C2004/82, Transcript of Proceedings [2004] AIRCTrans 2098 (7 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7244

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/82

TRANSPORT WORKERS (SUPERANNUATION)
CONSOLIDATED AWARD

Application under section 113 of the Act
by the Transport Workers Union of Australia
to vary the above award re to modernise the
language and consolidate the award particularly
in relation to the list of respondents

MELBOURNE

10.07 AM, WEDNESDAY, 26 MAY 2004

PN1

MS J. TISDALE: I appear on behalf of the Transport Workers Union.

PN2

MR P. RYAN: I seek leave to appear on behalf of the Road Transport Industrial Organisation, if the Commission pleases.

PN3

THE COMMISSIONER: Why do you need to seek leave?

PN4

MR RYAN: Because I was an agent, Commissioner.

PN5

THE COMMISSIONER: Right. I thought that might have been the case, but I wasn't quite sure. Thank you. Yes, leave is granted. Yes, Ms Tisdale?

PN6

MS TISDALE: Thank you, Commissioner. Our application this morning is to vary the Transport Workers (Superannuation) Consolidated Award 1993. The variation we seek is essentially motivated by a desire to modernise the award and make it a much more easy document to use. The award hasn't been consolidated since 1993 so there were a number of roping in awards that needed to be consolidated into the respondency list. We have also taken the opportunity to take a fair amount of archaic material out of the award that dated from a period before which superannuation was governed mostly by legislation. So we hope that this makes the award obligations clearer and the document itself easier to read.

PN7

We have sought advice including from the legal advisers to the superannuation fund who have improved some of the drafting of some of the clauses to make the obligations clearer and to ensure that they are enforceable. So we have provided a copy of the new draft award to all those on the substituted service list. I have a copy of the statement of service attesting to that.

PN8

THE COMMISSIONER: Thank you. I will mark that as exhibit A1.

EXHIBIT #A1 STATEMENT OF SERVICE OF NEW DRAFT AWARD

PN9

MS TISDALE: We have also provided the new draft award more broadly to anyone who has asked for it. Some common rule parties have requested a copy and some others who aren't formally on the substituted service list. We have consulted widely throughout our superannuation fund which is made up of directors both from employer organisations and the union. We haven't met any concerns or objections in relation to the redrafting and the updating that we have done. So we would seek that the award be made in the form of the draft order. If the Commission pleases.

PN10

THE COMMISSIONER: Are there any issues about the Commission principles you need to direct my attention to?

PN11

MS TISDALE: To my knowledge there is nothing here, Commissioner, that would fall outside of the requirements in section 89A or it would in any way offend any of the other principles of the Commission.

PN12

THE COMMISSIONER: Yes, Mr Ryan?

PN13

MR RYAN: Thank you, Commissioner. ARTIO doesn't oppose the application made by the Transport Workers Union in this matter. To my knowledge there is no - this variation is seeking to deal with more machinery issues rather than issues of substance and I don't see the living wage principles as an issue in this case nor the allowable matters section of the Workplace Relations Act. Ms Tisdale has pointed out a couple of amendments that have been made. I am not sure whether they are flagged in the draft order you have or not?

PN14

MS TISDALE: Sorry, can I - - -

PN15

THE COMMISSIONER: Well, I thought we might just clarify this. I have got now what appears to be the draft order which I should mark as exhibit A2.

EXHIBIT #A2 DRAFT ORDER

PN16

THE COMMISSIONER: Let me just check with you - this was only just recently placed on the file, but I understand it is consistent with the earlier draft that was filed with the application?

PN17

MS TISDALE: That is correct.

PN18

THE COMMISSIONER: But there are some amendments, is that right?

PN19

MS TISDALE: That is correct, I apologise, it just slipped my mind.

PN20

THE COMMISSIONER: So ideally it would be a good idea to seek leave to amend the application in relation to those matters. If you just take me through them?

PN21

MS TISDALE: Yes, Commissioner. At clause 8.2 - - -

PN22

THE COMMISSIONER: Sorry, just one moment.

PN23

MS TISDALE: These amendments have already been made in the draft award that was emailed to your chambers.

PN24

THE COMMISSIONER: Yes, the one I am thinking about is the application though.

PN25

MS TISDALE: Yes.

PN26

THE COMMISSIONER: You served the application, did you not?

PN27

MS TISDALE: That is correct.

PN28

THE COMMISSIONER: Right. So if you amend the application then I have to have regard to the fact that those parties who have been served with the application may not have attended on the basis that that was the matter that was going to be dealt with. So if the amendments are matters of significant substances that raises an issue.

PN29

MS TISDALE: Certainly, Commissioner. We will seek leave to amend the application really from the rules in terms of serving these amendments, they are in my view not at all substantive. At clause 8.2 the first sentence of that now should read:

PN30

Such application shall be made in a form acceptable to the fund and sent by certified mail.

PN31

THE COMMISSIONER: So that really just relates to applications to become a participating employee and more particularly the form has to be filled out?

PN32

MS TISDALE: That is correct.

PN33

THE COMMISSIONER: All right.

PN34

MS TISDALE: The award as it is currently drafted and in the form that we made the application does have a form at schedule B, that form is no longer used by the department and the type of form they use isn't capable of being reproduced in a way that can be attached to the award.

PN35

THE COMMISSIONER: Yes, I will grant leave to amend the application in that respect. In my view that is not a matter of substance, but rather a matter of form as to a document being completed for the purposes of the operation of the award.

PN36

MS TISDALE: Thank you. There are some consequential amendments following on from that, Commissioner, and that is that schedule B which is the first schedule after the respondency list would now be deleted and schedule C is renumbered schedule B.

PN37

THE COMMISSIONER: Yes, I see. And are there any other amendments?

PN38

MS TISDALE: They are the only amendments.

PN39

THE COMMISSIONER: That is the only amendments?

PN40

MS TISDALE: Yes.

PN41

THE COMMISSIONER: Very well, I am content with that. Now, let me just show you the document that I am going to mark as exhibit A2 to check that that will be the correct draft order. I am sorry, I beg your pardon, I think I have handed you the wrong one.

PN42

MS TISDALE: Yes, that is the correct one.

PN43

THE COMMISSIONER: Very well. So you are seeking an order in the terms of exhibit A2?

PN44

MS TISDALE: That is correct.

PN45

THE COMMISSIONER: Very well. Well, this is an application by the Transport Workers Union of Australia to vary the Transport Workers (Superannuation) Consolidated Award 1993. The application seeks to update and modernise the terms of the award. The award has not been consolidated since 1993. The application also seeks to rationalise the list of respondents to the award. The application was accompanied by an application for substituted service which the Commission dealt with by order. A number of major employer organisations and companies in the road transport industry have been served with a copy of the application and the draft order. The draft order has been amended today in relation to a matter which I consider to be of no substance which concerns simply the form which is to be completed for the purposes of the operation of the terms of the award.

PN46

The only organisation to appear in response to the notice of the application and the hearing is the Australian Road Transport Industry Organisation which does not offer any objection to the variations sought by the application. In these circumstances I consider it is in the public interest and appropriate to make the order sought and I will do so in the form of exhibit A2 which is the amended application. The order will come into force on and from the first day - I beg your pardon, the first full pay period commencing on or after 1 June 2004. I will provide the Transport Workers Union and ARTIO with a copy of the Commission's decision and order in this matter. Thank you.

ADJOURNED INDEFINITELY [10.17am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT OF SERVICE OF NEW DRAFT AWARD PN9
EXHIBIT #A2 DRAFT ORDER PN16