rather, in our submission, ludicrous policy of its predecessor. In respect of whether or not time remains to process the applications, we rely on the circumstances that existed in 1993, Commissioner.
PN220
In 1993 the Interim Orders case affecting Christmas and New Year was heard on 8 and 14 December 1993, and his Honour SDP Hancock and the members of the bench issued their decision on 15 December of that year, so the timing is almost dead on. Now, it is our submission, however, that the effect of a late change in this instance is significantly reduced below what would have occurred in 1993, because that involved three days that were being substituted, Commissioner. It involved Christmas, Boxing and New Year, and so it was triple the effect of the current applications.
PN221
SENIOR DEPUTY PRESIDENT WATSON: But equally the practical effect would have been one of payment of wages, given that a large number of people would have had those days off one way or the other in any case.
PN222
MR LYONS: In respect of a significant number of businesses, that is right, your Honour, yes, there would be - because of the Christmas period there would - - -
PN223
SENIOR DEPUTY PRESIDENT WATSON: There wouldn't have been an operational issue raised, but simply how much would have to have been paid to the employees.
PN224
MR LYONS: Well, there would have been for some businesses, your Honour - - -
PN225
SENIOR DEPUTY PRESIDENT WATSON: For some, yes.
PN226
MR LYONS: - - - and if you have regard to the decision it is quite clear that a number of businesses complained long and loud about operational circumstances.
PN227
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN228
MR LYONS: Certainly, the traditional shut-down between Christmas and New Year did have some ameliorating effect, but given we are talking about one day in this instance and it was three in that instance, we say there is no - there is good precedent for the Commission being willing to act on a matter such as this at short notice.
PN229
SENIOR DEPUTY PRESIDENT WATSON: It is probably a good precedent for parties seeking to avoid that situation.
PN230
MR LYONS: Perhaps in respect of the timing - that is our principal observations we make about timing. We may have a little more to say about that when we hear from some of the individual employer groups about that issue. Now, we say on the basis of equity the claims ought be granted for a number of reasons. Now, if the safety net is regarded as 10 plus 1, then workers in two states under Federal awards will not receive an absent intervention of the Commission for which now - sorry, we say there is no apparent or acceptable explanation for that reduction given the circumstances which pertain in most of the Australian Commonwealth.
PN231
Now, we seek no more for Federal award employees in Victoria and Tasmania than they received in 2003 and they will receive again in 2005. We also suggest that the claims, if granted, have a number of effects of removing some inequities. It will obviously have the effect of ensuring that persons who are bound by Federal awards operating in more than one state deal with their employees in the same manner. Many of the awards that are before you and certainly a number of the other ones that are waiting variation are national awards. The claim will have the effect of ensuring that the entitlements of the employees engaged under the same award in different states are not different.
PN232
The claim will ensure consistency for employees required to cross state or territory borders as part of their work. We note that some of the awards that are before you are transport awards which cover work where people are routinely required to cross state borders. I note there is no appearance entered by the organisation specifically of road transport employers but they were - are respondent to those awards and have chosen not to attend and put a view against these applications. But clearly in that industry is an example where it will cause significant disruption and different conditions applying to employees who are required to cross boundaries. The claim will help ensure consistency in border regions.
PN233
Now, the affidavit of Morphy goes to this question but, frankly, you don't need an affidavit to understand that a public holiday on one side of the river and not on the other side of the river, to take the north eastern Victorian example, will cause significant disruption and significant hardship to employees, in particular those who live in New South Wales or South Australia but work in the state of Victoria. The claim will also ensure consistency between Federal awards by ensuring that Federal award employees within the states of Victoria and Tasmania are all treated the same. As we have indicated, at present some will receive the substitute day by the operation of their awards.
PN234
We know that - paragraph 67, that the 1999 test cases the Commission recognised the need to preserve public holiday entitlements for those workers who were employed on non-standard hours. Now, absent further intervention of the Commission, the bitter irony is that such workers are in 2004 the only Federal award workers in Victoria and Tasmania who will receive the benefit of the public holiday so further intervention of the Commission is needed to restore the condition for Monday to Friday workers.
PN235
SENIOR DEPUTY PRESIDENT WATSON: On the question of equity, were you proposing to address, I think the Commonwealth cited extracts from the ACTU submissions in 1994 which seem to place greater weight on equity within a state and presumably within enterprises within a state, rather than between states - between Federal award employees between states?
PN236
MR LYONS: Well, we do address that, your Honour, principally by saying this, the applications we put will ensure consistency between all Federal award employees because that is the only group to which these applications can be addressed. The effect of - the effect of - - -
PN237
SENIOR DEPUTY PRESIDENT WATSON: So long as some state or territory doesn't alter their legislative arrangements in respect of some future year - that would be true for 2004.
PN238
MR LYONS: That would be true for 2004, yes.
PN239
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN240
MR LYONS: Now, I would concede that the submission we put about the national standard, it would be open were that no longer to be the national standard for people to seek this Commission to re-visit on that basis were there to be legislative change and we would need to meet that in the circumstances, which as Ms Frenzel points out to me is exactly what occurred in 1993, substantial legislative change that occasioned a re-visiting of the public holidays provisions as they applied in the state of Victoria.
PN241
SENIOR DEPUTY PRESIDENT WATSON: Well, it might be arguable in the table on page 13 such an application might be available, given the prevalence of New South Wales and Victoria not observing substitution for any days for Saturday.
PN242
MR LYONS: But there would then be an argument of size of economies versus number of jurisdictions - - -
PN243
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN244
MR LYONS: - - - which would require, as I think one of the observations of a different Full Bench, we extracted about the balancing act.
PN245
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN246
MR LYONS: There is no easy answer to that question. Paragraph 71 and following we deal with the statement of principles of the Commission and in respect of the safety net note that it is open to the Commission to adjust it in response to economic, social and industrial circumstances. We would submit that given a reasonable approach to the issue in isolation it would clearly be in the interests of business generally for public holidays, where they are national days, to be commonly taken, that is if operations are shut in Sydney they are shut in Melbourne and they are shut in Brisbane. National businesses are inter-related and there is clearly some benefit, as was recognised by COAG in 1993 for these days to be commonly taken.
PN247
SENIOR DEPUTY PRESIDENT WATSON: Well, that raises the interaction between bargaining, I suppose, and the safety net. There are no doubt a number of firms who might well, through enterprise agreements or informal agreements, nationally observe a substitution day in any case.
PN248
MR LYONS: Yes, and - - -
PN249
SENIOR DEPUTY PRESIDENT WATSON: But doing that in the bargaining stream, if you like, rather than through the award safety net.
PN250
MR LYONS: Yes, and in fact I am instructed, your Honour, that there is a number of major employers in Victoria that intend simply to bring forward RDOs in the light of 26 April because they have no practical work for employees on that day because they are part of a national integrated business. Now, that doesn't solve the question because it still means that an employee is having to use what is otherwise their entitlements for that day and we say their quantum entitlement is their 11 and they ought not have to use one of their other forms of leave or paid time off in order to access that day. Now, the focus on quantum would be consistent with the Commission granting our claims in the current industrial circumstances.
PN251
We do make the observation that it seems logical on its face that national employers would be advantaged by common national observance of the day. There are a number of individual employers who put some material in about the particular circumstances they face. We propose to deal with that in reply, subject to the Commission. That takes us to the position in respect of the making of interim orders. We reprint at attachment B of our submission a draft order which we would seek to have made in respect of the applications. As I indicated in my opening it would be open for this Commission to issue those orders in an interim form.
PN252
The 1993 Bench issued interim orders which had effect from three months from the date that they were issued which had the effect of granting the union claims pending further hearing and determination. We raise the issue about interim orders because it has been put by a number of employer organisations that they would seek to have more time to place more evidence before the Commission about the total effect and cost of the union's claims. We also received some criticism from the Victorian Government submission in respect of the absence of the other state and territory authorities from these proceedings and that it would be in the interests of the Commission that they hear from those before making a determination.
PN253
We say on that basis that it would be open to the Commission to make an interim orders affecting only Sunday, 25 April 2004, and in fact geographically limited to the two states in question, should the Commission choose to do that. Now, there is no practical reason to geographically limit it as the applications have no effect outside of those two states anyway because the state legislation acts to either award an additional day or a substitute day for the Monday and that function is already caught by the model provisions of the test case clause which provide for substitution by a state authority. But we say that the interim orders if the Commission is not minded to grant a substantial claim are necessary because there is otherwise a very great injustice that is going to be done to Victorian and Tasmanian workers.
PN254
The safety net - they won't have received the safety net in 2004 for no good reason and once it has gone they will not be able to have that restored to them. The interim orders are necessary in our submission to achieve what we would submit is industrial justice and to prevent hardship, that is the employees otherwise suffer a real quantifiable and identifiable detriment if the Commission does not act. There is obviously some significant urgency. That has been caused by the, in our submission, combination of the late announcement by the state government of its decision in respect of Anzac Day 2004 and the unions subsequently taking what steps it could to attempt to remedy the situation.
PN255
SENIOR DEPUTY PRESIDENT WATSON: But the order sought isn't dependant on the decision of the state government at all, is it?
PN256
MR LYONS: No, it is not.
PN257
SENIOR DEPUTY PRESIDENT WATSON: And it could have been made at any time realistically.
PN258
MR LYONS: The application?
PN259
SENIOR DEPUTY PRESIDENT WATSON: Yes, on 13 February in case the easier route, as it transpired, didn't produce what the applicant unions were seeking.
PN260
MR LYONS: That is correct, your Honour, and Ms Frenzel points out that the situation again was the same as on foot in '93, that there was some considerable delay between the announcement of the contents of the Victorian Public Holidays Act 1993 and the unions applying for relief to this Commission to provide for substitute days. There was some time lag. I think it is not unreasonable that the unions at first blush attempt to influence a government decision and, in the absence of that, then develop an alternative strategy in order to achieve some industrial justice. Would it have been better if we were before you in February? The answer I think, your Honour, is obviously yes.
PN261
SENIOR DEPUTY PRESIDENT WATSON: In hindsight, yes.
PN262
MR LYONS: Yes, and if we had been availed of Minister Thompson's decision in August of last year it would have been even better, your Honour, but we weren't.
PN263
SENIOR DEPUTY PRESIDENT WATSON: Well, you were availed of the views of the all-party Committee shortly after all this.
PN264
MR LYONS: Well - - -
PN265
SENIOR DEPUTY PRESIDENT WATSON: Or so say - - -
PN266
MR LYONS: I am happy to make some observations about that, your Honour.
PN267
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN268
MR LYONS: Now, from - I don't know whether the Commission has - there were certainly some abstracts provided from various people.
PN269
SENIOR DEPUTY PRESIDENT WATSON: Yes, submissions.
PN270
MR LYONS: Submissions. This is the Anzac Day Parliamentary Review of Anzac Day Laws, a Report of the Parliament of Victoria Scrutiny of Acts and Regulations Committee in October 2002.
PN271
COMMISSIONER MANSFIELD: We have the full report, Mr Lyons.
PN272
SENIOR DEPUTY PRESIDENT WATSON: That is in the Victoria - - -
PN273
COMMISSIONER MANSFIELD: It is in the Victorian submission, Victorian Government submission.
PN274
MR LYONS: My learned friend informs me it is in the back of the Victorian Government submission. Now, great play is made of this by a couple of the respondents and interveners and it is said to be authority for the proposition that it was decided by everybody in the Government of Victoria that 25 April was going to be the day. An analysis of the decision of - sorry, of the report - reveals, as far as I can see, no consideration of the question whatsoever of substitution. It doesn't appear to have been an issue. There is no consideration of what goes on in other States. It doesn't appear to have - the issue of substitution doesn't appear to have been brought to the attention of the members of the Committee in any sense.
PN275
Now, there is no evidence, for example, that they considered, well, this is what happens with Anzac Day in every other State; what should we do here in Victoria? The simple observation is made it should be observed on the 25th to protect it as an institution and that is what we have done in Victoria and will keep doing in Victoria. The report is not a report, with respect, about the industrial implications of Anzac Day. It is a report about all those other things that hang off Anzac Day. For example: the trading hours; what time race one at Flemington can start and I am not being flippant about that, but that is one of the key issues that arises in part of the report; what proportion of the takings of sporting events in the metropolitan area are given to the Anzac Day Trust; all of these sorts of practical matters about the respect for and observance of the 25th as a day of remembrance.
PN276
Industrial issues, unless we can be taken to something in the report, don't appear to have been on the radar of this Committee at all. Now, was there - if there was a reason then and deliberate decision by the Victorians to set themselves apart from the national consensus you would think there would at least be some evidence in the report that they had dealt with the situation or been informed of the situation as it exists in other States. We don't say that that report is authority for the proposition that the Government has recently re-visited this matter and made a determination. The report was quite simply about something else. And I think that an analysis of the witnesses supports that view, with the - there was one employee organisation that gave evidence and that was the - - -
PN277
COMMISSIONER MANSFIELD: The Shop Assistants Union.
PN278
MR LYONS: Indeed, Commissioner, yes, the SDA, and that was in conjunction with, I think, the Retailers Association because obviously shop trading hours are a key issue around Anzac Day regulation because of the description about no opening before 1 pm. But there is no other evidence in the witness list of there being an industrial flavour to this but the account of the evidence, for example, given by VECCI is again about shop trading hours. And Ms Frenzel points out to me that there is no reference specifically in the terms of reference to industrial implications of Anzac Day either.
PN279
The last observation we make about that, of course, is the one we made earlier which is that the decision of the State doesn't cover the field on the question anyway, is that even if the Government had made a definitive decision about the issue that is squarely before you for determination it does not prevent you awarding substitution as occurred in 1993 and then in final form of orders in 1994. If the Commission pleases.
PN280
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Lyons. Who would like to lead off?
PN281
MS MacLEAN: If the Commission pleases, that honour - dubious or otherwise - seems to have fallen to me. Might I just ask a question of the Commission? Might I inquire as to what time the Commission wants to adjourn for lunch?
PN282
SENIOR DEPUTY PRESIDENT WATSON: We would propose adjourning at fifteen to one.
PN283
MS MacLEAN: Yes. I will endeavour to conclude our submissions in that time.
PN284
SENIOR DEPUTY PRESIDENT WATSON: Or a quarter to one.
PN285
MS MacLEAN: Pardon? Fifteen to one. I wonder if there is a national standard about telling the time as well?
PN286
SENIOR DEPUTY PRESIDENT KAUFMAN: Well, thankfully the east coast is co-ordinated as to what time it is presently.
PN287
MS MacLEAN: We should have another test case. If the Commission pleases, the State of Victoria has filed with the Commission and served on the applicants a folder of materials which contains a number of documents and perhaps it might be appropriate to mark that folder before we get started?
PN288
PN289
MS MacLEAN: If the Commission pleases. Given that the directions of the Commission were to file full written submissions we have endeavoured to formulate detailed submissions within the submissions that have been filed. What I propose to do is take the Commission through those. I don't propose to read them. If there are any questions that the Full Bench has in relation to the submissions filed on behalf of the State then I am happy to deal with those and I will deal with a number of points that Mr Lyons has raised this morning.
PN290
The State of Victoria is a respondent to two awards which are the subject of applications to vary before this bench. One deals with the public sector non-executive staff and the other deals with nurses working with the Department of Human Services. The applications are, as the Commission will apprehend from the submissions filed, opposed by the State of Victoria both in respect of the final relief sought and in respect of the interim orders that have been sought and with respect to the interim orders I will say something a little more about that later but the position of the State in relation to the making of interim orders is set out at paragraph 34 and following in our submissions.
PN291
If I might deal with the substance of the claim. It is appropriate, in my submission, that the Commission apprehend that this claim is for a substitution of Anzac Day when it falls on either a Saturday or a Sunday. There is no distinction sought to be drawn in the application for the day of the weekend when Anzac Day may fall. My learned friend said in submissions, and it also is stated in the supporting material filed by Trades Hall and others that there is a national standard with respect to the observance of substitution of Anzac Day when it falls on a Saturday or a Sunday and that simply the Commission will easily apprehend from the table which my learned friend took you to this morning is not demonstrable on the evidence.
PN292
It is only in the State of Western Australia that there is a substituted holiday when Anzac Day falls on a Saturday, so - - -
PN293
COMMISSIONER MANSFIELD: What about a Sunday, Ms MacLean?
PN294
MS MacLEAN: Yes, it is in Western Australia as well.
PN295
COMMISSIONER MANSFIELD: Would you concede it is a national standard - - -
PN296
MS MacLEAN: No, I wouldn't.
PN297
COMMISSIONER MANSFIELD: - - - in regard to Sunday?
PN298
MS MacLEAN: No, I wouldn't, Commissioner, no.
PN299
COMMISSIONER MANSFIELD: There is only two States that don't observe it.
PN300
MS MacLEAN: Perhaps a national majority.
PN301
COMMISSIONER MANSFIELD: Not quite a national standard but it goes close.
PN302
MS MacLEAN: Yes, well certainly it is a majority, Commissioner.
PN303
COMMISSIONER MANSFIELD: Yes.
PN304
MS MacLEAN: I can't deny that, but - - -
PN305
COMMISSIONER MANSFIELD: What would it represent, 75 per cent of the workforce?
PN306
MS MacLEAN: I don't have instructions on that. Obviously, the most populous States where people are subject to Federal awards are Victoria and Tasmania - oh, Victoria and Tasmania? Victoria and New South Wales, no offence to my friends from Tasmania.
PN307
SENIOR DEPUTY PRESIDENT WATSON: But you might be right.
PN308
MS MacLEAN: So it would be certainly a majority of employees if not a significant majority of employees that would be covered. That is self evident from the numbers of employees involved in those States, Commissioner. But it is important that the Commission understand that the position in respect of Saturday is very different and - - -
PN309
COMMISSIONER MANSFIELD: No, I don't dispute Saturday.
PN310
MS MacLEAN: The claim ought not be just rolled together as a weekend. Now, in respect of the observance of public holidays in Victoria, as we have set out in the submissions and at tab 2 of the folder of documents and I don't propose to take the Commission to this, The Victorian Public Holidays Act in section 6 sets out that there shall be 11 public holidays observed in Victoria and those days are named and section 8 allows the Minister by notice published in the gazette to appoint substituted days as public holidays. Now, my friend Mr Lyons sought to make something of the next document that we refer to and I might take the Commission to the Minister's press release which is tab 3 in the folder of documents.
PN311
And as the Commission will see that was issued on 12 February and it merely reflects the position as it has always been in Victoria in relation to Anzac Day. There has never been, by Government edict or otherwise, a substitution of Anzac Day when it fell on a weekend. So it is not correct to say that there was some announcement by the Government contained in that press release or otherwise that reflected a change of position. The position has always been thus in relation to Anzac Day. Whether there was an anticipation that there would be a different outcome is something that Mr Lyons doesn't inform us about the basis of that anticipation but the Minister's press release is quite clear. The basis upon which her announcement is made is that the decision is that Anzac Day in 2004 falls on a Sunday and that will continue to be observed on April 25 as it has in the past.
PN312
That has always been the position in Victoria and the Minister goes on to say and give reasons for the making of that decision and it is in keeping, she says:
PN313
With the historical practice in Victoria and the original intention for Anzac Day to be a time for the community to participate in commemorative activities.
PN314
The Minister there also calls in support for the findings made of the Parliamentary inquiry and I might just observe in relation to that, that it is not said that the Parliamentary inquiry is authority for any proposition. It simply reflects the state of opinion of the Victorian Government and others in relation to the historical significance of Anzac Day and the maintenance of the status quo in Victoria, that is that there is not to be a day in substitution.
PN315
SENIOR DEPUTY PRESIDENT WATSON: But there is a difference between observance and substitute holidays.
PN316
MS MacLEAN: Oh, there is.
PN317
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN318
MS MacLEAN: There is, and the point that we make - - -
PN319
SENIOR DEPUTY PRESIDENT WATSON: And the press release seems to converge the two to some degree.
PN320
MS MacLEAN: Well, the point that we make in our submissions, Senior Deputy President, in relation to that is the use of the word "observance" as it appears in the Trades Hall submissions which has now been clarified by Mr Lyons this morning is to confuse a day off and the day upon which commemorative or other activities may well be conducted. The position of the Government, as is set out in the submission, is that the substitution of a day in relation to Anzac Day is inappropriate as that could dilute, in terms of the historical significance and cultural significance of the day, the observance of that day and the - - -
PN321
COMMISSIONER MANSFIELD: Is there any evidence for that, Ms MacLean, in any of the States which have substituted for many years?
PN322
MS MacLEAN: We don't apprehend that - - -
PN323
COMMISSIONER MANSFIELD: Like, your proposition is that - and the I understand the RSLs proposition from its submission - is that if there is a public holiday observed on another day other than Anzac Day - - -
PN324
MS MacLEAN: Yes.
