C2004/3598, Transcript of Proceedings [2004] AIRCTrans 2199 (15 June 2004)

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ADMINISTRATOR APPOINTED

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TRANSCRIPT OF PROCEEDINGS


O/N 7321
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2004/3598

PASTRYCOOKS (VICTORIA) AWARD 1999

Application under section 113 of the Act
by Ferguson Plarre Bakehouse Pty Ltd to
vary the above award re Clause 24 -
Annual Leave

MELBOURNE

11.35 AM, WEDNESDAY, 2 JUNE 2004

PN1

MR T. KLEMIS: I appear on behalf of Ferguson Plarre Bakehouse and the members of the Baking Industry Association of Victoria who are respondent to the award.

PN2

MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN3

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

PN4

THE VICE PRESIDENT: I have been advised in the correspondence that there is to be an application for an adjournment on the basis that there are certain other matters that are to be incorporated into this variation, is that right?

PN5

MS FRENZEL: I might just indicate your Honour that I have provided Mr Eberhard and Mr Klemis with a draft application which requires a couple of typographical amendments. But what I will do is I will tender a copy of the correspondence to Mr Klemis at yesterday's date, which outlines the LHMUs concern with respect to the BIAVs application. And I might also tender a draft application which the LHMU intends to file at registry to serve on parties this afternoon which we say also go to the same matters. I provided a copy of the applications to Mr Klemis.

PN6

THE VICE PRESIDENT: How many respondents are there to the award?

PN7

MS FRENZEL: In total, I can give you an guesstimate, your Honour. There would probably be, I would believe, around six - probably about 100 respondents. It is not a large award in terms of the scope of the coverage unlike some of the other industry awards the LHMU has to deal with. But what I thought I might do this morning depending on what Mr Klemis has to say, is briefly firstly take the Commission to our concerns about the application of Mr Klemis so that the matters of our concerns are clearly on the record. And secondly, take the Commission to the scope of the LHMUs proposed application which we intend to file this afternoon so the parties have a record of the LHMUs intentions.

PN8

With respect to the application by Mr Klemis' organisation, the LHMU has two concerns. The first concern is that the current annual leave provision does not exclude casuals. And the application by the BIAV seeks to exclude casual employees. Now, with respect to the second part of the application, Mr Klemis, we say, is operating under a misapprehension that shift workers proceeding on annual leave would not be paid their normal shift and weekend penalties, and we say that with respect to the award where it says - and I outlined this in the correspondence yesterday, but with respect to clause 24.5 of the award, payment for period of annual leave, the clause says this:

PN9

The employer shall pay each employee in advance before the commencement of the employee's annual leave the employee's current rate of pay for the period of leave.

PN10

And there is also a provision which relates to shift workers being paid their normal rates with respect to annual leave. So we say that with respect to that part of the application of Mr Klemis', it may well be in clarification of an existing entitlement but we take these as an entitlement that is already there. So we are concerned on that basis; that the application by Mr Klemis is clearly, we say, a claim below the safety net and draws, therefore the operation of principle 10 of the wage fixing principles into his application. We make no further observations about the claim being below the safety net at the moment on the basis that the LHMU's application, on the other hand, is probably a claim in certain of its parts, a tone above the safety net. And I will take the Commission very briefly to the draft and explain the method, if you like, behind the madness.

PN11

THE VICE PRESIDENT: Can I just, has the award been through the simplification process?

PN12

MS FRENZEL: Yes, it has, but it was simplified in a fairly creative way, your Honour. When I came to have a look at the award with respect to the union's application, a number of the matters contained within the LHMUs proposed application are in fact, what we regard as being standard causes for simplified clauses as opposed to claims either above or below the safety net. But I will briefly, if the Commission doesn't mind, put on the record the LHMU's intentions with respect to its application. And the first part of the application with respect of the draft order at annexure A seeks to put in a provision of employment categories and it sets out that full-time employment is at clause 12.2. There was no material change to the provision with respect to full-time employees.

PN13

With respect to regular part-time employees, the award at the moment has this provision set out in its types of employment clause, at clause 12.1.2 which says essentially employees other than casuals regularly being able to perform such work, and goes on to talk about the provisions with respect to full-timers which we say are covered within the scope of our clause 12.2. And then it goes on to say:

PN14

Provided that employees (other than casual employees) - - -

PN15

THE VICE PRESIDENT: Something I can do for you, Mr Klemis?

PN16

MR KLEMIS: Your Honour, I am sorry to interrupt here but is this dealing with the matter that is before you?

PN17

THE VICE PRESIDENT: No, it is not. If you don't want to hear the nature of the application, there isn't any application before me, so - - -

PN18

MR KLEMIS: I thought, with respect, your Honour - - -

PN19

THE VICE PRESIDENT: No, no that is fine, Mr Klemis. We don't have to hear about it. Ms Frenzel, it would only be for your benefit in any event. Once the application is made, I will list it at the same time as this matter is listed for again. Do I take it at the moment you are seeking an adjournment application and I note from Mr Klemis' correspondence that that won't be opposed, is that the essence?

