C2004/3333, Transcript of Proceedings [2004] AIRCTrans 2053 (3 June 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 7199

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/3333
C2004/3334

SHOP DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION DOMINO'S
DIAL A PIZZA (WA) AWARD 2003

SHOP DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION - DOMINO'S
PIZZA AUSTRALIA CONSENT AWARD 2003

Applications under section 113 of the Act
by Shop, Distributive and Allied Employees
Association to vary the above awards re
Safety Net Review Wages Decision May 2004

MELBOURNE

9.33 AM, MONDAY, 24 MAY 2004

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN1

MS J. HEAGNEY: I appear for the Shop, Distributive and Allied Employees Association. Also appearing with me today is MR J. RAMONDO also from the SDA.

PN2

MR L. OLSEN: I appear for Employer Services appearing on behalf of Domino's Pizza Australia.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Olsen. Yes, Ms Heagney.

PN4

MS HEAGNEY: Thank you, your Honour. Your Honour, this is an application to include the safety net review 2004 decision, print number PR002004, into the Domino's - or the SDA - sorry, the Shop, Distributive and Allied Employees Association Domino's Dial a Pizza (WA) Award 2003. Commissioner, would you prefer me to do applications for both?

PN5

THE SENIOR DEPUTY PRESIDENT: Yes, perhaps - - -

PN6

MS HEAGNEY: They are identical in every way, it is just that the naming of the award is different.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN8

MS HEAGNEY: Thank you, your Honour. This is also an application then to increase the safety net in the Shop, Distributive and Allied Employees Association - Domino's Dial a Pizza is host award 2003. The application seeks in particular to increase the wages and allowances in accordance with this decision. A copy of the draft order and application has been sent to the respondents of the award, I would like to tender proof of that correspondence, your Honour, now.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

EXHIBIT #SDA1 FACSIMILE TRANSMISSION RECEIPT

EXHIBIT #SDA2 WA DRAFT ORDER

EXHIBIT #SDA3 CONSENT AWARD DRAFT ORDER

PN10

MS HEAGNEY: Thank you, your Honour. Your Honour, the application is consistent with the principles set out in the Full Bench decision, as stated earlier, PR002004. In particular I draw your attention to principle 8(e) and inserting the particular clause into the award, and as per principle 8(d) give our commitment to that principle. Your Honour, we would seek to have the application as per the draft order effective from today's date, which I believe is an issue that is contentious with the employer, and I can put submissions to you now or if you would like to wait.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes, well perhaps you should put submissions now and obviously you will get an opportunity to respond.

PN12

MS HEAGNEY: Thank you. Just a bit of history, your Honour, regarding this award. This was originally listed in 1998 as an award simplification matter. It recently got finalised as per 1 December 2003, both the east coast award and the WA award. Both awards were with Commissioner Raffaelli and the process was undergone by myself and Mr Muir who represented Domino's in Queensland. Obviously the matter was originally listed in 1998 where the award simplification did go on for quite a while.

PN13

In particular Mr Muir and myself dealt with the issue for about 18 months just finalising all the agreements - the award sorry. In around - we had several hearings before Commissioner Raffaelli and around May 2003 there was the issue, we were near finalisation, it was purely a matter of putting the rates in, and bearing in mind that the safety net 2003 had been handed down, we looked to then just automatically insert the $17 into that award. At the time, and I do have transcript from that hearing, Mr Muir raised the issue of how that may affect the Domino's agreement that sits above the award, and it was then decided in June 4 transcript regarding C matter 00704 of 1998 that we would insert the $17 and it wouldn't be a problem, bearing in mind that no one in Domino's is actually covered by that award as their wages and conditions are governed by the enterprise agreement so there is no one technically affected.

PN14

The east coast award was then finalised around that time, it did go back to the simplification unit to go through and check and finally proof off things. Then we have dealt with the WA award following the east coast award and that then got finalised around October/November and Commissioner Raffaelli held on to both of them and decided then to finally make those awards as of 1 December. From our understanding, Commissioner, we would never have thought that that 1 December date would impact on the safety net review for 2004.

PN15

In the history of this award, unlike some other awards, it had never been varied for the wage increases around the safety net time, May/June, as say other awards have been done. So we don't believe that it should wait for the full 12 months, we believe it should be effective from today's date, and although the employers aren't consenting, their view is that it should be - they have discussed with us that it is their view that that will impact on future wage negotiations, bearing in mind that the Domino's enterprise agreement is coming up for negotiation in July.

PN16

And we don't believe that is a fair enough issue, I think every employer would love to be able to defer off safety net applications for that very reason, so we would believe it should be effective from today's date.

PN17

THE SENIOR DEPUTY PRESIDENT: Why isn't that an issue that can be dealt with in bargaining that in effect the bargained rates should reflect or should have some relationship to award rates during the course of the agreement?

PN18

MS HEAGNEY: I think if rates are amended as per the company's aim, which would be 1 December, in that six month period I think negotiations are due to start middle of June, end of June this year, and we are looking to start negotiations. And I think on that basis the company have indicated that they want to not be dealing with that safety net base, they prefer to wait. And as of that 1 December - and if we could effectively get agreement within a few months, do the roll out process that we always undertake and etcetera, that might be through the Commission before that would be effective from 1 December. And then from our point of view that does put everyone behind the eight ball for Domino's employees.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes.