PN325
COMMISSIONER MANSFIELD: - - - it will dilute the significance of the day itself. Now that is not the union's submission. They - I think they are saying quite clearly every Australian respects the historical significance of Anzac Day as it is.
PN326
MS MacLEAN: Well - - -
PN327
COMMISSIONER MANSFIELD: But other States - and we have said earlier something like 75 per cent of the workforce and probably more than 75 per cent of the population - have observed Anzac Day on the day in question but also had a holiday when that day falls on a Sunday. Now, I am just asking is there any evidence for the proposition that that has diluted the significance of Anzac Day in those dates?
PN328
MS MacLEAN: Commissioner, if I said that it would dilute it, then I didn't intend to put it that highly. What the government apprehends is that there is a potential for that dilution. We don't say that the - - -
PN329
COMMISSIONER MANSFIELD: Sorry, Ms MacLean, but if there is a potential, it is actually occurring for 75 per cent of the population of the country and has done so for many years.
PN330
MS MacLEAN: Yes, well, Commissioner - - -
PN331
COMMISSIONER MANSFIELD: Has it actually - is the RSL going to suggest to us that in those States Anzac Day has less significance than it otherwise would?
PN332
MS MacLEAN: I don't know, Commissioner, perhaps I will leave that to them. The submission that I am making to the Full Bench this morning is confined to the interests of the Victorian Government. If it is the case that substitution is having an effect or not having an effect in other States that is a matter about which I have no instructions. What I am putting to the Commission is that this is a matter that the Victorian Government has looked at, the significance of Anzac Day, the significance of the observance of the day on the day and the Parliamentary inquiry is evidence of the broad ranging nature of that inquiry. And the view that it has taken is that it is inappropriate for those historical and cultural reasons to offer a day of substitution to employees who are covered by the ministerially edict that could be issued.
PN333
The Victorian Government, as the Commission would be well aware, has no ability to bring about a substitution day or otherwise with respect to Federal award employees. That is a matter that is within the purview of the unions making appropriate applications and having them dealt with. And I might in that context - - -
PN334
SENIOR DEPUTY PRESIDENT WATSON: Well, not directly, Ms MacLean, but by reference to some existing award provisions the Victorian Government declaration might have that effect might it not?
PN335
MS MacLEAN: But not in respect of Anzac Day, it won't Senior Deputy President, because of what happened in 1994. There is no automatic substitution for government gazettal in respect of Anzac Day because it was excluded from that formulation, if I am reading that properly.
PN336
SENIOR DEPUTY PRESIDENT WATSON: Yes, but if the government did utilise, what is it, section 8 for the substitution?
PN337
MS MacLEAN: Yes, it is.
PN338
SENIOR DEPUTY PRESIDENT WATSON: That might have the effect indirectly through the operation of existing award provisions bringing about a substitution in respect - - -
PN339
MS MacLEAN: Where there is automatic substitution provided for within those award clauses that could well happen, yes, but that is not going to happen with respect to Anzac Day. Might I then turn to the history of the manner in which this matter has been dealt with by this Commission and start with the Anzac Day holiday case which is Print C7199. My learned friend has taken the Commission to that this morning and I only propose to go through the salient features of that and a number of other authorities. The Commission had in 1976 before it applications to vary numerous awards for the Anzac Day holiday substitution when Anzac Day was falling on a Sunday in 1976, in Victoria and Tasmania those applications were confined to.
PN340
The Commission made a number of observations concerning the significance of Anzac Day and the effect of that significance on the question of substitution. And we set out the passage at paragraph 9 of the submissions at page 493 where the Commission is formulating the position that:
PN341
Employees are reaching the stage where they believe that days such as Anzac Day are holidays which should be celebrated on a week day as distinct from a weekend.
PN342
And the Commission identified what it saw as a general tendency to look at public holidays in terms of leisure rather than in terms of days that reflect national, historical or religious significance. The Commission then went on to say this:
PN343
The recognition given to Anzac Day as a commemorative occasion has obviously been slower to change in Victoria as an examination of the various pieces of State legislation will show. This recognition has consciously or unconsciously been reflected in awards of the Commission including provisions before us.
PN344
And the observation is made at paragraph 10 of the submissions that :
PN345
The recognition given to Anzac Day as a commemorative occasion identified by the Commission back in 1976 has not been departed from and the findings of the Parliamentary Inquiry reinforce the present and indeed enhanced cultural and historical significance of the day.
PN346
The substitution of the Anzac Day holiday was again considered by the Commission in Print E6455 and I might just take the Commission to that for a moment. The Commission will immediately see that this case involved virtually a re-run of the case that it has before it at the moment. And this is contained at tab 6 if the Commission pleases. The Commission will see that a claim in respect of Anzac Day was for substitution when the 25 April was a Saturday or a Sunday and that the grounds advanced by the ACTU who were conducting the test case in support of the variation and set out at page 621 of the Print, pretty much encapsulate the grounds that my learned friend has advanced in support of the application before the Bench at the moment. The maintenance of quantum, no preservation for the State position and that the trend is toward quantum and away from historical or cultural significance. The Full Bench dealt with each of those arguments and at page 621 said that:
PN347
It is apparent that more recent decisions of this Commission and Industrial Tribunals in the States have removed the emphasis upon the rationale for paid holidays from the idea of the national, historical or religious significance of that day to that of leisure for the employee. And Anzac Day is probably the last holiday to be affected by that change.
PN348
In the result what the Commission decided to do was to allow a substitution provision which provided a substituted day where a day in substitution was proclaimed by the relevant State. So that it was up to the States to decide whether the day was appropriate to be one observed on or enjoyed as a day off on a substituted day. The Commission also dealt with the position of Saturday, where Anzac Day falls on a Saturday and the Full Bench will see that at para 16 of the submissions the concerns raised by the Commission in relation to the fact that Western Australia was the only State which provided for substitution on a Saturday were there dealt with and that no attention has been given by the applicants in this matter to the concerns that were raised.
PN349
The last occasion when this matter was dealt with tangentially at any rate, was in the 1994 public holidays test case. And quite a lot has been said about that this morning and it is appropriate if I could ask the Commission to turn to that decision now, which is at tab 7 of the folder which we have provided to the Commission. The submission made by the applicants seems to suggest that this matter dealt with the question as to whether Anzac Day should be a substituted public holiday. It also is suggested that the Bench was led into error of some kind. Might I make a couple of observations about this particular case. It is apparent at page 13 if the Commission pleases, that Anzac Day at the end of the first full paragraph the decision says this:
PN350
Thus Anzac Day is outside the scope of the substitution claim. Anzac Day was never a question that was ventilated before this Full Bench in any meaningful way.
PN351
That is that a day of substitution was not sought by the applicants. Now, obviously there was some discussion about Anzac Day during the course of the proceedings, that much is apparent from the observations that the Bench makes on page 16. And the fact that the Full Bench says that the exclusion of Anzac Day accords with the current practice in most States in my submission doesn't take the matter anywhere. The matter was not before the Bench and a substitution in respect of Anzac Day wasn't sought and the Commission's observations if you like about the state of play nationally in respect of Anzac Day weren't in any way determinative of the matters they had to decide.
PN352
So Anzac Day was really out of the picture in respect of that case. It was open to the applicants to ventilate this matter at any time after the various test cases that had been run. There was obviously by reference to the calendar as my learned friend observed this morning, it was always going to be the case that Anzac Day would again fall on a Saturday or a Sunday.
PN353
COMMISSIONER MANSFIELD: Ms MacLean, just picking up the point about the paragraph on reduction of leave by one day where Anzac Day falls on a Saturday or Sunday, the sentence that talks about current practice in most States it accords with, it was put by Mr Lyons that that indicated that the Bench was under a misunderstanding of the actual position and it does read that way. I take your point that Anzac Day wasn't on - wasn't part of the claim for this particular case.
PN354
MS MacLEAN: Yes, that is right. It may well be that that statement of - well, I will deal with that in two ways. Where the Bench that:
PN355
The effect of the above provision, that is that when a proscribed holiday other than Anzac Day falls on a Saturday or Sunday a substitute day is provided when the effect of that provision is identified as a reduction in the amount of leave in respect of Anzac Day when it falls on a Saturday or Sunday.
PN356
That is right. That is the effect of that provision and that is the situation that is obtained since then. To then go on and say, "This accords with current practice in most States," may or may not be right. It doesn't matter.
PN357
COMMISSIONER MANSFIELD: Yes.
PN358
SENIOR DEPUTY PRESIDENT WATSON: That is right insofar as it relates to Saturdays, but not Sundays.
PN359
MS MacLEAN: That is absolutely right.
PN360
COMMISSIONER MANSFIELD: Certainly. It relates to Saturday except in West Australia - - -
PN361
MS MacLEAN: Yes and Sunday - - -
PN362
COMMISSIONER MANSFIELD: But in every other State except Victoria and Tasmania.
PN363
MS MacLEAN: Victoria and Tasmania, that is right.
PN364
COMMISSIONER MANSFIELD: And the two Territories.
PN365
MS MacLEAN: That is right. If you roll up Saturday and Sunday together what the Full Bench then goes on to say about the current practice in most States is correct. If you leave it to Saturday then it is correct. If you confine it to Sunday then it is not.
PN366
COMMISSIONER MANSFIELD: Yes.
PN367
MS MacLEAN: And I don't think it takes the matter any further, with respect Commissioner.
PN368
SENIOR DEPUTY PRESIDENT KAUFMAN: And by virtue of the Full Bench having said it is accepted by the unions does that take - do I take it that that means that the unions accepted the then status quo by not claiming for Anzac Day?
PN369
MS MacLEAN: Well, Senior Deputy President, given that this issue had been ventilated in 1981 before a Full Bench by way of an ACTU test case and virtually on the same question that is now before the Commission with very similar grounds being advanced. And you could take the view that given the result that was - the result of that case, that is that the ruling the Full Bench made for whatever reason, it was decided by the applicants in the 1994 case not to re-open that question. Now, I don't put it as highly, Senior Deputy President, as saying that that was some acknowledgment that they would have had a limited prospect of success on that question. But for the Full Bench to observe that that position was accepted by the unions is the logical conclusion to be drawn from the fact that the matter wasn't ventilated before the Full Bench on that occasion. If it hadn't be accepted it would have been re-argued.
PN370
We don't seek to make anything of that other than to say as we go on to say from page 8 of our submissions that there are no changed circumstances here. And if I can turn to that issue the submission is made that the Commission ought to note that nothing has changed in the regulation and provision of public holidays since these Full Benches have considered over a period of many years the questions which are now sought to be re-ventilated before this Bench. At paragraph 43 of the applicant's submissions the statement is - the argument is sought to be advanced that there has been a number - there have been a number of important legislative and other changes which represent changed circumstances that the Commission ought to take account of.
PN371
A paragraph 20 the response is made that, particularly in relation to the change of industrial legislative environment, the changes that have been identified there are of no effect on the weight and substance to be given to the previous decisions of the Commission and indeed, given the current environment which has a focus on enterprise agreements and the bargaining of parties at the workplace level rather than a centralised wage fixing environment, if this claim couldn't be successfully prosecuted in a centralised wage fixing environment it is less likely to warrant Commission intervention now, given the present environment that the industrial parties find themselves.
PN372
The point in relation to certified agreements which I think, Commissioner, you raised with my learned friend this morning, is one that also troubles the state in relation to the Public Sector Non-executive Staff Certified Agreement which is contained at tab 10 of the materials and I won't take the Commission to that. The effect of the particular clause and the potential for conflict is set out at paragraph 22 of the submissions and the practical effect, it is submitted, is that confusion could well arise between the rights and obligations of employees and the employer under the certified agreement and under the award if it were varied and the relevant clause of the Public Sector Agreement is there identified as clause 32 and the Commission will see that it is comprehensive in its terms.
PN373
The point that is made about the observance of Anzac Day is dealt with at paragraph 24 and I don't need to take the Commission to that. We then go on to deal with the considerations under the safety net and make the observation that, in paragraph 28, that precisely the same level of national consensus applied in 1994 as it does now and that there is no right for the Commission to intervene here to create a safety net standard for the reduction in leave when it will occur in one year only. The impact on the public sector in Victoria is dealt with from paragraph 31 and following and the Commission would readily appreciate that there will be elements of confusion in respect of rostering, levels of disruption and forward planning, largely brought about by the lateness of the application and that is a matter that other employer parties will address the Commission on, no doubt in more detail.
PN374
With respect to the making of the interim orders, if the Commission pleases, there is no proper basis for the Commission to make an interim order here. Reliance is placed on the power of the Commission to make an interim order but no compelling reason has been advanced by the applicants in my submission as to why the Commission should exercise that power. The - as I said earlier, the fact that Anzac Day would fall on a Sunday in 2004 has been known for a very considerable period of time. The position in Victoria has always been that there has never been given a day in substitution.
PN375
There is no evidence that my learned friend has pointed to this morning to suggest that there has been a proposal to depart from that position and then a change of circumstances such as arose in 1994 when there was a proposal from the government to remove conditions of employment that people had enjoyed for some considerable time. The status quo has never been altered in respect of this particular question and from paragraph 34 onwards the submissions are made in relation to the making of the interim orders and it is apparent that what the applicants seek by way of an interim award is in fact a final relief that they propose, that is that Anzac Day this year will be enjoyed as a substituted day because it falls on the Sunday.
PN376
Such an approach, absent urgent and compelling circumstances in my submission the Commission ought not entertain. The fact that the timing of the making of the applications may have left the Commission inadequate time to properly deal with the matters or that other parties are disadvantaged by the late notice they have been given, lies squarely in the hands of the applicants. What the applicants seek by way of interim award is the creation of a new benefit or a new condition of employment and not the maintenance or preservation of existing conditions in the face of potential change.
PN377
The Commission will note from the cases that I have extracted following that paragraph, that the Commission has always adopted a very cautious approach to the making of interim awards which involve the creation of rights and obligations prior to a full hearing on the merits of the claim. And if I might just refer the Commission to the CFMEU and Arran's Waterbeds Centre decision, which is contained at tab 9. I don't propose to take the Commission to it but what the Commission said about the making of interim awards in that decision at page 4 certainly ought to guide the Commission in exercising that jurisdiction in this application and the Commission said this:
PN378
These circumstances constitute the sort of exceptional circumstances which would warrant ...(reads)... an orderly process is followed in finalising the substantive application.
PN379
And the Commission will immediately see that exceptional circumstances are required and that maintaining the status quo, or indeed preserving the subject of the litigation or the issue before the Commission, is one of the reasons where the Commission will intervene. And it is worth noting that at least in - I think it is the 1981 test case, application was made and the time for Anzac - or one of the public holidays falling in fact passed during the course of the hearing of that matter and no interim orders were made. If the Commission will just pardon me I will just see if there is anything else that we need to say. If the Commission pleases, unless there are any other matters, those are our submissions.
PN380
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Ms MacLean. Who is next in the order, the Commonwealth?
PN381
MR O'BRIEN: Yes, your Honour, by agreement with my colleagues to the left - and might I take the opportunity to apologise for any confusion that might have resulted from my having misheard or misunderstood your comments about the sequence of appearances this morning.
PN382
SENIOR DEPUTY PRESIDENT WATSON: No, no difficulty, we got through that all right. Perhaps we will move - perhaps we will mark your exhibit - sorry, your written submission as Commonwealth 1, Mr O'Brien.
PN383
PN384
MR O'BRIEN: Your Honour, we do have three copies of material which includes the notice but you have that already, it is a question of whether you want us to tender this or - - -
PN385
SENIOR DEPUTY PRESIDENT WATSON: What is the material?
PN386
MR O'BRIEN: Well, we have packages of material that go to the notice of intention to intervene - - -
PN387
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN388
MR O'BRIEN: - - - a copy of the written submissions and copies of the authorities that we refer to and rely on.
PN389
SENIOR DEPUTY PRESIDENT WATSON: Well, perhaps that could be handed up and we will have access to all of that material.
PN390
MR O'BRIEN: Indeed, because you don't as yet have the authority as I understand it.
PN391
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.
PN392
MR O'BRIEN: Although you probably do in other submissions. Your Honour, the Commonwealth relies on the written submissions that were filed and served yesterday and what I propose to do is to briefly speak to that submission if I may. The Commonwealth opposes the applications and the interim orders and we do so on the basis that the Commission should uphold the extant and established principle underpinning its decision in the '94 public holidays test case in so far as it provides that the Commission does not provide a substitute for Anzac Day falling on a weekend because that depends in that formulation of the test case standard upon prescription of such a substitute holiday by a state or territory government.
PN393
So the Commonwealth's position is very much focused on those specific aspects of that test case decision that go to the arrangements for substitution for Anzac Day in Federal awards. Your Honour and members of the Commission, the Commonwealth submits that if granted the unions claims would have a number of effects. The immediate impact would be that Federal award employees in Victoria and Tasmania would be entitled to a paid day off on Monday 26 April this year in lieu of the 25 April Anzac Day public holiday gazetted by the state governments in both those states.
PN394
The longer term impact would be to remove the prerogative and responsibility of all state and territory governments to decide any and all future public holiday substitution arrangements for Anzac Day in relation to Federal award employees when Anzac Day falls on a weekend. Now, just to elaborate slightly on the Commonwealth position, we note that at paragraph 1.8 of the submission that Anzac Day has a unique history and we note the practise of substituting Monday holidays varies between the states and territories. The established Commission principle, we note, is that Anzac Day public holiday substitution arrangements are reliant on proclamation by state and territory governments.
PN395
This established principle in our view both avoids confusion at the state level and is consistent with broader community and commercial observance of the day with any one state or territory. And secondly, we note that the formulation of the test case standard as it relates to substitution arrangements for Anzac Day has been carefully crafted to have regard to the particular circumstances and considerations around substitution for Anzac Day and there is nothing, in our submission, new in this year, in 2004, that would justify parting from that established principle of the Commission in this respect. In relation to that Commission principle we note that the test case standard clearly defined what the effect of the standard is in relation to substitution arrangements for Anzac Day falling on a weekend and that is that Federal awards would not make substitution.
PN396
The decision was consistent in our view with earlier Commission decisions in relation to substitution arrangements for public holidays and we refer in the submission to the 1976 Full Bench decision and the 1981 decision. The references are there and indeed both of these are decisions that the advocates that have preceded me have canvassed today and taken the Commission to. In terms of the particular substitution arrangements for Anzac Day, the decision contains a number of statements that have particular relevance in our view to the current proceedings and I would simply note that those are set out at page 4 of our submission and they emphasise the prerogative of various state and territory governments.
PN397
They note the special significance in community morés that was identified by the Full Bench in 1994 and it was noted that awards may well reflect that and Anzac Day was identified as one of those days. The Full Bench also acknowledged that the decision allows for state or territory autonomy, subject to meeting the minimum safety net standard. In the present matter the unions submit that the '94 test case standard essentially didn't have before it any claims concerning Anzac Day. However, in reality, such issues were in our view squarely before the Full Bench. We note in the submission of paragraph 1.18 that the ACTU sought guidance from the Full Bench, at pages 186 to 187 of the transcript, as to the appropriate Anzac Day substitution arrangements.
PN398
In our submission the resultant test case standard and that aspect of it that relates to the substitution arrangements for Anzac Day answers that request by the ACTU for guidance in relation to that issue. At page 6 of our submission, your Honour, we go to a theme which is essentially that which has been touched on again earlier in these proceedings this morning of the importance of uniformity of adherence to holiday entitlements for employees generally within a particular state or territory and we cite at paragraph 1.21 a reference from the 1981 Full Bench which goes to that effect.
PN399
We note similarly that the ACTU made similar submissions at page 167 of transcript in the 1994 case and we would note that if the Commission were to grant the unions present claim there would not be uniformity in Victoria and Tasmania as the only workers in those states that would be entitled to the holiday on Monday 26 April would be those workers covered by Federal Awards. And so given that and given the other complications arising from the application of Federal certified agreements, that would be a formula to, if you like, maximise the level of lack of uniformity within any of those states - or either of those states.
PN400
Now, we also cite a decision of Commissioner Smith in 1999 that arose out of the context of applications for section 127 orders before the Commission in the context of industrial disputation in the building industry leading up to - about this issue of Anzac Day substitution in 1999 and we think that, or we submit - well, think it is important that we bring to the Bench's attention what the Commissioner said at that time and he simply said about the 1994 test case standard that the public holidays test case decision is not ambiguous on this matter and he clearly states that in years where Anzac Day falls on a Saturday or Sunday then the 10 days per year will be reduced by one.
PN401
COMMISSIONER MANSFIELD: Was he correct in that statement Mr O'Brien, in the sense that in the majority of states the Anzac Day holiday, where it falls on a Sunday, is substituted for the Monday?