PN20

MS FRENZEL: That is correct, and we would also seek, once the LHMU makes its application, that there be - if the resources of the Commission allow it - conciliation before the Commission about the two applications rather than discussions directly between the parties initially, only because it is the LHMUs view that it may want to extradite the resolution of the issues between the parties as opposed to, without putting too fine a point on it, going around the mulberry bush a few times and then coming here when both parties are well and truly frustrated.

PN21

THE VICE PRESIDENT: Okay.

PN22

MS FRENZEL: If the Commission pleases.

PN23

THE VICE PRESIDENT: Mr Klemis, can I just ask, this issue about the casuals and the entitlement to annual leave, is the change you are seeking, is this something - a problem that arose in the simplification process, something that was dropped out; is that the nature of it, or is it different?

PN24

MR KLEMIS: No, your Honour. There are two phases to this application. One in respect of casuals, it has always been accepted in the industry including by the union that casuals are not entitled to annual leave. Now, this has been the practice for decades and there is some ambiguity and an anomaly in the matter which we were endeavouring to address.

PN25

THE VICE PRESIDENT: Okay. So you will be able to bring evidence about the practice?

PN26

MR KLEMIS: On the practice, and in fact what they are saying, your Honour, is that these errors came about by nothing else than drafting errors in both instances, and we will be able to demonstrate that it was never a decision of either the State Commission or this Commission that casuals be entitled to annual leave.

PN27

THE VICE PRESIDENT: What is the casual loading in the award?

PN28

MR KLEMIS: It is a peculiar one and it is not one that is necessarily supported by the association and we have indicated this to the union. It will ask for 33-1/3 per cent for the first 19 hours and - I am corrected by Ms Frenzel - - -

PN29

THE VICE PRESIDENT: In any event, it is - - -

PN30

MR KLEMIS: It is 19 hours or 20 hours.

PN31

THE VICE PRESIDENT: Yes.

PN32

MR KLEMIS: Half the weekend and there is no loading for the second half. In other words, if they work beyond 19 - - -

PN33

THE VICE PRESIDENT: Work more than 20 hours, they don't get a loading. And if they work less they get 33-1/3.

PN34

MR KLEMIS: That is right. And the general discussions that have taken place have been around a 25 per cent loading for all the type - work. Now, the association has indicated to the union that if the union made that application, the association would not be opposing it.

PN35

THE VICE PRESIDENT: It doesn't look as if they are going to be making that application though, Mr Klemis.

PN36

MR KLEMIS: I am not aware, but the understanding, your Honour was that the Baking Industry Association Victoria would make this application and, in fact, if I could just take you briefly to - this is in correspondence of the union dated 30 August 2003:

PN37

Confirmation of the period to vary Pastrycooks (Victoria) Award 1999. Enclosed are the proposed changes by consent to the Pastrycooks (Victoria) Award 1999. This will in no way restrict the parties who will reserve their rights to pursue any other issues that they may wish at any time in the future. Through drafting errors, the awards can be interpreted to read that shift workers are not entitled to leave loading and casual workers are entitles to annual leave. The proposed changes go no further than addressing these anomalies and allowing shift workers access to a higher loading than 17.5 per cent where appropriate which has never previously been provided for in the award.

PN38

THE VICE PRESIDENT: Just in terms of how we might proceed from here, do I take it that you don't oppose the adjournment application? Do you have a view about conciliation in relation to both applications?

PN39

MR KLEMIS: Yes, we are quite open on that, your Honour. But our preferred position was - would be for the union to meet with the employer bodies and to try and sort this matter out as we have always done in the past.

PN40

THE VICE PRESIDENT: Yes, right, yes.

PN41

MR KLEMIS: But should the union feel that the assistance of the Commission is required at this early stage, we would not oppose it.

PN42

THE VICE PRESIDENT: Okay. I just wonder whether it might facilitate discussions between you if we had a program for you to file the material that you say supports your application.

PN43

MR KLEMIS: Yes.

PN44

THE VICE PRESIDENT: Because if indeed it is apparent from that what the intent was, and if it is, as you say, a slip in the drafting then it may be that that will change the union's position in relation to the application. When would you be able to file that material, including any witness evidence you want to lead?

PN45

MR KLEMIS: I crave the indulgence of your Honour but right now I say - - -

PN46

THE VICE PRESIDENT: Look, Mr Klemis, it is your application, I don't mind when we deal with it.

PN47

MR KLEMIS: I will - if your Honour will grant somewhere perhaps the last week in June.

PN48

THE VICE PRESIDENT: Sure. So, your material could be filed by, say, 4 pm on Friday, 25 June?

PN49

MS FRENZEL: I am grateful to your Honour.

PN50

THE VICE PRESIDENT: Okay. All right, well, the course we can adopt then is to have discussions between the parties in relation to both applications. If you can file that material by 4 pm on the 25th, Mr Klemis, I will list the matter for hearing the following week or the week after. I will list both matters. If you have been unable to reach an agreement and you both think conciliation might be of assistance, we can conciliate on that day, but discuss that between yourselves. Does that sort of program meet your concerns? I will raise it with the others in a moment.