PN20

MS HEAGNEY: And also effectively the Domino's award is not relevant to anyone except for the purposes of an underpinning award.

PN21

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Olsen.

PN22

MR OLSEN: Thanks, Senior Deputy President. In relation to the comments from my friend, she is true in the effect that it has gone on for some period of time through a number of matters before Commissioner Raffaelli by my firm and my director, Mr Gil Muir, over a period of time in relation to the award rationalisation. There was finally decisions handed down in relation to the two awards by Commissioner Raffaelli of which applied from the interim award from 18 November 2003 and from the Western Australian award, I believe, from December.

PN23

Obviously, Deputy President, in relation to what my client is seeking is in relation to which was discussed by Mr Muir before Commissioner Raffaelli was the concerns in relation to satisfying the no disadvantage test because, as was stated by my friend, the award hadn't been varied for a number of years, and with the flow on of a number of variations it would not perform with the no disadvantage test applied to the present certified agreement but which expires on 30 July of this year. So for present, if the award was varied as sought by my friend from 24 May, obviously the safety net implemented into the draft order, implemented into the award, would obviously have conditions which exceed the present certified agreement.

PN24

So what basically my client is seeking is in relation to discussions are in the process of taking place very shortly, the agreement was set down following December, but we would be seeking that it would be reasonable say that 12 months from the date of that decision or the agreement was handed down by Commissioner Raffaelli would be an appropriate date, 12 months from that, to vary the award and for the order to apply. But I have had discussions with my friend in relation to what we are seeking is - all we are seeking is in relation to the agreement expires on 30 July, and we would be seeking that 30 October would be a fair and reasonable date for the variation to apply into the awards.

PN25

Obviously taking into mind that through negotiations and discussions that the SDA are reaching a new certified agreement the relevant award rates will have to be taken into account as they see them now but, Senior Deputy President, I believe that 12 months is a fair and reasonable date from when the first award was handed down and I would seek that the award variation or the draft order sought by the SDA is no earlier than 30 October this year. I am quite happy to elaborate if you wish, Senior Deputy President, but that is just a brief summary that I have got at this particular stage.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, very well. And that applies in respect to both of the awards?

PN27

MR OLSEN: That is correct, Senior Deputy President.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes. Well it seems to me that the safety net principle in 8(b) requires the 12 months have elapsed since rates were last increased in accordance with the May 2003 decision, that date on its face would appear to be December 2003. Now I can understand an argument being mounted now by the SDA on the basis of the circumstances surrounding simplification. However principle 10, which seemed to apply in that on its face the relevant period seems to be December 2003, so principle 10 would require an application in respect to a date of operation earlier than the date the award may be dealt with and that would require the matter be dealt with either by a Full Bench or by a single member provided the President has an opportunity to consider whether the application should be dealt with by a Full Bench.

PN29

That hasn't occurred, the matter has not been referred to the President, and I would think the date being sought by the SDA would be of the nature of a date earlier than that otherwise permissible on the face of the principles. Can I ask you, Ms Heagney, whether the SDA wishes to have the matter referred to the President and then your application in effect for an earlier date, depending on the outcome of the President's consideration, would be dealt with by either a Full Bench or a single member on the basis that the President has had an opportunity to consider the matter.

PN30

MS HEAGNEY: I think after listening to Mr Olsen we would probably not seek to put in an application for the President to consider our scenario, and probably relying then on 8(c), based on what Mr Olsen has said, bearing in mind that if the SDA and Domino's consent to 30 October and it has no effect on actual rates paid to employees, which this won't, we would then seek maybe to get consent on that matter regarding 30 October.

PN31

THE SENIOR DEPUTY PRESIDENT: Very well.

PN32

MS HEAGNEY: Thank you.

PN33

THE SENIOR DEPUTY PRESIDENT: Very well. Mr Olsen, is there anything further in light of that?

PN34

MR OLSEN: Nothing further, Senior Deputy President. I am prepared to - and got instructions from my client - to consent on 30 October.

PN35

THE SENIOR DEPUTY PRESIDENT: Very well. Have you had an opportunity to consider the rates in the draft orders?

PN36

MR OLSEN: I have had a chance to consider the rates in the draft order and, Senior Deputy President, obviously they will be taken on board in relation to our discussions with the SDA in reaching a new certified agreement on which, as they sit here presently, are in excess both of level 1, 2 and 3 of the present certified agreement, Senior Deputy President.

PN37

THE SENIOR DEPUTY PRESIDENT: Yes, but the rates properly reflect the addition of the $19?

PN38

MR OLSEN: That is my understanding that they do, Senior Deputy President.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Very well, in all of those circumstances I will - I am sorry, the date was 30 October 2003?

PN40

MS HEAGNEY: 2004, yes.

PN41

THE SENIOR DEPUTY PRESIDENT: 2004, I am sorry. Yes, in that case I will vary each of the awards in the terms of the draft orders in exhibit SDA2 and 3, save that the orders will come into effect from the first pay period commencing on or after 30 October 2004 and shall remain in place for a period of six months. Very well, well I will adjourn those matters and we will resume at 10.00 with the next matter.


ADJOURNED INDEFINITELY [9.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 FACSIMILE TRANSMISSION RECEIPT PN10
EXHIBIT #SDA2 WA DRAFT ORDER PN10
EXHIBIT #SDA3 CONSENT AWARD DRAFT ORDER PN10