PN402
MR O'BRIEN: Only by - - -
PN403
COMMISSIONER MANSFIELD: He was correct in the reference to the decision certainly but in effect was he correct?
PN404
MR O'BRIEN: He was correct in our view, Commissioner, on both counts in as much as he correctly reflects what the decision says. What the decision also says of course is that substitution is dependant upon some sort of action on the part of a state or territory government to provide for, facilitate, that substitution through the operation of the test case standard in the awards. So he is right on both counts.
PN405
COMMISSIONER MANSFIELD: Yes, but in effect the holiday is still observed in the majority of states and territories.
PN406
MR O'BRIEN: In effect but that doesn't at all detract from this, Commissioner. I mean the formulation of the test case standard effectively delineated between what the Commission was prepared to do in relation to Anzac Day substitution arrangements and what the prerogative and discretion, and indeed responsibility, of state and territory governments are in that regard and in so doing it provided that uniquely amongst all the holidays the Bench would only go so far as to provide for substitution, dependant upon that appropriate action by sovereign state and territory governments in exercising their discretion.
PN407
So in that sense the practise accurately reflects the standard. The practise is different across states and territories, we acknowledge that but that too is consistent with the standard because what it hangs on is whether or not those state and territory governments choose to exercise their discretion in a way that will trigger the provision in a standard. Your Honour, members of the Commission, against that background I would simply conclude now by saying that the Commonwealth does not support the unions application, I reiterate that point.
PN408
The Commission's principle relating to substitute of holidays where Anzac Day falls on a Saturday or a Sunday should be maintained in our view because no relevant circumstances materially changed since that test case standard was formulated. And finally, in our view the states and territories should retain their prerogative to determine substitute public holiday arrangements for Anzac Day now and into the future. May it please the Commission.
PN409
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr O'Brien. We will adjourn to 2.15. Before doing so, however, we would note that in the event that we are unable to finish all submissions today the Full Bench is available to and will sit tomorrow. Could we ask that the remaining parties and interveners have some discussion as to likely duration and order of their submissions, in particular if there is a situation where a particular advocate is not able to join us tomorrow they might seek to make arrangements to be heard today and be otherwise represented in respect to any proceedings should they be required tomorrow. We will adjourn to 2.15.
LUNCHEON ADJOURNMENT [12.47pm]
RESUMED [2.20pm]
PN410
SENIOR DEPUTY PRESIDENT WATSON: As foreshadowed in exhibit AEF1 the Agribusiness Employers Federation has provided a written submission which we propose to mark AEF2. I am presuming that parties have been provided with copies of that? I can have - - -
PN411
MR LYONS: No, we haven't been, your Honour, so perhaps - - -
PN412
PN413
MR EBERHARD: If the Commission pleases. I think when I initially announced my appearance I forgot to include one reference and that was to the Technical Services Architects Award 2000 which is C2004/2283 and I appear in that matter on behalf - I have just about forgotten it again, the Consulting Architects Association I think it is. It is in lieu of Mr Ironmonger who appeared before Commissioner Lewin on the previous instance.
PN414
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Eberhard.
PN415
MR EBERHARD: If the Bench pleases. VECCI submits that the application should be dismissed and as a consequence of that that no interim order should be issued. We have provided to the Commission a written submission in accordance with the directions issued and we would tender that if the Commission pleases.
PN416
PN417
MR EBERHARD: We certainly don't intend to traverse the matters that have already been dealt with fairly extensively prior to lunch, but there are a couple of matters that are in our submissions that we would like to take the Commission to. And in respect to that it is basically in regards to the timing, the situation in regards to business and the operations of business and the certainty that needs to be in regards to business, and a couple of other matters. Victorian unions have had more than adequate opportunity in the recent past to raise this issue and to have it determined. Instead they have left it until the eleventh hour.
PN418
The timing of the present applications means that the hearing to deal with the applications is only two and a half weeks from 25 April 2004. Employers in Victoria need certainty about such fundamental issues as when normal trading conditions will apply and conversely when public holiday conditions will apply. It is totally unacceptable less than three weeks from the day to be in a position where uncertainty continues about whether some employees in Victorian work places will have substitute public holiday entitlements on Monday, 26 April or not.
PN419
Victorian employers have accordingly scheduled rosters, appointments, staffing, deliveries and a host of other arrangements on the basis that the Anzac Day public holiday will be observed as usual on 25 April in 2004 and that the following day Monday, 26 April will be a normal working day. A decision to vary that situation at this late stage and for some employees only will cause significant confusion, disruption and additional cost for many Victorian firms and businesses.
PN420
The decision by the Victorian Government means that apart from some very limited exceptions there will be a common pattern of Anzac Day public holiday observance in Victoria in 2004. The public holiday will be observed on that particular day and the Commission's award with some minor exceptions will accordingly also provide the public holiday penalties and other entitlements will also apply on that day. However, to grant the present applications would create a totally different scenario in Victoria. If the current applications are granted the effect would be to divide the Victorian workforce.
PN421
In 2000 the Victorian Government established the Victorian Industrial Relations Task Force and that Task Force identified that some 561,000 Victorian employees are not covered by a Federal award. They then went on and determined that some 205,000 of those are employed as managers and administrators and therefore the remaining 356,000 employees have their wage rates and allowances determined by schedule 1A and tend to rely almost solely upon this statutory system of industrial regulation.
PN422
Those employees would not be entitled to any public holiday determined as a result of the Commission's proceedings here today. Maintenance of the status quo will preserve a common pattern of Anzac Day holiday observance in Victoria and we submit that it is significantly more important to maintain uniformity of observance within the State of Victoria as opposed to creating a situation particularly at very short notice whereby some award covered employees have the public holiday entitlement shifted from 25 April Anzac Day to 26 April.
PN423
We have also tendered as part of our exhibit the press release from the Minister for Small Business. And in that the Minister refers to the All Party Review that was conducted by the Victorian Parliament in the year 2002. Now, we have also tendered some extracts from that particular review and the important reference in there is the recommendation that is number 7 in there, where the committee recommended that 25 April be continued on as the Anzac Day holiday.
PN424
Now, we submit that that report was published in October 2002 and the government with respect to that particular report made a reference that they would observe that recommendation in whole. And the recommendation states:
PN425
The Committee recommends that Anzac Day should continue to be observed as a public holiday on 25 April each year with the legislation making clear that Anzac Day is a full day holiday.
PN426
Now, we submit that with respect to that particular report by the All Party Review - All Party Committee, a pro-active organisation would have read that and anticipated that the government in supporting such a proposition would have been recommending and would have been proclaiming that there would be no substitute day. Now, we say in regards to that that a pro-active organisation would have seen that as an opportunity to then make submissions to the government and/or to make applications to vary the awards. We see that it is pent with frustration and disaster for the Commission to determine a matter some three weeks prior to the actual day being observed by the various participants. In regards to that - - -
PN427
COMMISSIONER MANSFIELD: Mr Eberhard, I notice there was only one employee organisation that appeared before the committee, that was the Shop Distributive Union and they appeared I understand along with the Australian Retailers Association. Do you know whether the existence of the committee was advised to the employee organisations in this State and were they invited to make submissions on this issue of Anzac Day and whether or not it should be a public holiday, or whether a day should be substituted for it?
PN428
MR EBERHARD: I am not aware of whether or not there was any public proclamation of the All Party Committee and as a consequence of that I can't then answer your further questions.
PN429
COMMISSIONER MANSFIELD: Obviously some of these committees can be established and wander around and do their business and no-one knows very much about them do they?
PN430
MR EBERHARD: I understand what the Commission is saying in regards to that, but with respect to that once the report was published and the government acknowledged and accepted the recommendations that were contained therein, what we are submitting is that there is a situation there that a pro-active organisation could have realised, or should have realised that this situation would have been actually occurring. Now, we had the report being published in October. We had the Minister's declaration being published by a press release in February and yet we are now faced some three weeks before Anzac Day with the actual situation occurring.
PN431
So what we are submitting is that in anticipation of all of those circumstances in October an application could have been raised with regards to the Commission. It could well have been a secondary application because the unions had advised that they had sought to negotiate and the term and the position of the government that they could have been doing that at the same time as proceedings occurring before this Commission.
PN432
COMMISSIONER MANSFIELD: I am aware of that, but I am really coming to this point of you are taking us to the recommendations of the Parliamentary committee, that was my only point.
PN433
MR EBERHARD: Thank you, Commissioner.
PN434
SENIOR DEPUTY PRESIDENT WATSON: Mr Eberhard, when you say the government acknowledged and accepted the recommendations of the All Party Committee, what are you referring to, the 12 February announcement or some other acknowledgment and acceptance?
PN435
MR EBERHARD: No, there is a government response provided by the - and - - -
PN436
SENIOR DEPUTY PRESIDENT WATSON: That is found in the full document is it? In the full copy provided by Victoria?
PN437
MR EBERHARD: I haven't actually seen them, but they are. I am advised that they are contained therein, yes, your Honour. I have just been advised, your Honour, it is behind tab 4.
PN438
SENIOR DEPUTY PRESIDENT WATSON: The full document, yes.
PN439
MR EBERHARD: I am actually wrong in what I have just advised the Commission in that the government response isn't contained in the government's - the State of Victoria - it is just the report. But what I can refer the Commission to is - - -
PN440
SENIOR DEPUTY PRESIDENT WATSON: Well, was there a response at the time separately published?
PN441
MR EBERHARD: There is a government response and I will undertake to provide copies to the Commission in the next period, but basically in that it talks about:
PN442
The government has responded to each recommendation contained in the report as set out in the attached table. Overall the government -
PN443
And then it goes into a number of dot points -
PN444
Supports fully recommendations 1, 4, 6A and 7.
PN445
And recommendation 7 was the recommendation by the committee that:
PN446
The committee recommends that Anzac Day should continue to be observed as a public holiday on 25 April each year with the legislation making it clear that Anzac Day is a full day holiday. Response: supported. The appropriate provisions are already contained in the Public Holidays Act 1993.
PN447
SENIOR DEPUTY PRESIDENT WATSON: And what is the date of that response?
PN448
MR EBERHARD: It appears to be undated, your Honour. There doesn't appear to be any dates on it. Can I just clarify one point that I did make before. I was talking about the report being October 2003, it was in actual fact in October 2002. So there has been far more - a far greater period of time transpire than that that I was talking about. Now, as I indicated we will undertake to provide copies of the government's response to the Commission and we will do that in the intervening period this afternoon. And unless the Commission has any further questions that would be the submissions - the verbal submissions of VECCI and we would rely on our written submissions as already provided to the Commission.
PN449
SENIOR DEPUTY PRESIDENT KAUFMAN: Mr Eberhard, was the Anzac Day Act 1958 amended in response to those recommendations?
PN450
MR EBERHARD: There is now a single piece of legislation that exists in regards to Anzac Day, that controls the various terms and conditions of Anzac Day.
PN451
SENIOR DEPUTY PRESIDENT KAUFMAN: It was amended extensively in 2003 I think, was that as a result of the report that you were being asked about? The Parliamentary Review?
PN452
MR EBERHARD: One of the recommendations from the report should be that there should be a single piece of legislation and it should fall under the control of the Premier. Prior to that there had been some eight or nine different pieces of legislation that govern the terms and conditions of Anzac Day and they were controlled by various Ministers of the government. But in this instance the report itself, the All Party Report itself actually advised that the government should establish a single Act and that should be under the control of the Premier.
PN453
SENIOR DEPUTY PRESIDENT WATSON: Yes, Ms MacLean?
PN454
MS MacLEAN: Perhaps if I might just clarify the question the Commissioner just asked is dealt with on page viii of the Parliamentary Inquiry as to how the committee undertook the receipt of evidence and the canvassing of various opinions. And what it says is:
PN455
On June 2002 a discussion paper was circulated and public hearings were then conducted between July and September of 2002.
PN456
And I think towards the back of the report there is a list of the persons and organisations who made submissions.
PN457
COMMISSIONER MANSFIELD: Yes, and quite properly, Ms MacLean, a very significant proportion of those individuals and organisations who made submissions were representative of returned servicemen. And that was entirely understandable.
PN458
MS MacLEAN: It seems so, but the point that I just wanted to clarify, Commissioner, was there was no invitation to make submissions, it was a public inquiry, open to all.
PN459
COMMISSIONER MANSFIELD: Yes.
PN460
SENIOR DEPUTY PRESIDENT WATSON: Are you able to assist us in relation to the date of the government response to the report?
PN461
MS MacLEAN: I will take some instructions about that and clarify the position.
PN462
SENIOR DEPUTY PRESIDENT WATSON: Yes. We are up to AIG I think, Mr Marasco?
PN463
MR MARASCO: Yes. If the Commission pleases I will have lodged a copy of submissions on behalf of the Australian Industry Group with the Commission a couple of days ago.
PN464
PN465
SENIOR DEPUTY PRESIDENT WATSON: There are no prizes, Mr Marasco.
PN466
MR MARASCO: What a pity. I would seek your Honours and Commissioner to rely on those submissions that we have lodged. Just a couple of preliminary points before I address you on the substantive nature of our submissions. At the beginning, your Honour, you referred to various organisations that I think had made submissions. I am in receipt of correspondence from the Victorian Association of Forest Industries and they have written a letter to the Commission dated 6 April 2004 indicating that the Victorian Association of Forest Industries and the Timber Trade Industrial Association can't be represented today at this hearing, but they would be adopting the submissions advanced by the Australian Industry Group.
PN467
SENIOR DEPUTY PRESIDENT WATSON: You are absolutely right. I will mark that correspondence VAFI1 and it will be treated as a submission which as you indicate adopts and supports the submissions you are making.
EXHIBIT #VAFI1 CORRESPONDENCE FROM VICTORIAN ASSOCIATION OF FOREST INDUSTRIES AND TIMBER TRADE INDUSTRIAL ASSOCIATION
PN468
MR MARASCO: Yes, thank you, your Honour. The other just brief preliminary point I wanted to make is that I have got another matter this afternoon before his Honour, Senior Deputy President Lacy so I just wanted to know whether there would be any indication of what time the proceeding would finish today?
PN469
SENIOR DEPUTY PRESIDENT WATSON: Well, the matter can be concluded today in a reasonable time after 4.15. We would be available to sit on, if that assists you at all.
PN470
MR MARASCO: Yes, certainly. It may be that I have to go before that time, so I just advise you in advance if I could be excused. If the Commission pleases.Your Honours and Commissioner, it is not my intention to go through all of the points that I made in the submission. I think the other parties have dealt with a lot of those issues. I just make the point that the AI Group would adopt also the submissions made by the Victorian State Government, the Federal Government, VECCI and Telstra and the ANZ. In particular those last two submissions, those lodged on behalf of Telstra and ANZ. They deal in some depth with the issue of the nature of interim orders and why the Commission should decline to issue interim orders in this case.
PN471
I would like to adopt those particular submissions as well. In the AI Group submissions we deal briefly with the issue of interim orders and indicate we think it would be inappropriate for the Commission to issue them, but as I said I do note that the ANZ and Telstra submissions do go into greater detail about interim orders and we would like to adopt the position put in those submissions why interim orders should not be granted in this case. The other point I should make in relation to our submission, your Honours and Commissioner, is in relation to three sworn affidavits that are attached by - to our submissions.
PN472
The primary point I would like to make is that we have had insufficient time to gain more material from our members about the nature and effect of the applications if they were to be granted. And as I note in our submissions the last public holiday test case that has been referred to by the parties that did take several months to conclude and took many days of hearing and I understand that a great deal of evidence and submissions was put before the Commission before it finally made a decision. So I just note that we have had very little time in which to present evidence and affidavit material to you.
PN473
If I could just draw your attention though to the last affidavit which is attached to our submissions. That is an affidavit of Renee Peterson who is the Human Resources Operations Manager for Gaming, Wagering and Corporate at TABCor Holdings Limited. I should make - I think refer to a point about the parent award. In the affidavit Ms Peterson refers to TABCor being responder to the Totalisator Agency Board of Victoria Off Course Totalisator Employees Award 1993 and the TABCor On Course Totalisator Employees Interim Award 1994. I note, your Honours and Commissioner, that that award is not subject to this present proceeding.
PN474
I make two points in relation to that: firstly, that could be one of the awards that the unions have applied to vary, one of the awards that we could say is in abeyance because it is not actually subject to this referral to the Full Bench. The second point I would make even though the parent - or the awards in that case are not subject to the current proceeding, we certainly seek to rely on the evidence that is stated in that affidavit, namely what the effect could be in terms of cost and disruption to business if the applications were granted in this case.
PN475
In relation to the other two affidavits that we have lodged with our material, I am able to inform the Bench that those awards that are referred to in the other two affidavits are actually subject to this proceeding. And I don't think it is really necessary for me, your Honours and Commissioner, to go to any great detail. Apart from that unless there is any specific issues you would like me to address or any specific questions that I can answer for you.
PN476
COMMISSIONER MANSFIELD: Mr Marasco, how many employees would TABCor normally roster on a Monday?
PN477
MR MARASCO: I would not know that answer, Commissioner, I would have to seek instructions on that, I am not sure. I am not sure, I am not really a racing goer, so I am not sure.
PN478
COMMISSIONER MANSFIELD: Are there many race meetings on Mondays?
PN479
MR MARASCO: I am not sure. I am instructed that there are.
PN480
COMMISSIONER MANSFIELD: Perhaps Mr Parry can answer that question.
PN481
SENIOR DEPUTY PRESIDENT WATSON: I take it from your last answer that you wouldn't be able to tell us in relation to TABCor whether the certified agreements oust the award, if you like, in respect to public holidays?
PN482
MR MARASCO: I am not sure, I don't have the enterprise agreements with me. That is a very important point, because there does seem to be significant confusion about what the relationship would be between the parent award and the enterprise agreement. And I think it becomes even more confusing in light of the Federal Court's decision in Australian Industries Group v Emwest case about what the comments the Full Federal Court made about the nature of the no extra claims clause. So I think it can be very confusing for businesses and for employees to determine whether they are entitled to the public holiday.
PN483
If the Bench as it is currently constituted were to vary these awards that are subject to the current proceeding it would then really depend on what the enterprise agreement says in relation to public holidays. Is it read in conjunction with the award, if the award is varied does that constitute an extra claim which is prevented by a no extra claim clause. And I think that, you know, would be another reason why the interim orders should be declined.
PN484
SENIOR DEPUTY PRESIDENT KAUFMAN: Speaking of certified agreements Mr O'Sullivan says that the Laminex Group is party to a number of section 170LK certified agreements at paragraph 4 which do not provide for the substitution of Anzac Day. That group is also party to a number of agreements with unions, I assume they are LJ agreements. Do we infer from the silence as to that that those agreements do provide for substitution of Anzac Day?
PN485
MR MARASCO: I am not sure, your Honour. I would be unable to inform you with an certainty as to what the answer would be. I could certainly say that I am sure that there would be a lot of agreements that may substitute the day or refer specifically to the Anzac holiday. One of my clients that are members of the Australian Industry Group is the ACI Group that manufactures plastic and moulds, their enterprise agreement does specifically state that if Anzac Day falls on a Saturday or Sunday then the holiday should be observed on the Monday, but there may be a lot of enterprise agreements that are silent on that point.
PN486
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Marasco. Who is next? Mr Parry?
PN487
MR PARRY: If the Commission pleases. The ANZ Bank opposes the application to vary the ANZ Group Award 1998. We have filed an outline of submissions.
PN488
PN489
MR PARRY: With that should be a statement of George John Mark Melvin.
PN490
SENIOR DEPUTY PRESIDENT WATSON: Yes, that is attached, perhaps we will simply leave the document as a whole marked ANZ1 with the statements - sorry affidavit of Mr Melvin, Ms Peterson?
PN491
MR PARRY: And there should be another statement of Jane Elizabeth Margaret Peterson.
PN492
SENIOR DEPUTY PRESIDENT WATSON: Yes, they will be attachments to ANZ1.
PN493
MR PARRY: And there is one further witness statement that I have provided copies to Ms Maloney of Sean Leo Cash. If I can hand that up and ask that that form part of ANZ1.
PN494
SENIOR DEPUTY PRESIDENT WATSON: Yes. Thank you. That will form part of ANZ1.
PN495
MR PARRY: With regard to those three witness statements I have a signed copy of Ms Peterson's. My instructions are that with regard to Mr Melvin and Mr Cash that each has read and approved the contents and would swear to them if that was necessary. We understand that they are not required for cross-examination, nor have there been submissions made about the effects that they have asserted in their statements.
PN496
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. We will receive the same copy of Ms Peterson's statement and note what you have said - - -
PN497
MR PARRY: I indicate that it is signed in the form that it has been filed.
PN498
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you.
PN499
MR PARRY: If the Commission so seeks I can arrange for the others when received signed to be forwarded.