PN51

MR KLEMIS: Yes, it certainly does, your Honour. Thank you.

PN52

THE VICE PRESIDENT: All right, okay. Thank you, Mr Klemis. Mr Eberhard, are you a sort of a player or a bystander in this?

PN53

MR EBERHARD: Probably a bit of both, your Honour. I have no problems with the time-frame that has been proposed in regards to the filing of the material. The only thing I would express is a concern that if VECCI is to be involved there are proceedings that we have, which of course I don't have in my diary at the moment so I can't tell you the specific dates that are scheduled before SDP Duncan in regards to the wine industry, and we have - - -

PN54

THE VICE PRESIDENT: Yes, you wouldn't want to miss that, Mr Eberhard. Perhaps if you can advise my associate after the hearing when - what dates you are not available on and each party can do that and I will try and work my way through those.

PN55

MR EBERHARD: Thank you.

PN56

THE VICE PRESIDENT: Ms Frenzel?

PN57

MS FRENZEL: That timetable is fine, your Honour. I might just rise to indicate that the application by the LHMU does in fact seek to insert a 25 per cent casual loading.

PN58

THE VICE PRESIDENT: Okay. No, I just read the part - is that the bit that talks about - you have got people employed after a certain date, they are on the old arrangement?

PN59

MS FRENZEL: That is right, and in the event those existing casuals, for example, would lose under the new arrangement, then their pay is equalised to the savings provision.

PN60

THE VICE PRESIDENT: Is that a red circle arrangement, though?

PN61

MS FRENZEL: Yes, it is.

PN62

THE VICE PRESIDENT: So, as safety net adjustments are applied to it, it will erode over time? Is the way that would work?

PN63

MS FRENZEL: Now, we were minded to ensure that if a casual, for example, received less by virtue of receiving the 33-1/3 per cent and then zero thereafter after - we say 19 hours, the award says 20 hours - then there would be a calculation done by the employer to ensure that the employee wasn't disadvantaged with respect to that casual loading given that - - -

PN64

THE VICE PRESIDENT: Forever, or - - -

PN65

MS FRENZEL: For the duration of the employment of the casual with that particular employer. And certainly there are a number of quarrels around to support that proposition with respect to what we call no disadvantage. But anyway, just to clarify the situation, there is a - contained within our application, there is an application for a 25 per cent casual loading.

PN66

THE VICE PRESIDENT: Yes.

PN67

MS FRENZEL: We say with respect to Mr Klemis' opening submissions that it has always been accepted that casuals are not entitled to annual leave, I would like to see what material he produces.

PN68

THE VICE PRESIDENT: Does your 25 per cent loading exclude an entitlement to annual leave?

PN69

MS FRENZEL: The current application doesn't do that, your Honour. That is not to say we are not open to considering those sorts of things with respect to - - -

PN70

THE VICE PRESIDENT: Presumably you will need to address the metals case as well.

PN71

MS FRENZEL: That is correct.

PN72

THE VICE PRESIDENT: And the Pastoral Full Bench Case.

PN73

MS FRENZEL: That is correct.

PN74

THE VICE PRESIDENT: Okay.

PN75

MS FRENZEL: And that these matters may well be resolved between the parties but I just thought I would correct Mr Klemis' 25 per cent.

PN76

THE VICE PRESIDENT: Here is hoping. Okay.

PN77

MS FRENZEL: That is right.

PN78

THE VICE PRESIDENT: Is there any difficulty with you? I know that the application hasn't been filed and it is not formally before me, but to save calling it on with you meeting the same time-frame and that might assist Mr Klemis and Mr Eberhard to consider the nature of your application, if you can file any material in support; an outline of submissions and whatever you want to rely on by 25 June.

PN79

MS FRENZEL: We can do that, your Honour.

PN80

THE VICE PRESIDENT: Okay, so you understand in relation to both of the moving parties that you are to file and serve on the other parties by 4 pm on 25 June your submissions in support of your application and any witness statements or other evidence or documents that you want to rely on in support of your application. Then if you advise my associate of your availability in the two or three weeks after that date and we will find a date that is mutually convenient or as convenient as we can get it, and both matters will be listed at that time, and in the mean time I encourage the parties to have discussions between themselves in an effort to resolve the issues between them.

PN81

It may be, even if you do reach a consent position, if the consent is around increasing the casual loading to 25 per cent, it would still be a matter that comes in, in principle 10. So if you can advise my associate prior to the hearing when the matter is next listed as to the state of play, because if by some miracle there is agreement on all the issues then I wouldn't want to lose that day, whereas I would if you came along and said that I would still need to confer with the President under principle 10. So we might be able to do that by some sort of writ advice prior to the next hearing of the matters. Okay, good luck in your discussions and I will be happy to facilitate conciliation should it be necessary when we next meet. Nothing further, I will adjourn.

ADJOURNED INDEFINITELY [11.55am]