PN500
SENIOR DEPUTY PRESIDENT WATSON: No, I don't think that will be necessary unless objection is raised the other end.
PN501
MR PARRY: If the Commission pleases. The outline of submissions of the ANZ deals with general matters which have been covered amply by earlier advocates and I don't propose dealing with those. Perhaps the parts that we would want to draw attention to commence around paragraph 25. The first is of course the bank holiday issue and as we set out in paragraph 29 the Bills of Exchange Commonwealth Act sets out when banks are required to open and when not. And in paragraph 29(iii) the Commission might note that certain days are designated as non-business days and others as business days.
PN502
If one follows the Act through to appreciate that a business day or a non-business day status is designated by either a law of the State or a law of the Commonwealth. Accordingly the Federal Treasurer can declare bank holidays or bank holidays are set pursuant to sections 9 and 8 of the Public Holidays Act Victoria. The position is as a consequence that because the Victorian Parliament through the Public Holidays Act has not designated 26 April as a public holiday then it becomes a business day and that leaves the bank as required to operate on that day to avoid breaching its obligations under the Bills of Exchange Act.
PN503
Of course that leads in part to the debate that has gone on today where some of the advocates speak of public holidays, we simply would say that of course 26 April whatever happens is not going to be a public holiday, it is really just a day on which some Federal award people will get a day off. It is not public in any sense, it is a business day as far as the banks are concerned. The consequence of this is that there will be a customer expectation that the ANZ will be open for business as it will be required to be. That will require personal banking to be 100 per cent operational and other sectors of the customer parts of the bank to be open also.
PN504
This is perhaps where the statements each come in. The statement of Mr Melvin deals with personal banking and about going through the detail of that. It is clear from Mr Melvin's statement that the bank assumed as it was entitled to do 26 April would not be a public holiday, has organised its affairs accordingly and is now in a position where unless the Federal Treasurer exercises his discretion and designates Monday as a public holiday which whilst we understand the FSU have written to the Treasurer, we haven't received any letter changing that status to date. So therefore we are required to open, will open and we will have the consequent troubles of getting employees in to work and changing rosters.
PN505
Mr Melvin deposes to that. Ms Peterson deals with the other customer part of the business, the Australasian Contact Centre. That provides phone services to ANZ customers throughout Australia. Clearly insofar as it operates with regard to ANZ operations outside Victoria or Tasmania, it won't be required to provide a service, but of course insofar as it provides services to Victoria and Tasmania, it will be required to operate. And again rostering, as the Commission will note from paragraph 15, must be set four weeks in advance, those rosters have been set, employees have been advised that they are required to attend.
PN506
Now, finally the other statement I handed up was by Mr Cash. He deals with the situation in mortgages and the area of mortgages covers the requirements that there be, for example, settlements on that day and there are a number of, of course, people in their normal business of scheduled settlements of properties on that day. They must occur. Clearly there will be business coming through the branches. So all in all the ANZ will be required to continue to operate to a very large extent on that day. So ultimately the debate here is really about how will the bank pay in large part and also the confusion that will result from attempting to roster people in the light of any decision of the Commission.
PN507
Now, the rest of the submissions really traverse the material that is set out in the statements. I don't repeat those. We do oppose interim orders as we say. An applicant can hardly invoke a need for interim orders when the reason for the urgency that they claim is their own delay in coming to the Commission. If the Commission pleases that is the position of the ANZ Bank.
PN508
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Parry.
PN509
COMMISSIONER MANSFIELD: Just one question, Mr Parry, in the States that do substitute the Anzac Day holiday, not the observance of the day, to the Monday how does that line up with the Bills of Exchange legislation?
PN510
MR PARRY: It is designated as a holiday.
PN511
COMMISSIONER MANSFIELD: Because it is designated as a holiday it then is not embraced by it.
PN512
MR PARRY: In other the States because of the operation of the State law those days become bank holidays.
PN513
COMMISSIONER MANSFIELD: Good, thank you.
PN514
MR PARRY: If the Commission pleases.
PN515
SENIOR DEPUTY PRESIDENT WATSON: Mr Wood?
PN516
MR WOOD: I thank the Commission. Telstra has filed an outline of submissions and two witness statements, one of Dr Nguyen Duc and one of Francis William Gerdtz. Does the Commission have the outline of submissions and the two witness statements?
PN517
PN518
MR WOOD: Senior Deputy President, in relation to the second witness statement, Francis William Gerdtz there is a slight typo in paragraph 4, you will probably work out what it means to say, but it says, "It employees 6,578 award covered employees." That should be employs. There is also about approximately 6500 other non-Federal award employees employed by Telstra in Victoria and Tasmania.
PN519
SENIOR DEPUTY PRESIDENT WATSON: Thank you.
PN520
MR WOOD: Telstra's position is that it opposes final and interim relief. In relation to final relief it also says that the timing of this application is such that it makes it hard for it to put a proper case in relation to final relief, but if it had sufficient time to do so, then it could. Under that caveat it firstly adopts the Commonwealth's submissions in relation to the status of the test case, the respect that the Commission ought give the Victorian and Tasmanian Government's decision not to substitute Anzac Day and the Commonwealth's point about uniformity within a State. And we would say within Telstra, that is within Telstra within Victoria being more important than uniformity within the Federal award.
PN521
Secondly we adopt the Victorian Government's submissions regarding the special significance of Anzac Day and the importance of maintaining the status quo here in Victoria and the fact that the final relief sought will impact upon the status quo. Thirdly, in relation to final relief we make the point that the Telstra Corporation General Conditions Award 2001 is already above the safety net. It is an award that gives 11 plus one public holidays.
PN522
The safety net is 10 plus one and this case has been put on the basis that one ignores the cultural or other significance of Anzac Day and merely looks at the quantum of the leave granted by the test case. We are already above the safety net at 11 plus one and in those circumstances the fact that Anzac Day is not substituted for Telstra award employees merely brings them back to the safety net quantum which this case predicated upon.
PN523
COMMISSIONER MANSFIELD: Where does the extra day come from, Mr Wood?
PN524
MR WOOD: There is - that is a good question, Commissioner. The - it is actually - it is called colloquially Telstra Day.
PN525
COMMISSIONER MANSFIELD: It is Telstra Day?
PN526
MR WOOD: Yes and it comes from - - -
PN527
COMMISSIONER MANSFIELD: Uncommonly generous for that employer I must say.
PN528
MR WOOD: I wouldn't want to buy into that sort of debate, your Honour, but - - -
PN529
SENIOR DEPUTY PRESIDENT KAUFMAN: And he is speaking for himself.
PN530
MR WOOD: It is clause 12.7.2 of the 2001 award and it says:
PN531
In addition to the holidays proscribed in clause 12.7.1 -
PN532
Which are the 10 normal days -
PN533
Full time employees are eligible to take one additional public holiday without loss of pay.
PN534
Now, I haven't looked into where it came from, but it is there and it makes the total 11 plus one. Fourthly, in relation to final relief, we make the point - and I understand what the unions might say in response to this - this application is to vary the Telstra award. There is no application before the Commission to vary the award to which Optus is a party so there will be an unfair playing field insofar as Optus and Telstra are concerned and there is evidence that we have put in the two witness statements about that.
PN535
SENIOR DEPUTY PRESIDENT KAUFMAN: That is somewhat mitigated by Mr Lyons saying that all awards that operate in Victoria will be sought to be areas that - - -
PN536
MR WOOD: That is correct as long as that happens prior to 26 April.
PN537
SENIOR DEPUTY PRESIDENT KAUFMAN: Yes.
PN538
MR WOOD: But it would be quite unfair if this award was varied, say, this week and the Optus award was not varied prior to 26 April. That would give rise to the unfairness that we are talking about. If this occurred after 26 April, given what Mr Lyons has said, that point then drops away. Those are our points in relation to final relief. In relation to interim relief we adopt the Victorian Government's submissions in relation to lateness and we have put some evidence in in relation to that point. When this issue turned up - when this issue last occurred in 1999 Mr Gerdtz gives evidence:
PN539
In 1999 Telstra employees -
PN540
at paragraph 10 of his statement -
PN541
in Victoria and Tasmania did not have access to the additional public ...(reads)... and there was no disputation in respect of the issue.
PN542
The unions have had five years since that time to make a claim and the first time Telstra was made aware of one was on 19 March.
PN543
COMMISSIONER MANSFIELD: Mr Gerdtz - sorry, Mr Wood, whilst you are on the statement of Mr Gerdtz, I notice that he says in paragraph 7 in calculating the cost to Telstra, which he suggests would be in the order of $1.4 million, that he estimates that 75 per cent of the workforce would be required by Telstra to work on Monday, 26 April 2004. Is that only because of the late notice of a possible day being observed as a holiday on that day? Because if you took, say, New South Wales, which will have 26 April as a public holiday, do you have any idea what proportion of the New South Wales Telstra workforce will be required to work on Monday, 26 April?
PN544
MR WOOD: No, I can - - -
PN545
COMMISSIONER MANSFIELD: Because I must say 75 per cent seems a very, very high estimate.
PN546
MR WOOD: Well, given - - -
PN547
COMMISSIONER MANSFIELD: And from my own knowledge of Telstra I just cannot imagine that number would be working on a day which would otherwise be regarded as a holiday.
PN548
MR WOOD: Well, I will obtain some instructions, your Honour, but there hasn't been any request to cross-examine Mr Gerdtz on this evidence. This evidence - - -
PN549
COMMISSIONER MANSFIELD: No, and I am not encouraging that - - -
PN550
MR WOOD: Yes.
PN551
COMMISSIONER MANSFIELD: - - - Mr Wood.
PN552
MR WOOD: In the fullness of time it might turn out that the figure is slightly more or slightly less after cross-examination and a proper examination. The witness is from the Workplace Relations Section. He is basing his evidence upon his knowledge. He has been around a long time. He has been around for 30 years and - - -
PN553
COMMISSIONER MANSFIELD: Perhaps, Mr Wood, you could give me one figure some time in - later in this matter, and that is what proportion of the Telstra staff in New South Wales will be working on Monday, 26 April?
PN554
MR WOOD: I will try and get some instructions to - - -
PN555
COMMISSIONER MANSFIELD: That is the simple figure I would like.
PN556
MR WOOD: Yes.
PN557
COMMISSIONER MANSFIELD: Yes, good.
PN558
MR WOOD: I think I was at the point of dealing with the lateness of the application as the first ground for opposing the interim relief. The second ground really goes to the point you have just raised, Commissioner, that is the question of whether or not this is actually an application on an interim basis for a holiday or on an interim basis for a payment which will be unrecoverable at the time of final relief or the application for final relief - at the time when the application for final relief is determined. And the evidence as it is shows that given Telstra's obligations to its customers which are mandated by Federal Act, the Telecommunications Consumer Protection and Service Standards Act, it is not possible to get an exemption at this stage for the holiday in Melbourne in relation to those obligations - holiday in Melbourne - holiday in Victoria and Tasmania - in relation to those obligations and Dr Doc says - Dr Duc, sorry - says that it would take three months to get an exemption from those obligations. That may well be the answer to your question, Commissioner, but I will get some instructions on that.
PN559
Just excuse me for a moment. That being the case, if as Mr Gerdtz says, 75 per cent of employees in Victoria do have to work on Monday the 26th, then one will have a situation of about 5000 employees of the award-covered employees working on the Monday plus the similar proportion of the 6 1/2 thousand non-award employees working on the Monday and those employees will be required to work and will not get a holiday and will be entitled to the penalty payments under the award and the relevant enterprise agreements. The estimate, as you pointed out, is that that would be a cost of about $1 million to Telstra and the point we make about that is that those amounts are probably not recoverable if Telstra won an application for final relief at two or three or four months down the track.
PN560
We can go to the legal basis, the reasons we say that, and we note when we look at the interim decision in 1993 similar concerns were raised before the Full Bench then and because this case is different in that this case is trying to overturn what is the status quo and that case was trying to protect the status quo we will be in a position or Telstra will be in a position whereby it may not be able to recover a payment which is made other than in its normal business if it is found that the safety net shouldn't be varied on a final basis. And our last point on this question about it being a holiday - not a holiday, just a payment - is that it obviously won't be a holiday for the non-Federal award employees of whom there are about 6 1/2 thousand in Victoria and Tasmania.
PN561
So the whole basis of the union's claim, or the second basis; their first basis is, "Look, you've got to keep the 10 plus 1 quantum." The second basis was that you have got to have national uniformity. The national uniformity idea drops away because all you create is disuniformity within Telstra given there is approximately the same number of employees on an award and a non-award basis in Victoria and Tasmania. The third point we make in relation to interim relief is the capacity for this application to create industrial disruption. Mr Gerdtz gives some evidence at paragraph 8 of his statement where he talks about the fact that there has been dispute in the recent past about Telstra's capacity to require employees to work on a public holiday.
PN562
It is a similar issue to the one Senior Deputy President Watson raised I think in discussion with counsel for Victoria - it might have been the Commonwealth, I can't quite remember whom - in relation to the impact of enterprise agreements and awards. That is, the Commission doesn't want to be flooded with section 170LW applications on 22 and 23 April. This sort of decision on an interim basis will lead or may well lead to industrial disruption and the Commission may well find itself not with 170LW applications but section 99 applications in the period leading up to Anzac Day in the same way that it has received these sorts of applications previously concerning the question of Telstra's ability to direct its employees to work on a public holiday.
PN563
And our fourth point is the question of the status quo and that is the status quo within Telstra was accepted in 1999. There was no disruption in 1999. This interim application attempts to disrupt the status quo and one of the principles about interim relief is that the status quo should be protected and given the capacity to cause industrial disputation, given that this is an application really for a payment that is irrecoverable, not for a holiday, and given the lateness we say that the application for interim relief at least should not be granted at least in relation to Telstra. We are only here in relation to - I am only here in relation to Telstra application.
PN564
To some extent we, in relation to this application, don't mind what occurs in relation to the other applications but at least in relation to an interim application in relation to Telstra there are significant differences between the facts concerning Telstra and the other cases that would mean that even if you weren't persuaded by the general arguments that are raised the specific arguments that are raised would mean that Telstra ought be excluded at least from an application for interim relief prior to - or final relief prior to 26 April. Finally, the answer to the question is much as I think we anticipated, Commissioner.
PN565
In New South Wales you are quite right there is a very small number of employees working on the substituted Anzac Day and the reason is the customer service guarantee because an exemption has been granted in relation to that because it has been regarded not as a working day and that is really out major point in relation to interim relief that we can't get an exemption from the customer service guarantee in this timeframe.
PN566
COMMISSIONER MANSFIELD: Do you have a figure on how many are working in New South Wales?
PN567
MR WOOD: I have got a very small number. That is the figure. I will try and - - -
PN568
COMMISSIONER MANSFIELD: "Very small number," we will put that down.
PN569
MR WOOD: I will chase it up, Commissioner and I will - - -
PN570
COMMISSIONER MANSFIELD: Don't worry. That is fine, thank you.
PN571
MR WOOD: All right.
PN572
COMMISSIONER MANSFIELD: It is okay, thank you.
PN573
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Wood. Mr Eberhard?
PN574
MR EBERHARD: Your Honour, it might be appropriate at this stage that I provide to the Commission and the other parties - and I think I have done that for those at the front on this bar table - a copy of the Scrutiny of Acts and Regulations Committee of Parliament Review of Anzac Day Laws, Government reports which we referred to previously in our submissions.
PN575
PN576
SENIOR DEPUTY PRESIDENT WATSON: Very well. Ms White?
PN577
MS WHITE: Yes, if the Commission pleases, yesterday the ARAV filed on the Commission and served on Trades Hall a copy of written submissions in response to the applications, your Honour, and attached to those submissions as appendix 1 was a copy of the media release put out by the State Government on 9 February indicating that Anzac Day 2004 should not be substituted. I would like to tender those submissions, but I don't believe there is any need to tender the media releases. I think it has all been marked as an exhibit in other matters.
PN578
PN579
MS WHITE: Thank you, your Honour.
PN580
SENIOR DEPUTY PRESIDENT WATSON: Thank you.
PN581
MS WHITE: The ARAV is opposed to these applications, your Honour, in respect of the matters that we were involved in and we are opposed to all three forms of action as put forward by Mr Lyons this morning, that is in respect to Sunday, in respect to Saturday and also in respect to the interim orders being made. We are supportive of the State Government's decision not to substitute Anzac Day to Monday the 26th and believe that the commemorative nature of the day - it is important that it stays on 25 April.
PN582
Before I go to my submissions - and I am not going to go through all of them; I think I will just follow up some of the key points - but I would like to raise something that perhaps has come up as a result of interaction between the bench and the bar table this morning in respect of the Parliamentary Review of Anzac Day Laws. The ARAV made submissions to the Scrutiny of Acts and Regulations Committee and myself and Ms Paul, who was then with the association, also made oral submissions to that Committee. I have been in the lunch break able to obtain something that I believe is helpful as to the SDAs approach to the submissions to that Committee and I think they are very telling because it is quite noticeable with the SDA not here today.
PN583
I also note what Mr Lyons is saying that other unions intend lodging. The ARAV has not been served with any SDA application whatsoever in these matters and has had no application from the SDA and the nature of their submissions to the Scrutiny of Acts and Regulations Committee leads me to believe that they may not be lodging. I can't say that with certainty. All I can say is where I stand today we have not had any indication from the SDA that they intend lodging. That is with respect to a number of significant Federal awards in Victoria. The SDA Victorian Shops and Interim Award, the National Parks Food Award, the Hairdressing and Beauty Industry Award, the Hardware Industry Award and others. So if those applications have come in I am at this very much unaware of them.
PN584
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN585
MS WHITE: I would like if I can to tender a copy of the SDAs submissions to the Scrutiny of Acts and Regulations Committee as part of the Anzac Day review because I do think it is very informative as to their views and what was put, and what was put to that Committee in respect of Anzac Day.
PN586
SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Lyons?
PN587
MR LYONS: Your Honour, there were directions issued about the filing of material and I think everyone has been slightly relaxed about that. However, if something is going to be put saying this is - reflects the view on this issue of another employer organisation then it ought to have been served on us so we could have an opportunity to advise them of that and give them an opportunity to appeal or get instructions. So I mean it is - we would oppose any further material going in which purports to represent the view of an organisation that isn't here.
PN588
SENIOR DEPUTY PRESIDENT WATSON: Yes. Are you representing the SDA?
PN589
MR LYONS: We do have some instructions from the SDA about applications that have been lodged. I can inform the Commission that an application has been lodged to vary the Victorian Shops Award, the main award, and a number of their other awards. The employer organisations are - - -
PN590
SENIOR DEPUTY PRESIDENT WATSON: There is a debate about whether the Shops Award or the interim award is the main award these days, Mr Lyons.
PN591
MR LYONS: Well, perhaps I won't buy into that. Your Honour obviously knows far more about it than me. But our instructions from Mr Donovan, the Secretary of the SDA in Victoria, are that applications to vary a number of their awards, that is their significant awards, have been lodged. They have not been served on the employers as there is yet to be a hearing listed for those matters, but they have been lodged.
PN592
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN593
MR LYONS: It will be a simple matter to check that with the registry if necessary.
PN594
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN595
MR LYONS: But they have lodged applications for the same terms and Mr Niven has direct instructions from Mr Donovan on that point.
PN596
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN597
MR LYONS: But I think simply starting to table material that organisation put to another Committee is very problematic, particularly given there was every opportunity to put that forward yesterday if it was going to be relied on.
PN598
SENIOR DEPUTY PRESIDENT WATSON: is there anything you want to say in response to that, Ms White?
PN599
MS WHITE: Yes, there is, your Honour. The document was a public document. It was available to the public as were most of the documents available in this. Our submissions were also available to the public and I think it really goes to the nature of what was this scrutiny of Acts and regulations committee actually decided and what was actually put to it and without jumping too far ahead I think it is clear that - from this document that it is going to be very informative to the Commission as to what was actually put by the SDA in respect of that.
PN600
I also have a copy of the transcript of - and my appearance in this before that committee but I am not seeking to tender that at this stage, but certainly in terms of - the nature of the discussion that has gone on this morning about whether this review looked at this issue I think it would be very informative to the Commission. It has, as I said, it was a public document and like I said, ..... that in terms of the - not having served it yesterday, and as I said, it is come about because of the discussions that have occurred this morning here and I think that that is a very useful document to enlighten the Commission, given their inquiries to date but it is not something I had the foresight to actually serve on the parties yesterday.
PN601
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well, we will admit the document, Ms White, on the basis that it has arisen out of matters discussed today but obviously it is in the context in which the submissions were put and we are obviously bound to have regard to Mr Lyons submissions as instructed by the SDA in relation to their position in these proceedings.
PN602
MS WHITE: I understand, your Honour, and I will seek to .....
PN603
PN604
MS WHITE: Your Honour, I don't know if you would like me to ..... to actually read the document but I will do that if you want .....
PN605
SENIOR DEPUTY PRESIDENT WATSON: Yes. Yes, well, what is it you wish to say about the document, Ms White?
PN606
MS WHITE: Your Honour, the Anzac Day review is a very broad review, it encompasses anything and everything to do with Anzac Day and including the provision in Victoria where Anzac Day is a public holiday. Parties or organisations making submissions have the ability to raise any issue they wanted to in respect of Anzac Day. There was a great deal of discussion both - and that will come out when you read the document - it will be obvious about shop trading and interaction of shop trading with Anzac Day as a public holiday and also other matters and it will become obvious that the SDA raised that they thought there was some confusion for their members as to whether Anzac Day was a full day or part day public holiday but nowhere in this document will you see the SDA raise the issue that they thought that a substitute day should be provided.
PN607
In fact the tone of the document is very much about how can we better commemorate 25 April and ensuring weekend workers do not - are partly required to work on 25 April and I will just take you to some of the relevant paragraphs.
PN608
SENIOR DEPUTY PRESIDENT WATSON: The submission seems to be addressed largely to shop trading legislation, does it not?
PN609
MS WHITE: They are largely - they largely do that, your Honour, but I think they - what they certainly - - -
PN610
COMMISSIONER MANSFIELD: Ms White, am I right that this submission makes no mention whatsoever about the issue of substitution?
PN611
MS WHITE: It doesn't mention the word "substitution" - - -
PN612
COMMISSIONER MANSFIELD: It doesn't even mention that Anzac Day may at times fall on a Saturday or a Sunday and what should happen when that occurs which is the subject before this Commission this afternoon.
PN613
MS WHITE: Yes- no, you are correct, Commissioner, it doesn't do that but it - what it does do is it clearly shows that the SDA have put in their submissions that they were seeking ways to better commemorate Anzac Day, that is clear, to protect the day, and I think it is clear that that is 25 April and also that retail workers should not work on the day. What the document doesn't do is suggest that there should be another public holiday in lieu or in substituting 25 April. Now, this was at times - - -
PN614
COMMISSIONER MANSFIELD: But, Ms White, it doesn't deal with that issue at all, does it? Shouldn't we simply rely on Mr Lyons submissions on instructions from the SDA directed to that issue rather than try and infer some view of the SDA in relation to that issue where it is not dealt with in terms in the document?
PN615
MS WHITE: Well, that may be the approach that the bench chooses to take, your Honour, but I do think what this document does is at a time when Victoria is reviewing all of the relevant laws of Victoria for Anzac Day, including it being a public holiday, the parties had the opportunity to express views and ask for what they wanted and I think it is telling that the SDA chose not to ask on this occasion for any sort of substitute and this would have been the appropriate time to raise it and I think from our point of view we were - at the time when we address out submissions to the committee in response to the SDAs submissions there seemed to be no disagreement about - between the parties whatsoever about the fact that we would be arguing that Anzac Day public holiday being any other day, and that is certainly the approach that we took when replying to this document, but, your Honour, I don't want to - I didn't intend to take up so much time with this.
PN616
As I said, just as a result of the discussion coming up today, I don't know if anyone else made submissions or - that is here today or appeared before that committee and I thought it might be helpful to the Commission to be enlightened as to a bit more detail about what we want with the ARA and the SDA.
PN617
COMMISSIONER MANSFIELD: Yes, thank you.
PN618
MS WHITE: But I will move on if there are no further questions in respect to that.
PN619
COMMISSIONER MANSFIELD: Yes, go ahead.
PN620
MS WHITE: I would like to talk about the impact of this application in the retail sector and you will note that in my written submissions, your Honour, that there are several paragraphs that go to the fact that we haven't been served with any notification that the SDA intended to seek to vary any of the relevant retail awards. I don't think that the fact that we now hear from Mr Lyons that the SDA provided instructions in respect of the Vic Shops Award, that that necessarily changes the nature of my submissions in any significant way.
PN621
COMMISSIONER MANSFIELD: Well, I think Mr Lyons went beyond that to say that applications have in fact been lodged and they will be a matter of verification and ARAV has not been notified because a hearing date hasn't been fixed as yet for those applications.
PN622
MS WHITE: Yes, your Honour. Perhaps I will put this one away. Even if the SDA do lodge and can lodge those applications and the applications are granted in this matter and somehow they flow on to Victorian Shops Interim Award, as I think your Honour is well aware, there are a large number of employees in Victoria who are not covered by the Victorian Shops Interim Award, 17,000 retailers were roped in from February last year into that award and at the time I know there was a lot of debate about who was left outside, how many employees were left outside of that application and there were conflicting views and I don't know that it was all that clear but it seems on anyone's count there were 70,000 employers left outside.
PN623
The impact for retailers will be if, assuming that these applications are granted and if the shops award is varied, the impact will be that we will have a split public holiday in the sector. We will have some of employers providing 25 April as a public holiday, those that aren't on the Federal award coverage at this stage, and other retailers providing 26 April if the award is so varied, and as for the other awards I didn't hear Mr Lyons indicate that there have been applications by way of any other awards such as the Fast Food Award and the Hardware Award, so it seems there is going to be potentially a very mixed bag as to whether retail is going to provide 25 April of 26 April and that is going to cause a great deal of confusion in our sector.
PN624
The ARAV advised our members in January so that they could honour all their public holiday obligations and trading obligations so that they could, well in advance of these public holidays and Easter as well, schedule their rosters and make appropriate arrangements. We have been unable to tell them to date that these applications have been made for shops, we have been able to tell them that applications were made for warehouses under the Storage Services Award, the Clothing Industry Award and a few others but there is little doubt that by the time we get these decisions, if those decisions are to grant the applications, our members are going to be totally and utterly confused as to whether they have to provide a public holiday on the 25th or the 26th.
PN625
The situation also is somewhat more complex for retail awards and obviously if we end up in a hearing where the shops award is the subject of that hearing, we might make appropriate submissions at that time, but I would like to say at this point retail workers work non-standard hours, those 17,000 employers roped-in last year the employees worked over seven days a week including Sunday. There are certainly going to be issues about substitution and what effect that will have in respect of employees who work on a Sunday, particularly part-time employees who have no other entitlements.
PN626
Effectively what you would do in the circumstances for a full time and part time - sorry, for a part-time employee who worked four or less days a week, is if you take the public holiday off them on the 25th, the Sunday that they work, and giving it to part-time employees who work on the 25th those employees don't have an entitlement to some other benefit in those sort of circumstances and I won't stress that point any longer other than to say that the other applications that have been made in respect of retail that are before the Commission now really are Monday to Friday awards with some facility provisions but mainly Monday to Friday awards. Those other SDA awards are a different sort and there would be issues raised at that time in respect of the appropriateness of the provision for those awards in any event.
PN627
Looking at further ahead from 2004, even assuming - the next time that Anzac Day falls on a weekend I believe is Saturday 2009, Saturday 25 April 2009 and no government I think, except Western Australia, has traditionally substituted for Anzac Day falling on a Saturday to the Monday so even at that stage, even if common rule awards have been declared for retailers in this State we are still going to have a situation where there are retail employees outside of the Federal system. Those are more senior retailing employees, area manager, senior managers, buyers that traditionally have never been under the award system and again retailers will be required to provide a split public holiday; some on the 25th and some on the 26th. We say that is a very undesirable result for retail employers.
PN628
As I said earlier our members who have set their rosters, they have made delivery and supply arrangements, we still can't tell them if they should alter those arrangements because we can't tell them the outcome at this stage; we may only be able to tell the outcome very, very close to Anzac Day indeed, and we say that that is quite unfair on those employers. These applications came extremely late and if there are equity issues we say those equity issues are all employers in these circumstances.
PN629
In terms of the safety net I have got a couple of comments I would like to make. The safety net test case has provided a quantum of public holidays of 10 days ..... one. What the test case didn't do was to provide Monday to Friday workers a guaranteed 11 paid days off work per year. In any year under the safety net currently Monday to Friday workers do not receive 11 paid days off work. They always miss out on Easter Saturday because Easter Saturday is always a Saturday so in any year they only get 10 paid days off work. In a year where Anzac Day also falls on a Saturday or a Sunday they only get nine paid days off work and that is the safety net standard, that is how it operates and has been decided for Monday to Friday employees.
PN630
In terms of easter Saturday Monday to Friday employees aren't entitled to any substitute for that day either and I know that the issue with Easter Saturday always being a Saturday, it is not a variable public holiday, but nevertheless the argument is that in terms of the quantum employees under the safety net standard have never been entitled to 11 paid days off work no matter what the circumstances. As I said, it is either 10 in reality or nine and the approach of the applicant parties to suggest that really the inequity lies in them not getting an additional day, we don't agree with, we don't see that. We think the safety net as it stands is equitable. Monday to Friday workers don't normally work a Sunday and there is no equity in them not receiving some additional time for that.
PN631
Also I would like to make a comment in respect of something Mr Lyons said this morning and that was that the safety net standard for public holidays should not ..... decision that you should not look at issues of religious or historical significance and I found that that submission somewhat, I guess, contradictory to the decisions that I have read in respect to the test case and in particular I am referring to the decision that forms part of the test case that looked at long standing working hours.
PN632
One of the matters the decision before the Full bench at that time was whether an additional loading should be given to employees who worked on Christmas Day in circumstances where there is substitution and the ACTU, and this is recorded in the decision, the ACTU argued in that matter that the proper recognition of the significance of Christmas Day in light of their many members of the community, is the justification as to why additional amounts should be paid in those circumstances.
PN633
What is good for the goose is good for the gander, and if religious and cultural significance is going to form a reason why part of the safety net should be awarded, in that case higher amounts of pay for Christmas Day, we see no reason why it shouldn't also continue to form part of the reasoning for or underpinning the other aspects of the safety net, particularly in respect of Anzac Day being such an important day of commemoration for the community.
PN634
The other thing I would like to say at this time is that in terms of the main public holidays a test case, print L4534, comments are made in the decision regarding the rights of the State Governments to, I guess, make decisions on public holidays around the safety net and I would like to take the Commission to page 20 of that print, the second last paragraph and I think it was provided to you earlier. The decision allows for State or Territory autonomy such as to meaning a minimum - as minimum of the safety net standard. We think that is the position that should continue and that the Victorian State Government should have autonomy to make the decision that they have made.
PN635
Finally in terms of interim orders we are opposed to interim orders being made for Anzac Day 2004. We realistically do not see how we can possibly communicate this decision given the complexities of how it may operate in our industry to our members in time, which means we are going to be faced with - I think it is not unrealistic to say a chaotic situation in trying to advise our members. Are they - are they not under the award, have they or have they not ..... you know a substitute day being granted, who is in and who is out, which of the awards are affected and for that reason we think that it is very unfair to grant interim orders in this matter. If the Commission pleases.
PN636
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Ms White. Who is next?
PN637
MR WATSON: Your Honour, Mark Watson, TCCI. I will move so - - -
PN638
SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Watson.
PN639
MR WATSON: Your Honour and members of the bench, TCCI opposes the applications before you today including the issue of interim orders. We filed written submissions and would rely on those written submissions as lodged. We would adopt the Commonwealth's submissions and also the submissions of the Victorian Government ..... they go to the issue of the 1994 test case and those principles. I just want to make - - -
PN640
SENIOR DEPUTY PRESIDENT WATSON: Yes. I wonder if you could explain to me the March 2 Full Bench decision of the Tasmanian Commission, March 2 1999. That had the effect, did it, that when Anzac Day fell on a weekend it would be a paid public holiday, a paid public holiday in respect of whom; all employees or only those who worked?
PN641
MR WATSON: I will come to that in my submission, your Honour.
PN642
SENIOR DEPUTY PRESIDENT WATSON: Oh, you are coming to that; very well.
PN643
MR WATSON: Yes. The Tasmanian Government's position on this matter has been clear for some time and that is that they have not or won't, as we understand it, and they are not here today, so my best information is that they won't be gazetting a holiday on Monday 26 April. The Statutory Holidays Act in Tasmania, as we refer to in our submission, talks about Anzac Day (25 April) and the information that was published by the Workplace Standards Authority late last year certainly made it clear that 25 April was the day we observed.
PN644
In relation to consultation in this matter there have been no discussions at all with unions Tasmania, they have not approached us in relation to the matter in any way, shape or form other than a message to say that they were supporting the ..... Trades Hall Council submission. In relation to the issue of timing I think we certainly agree with the other submissions that have been put to you that the timing is certainly going to cause difficulties. The eleventh hour nature of it is in fact that we have - even if you decide this matter today, we have got 10 working days, 10 ordinary working days, before the matter can be dealt with as far - in the Tasmanian context, and that is that we have approximately 50 per cent of the workforce in Tasmania covered by Federal awards.
PN645
We have then again about 25 per cent covered by State awards and then it dwindles out with award-free people. Now, what would need to happen is that if you decide in favour of the union applications one would assume that there will be an application to vary State awards; that matter will have to be dealt with by a Full Bench of the Tasmanian industrial Commission; that bench will have to get together, hear all the parties and decide the matter in 10 working days, so it is quite a - I suppose a bit of a unique situation as far as Tasmania is concerned because we do have the dual State and Federal award coverage.
PN646
In relation to the issue of preventing disputes I think it would be our submission that this application has the ability to create more disputes than it will prevent and in fact we would urge the Commission to dismiss the union applications on the basis that we agree with the previous submissions that it will certainly create confusion and in that there is a possibility to lead to disputation. If the application is granted there is no guarantee that the Tasmanian Government will gazette the day, in fact as far as I know they won't and it would be quite a ludicrous situation to see the Government having the day off and the private sector at work - sorry, private sector having the day off and the Government working, sorry.
PN647
In relation to the issue of advice we have been advising our members for some time because we have had a number of calls about this day, that the day is not a holiday, and that it should be business as usual. Our Shop Trading Act in Tasmania has shops not being able to open until 12 noon on Anzac Day, that is the bigger retailers, so if this application is granted who knows what that is going to mean in terms of when they open on 25 April or the 26th; it really is unclear and it certainly has the potential to create a number of problems.
PN648
In relation to the determinations of the Tasmanian Industrial Commission, your Honour, and particularly that matter you raised earlier, the issue at hand in that matter before the Full Bench was that the award had quite an anomalous provision in it and that was that if Anzac Day fell on a Saturday or a Sunday there would be absolutely nothing - so employees who hadn't have worked on the Saturday or the Sunday would not get the advantage of public holiday penalty rates.
PN649
SENIOR DEPUTY PRESIDENT WATSON: So it applies only to those working on the Saturday or Sunday?
PN650
MR WATSON: That is right, yes, so - - -
PN651
SENIOR DEPUTY PRESIDENT WATSON: Yes, it is not clear from the decision and the order is not attached.
PN652
MR WATSON: What happened there was that the order and the variation to the award simply had the effect of - that employees who worked on the Saturday or the Sunday would actually get the public holiday penalty rates.
PN653
SENIOR DEPUTY PRESIDENT WATSON: Penalty rates, yes.
PN654
MR WATSON: In relation to the Industrial Board decision that has also been filed, your Honour.
PN655
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN656
MR WATSON: That has been tabled because that was a decision of the organisation that was the Industrial Tribunal before the Tasmanian Industrial Commission. And clearly in that decision they have dismissed the application from the Tasmanian Trades and Labour Council for this exact matter that we have before us today. They did make some observations in that decision about the fact that they dismissed it based on the state of the Tasmanian economy and our high unemployment rate. I think it is probably fair to say that the economy is probably performing a bit better than it was in 1982, but certainly our unemployment rate is up in the highest in the country.
PN657
In relation to the - as I referred to before the Statutory Holidays Act 2000. The Statutory Holidays Act 2000 doesn't actually provide an entitlement to a holiday, all it does is determine when those holidays are observed. And clearly in relation to Anzac Day that is 25 April. So in relation to the union position that they were waiting on the Victorian Government's determination it would be our submission that there has certainly been ample time given that the Tasmanian Government's intention was clear towards the end of last year in relation to Anzac Day and there has certainly been no move, as I said before, from unions in our State prior to this application to do anything about providing a substitute day on 26 April.
PN658
In relation to the issue of the number of days it is common in Tasmania that Easter Saturday is substituted for Show Day. So Monday to Friday workers in Tasmania would actually get 11 paid public holidays because the Easter Saturday is substituted as I said for Show Day. In relation to the statutory declarations submitted with the union application about the cross border issue at Albury, we don't actually suffer from that problem so I guess we would say that we don't really have too much more to say about that.
PN659
In terms of the general position, your Honour and members of the Bench, certainly as we have said in our written submissions the eleventh hour nature of the application is a big concern. We don't believe that the Commission should entertain such a short time frame to determine such an important issue. There has been ample time for the unions to make their applications and we would submit that if this matter is to be determined properly, then there is plenty of time between now and 2009. If it pleases.
PN660
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Watson. Mr Rahilly?
PN661
MR RAHILLY: Your Honours and Mr Commissioner, yesterday I caused to be filed on behalf of my client and served on the Trades Hall Council and the Australian Nursing Federation a submission. Would the Commission care to mark that?
PN662
PN663
MR RAHILLY: If the Commission pleases. Your Honours and Mr Commissioner, it is not my intention to traverse the submission in any great detail, I would just like to make a couple of observations about this particular matter. The Commission would be aware that the Australian Nursing Federation application in these proceedings is in a different form to that which is being pursued generally by the unions and it is important to note, it is submitted, what the effect of that application will be. The application seeks to do effectively two things. One is to provide for a substitution in the case of Anzac Day in respect of employees who are full time Monday to Friday employees but to retain Anzac Day on 25 April for employees who are not full time Monday to Friday employees and also for employees who are casuals.
PN664
In other words under the Nurses Award what can happen if the application is successful is that on 25 April, Sunday 25 April, any part time employee who is rostered to work on that day will be entitled to public holiday penalty rates on that day. Then on 26 April full time employees of employers not covered by this award who will be working on Monday 26 April, will be entitled to penalty rates for that work.
PN665
SENIOR DEPUTY PRESIDENT WATSON: This is in respect to the Nurses Victorian Health Services Award 2000?
PN666
MR RAHILLY: That is correct, your Honour, yes.
PN667
SENIOR DEPUTY PRESIDENT WATSON: The order I have before me, I must say what you are putting to me doesn't immediately jump out and strike me as - - -
PN668
MR RAHILLY: Your Honours, at page 2 of that draft order where a variation is made to 24.2.3 of the award - - -
PN669
SENIOR DEPUTY PRESIDENT WATSON: 24.2.3, yes.
PN670
MR RAHILLY: What is happening there, your Honour, is that 24.2.3 of the award applies to full time Monday to Friday employees and/or part time employees engaged to work in wards or units or services, however styled, that operate only on a Monday to Friday basis. And 24.2.3 is in terms that when New Years Day or Australia Day is a Saturday or a Sunday the holiday in lieu thereof shall be observed on the next Monday.
PN671
SENIOR DEPUTY PRESIDENT WATSON: So your order is varying the award only in respect to one group of employees, is that how it works?
PN672
MR RAHILLY: Effectively, your Honour, yes, except that it retains by virtue of the variation to 24.3.5, it retains Anzac Day as a public holiday on 25 April for - - -
PN673
COMMISSIONER MANSFIELD: It provides for an additional day rather than a substituted day.
PN674
MR RAHILLY: That is the effect of it, Commissioner, yes. So it is in significantly form to the general application which is presently before the Commission. Now, if I have explained that clearly enough I will just proceed to make a couple of observations about it. The - as we say in the submission, the employers that basically I represent is employers in the residential aged care sector, operate on a 24 hour 7 day a week basis. The predominance of the employment in that sector is part time. There are, however, full time employees so those employees will benefit from the application if it is acceded to.
PN675
The other aspect of it is that the Nurses Award covers a part of the employment in nursing homes and hostels which is those employers. The other part of the employment in that sector is covered by another award which is the Health and Allied Services Private Sector (Victoria) Consolidated Award (1998). I am aware that the Health Services Union of Australia has served applications to vary that award but I make the point that the form of that award in terms of the differentiation between the part time employees and full time Monday to Friday employees does not exist.
PN676
Now, if that application, which unfortunately I haven't had an opportunity to see - but if that application is in the same terms as the general Trades Hall Council application is, then what will happen on 25 April is that employees under different awards will be working in these facilities side by side, some under the Nurses Award who are part timers will be receiving penalty rates for working on that day and those who are employees under the Health and Allied Services Award will be working and receiving the normal weekend penalty rate, which is less. Now, that we submit is a likely outcome if this application is granted and has got all the potential, as the Commission would well appreciate - - -
PN677
SENIOR DEPUTY PRESIDENT WATSON: Does that arise in the form of order, a particular form of order, or more generally?
PN678
MR RAHILLY: Well, it arises from the particular form of order which is sought by the ANF compared to the particular form of order which I am presuming is in the same terms as the Trades Hall Council Order, which is contained at page 24 of VTHC1.
PN679
SENIOR DEPUTY PRESIDENT WATSON: Well, there are a number of variants in terms of ANF applications, in terms of orders. But the order you are concerned with, is that simply a matter of mis-description - perhaps 24.3.5 should come before 24.2.3. Yes, I see what you - these are only part of the provisions, the ones which they are seeking to vary - - -
PN680
MR RAHILLY: Yes, your Honour.
PN681
SENIOR DEPUTY PRESIDENT WATSON: - - - so I can't look at in isolation.
PN682
MR RAHILLY: Your Honour, in broad terms what the ANF is seeking to do in this particular award is to replicate - - -
PN683
SENIOR DEPUTY PRESIDENT WATSON: It specifies Anzac Day as a public holiday in 24.1.1 and 2.3 then provides a day in lieu where it is a Saturday/Sunday, but in 3.5 then reinstates it - - -
PN684
MR RAHILLY: As a public holiday for the weekend, yes.
PN685
SENIOR DEPUTY PRESIDENT WATSON: - - - as being reserved on the 25th, yes.
PN686
MR RAHILLY: Yes. It seems to me, your Honour, what the ANF is seeking to do is to replicate the way in which this award, possibly even uniquely, treats Christmas Day and Boxing Day when they fall on a Saturday and a Sunday. That is what has been sought to be done.
PN687
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN688
MR RAHILLY: But the effect of it is, as they say, to indeed create an additional public holiday in relation to Anzac Day, so it is not simply a substitution.
PN689
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN690
MR RAHILLY: The other observation, if the Commission pleases, that I would make is that the submission that the application is consistent with the safety net seems to me is a submission which is based solely on the presumption that all employees work full time Monday to Friday. As we say in our submission, that is simply not the case and in large part in the health industry that is not the case and to simply say that the substitution of the Sunday for the Monday, or the Monday for the Sunday, should apply generally is not, it is submitted, consistent with the notion that all - or is consistent with the notion only that all employees work Monday to Friday and full time.
PN691
The other aspects of submissions that have been made about which I would briefly comment is the question of timing and in relation to that, if the Commission pleases, I would adopt the other submissions that have been put. In relation to interim orders again I would say that the circumstances that apply in relation to those that I represent are very much similar to those that were referred to by Mr Wood for Telstra because what will happen if interim orders are made is that persons who work for employers on 26 April will have been paid holiday penalties prior to any final orders being made and clearly in the event that the Commission were to finally reject the application then those payments would become irrecoverable.
PN692
Your Honours, one last matter and that is that the employers, as your Honour Senior Deputy President Kaufman would be well aware, in the aged care sector just recently concluded - well, at least 12 months or so, concluded an enterprise bargaining round and his Honour has been involved in the tortuous process of certifying many, many hundreds of those agreements. Those agreements do in fact contain - well, most if not all of them contain a no further claims provision and that provision is in these terms - and perhaps it could be incorporated in the transcript, if the Commission pleases:
PN693
The ANF, HSUA Employees and Employers bound by this agreement acknowledge that this agreement settles all claims in relation to the terms and conditions of employment of the employees to whom it applies and agree that they will not pursue any extra claims during the term of this agreement.
PN694
Now, it is submitted with respect that the form of application that is put by the ANF in relation to Nurses Victorian Health Services Award as I have pointed out goes beyond simple substitution. It does in fact add an additional holiday and we submit that may well be in breach of the no extra claims provision contained in each and every one of those agreements. If the Commission pleases.
PN695
COMMISSIONER MANSFIELD: In the enterprise bargaining agreement you have mentioned, is there a specific public holiday reference in it?
PN696
MR RAHILLY: No, there isn't, Commissioner.
PN697
COMMISSIONER MANSFIELD: So it refers back to the award for public holidays?
PN698
MR RAHILLY: Yes, yes.
PN699
COMMISSIONER MANSFIELD: Yes, okay, thank you.
PN700
MR RAHILLY: If the Commission pleases.
PN701
SENIOR DEPUTY PRESIDENT WATSON: We are proposing to take a five minute break at this point of time. Can I get some indication from those remaining parties how long they would anticipate they will require to address us. Mr Corboy?
PN702
MR CORBOY: I will be about 10, 15 minutes, your Honours.
PN703
SENIOR DEPUTY PRESIDENT WATSON: Yes. Mr Harrington?
PN704
MR HARRINGTON: About 10 minutes, your Honour.
PN705
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. Mr Ronfeldt?
PN706
MR RONFELDT: About 5 minutes, your Honour.
PN707
SENIOR DEPUTY PRESIDENT WATSON: And - - -
PN708
MR HARNATH: And then about 5, no more than 10.
PN709
MS VAICIULIS: I will be no more than a minute.
PN710
MR WATTS: More than a minute and less than 10, your Honours.
PN711
MR WOOD: I might just be 2 or 3 minutes answering the Commissioner's question too.
PN712
SENIOR DEPUTY PRESIDENT WATSON: Very well. All right - and what is your position, Mr Lyons?
PN713
MR LYONS: We would simply be 5 to 10 minutes in reply I think.
PN714
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. Very well, we will adjourn for 5 minutes.
SHORT ADJOURNMENT [3.58pm]
RESUMED [4.07pm]
PN715
SENIOR DEPUTY PRESIDENT WATSON: Yes, I am sorry, Mr Wood.
PN716
MR WOOD: Senior Deputy President, can I just answer the Commissioner's question? I think the answer I gave earlier, Commissioner, was a very small number. In relation to New South Wales, we haven't been able to get New South Wales' figures but we have got the Sydney metro figures and it is 25 per cent of employees in the city metro area. We think the overall figure for New South Wales will be higher still.
PN717
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN718
MR WOOD: And we say that because, for example, the Victoria Christmas figure is 13 per cent and the reason for that is as set out in paragraph 18 of the statement of Dr Duc. That is in answer to your question. You asked an earlier question, Commissioner, about Telstra Day which is clause 12.7.2 of the 2001 award. We have made some inquiries. We think it comes from public service - Commonwealth public service legislation. It was originally, we think, a concessional day under either the Commonwealth Public Service legislation or delegated legislation. That was to be taken between Christmas - - -
PN719
COMMISSIONER MANSFIELD: Christmas and New Year.
PN720
MR WOOD: Exactly.
PN721
COMMISSIONER MANSFIELD: Yes.
PN722
MR WOOD: And now it floats free in the - under clause 12.7.2 it can be taken at any time.
PN723
SENIOR DEPUTY PRESIDENT WATSON: Good, thank you. Yes, Ms MacLean?
PN724
MS MacLEAN: Just while we are clarifying a couple of issues that have been raised might I indicate that VECCI2, that is the Government response to the Scrutiny of Acts Regulation Committee of Parliamentary Review of Anzac Day Laws, was in fact tabled in Parliament by the Minister for Small Business, Marsha Thomson, on 1 May 2003.
PN725
SENIOR DEPUTY PRESIDENT WATSON: May Day.
PN726
MS MacLEAN: May - pardon?
PN727
SENIOR DEPUTY PRESIDENT WATSON: May Day.
PN728
MS MacLEAN: Yes, and I will say no more on that.
PN729
COMMISSIONER MANSFIELD: Are you aware of the significance of that, Ms MacLean.
PN730
MS MacLEAN: Oh, I am not - not that unwise - the red - - -
PN731
MR LYONS: Can we amend our applications to include that?
PN732
MS MacLEAN: Yes.
PN733
SENIOR DEPUTY PRESIDENT WATSON: Thank you for that. Mr Corboy? We will mark your exhibit which we have received - your - - -
PN734
MR CORBOY: Thank you, your Honour. Just as a point of clarity on my exhibit there was a collating error when it was facsimiled to the Commission. The written submissions are unaltered but schedules C and D are incorrect. What is currently schedule D should be schedule C.
PN735
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN736
MR CORBOY: And schedule D referred to in our submission on page 3 under Other, point 2, refers to the MECA. Unfortunately, the clause from the MECA wasn't attached. Now I do have a corrected schedule here - I have a corrected document here which I would like to hand up to the Commission - - -
PN737
SENIOR DEPUTY PRESIDENT WATSON: Very well.
PN738
MR CORBOY: - - - and I have additional copies for any party should they wish.
PN739
SENIOR DEPUTY PRESIDENT WATSON: And the document you are handing up is the document that should be marked schedule D?
PN740
MR CORBOY: No, I am handing up an actual corrected submission with the correction at C and Ds on it.
PN741
SENIOR DEPUTY PRESIDENT WATSON: Oh, very well, yes. That makes it easy.
PN742
MR CORBOY: I am handing up some other material - also the authorities to which we refer to the Commission.
PN743
SENIOR DEPUTY PRESIDENT WATSON: Very well, thank you.
PN744
MR CORBOY: And there is some material arising from this morning's Commission proceedings where they refer to certified agreements. I would like to hand up some certified agreements that affect our members as regarding the Health Services Union of Australia who have made applications which are waiting on this Commission proceeding because there are no extra grants clauses in there.
PN745
SENIOR DEPUTY PRESIDENT WATSON: Yes, very well. Thank you.
PN746
MR CORBOY: Thank you.
PN747
MR LYONS: Your Honour, again, new material - I am not sure to what extent - I don't know what it is yet because we haven't read it but - - -
PN748
MR CORBOY: I do have copies, your Honour.
PN749
SENIOR DEPUTY PRESIDENT WATSON: Yes, well - - -
PN750
MR LYONS: Perhaps - - -
PN751
PN752
MR CORBOY: Thank you, your Honour.
PN753
SENIOR DEPUTY PRESIDENT WATSON: And - just one moment - and the authorities will be received. They are authorities referred to in the submission. Yes?
PN754
COMMISSIONER MANSFIELD: You are obviously a friend of the trees, Mr Corboy.
PN755
MR CORBOY: I have yet to work for the timber industry, Commissioner.
PN756
SENIOR DEPUTY PRESIDENT WATSON: Or the ACF.
PN757
MR CORBOY: For my sins I have stayed more or less in health except for a period with VECCI which was only a short period.
PN758
SENIOR DEPUTY PRESIDENT WATSON: Yes, the other document are - one is headed Anzac Day Questionnaire - - -
PN759
MR CORBOY: Yes, I would like to take the Commission to our submission which has got schedule B attached to it, which is a summary of a questionnaire which we sent out to members in response to the Trades Hall written submission.
PN760
SENIOR DEPUTY PRESIDENT WATSON: Where is that referred to?
PN761
MR CORBOY: Schedule B, your Honour. It should be at the end, I hope, unless our photocopier collating has failed again. There is a one-page summary. If I may just - - -
PN762
SENIOR DEPUTY PRESIDENT WATSON: Schedule D?
PN763
MR CORBOY: No, B, removal - - -
PN764
SENIOR DEPUTY PRESIDENT WATSON: B? I am sorry.
PN765
MR CORBOY: Schedule B.
PN766
COMMISSIONER MANSFIELD: B?
PN767
SENIOR DEPUTY PRESIDENT WATSON: Yes, and this is what, the outcome of the questionnaire?
PN768
MR CORBOY: Yes. I just want to take the Commission to it. In the very short time where we did observe in the Trades Hall Commission written submissions that they - in point 74 - they referred to a windfall gain; point 75 where even that was a national context they were inferring they would have no - they would have benefits to the operations of certain organisations if the Monday was granted as far as uniformity was concerned. We - - -
PN769
COMMISSIONER MANSFIELD: But in terms of the document the questionnaire is simply the questionnaire - - -
PN770
MR CORBOY: Yes.
PN771
COMMISSIONER MANSFIELD: from which this information was derived?
PN772
MR CORBOY: Yes. I am just providing that to the Commission.
PN773
SENIOR DEPUTY PRESIDENT WATSON: Do you have any objection to that being received as an exhibit? It is a reference to material filed as I - sorry, the source questionnaire document which led to material filed at all times as schedule B.
PN774
MR LYONS: We simply still haven't been given a copy of it, your Honour.
PN775
MR CORBOY: I do have copies of that, your Honour.
PN776
SENIOR DEPUTY PRESIDENT WATSON: Well, could you give Mr Lyons a copy?
PN777
MR CORBOY: Certainly.
PN778
It might make it easier for him to - thank you.
PN779
MR CORBOY: Because of the nature of the health industry we were concerned that there would be an impact upon services and there would be an impact to the public interest if the 26th was scheduled as a public holiday. The reason for this is that outpatients and theatres or operating theatres in public health tend to operate on limited or on a no - or they don't operate at all on designated public holidays and that people have been listed for theatre admissions as well as outpatient appointments for the 26th. We sent out that survey to members and we got the responses which we were only able to summarise by 4 o'clock yesterday. I have got a breakdown of those responses which I can provide to the parties which provide more information.
PN780
SENIOR DEPUTY PRESIDENT WATSON: All right, well let us deal with it in turn. The questionnaire, Mr Lyons, appears to be a reference to the submission contained at page 3, the reference to schedule B, the information then provided in schedule B, and that is the questionnaire document from which that information was obtained. Is there any objection to it being admitted as VHIA2?
PN781
MR LYONS: Not in the circumstances, your Honour, no. I mean, we would make some submissions as to relevance but we will do that in due course.
PN782
PN783
SENIOR DEPUTY PRESIDENT WATSON: The next document, Mr Corboy is what you are now referring to the breakdown of - - -
PN784
MR CORBOY: Yes, I do have - we were - our staff were able yesterday evening between four and five to provide a spreadsheet table breakdown of the summary in schedule B. Now there are some additional responses which were received between four and five yesterday which we have included. Now I would like to provide copies of that breakdown, if it would assist the parties.
PN785
SENIOR DEPUTY PRESIDENT WATSON: Right. Has Mr Lyon got a copy? Is this - that is the document you have already provided to the bench?
PN786
MR CORBOY: Yes, that is right. All it does is provide a breakdown of the information provided in the schedule.
PN787
SENIOR DEPUTY PRESIDENT WATSON: And it is very general in its nature; it is a simple yes or no. It is - - -
PN788
MR CORBOY: Yes, it is, your Honour.
PN789
SENIOR DEPUTY PRESIDENT WATSON: It is not a "what was the extent of the impact".
PN790
MR CORBOY: No, it just provides, I suppose, a more indicative breakdown of how it would affect in Victoria and provides health services by name. On that breakdown you will notice that there are some involved. These are what we consider to be major health providers in the State of Victoria and within that breakdown there are some community health centres who do not operate operating theatres; they are more community primary care providers.
PN791
SENIOR DEPUTY PRESIDENT WATSON: Yes. Mr Lyons, do you have a position in respect to that or would you like to reserve - - -
PN792
MR LYONS: Well, your Honour, notwithstanding that the material seems to be squarely within what was the subject of directions and order being filed yesterday afternoon and merely just wasn't filed - - -
PN793
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN794
MR LYONS: We don't think it is particularly relevant to the issue for determination in any case and on that basis we will - we don't object to the matter being marked but we will say something about its relevance.
PN795
SENIOR DEPUTY PRESIDENT WATSON: Well it simply identifies those who say theatre outpatient or other patient care affected and adds a few more as I understand.
PN796
MR CORBOY: Yes.
PN797
PN798
MR CORBOY: Thank you, your Honour. Our concern is that our members have indicated that if the application as sought by the ANF through - and Trades Hall - was granted it would affect our organisations. There would be every likelihood that operating theatre lists for that day or outpatient clinic appointments for that day would be cancelled or re-scheduled and that is reflected in the responses of our constituent members. That effect, I don't need to elaborate to the Commission, would have an immediate effect on the health of the individuals concerned where treatment or diagnostic or surgical correction etcetera would not be performed and would be delayed.
PN799
We would seek that as the organisations have scheduled their work and scheduled patients and the communities which relied upon those services are anticipating ordinary day of operation on the 26th that it would not be in the public interest to grant the application as far as the Nurses Award is concerned. When we go to the affidavit provided by Mr Shell Morphy, Mr Lyons and myself did have a discussion in the break. Given the problematic nature of having that affidavit tested and given that Mr Lyons drew the Commission's attention out of that affidavit to the inconsistencies between the two States, especially in the River Region or the north-eastern Victoria, we would like to offer that Anzac Day is not the only day that would provide a problem for the Albury-Wodonga area.
PN800
A mere glance at my diary, which has got the public holidays listed for the States and Territories, would indicate that New South Wales celebrates a bank holiday on August 2, Labour Day on October 4, Victoria celebrates Labour Day on March 8 and Melbourne Cup Day in November. So we would put to the Commission that this issue of one side of the river celebrating a holiday and the other is something which occurs - well, I could count up for at least five occasions in this year alone the public holidays listed.
PN801
COMMISSIONER MANSFIELD: Mr Corboy, I don't think Cup Day extends to the border regions. It is probably a metropolitan holiday.
PN802
MR CORBOY: It can, your Honour, if - sorry, it can, Commissioner. If the locality doesn't have a local racing day they can adopt Cup Day which I believe is celebrated in Echuca, from memory, whereas Geelong has their own Cup Day and they celebrate that with a fair bit of gusto, I believe, in October. Now, arising out of the questions this morning from the bench, there was an issue regarding certified agreements. I have provided copies to the Commission of certified agreements which exist in the Health Services Union of Australia. Senior Deputy President Watson may be familiar with the MECAs as he was part of the panel that certified both the HSUA number 1 and the HSUA number 5 MECA.
PN803
COMMISSIONER MANSFIELD: Yes, it was the last act of Commissioner O'Connor as a member of the Commission as I recall.
PN804
MR CORBOY: I am sorry, I didn't quite hear?
PN805
COMMISSIONER MANSFIELD: The last act of Commissioner O'Connor as a member of the Commission in one - - -
PN806
MR CORBOY: Right. I would just like to draw the Commission's attention to the no extra claims clause in each one of these - and this did arise out of this morning's proceedings. If I take the Commission to print number 930428 and clause 31 on page 20, it indicates there - and I might read for transcript - under 31(1):
PN807
The HSUA, employees and employers bound by this agreement acknowledge ...(reads)... and the other claims made in respect of the attending carers employed at Melbourne Health MECRS).
PN808
Now, this particular MECA or Multi-Employer Certified Agreement does adopt other certified agreements within the body of that as well as adopting the '98 award. So we would pick up the point of the State Government of Victoria that it could - has the potential to cause confusion as well as, I suppose, some level of disputation being brought before the Commission as to the application of this particular clause should the application be granted. Now, the HSUA, I believe, has lodged a claim under C2004 2742. We have received a substituted service order but not the order as yet - for the claim as yet.
PN809
Under the print number PR930431 there is a clause 22 on page 13 which again refers to the no extra claims to be pursued and settles all claims in relation to employment of the employees under this agreement. It is in fairly similar terms, as the bench would notice, and again we would contest that it would have the potential of causing confusion and the potential for causing additional disputation if future applications were granted. In summary, we support the positions of the State of Victoria, the Commonwealth of Australia, the VECCI and Michael Rahilly on behalf of Clare Dewan and Associates. If the Commission pleases.
PN810
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Corboy. Mr Harrington?
PN811
MR HARRINGTON: Thank you, your Honour.
PN812
SENIOR DEPUTY PRESIDENT WATSON: Perhaps we will mark your written submissions RSL1, Mr Harrington.
PN813
MR HARRINGTON: Thank you. Members of the bench, at 4.30 am on 25 April 1915, 12,000 men of the 1st Division of the Australian Imperial Forces stormed the shores of a little-known two kilometre area of a Turkish peninsula. That place is known as Gallipoli. In the following eight bloody months to the date of withdrawal of Australian and New Zealand forces there were 27,329 casualties: 7818 were killed; 19,441 wounded; and 70 taken prisoner. These events and sacrifices continue to inspire a nation and they grow in stature each year.
PN814
The RSL perceives itself to be the custodian of the spirit of Anzac Day celebrations. It represents the interest of deceased soldiers and service people, their dependents, and those who have survived to bear witness. As a body it is the repository of the collective memory of past conflicts and sacrifices. The RSL Victoria and its past and present membership serve a vital function in our developing and prosperous democracy. For this reason it reminds each generation of the sacrifices made by previous and even at the present time the present generation in the cause of nation defending and building.
PN815
So far as the Victorian RSL is concerned, Anzac Day is 25 April. It is a day concerned with commemoration, remembrance and gratitude. It is a day heavy with tradition. It is a singular day in the Victorian calendar, the Australian calendar, where the hearts and minds of the nation are compelled to pause and reflect upon those who have made significant sacrifices in the name of this nation. The RSL today wishes to make brief submissions and it is comprised of two parts: first, a brief history of the commemorative activities on 25 April commencing in 1916; and secondly three short submissions in respect of the effect of the applications today if they are granted and the concerns the RSL Victoria has in respect of any such variation and Commissioner I will also address you at that time in respect of the dilution argument that you asked my learned friend for the State of Victoria about earlier.
PN816
One year later, after the events of 1915, a few hundred returned servicemen assembled in 1916 on Princes Bridge to march in memory of their fallen comrades. Between - in the year 1919, 6000 returned servicemen marched. That was the year after the Great War had ended. In 1925 the Anzac Day Act was passed. In 1927 there were 27,000 marchers along Swanston Street. In 1934 there was the stand to, or the dawn service, for the first time and it was later that year that the Shrine of Remembrance came into operation. In 1946, in April 1946, in the first march after the end of hostilities in World War II, 46,400 returned service people marched.
PN817
In 2002 at the dawn service at 6 am in the morning 12,000 assembled at the Shrine of Remembrance to pause and reflect. On 25 April 2003, 20,000 people stood in silence at around 6 am in the morning on 25 April to pause and reflect. You might say they are nice statistics and no one is challenging the importance of the tradition of Anzac Day but those very statistics go to this issue, and the issue is this: the identity and the significance of the tradition of Anzac Day 25 April. In respect of the submissions as to substance, the written submissions of the RSL at paragraph 32 deal with these matters and the core theme that we submit to the bench today is this, that if this application is granted this year there will be a fracturing of the identity and significance of 25 April, Anzac Day, the one day upon which the community focuses to pause, to commemorate, to reflect and to say thank you.
PN818
SENIOR DEPUTY PRESIDENT WATSON: But that appears a stronger submission contained in the written submissions, "There will be a fracturing." The written submissions refer to fears of the RSL and - - -
PN819
MR HARRINGTON: Yes.
PN820
SENIOR DEPUTY PRESIDENT WATSON: - - - concern that a particular outcome may result in certain things.
PN821
MR HARRINGTON: Yes. Perhaps, your Honour, my language was too strong. It is a concern. It is a fear. We can't look into the future and know what will happen. That is the concern. And in respect of Mr Commissioner's question earlier today about evidence from the other States, my client was notified in a sense by a back-door route by someone simply telling him this application was on last Thursday evening. These submissions were drafted hastily and submitted when required to the Commission.
PN822
There hasn't been an opportunity to collate statistics or facts from the other State but in my submission what is being dealt with here today is the Victorian context and the Victorian context reveals - on behalf of my client's submissions I make on behalf of the Victorian RSL in the Victorian context - it reveals that in recent years there has been a surge of interest and in my submission it is likely that that interest will continue in respect of the commemorative activities of 25 April and the RSL submits today that it does have a concern that if the application is granted - and I will try to put this as eloquently as possible - this year, for example, there could be in effect two Anzac Days.
PN823
Now, I can hear people mumbling, saying, "Well, that's not right," but the submission is this, that 25 April is Anzac Day. The community acknowledges that. Over 20,000 of them turn up at the dawn service on that day and many others march. It is a problem of identity and fracturing of that identity such that if the application is granted the view might be taken in the community at large - and I say "might be" - that, well, Anzac Day is 25 April but there is this other Anzac Day; there is the Anzac Day holiday and that is the fear, the concern, of the fracturing of our identity that has been established over many, many years, and in the case of the RSL Victoria it has a deep commitment to preserving the importance of that one day.
PN824
At paragraph 32 and following - - -
PN825
COMMISSIONER MANSFIELD: Mr Harrington, sorry, could I just say in relation to the nature of Anzac Day and its - and the way it is revered by most Australians? Now, let me just share something with you. A couple of years ago I did stand in ANZAC Cove at Gallipoli. I did walk through the cemeteries of the Australian servicemen who fell at Gallipoli and so as far as I am concerned, ANZAC Cove, Gallipoli and Anzac Day are sacred days. They are days that should be revered. But the point I was making this morning was in response to the argument in your written submission that if April 26 was substituted as a public holiday that would somehow reduce the reverence that should be shown toward Anzac Day. I wanted to try and get from somebody - yourself particularly, probably - whether there was any evidence of that in, say, New South Wales or Queensland.
PN826
There is a dawn service, obviously, in both of those major cities.
PN827
MR HARRINGTON: And there are marches, obviously.
PN828
COMMISSIONER MANSFIELD: And marches, and I think personally your comment a while ago about the increase in numbers, I think that would be reflected in basically every State because many, many Australians are now, I think, becoming more sensitive and more aware of the sacrifices that people made on that day. And so - but coming back to the - to my point. I heard you a moment ago as saying that because of the speed of having to put the submission together you haven't had an opportunity really to have a look at what happens in other States and whether your fears have actually been borne out in those dates?
PN829
MR HARRINGTON: We have not had that opportunity, Commissioner.
PN830
COMMISSIONER MANSFIELD: No, okay. Thank you.
PN831
MR HARRINGTON: And that goes to the issue of the relative urgency of this application and the fact that - and the RSL is not a registered organisation under the Act as you are aware and it was only late last week that it was aware that this application was being made in respect of this year - so there is simply no opportunity. Might I just say as a matter of formality too that the figures that I have given today are - particularly the marches and the dawn service - they are from Victoria Police too. They are figures that the police estimate on those days.
PN832
COMMISSIONER MANSFIELD: No, no, there is no question of their accuracy in my mind.
PN833
MR HARRINGTON: Yes. Commissioner, getting back though to this - the fear or the concern that exists - it is simply concerned with the idea of a diminished or diluted effect. Now, once again, we are at the point, as you point out, that I can't compare or contrast the States or Territories given the situation that my client, the Victorian RSL, finds itself in today. It can only refer to the Victorian context and what it sees as happening in Victoria and the growing stature and significance of the day and in my respectful submission it is legitimate for the RSL Victoria to have a concern that if there is any fracturing of the identity or the significance that numbers could fall away and Commissioner you may remember that in the early eighties there were, I think, protest marches, the numbers were down.
PN834
It is in the last 20 years that this tradition of April 25 has started to really pick up significantly in the Australian population and in part I imagine through education and acknowledgment of my client's efforts in - because they are out there in the community, they are taking care of people and they are focusing the mind of the Victorian population on this one day, 25 April, and the events of that day, and that is to say nothing of the what has now become another significant feature of that day which is the football game - which I am not here to talk about that - but that is a third feature of that day that is becoming more and more significant as well. So in my submission there are these commemorative events which I know the union is not attacking the nature of those and in fact at paragraph 41 of the union's submissions it is said here that:
PN835
Of course that substituting the date for the purposes of the awards would not prevent or hinder the proper observance of the traditions of the day.
PN836
We acknowledge that but the point made by the - or the submission made by the Victorian RSL today is somewhat more subtle than that. It is not about prevention or hindrance. It is about keeping intact the identity and the significance by focusing the mind of the local population on the day, 25 April.
PN837
The second submission I will make is in respect of the hallowed cultural status of the day. Clearly that is accepted I think by everybody in the room and the submission I would then make in respect of that a confusion or ambiguity that may arise in respect to the date and the timing of the commemorative events. Finally, the third submission is in respect once again that the tradition of the day, 25 April, may be diminished in that the community might see it as just another long weekend, just another long weekend holiday. I have set out, or have attempted to set out, the history of 25 April and I think it is accepted the significance and the reverence in the local community for that.
PN838
Once again, the Victorian RSL as repository of the memories and also as a custodian of that day merely seeks to protect the identity of the day so it doesn't become just another long weekend. So in summary, the Victorian RSL - - -
PN839
SENIOR DEPUTY PRESIDENT WATSON: Well, the day will always remain the day. Anzac Day is 25 April.
PN840
MR HARRINGTON: It will.
PN841
SENIOR DEPUTY PRESIDENT WATSON: What is being sought is to substitute the public holiday, not any change to the identity of Anzac Day.
PN842
MR HARRINGTON: But in my respectful submission the fear or the concern held by the Victorian RSL is if that substitution occurs it could be perceived as a long weekend. It is the Anzac long weekend - the Anzac Day long weekend and the significance and importance of the specific day, 25 April, may come under siege - may come under siege and I can't put it any higher than that in the submissions.
PN843
SENIOR DEPUTY PRESIDENT WATSON: Yes. I mean there is a large element of speculation involved in circumstances where are those other things you mentioned, the work of the RSL, educational effort, may well be the significant drivers of the rise in the appreciation, sanctity of Anzac Day over recent years.
PN844
MR HARRINGTON: Yes, your Honour, but it is the respectful submission of the Victorian RSL that these things, you know, are hard fought for and hard won, particularly tradition in the Australian culture as it presently is. This is a long tradition and the fight is to keep it alive and to make it even more significant and there is a fear or a concern that that battle might become somewhat more intense if this substituted day is granted.
PN845
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN846
MR HARRINGTON: In closing then, the RSL Victoria does oppose both the making of the final and the interim order. If it please the Commission.
PN847
SENIOR DEPUTY PRESIDENT WATSON: Mr Harnath?
PN848
MR HARNATH: I think it is my turn, your Honour.
PN849
SENIOR DEPUTY PRESIDENT WATSON: You haven't submitted any written submissions, Mr Harnath?
PN850
MR HARNATH: No, your Honour.
PN851
SENIOR DEPUTY PRESIDENT WATSON: Mr Watts will face the same question.
PN852
MR HARNATH: I am sure he will, your Honour, if he wishes. Your Honour, I am in a situation where because of the load, as the Commission would understand the submissions mine will be brief and they will go to a number of points that have been made today and will address some of the issues or queries that have been raised.
PN853
SENIOR DEPUTY PRESIDENT WATSON: Yes, go ahead.
PN854
MR HARNATH: As the Commission may be aware, at least two members of the bench, my submission is on behalf of small business. Our submission of course, as the Commission would be expecting, would support the principal submissions of VECCI, the state and federal governments. As I stand here today there is certainty and clarity that Anzac Day, the 25th, will be observed on that day and there will be no substituted day in Tasmania or Victoria. The only way that that will be changed, in other words we get to a situation of uncertainty and confusion, will be by this Commission granting the application to the unions.
PN855
From a small business perspective, certainty and clarity are the most important grounds to run a business. I would observe also from the point of view of the VECCI submission, marked VECCI1, paragraph 18 the issue of dividing the work force is of significant importance to my membership. The last sentence as it reads is:
PN856
It would -
PN857
this is about substitution of course -
PN858
It would provide different entitlements for employees within the same state, it would provide different entitlements for employees within the same industry sector and it would provide different entitlements for different employees within the same work place.
PN859
And that is exactly what the outcome of a decision in favour of the unions will cause in regards to the plumbing industry in Victoria and Tasmania. For whatever reason, I was involved in the test case that has been referred to on a number of occasions today, that is print L4534 and the proceedings in '93 and the proceedings in '95. There are - there have been today three - two other persons in this Court which were also present during those proceedings and I have spoken to them just to check a couple of questions that have been raised. The unions speculated that the Commission may have been led in error to make a decision which, as it says on page 20 of that decision:
PN860
That when the prescribed holiday, other than Anzac Day, falls on a Saturday or Sunday a substitute day is provided.
PN861
Our collective recall is that both the parties and the Commission were well aware of the circumstances and the reasoning for why those words have been put there. That is in fact no speculation, it is the intent of the - what has been said to be the underlying test case for substitution and it does emphasise of course the substitution possibilities through circumstances and morés, as Commissioner raised before, in regards to state by state situations. It allowed that to occur. The Commission has also - and small business - once again from a small business perspective, the Commission referred to the issue of time and that is something that is almost impossible to meet. Not necessarily impossible to meet in a sense of the Commission finalising all the orders but what has got to be put in place to ensure that employees may or may not be able to take this day if it is a transferred day on Monday 26th.
PN862
Just run you through it. You have got approximately nine business days, firstly to make a decision in this case, secondly for that then to flow on to the other orders. We have been through that before, once again back in '95 - '94, very difficult time. And then comes a significant thing that is almost a Pontius Pilate situation and that is how small business firstly becomes aware, how is it made aware so that employees can take that day, and secondly how financially it can cover the costs of that day. That is something that hasn't been mentioned by any other submission today but it is a very important fact in planning for any work in a year - - -
PN863
SENIOR DEPUTY PRESIDENT WATSON: Well, I am not sure it has been entirely overlooked in the written submissions, Mr Harnath.
PN864
MR HARNATH: Your Honour, you are correct, it is in the written submissions and, as I said before, we do support those submissions in general.
PN865
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN866
MR HARNATH: But I want to emphasise that from a small business perspective once again. It is an impossible situation I believe that even if the Commission was able to vary all the awards, 250 plus as the unions have indicated that may follow, for small business to be made aware and for employees to take the day if it was awarded. But from a small business perspective, as I said, the financial situation is a very significant one and it won't be one that can be easily - that can be, how would you put it, recovered. The issue of dividing a work force, of course as I said before and we have touched on the enterprise bargain situation is unclear. It only becomes unclear if the decision is made in that regard. Schedule 1A, Employees in Victoria, once again uncertainty.
PN867
The division of the workforce is so important in a small business for it to conduct itself to make a profit, to exist and to employ. Small business is the driver of employment and it should be carefully considered in the decision that has been asked to be made. It is our submission, if the Commission pleases, that it should not grant the applications of the unions for that perspective. However it is almost something - and this is in just the same way as the Commissioner mentioned before experiences that he has had in the near past, I feel drawn to join you in that because I have got to say that I understand something - I was in the unfortunate situation of several months ago losing my father, a returned serviceman.
PN868
I have got to say to you that I know what he and other returned servicemen think of this day, the significance of it and the need not to, in any way as the SDA said in their submission - it was referred to earlier, see the day just become another day. It is something that is very highly felt, believed and I think something that the Commission needs to take on board. It is an unusual circumstance. We are usually talking about industrial relations aspects but in these circumstances, in this special day, I believe there is something to reflect upon because those people that have stood for Australia, I believe those that are left, have the same feeling as those that have gone. If the Commission pleases.
PN869
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Harnath. Yes, Mr Ronfeldt? We will mark your written submissions ABI1, Mr Ronfeldt.
PN870
PN871
MR RONFELDT: On behalf of its members ABI opposes the applications. ABI relies upon its written submissions and in relation to the lateness of the applications we support the submissions already made by the Victorian Government, TCCI, VECCI, AIG, ANZ Bank and Telstra. At paragraph 13 of our written submissions we note the absence of other affected groups. We have in mind there a number of other industrial organisations and employers, particularly those whose predominant membership lies outside of Victoria and Tasmania and other state governments who have an interest in these proceedings.
PN872
Given the expedited nature of these proceedings we suggest that it would be incorrect to draw any inferences from the absence of such persons or groups from these proceedings. The expedited nature of the proceedings has also precluded ABI from obtaining evidence from its members of the specific issues in relation to programming and production that will arise in relation to the making of a public holiday in respect of 26 March [sic] this year. In relation to the proposed substitution of Saturday the 25th for Monday 27 April in the applicant's draft order, we submit that there is absolutely no basis to consider that application further. We note that while the government in New South Wales has an ability to claim an additional day in lieu of Anzac Day on Saturday the 25th, that has not been the practise in that state.
PN873
At paragraph 18 we note that on the last two occasions that Anzac Day has occurred on a Saturday, that is in 1992 and 1998, no such proclamation has been made. In New South Wales, as the Commission is aware, Federal awards cover a minority of employees. Also it is common to find in New South Wales workplaces a system of dual award coverage. To establish a substitution in relation to Saturday 25 April would give rise, in our respectful submission, to undue conflict, uncertainty and disputation. In relation to the proposal for substitution of Sunday 25 April, we rely upon our written submissions and support the submissions already put today in opposition to that claim.
PN874
In relation to the meaning and intention of the 1994 test case, we support the Commonwealth's submissions. Our submissions, our written submissions also go to our position for interim relief. Our submissions in particular support the contention that has been put today on behalf of Telstra that the circumstances that are before the Commission today are readily distinguishable from the circumstances which applied in December 1993 when interim relief was granted. Given it is not customary in Victoria and Tasmania for a substitute day to be proclaimed when 25 April falls on a Sunday, the likelihood of economic dislocation, inconvenience to the community and industrial disputation to arise as a result of a change of this kind, only nine days before it is to take effect is, we respectfully submit, manifestly self evident.
PN875
Earlier in today's proceedings there was an exchange between Mr Lyons and Senior Deputy President Kaufman as to the position in New South Wales under the Bank and Bank Holidays Act. For the benefit of the Commission I have a decision of the New South Wales Industrial Relations Commission which I think clarifies the position there. I am afraid I have only got three copies of that decision. It is reported - the decision is Anzac Day Public Holiday 1999 State Decision. It is reported in (1999) 88 IR 97.
PN876
SENIOR DEPUTY PRESIDENT WATSON: Can you provide a copy to Mr Lyons in the first instance?
PN877
MR RONFELDT: In that decision the Full Bench of the Industrial Relations Commission of New South Wales, pursuant to its powers to make a state order under section 51 of the Industrial Relations Act 1996, New South Wales, determined that the exact status of the Bank and Bank Holidays Act in relation to making a substitute day or an additional day when Anzac Day falls on a Sunday was unclear. It determined therefore that for the purposes of New South Wales State Awards it would make an order to the effect that a public holiday was not to occur on Sunday the 25th but a public holiday in lieu was to be observed on Monday the 26th. I merely raise that issue and that decision in the context of clarifying an issue that was before the Commission earlier today. If it pleases the Commission.
PN878
COMMISSIONER MANSFIELD: So in New South Wales it is a substitute day, not an additional day?
PN879
MR RONFELDT: That is right, Commissioner.
PN880
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Ronfeldt. Mr Watts?
PN881
MR WATTS: Thank you, your Honour. Your Honour, first in relation to my chastisement in relation to the non production of submissions, written submissions. The - - -
PN882
SENIOR DEPUTY PRESIDENT WATSON: What is happening at the ACTU, Mr Watts, is it overworked or what?
PN883
MR WATTS: Commissioner, things have gone downhill since you left. It is just not the same.
PN884
SENIOR DEPUTY PRESIDENT WATSON: Well, I note that Mr Lyons didn't make an objection to your putting a submission. Go ahead?
PN885
MR WATTS: Thank you, your Honour. I note in the first paragraph of the applicant's submissions it refers to the ACTU's endorsement of - supporting the union's claims and indeed the ACTU adopts and relies upon the submissions of the applicant unions. And having said that, the ACTU supports the application as it originally stands. However, having said that, there may be some grounds for limiting any order to Tasmania and Victoria for 2004, in particular of course to Sunday. Having said that - and the grounds what that would have is have the effect of adopting what the ACTU would now see as a prevailing national standard. Now, that is - or we would say it would be appropriate to an interim order.
PN886
What may be appropriate to a longer term order is something of course - or a final order is something which we have some time to ponder over. The Anzac Day and its issue of Anzac Day in the '94 case matter was - has been the subject of substantial submissions throughout the day and there is a fair amount of posturing as to what that may have been the parties intentions in relation to Anzac Day in '94. What we say is it is clear and I think that the Victorian Government's submissions support this as well is that Anzac Day was not a central or pressing matter in the public holiday test case. It was not so much a matter of getting it wrong as not being - Anzac Day not being a central matter before the Commission, or before that Full Bench.
PN887
We certainly are of the view that we have had some time to look at the matters now and if timing is an issue, it is an issue between the parties and we say that there have obviously been some difficulties with the timing of these applications but we say that that should be put into the context of when in fact the state government made its intentions clear on this matter and that was only 12 February and no doubt there has been some time before that but - and there was some time after that where the unions took the opportunity to attempt to have the government change its mind as it does and certainly has the power to do so, even after 12 February. That unfortunately did not occur.
PN888
There has also been some discussion about application of non award employees and the uniformity within the state. We say something very simple to that and that is that the Commission can only determine matters that are within its jurisdiction and it certainly can take account of those other impacts or the differences that might occur to non award employees but quite simply if that attitude was taken the Commission would have very little work to do indeed, particularly in Victoria. Finally, your Honours and Commissioner, the ACTU's view on Anzac Day is that Anzac Day's importance is recognised by the ACTU. The application is not intended to diminish the importance or levels of observance of Anzac Day on the 25th.
PN889
The day's importance is recognised in particular through the granting of a substitute day. We say that quite contrary to what has been put that the granting of a substitute day in fact recognises that Anzac Day is an important day for all Australians and an important day for unions and the union applicants and those unions that the ACTU represents. If the Commission pleases.
PN890
SENIOR DEPUTY PRESIDENT WATSON: Thank you, Mr Watts. Mr Lyons, are you in a position to - - -
PN891
COMMISSIONER MANSFIELD: Wait, one more.
PN892
SENIOR DEPUTY PRESIDENT WATSON: I am sorry, I have forgotten - - -
PN893
MS VAICIULIS: I promised that I would be brief and I will be very brief.
PN894
SENIOR DEPUTY PRESIDENT WATSON: Yes, I didn't intend to make you that brief. We will mark your exhibit as AP1.
PN895
PN896
MS VAICIULIS: Your Honour and members of the Bench, Australia Post relies on it written submissions and those submissions do refer to the two decisions. I am very mindful of the amount of paperwork that this case has generated and the volume of paper that has been provided to the Bench and therefore I won't be providing you of a copy of those two decisions. The first of them relates to the threshold issue which has in fact been resolved, that is the 170N issue and the second refers to the 1994 safety net decision, of which you have a copy. If the Commission pleases.
PN897
SENIOR DEPUTY PRESIDENT WATSON: Thank you for that, Ms Vaiciulis. Mr Lyons?
PN898
MR LYONS: If the Commission pleases. I am mindful of the time but there are just a few very brief observations we would seek to make in reply. There is one or two housekeeping matters, your Honour, if I can take care of first. The first issue concerns the quite legitimate concern raised by Mr Wood on behalf of his client as to other players in the industry in which Telstra is involved. I am advised that the CEPU has made application to vary the awards binding on Telstra's major competitor being Optus, the one that Mr Wood referred to. I am also instructed that applications in the same terms have been made to the industry award that would be binding on the minor players that also exist in that industry.
[5.10pm]
PN899
So it is certainly the intention of the CEPU to ensure that Mr Wood's client is not placed at any competitive disadvantage as opposed to its direct competitors. In respect to the issues raised by the Retailers Association by the SDAs submission, we used the short break to seek some direct instructions from Mr Donovan, the state secretary of the SDA. I am advised - as is clear, I might add, from its face - that the SDAs submission to the Parliamentary Committee was about shop trading hours.
PN900
Now the Bench was invited to draw some adverse inference by what it is not about. It is not about the industrial relations issues, it is not about substitution. The Commission is quite correct that there is no reference to the issue of substitution. It was not a submission about awards or the entitlements of employees, it was simply about the observance of trading hours. It is clearly limited on its face to that. I am advised that the - we have instructions to inform you that the SDA support the submissions that we put.
PN901
They have filed applications to vary not only the Shops Interim Award applying in Victoria but other - a significant number of other awards applying in the State of Victoria to the balance of the retail industry. Again the reason for that not having been served on the retailers is that in accordance with the rules of the Commission the SDA is not required to serve until a date for hearing is set. In respect of the - the final housekeeping issue I think concerns the ANF draft order. It is our submission - - -
PN902
SENIOR DEPUTY PRESIDENT WATSON: Well, there are a series of ANF draft orders.
PN903
MR LYONS: Yes.
PN904
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN905
MR LYONS: It is our submission, based on instructions from the ANF, that this is a settlement of orders issue which is peculiar to their award because of its history. The award itself, as I understand it, came from an old Victorian state common rule award and therefore the public holidays provision is in slightly different terms to that which would normally apply. That doesn't prevent the Commission making an in principle decision about the issue of substitution and, as is the normal course of events, the parties be directed to confer as to the settlement of orders and if necessary the matter could come back before the Commission for the matter to be addressed directly by the parties that are affected.
PN906
It is our submission that that would be the proper course but nothing that was raised should prevent the Commission from determining as a matter of principle the application that has been made by the ANF. In terms of the general response to the parties, if I can commence by dealing with the submissions put for the RSL. It is our respectful submission that they are fighting a ware where there is only one side. It is common ground, I think, between everybody in the room that the proper observance of 25 April as a day of remembrance is an important national good and we ought do what we can to promote it and no one puts anything against that, as I think the Commission alluded to.
PN907
The difficulty with the submission is that there is no evidence before you, for example, that the state branches of the RSL in the four states and two territories where substitution has been in place for some 30 years have actively lobbied for its repeal on the grounds that have been suggested. You would think that if this was a long term and genuinely held view of the RSL there would be readily to hand material indicating that the RSL, for example, had been to the premier of Queensland and asked him to make the necessary changes.
PN908
The long weekend argument we say is easily dispensed with. Last year, 2003, Anzac Day fell on a Friday. It was a long weekend automatically as it is two of seven years absent further intervention of leap years and if you will recall that was the year where my friend said there had been a - and I think he used the term surge of attendance at the Anzac Day remembrance service that was located in the Melbourne CBD.
PN909
SENIOR DEPUTY PRESIDENT WATSON: From 12 to 20,000.
PN910
MR LYONS: Yes. So the fact that it fell and created a long weekend automatically didn't have the effect which the RSL fear. We note of course that remembrance services aren't limited to the six capital cities. Anyone who has driven across Australia knows there is a war memorial in every country town in Australia and many of them do have services of one form or another on Anzac Day and so we say that the actual evidence that exists from 2003 from the RSL suggests that the fear they have is unwarranted.
PN911
Of course, many union members and many working people are ex-service people themselves and we take no issue whatever with the proper remembrance of 25 April and we don't say that what we ask the Commission to do has any effect on the status, observance or proper respect that should be afforded to 25 April as a day of remembrance. I make a couple of very quick observations. We say that - there has been some danger that the applications we make are misdescribed in some of the respondent's material.
PN912
We are not seeking the creation of an additional day. That argument was put to bed in 1993. Substitution does not result in the creation of an additional holiday. Similarly substitution of days does not prevent businesses operating. It is not - when this Commission awards a substitution proviso it does not affect or prevent businesses from operating. That is another matter that was put to bed by the 1993 case. Now much of the material that is put and said to be a reason against creating the claims is directed towards this point.
PN913
Now it doesn't - the orders we seek would not prevent businesses operating, however in the event employees were required to work they would be required to be afforded some additional compensation for that, for those employees that were required to do - and that is entirely consistent with the approach of the Commission. In dealing with many of those submissions we were reminded of the observation that was made in the non-standard hours test case in respect of full-time workers and this is at page 21 of L9178 and the Full Bench had this to say:
PN914
It may happen that a prescribed holiday falls upon a day when the employee would not be working in any event. Fairness requires that the worker would not be disadvantaged by that fact. The appropriate compensation we think is an alternative day off or one addition of one day to annual leave or an additional day's wages.
PN915
So that is the double time - double time one way or the other, your Honour, and that is the position that we bring to you. It does not mean that any of the respondents' businesses cannot open, cannot operate. Merely that in the event they require certain categories of their employees to, that some additional compensation for loss of the leisure day that would otherwise be awarded by the Commission's awards is provided to them.
PN916
We say that deals with most of the evidence that was put and said to go against the granting of the claims. Now I understand from the CEPU and the FSU that they do take issue with various elements of the witness statements but they are matters of fact which are neither here nor there to the determination of the claim. The central issue is if those businesses and any others represented in this place require employees on that day they can roster those employees to work subject to whatever else the award says about that provided they provide them with compensation at the appropriate level.
PN917
SENIOR DEPUTY PRESIDENT WATSON: Well, Mr Wood says that has in the past led to disputation with the union saying employees - their members cannot be required to work on the public holiday, with Telstra at the same time being bound by public service obligations under the relevant Act.
PN918
MR LYONS: My understanding no evidence was advanced for that proposition. It was simply a submission from the bar table, your Honour.
PN919
MR WOOD: Paragraph 8 of Gerdtz.
PN920
MR LYONS: Right. Well, in our respectful submission the proper approach of the Commission should not be to deal with an issue of principle which is whether a variable public holiday should substitute on the basis of whether one or two individual employers are able to demonstrate they may have some difficulty in filling out rosters and that is the highest the evidence that is before you rises to.
PN921
SENIOR DEPUTY PRESIDENT WATSON: Well, with some significant consequence in the case of Telstra.
PN922
MR LYONS: Your Honour, much was made and - much use was made of the term certainty and it was put to you that it is too late, notwithstanding that the Bench in '93 acted on the same timeframe, but it is too late because employers require - and figures of four weeks and more were bandied around in order to fix rosters. I must say it is curious for the unions to be in here hearing this from employers. Normally we are being lectured about flexibility. Our members are not generally afforded the luxury of having their rosters published to them and fixed in stone four weeks in advance.
PN923
We would suggest respectfully that it is more than possible for businesses to properly address any changes that would be necessary as a result of making of orders. Our members, under the terms of awards, routinely have their hours of work altered with seven days, and in some circumstances less, notice.
PN924
SENIOR DEPUTY PRESIDENT WATSON: Well, I notice Storage Services is 48 hours. Mr Watson referred to, without identifying, particular awards which he asserted required four weeks notice in the State of Tasmania.
PN925
MR LYONS: Yes. Well, I am not familiar with those but as your Honour has referred to an award of the NUW which does, in circumstances, allow for 48 hours notice - so we say there is more than enough time given the modern situation of both employers and employees where there is a general approach where there is some flexibility to hours of work and arrangements with much less notice than is provided - than will be necessary to be provided in this instance.
PN926
Now some play was made of the issue concerning the relationship between awards and agreements. Now we say it is a bread and butter industrial issue for all the parties represented in this room about the relationship between awards and agreements. It is a necessary function of the system. It is - in respect of certified agreements it is set up by section 170LY. We are all required in the day to day course of our work to determine in what circumstances an award prevails over an agreement.
PN927
SENIOR DEPUTY PRESIDENT WATSON: The problem is not all agreements are written with great clarity.
PN928
MR LYONS: No, indeed; indeed. But if the Bench was of a mind not to act on our applications because it may have some unidentifiable, unquantifiable effect of causing disputation it is, in our submission, simply a receipt for inertia because that submission put against us could apply to any application to vary an award because any application to vary the award would have some potential to cause conflict between awards and agreements.
PN929
My response to a question from Commissioner Mansfield was that you would need to look at individual agreements. Now that is instructive because the two HSUA agreements which were handed up to you and were said to be evidence for this proposition, neither of them contains a public holidays clause in any form. The issue of - the bargaining agreements between the parties in that case are entirely silent on the question of public holidays and so a variation of the parent award would be very clearly effective, would cover the field and would provide the public holiday entitlements for the employees and the obligations of the employers.
PN930
Now much play was also made in a number of the respondent's submissions, although interestingly not the party to whom it was directed, that the Commission should respect the views of the state governments. Now the unions served the state government of Tasmania and there is evidence for that before the Commission and the state government has chosen not to express a submission about that. Likewise the Victorian government - - -
PN931
SENIOR DEPUTY PRESIDENT WATSON: I think the submission was respect their views in relation to the gazetting or otherwise of substitute days.
PN932
MR LYONS: Well, they have chosen not to substitute the day.
PN933
SENIOR DEPUTY PRESIDENT WATSON: Yes.
PN934
MR LYONS: But they were, by action of the unions, given an opportunity to appear in these proceedings and have chosen not to come and express a view and it is our submission that the Bench ought not say, well, they have made the decision to not substitute the day so they automatically would oppose the unions' applications. Now we also note, for example, that the State of Victoria in relation to these proceedings appears only in respect of the two matters to which they are respondent as employer which is in direct contrast to proceedings in '93/'94 where the State of Victoria appeared and made general submissions in its capacity as the regulator of public holidays as the state legislature, as the state government.
PN935
Now it is my understanding that Mr Gostenick in the proceedings before Commissioner Lewin and my learned friend today have been very careful to enter the appearance simply in relation to the ANF application and the SPSF/CPSU application and we say that on that basis the government has left us to our work in respect of the issue of principle when it goes beyond the issue simply of them as an employer.
PN936
SENIOR DEPUTY PRESIDENT WATSON: Do you have any comment on Mr Watson and Mr Parry's observations about exceeding the standard in Telstra and Tasmania?
PN937
MR LYONS: Yes. Well, I must say that - we have had an opportunity to review the Telstra Corporation General Conditions of Employment Award 1996 which I understand to be the award to which Mr Wood referred.
PN938
MR WOOD: No.
PN939
MR LYONS: Shaking his head.
PN940
MR WOOD: That is not the award that the application is directed at.
PN941
MR LYONS: Okay.
PN942
COMMISSIONER MANSFIELD: Which award was it, Mr Wood?
PN943
MR WOOD: It is the Telstra Corporation General Conditions Award 2001.
PN944
MR LYONS: I am reading an item 51 print, your Honour, and, yes:
PN945
By deleting the following clause and inserting in lieu thereof the following, 2001 Award.
PN946
Now I have to say that our review and our instructions from the CEPU are to this effect, is that clause 12, payment for public holiday work, and in particular clause 12.7.1 does not provide for 11 plus one as was suggested, but simply 10 plus one. It provides for New Year, Australia, Good Friday, Easter Saturday, Easter Monday, Anzac, Queen's Birthday, Labour Day, Christmas Day, Boxing Day and then it says:
PN947
In addition to the holidays prescribed full-time employees are eligible to one additional public holiday without loss of pay.
PN948
It then includes the normal words:
PN949
Where another day is generally observed in a locality in substitute for any of the above that will be observed as the public holiday in lieu of the prescribed day.
PN950
So it is largely the model clause in 10 plus one. So if Telstra offers one additional day, and there are still some company picnics floating around, I think, and perhaps this is one of them, that is within their providence to do but it doesn't affect this application and it doesn't form an award entitlement.
PN951
MR WOOD: Perhaps I can just help my learned friend out there, Senior Deputy President.
PN952
SENIOR DEPUTY PRESIDENT WATSON: Yes, Mr Wood.
PN953
MR WOOD: 12.7.1 from which Mr Lyons has quoted does have 10 - is a reference to 10 public holidays. 12.7.2 is a "Telstra Day" - that makes 11. 12.7.4 is the plus one. That is why we say 11 plus one.
PN954
SENIOR DEPUTY PRESIDENT WATSON: So you say it is a matter of arithmetic?
PN955
MR WOOD: Mm.
PN956
MR LYONS: Well, it describes it as one additional public holiday. I fail to see how a day that Telstra determines can be described as a public holiday.
PN957
SENIOR DEPUTY PRESIDENT WATSON: I think Mr Wood indicated there were those specified and then two additional days in effect, or one specified and one in general terms. An additional day.
PN958
MR LYONS: There may be a custom and practice that an additional day is offered but I direct the Bench to the provisions of the award to the extent you find it relevant and you can make it look what you like.
PN959
SENIOR DEPUTY PRESIDENT WATSON: We will count them ourselves.
PN960
MR LYONS: But I fail to see how it generates an additional entitlement to a day and without it generating an entitlement that would, in our submission, not result in the safety net. The position in respect of Tasmania varies from award to award and would need to be dealt with on a case by case basis. The final issue I have been asked to note in closing, your Honour - it is, in our respectful submission, the obligation of this Commission to ensure that the award system appropriately underpins the bargaining agreement, underpins the bargaining streams provided for by the Act and it is on that basis we say that the variations we seek to the awards are a proper course. If the Commission pleases.
PN961
SENIOR DEPUTY PRESIDENT WATSON: To underpin - the national custom and practice referred to, how much does that arise out of the safety net and how much out of the activity of government?
PN962
MR LYONS: The activity of the - - -
PN963
SENIOR DEPUTY PRESIDENT WATSON: Of government, in proclaiming additional day?
PN964
MR LYONS: We are not claiming an additional day, sir.
PN965
SENIOR DEPUTY PRESIDENT WATSON: Or providing for additional substitution?
PN966
MR LYONS: Additional substitution. Well, in making its determination about what is the safety net the Commission can properly have regard to the social, economic and industrial circumstance and that would include practical considerations in each state, the existence of the legislation in each state and what is custom and practice across industry. All of those factors would have some relevance in the Commission's determination about what is the safety net. You are entitled to take all of those matters into account, and as the Commission has previously done in '93, to adjust the safety net or establish the safety net at a position below what Victorian workers, for example, had previously enjoyed because of the actions of their state government. If the Commission pleases.
PN967
SENIOR DEPUTY PRESIDENT WATSON: Yes, thank you. Mr Rahilly.
PN968
MR RAHILLY: Your Honour, Mr Lyons referred to it as a housekeeping matter but referred to the ANF applications and indicated his instructions were that it is a matter for settlement of orders. I think rather that is not the case. The order that I am concerned about, that is the one that - or the application - - -
PN969
SENIOR DEPUTY PRESIDENT WATSON: Well, I took him to be suggesting that if that was the effect, the effect he asserted, that wasn't intended and that could be addressed in settlement of the order.
PN970
MR RAHILLY: Well - - -
PN971
SENIOR DEPUTY PRESIDENT WATSON: Perhaps he could clarify that.
PN972
MR RAHILLY: Yes, your Honour, but I think what he said was that the reason that was the case was because the provisions in the awards had arisen from former Victorian jurisdiction awards. The award that I am concerned with, that is the Nurses (Victorian Health Services) Award, is an award which provided that this Commission's test case public holidays provision and which has been varied by this Commission which has resulted in the form of the application that the Commission has before it.
PN973
So less it be thought that I accept what his instructions were that were put to the Commission I just want to clarify that.
PN974
SENIOR DEPUTY PRESIDENT WATSON: Good. Very well. We propose to adjourn for a brief period to consider our position and whether we are able to announce any decision. We will advise you one way or the other in a short period of time.
SHORT ADJOURNMENT [5.25pm]
RESUMED [5.35pm]
PN975
SENIOR DEPUTY PRESIDENT WATSON: We have had the benefit of written submissions on behalf of the applicant unions which we have been able to consider since filed on 31 March and written submissions of other parties and interveners, in most cases filed on 6 April. We have considered those submissions and the viva voce submissions put today in support of the written submissions.
PN976
In circumstances where we have had an opportunity to consider written and oral submissions and have reached a concluded view, the timing of the applications, the proximity of Anzac Day 2004 and the desirability of certainty at the earliest possible time for employers and employees alike, we think it desirable to announce our decision now and later publish our reasons.
PN977
On the basis of the submissions and evidence before us we are not satisfied that the applicant unions have made out a sufficient case for the orders sought. The applications are dismissed. We will publish our reasons for decision in due course. We will now adjourn.
ADJOURNED INDEFINITELY [5.37pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
EXHIBIT #RSL1 PURPOSES AND POWERS OF RSL PN33
EXHIBIT #UT1 SUBMISSION FROM UNIONS TASMANIA PN43
EXHIBIT #NBA1 SUBMISSIONS FROM NATIONAL BANK OF AUSTRALIA IN MATTER 2004/2434 PN44
EXHIBIT #WSG1 CORRESPONDENCE ON BEHALF OF WILSON GROUP SERVICES PN45
EXHIBIT #BB1 SUBMISSION OF BENDIGO BANK IN MATTER 2004/2426 PN46
EXHIBIT #AEF1 CORRESPONDENCE FROM AGRIBUSINESS EMPLOYERS FEDERATION PN49
EXHIBIT #VTHC1 SUBMISSIONS OF VTHC PN75
EXHIBIT #VTHC2 STATEMENT OF SERVICE AFFIDAVIT PN81
EXHIBIT #VIC1 FOLDER OF MATERIALS PN289
EXHIBIT #COMMONWEALTH 1 WRITTEN SUBMISSION OF MR O'BRIEN. PN384
EXHIBIT #AEF2 SUBMISSION BY AGRIBUSINESS EMPLOYERS FEDERATION PN413
EXHIBIT #VECCI1 WRITTEN SUBMISSION OF VECCI PN417
EXHIBIT #AIG1 SUBMISSION OF AUSTRALIAN INDUSTRY GROUP PN465
EXHIBIT #VAFI1 CORRESPONDENCE FROM VICTORIAN ASSOCIATION OF FOREST INDUSTRIES AND TIMBER TRADE INDUSTRIAL ASSOCIATION PN468
EXHIBIT #ANZ1 SUBMISSIONS BY ANZ PN489
EXHIBIT #TELSTRA1 SUBMISSIONS OF TELSTRA PN518
EXHIBIT #VECCI2 COPY OF SCRUTINY OF ACTS AND REGULATIONS COMMITTEE OF PARLIAMENT REVIEW OF ANZAC DAY LAWS PN576
EXHIBIT #ARAV1 COPY OF WRITTEN SUBMISSIONS PN579
EXHIBIT #ARAV 2 DOCUMENT PN604
EXHIBIT #CDA1 SUBMISSION ON BEHALF OF CLARE DEWAN AND ASSOCIATES PN663
EXHIBIT #VHIA1 SUBMISSIONS AND ATTACHMENTS PN752
EXHIBIT #VHIA2 QUESTIONNAIRE PN783
EXHIBIT #VHIA3 BREAKDOWN OF SUMMARY PN798
EXHIBIT #ABI1 WRITTEN SUBMISSIONS OF MR RONFELDT PN871
EXHIBIT #AP1 WRITTEN SUBMISSION OF AUSTRALIA POST PN896
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