C2004/3342, Transcript of Proceedings [2004] AIRCTrans 2234 (17 June 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 7360

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT HAMILTON

C2004/3342
C2004/3389

PIZZA HAVEN/SDA AWARD 2000

NATIONAL FAST FOOD RETAIL
AWARD 2000

Applications under section 113 of the Act
by Shop, Distributive and Allied Employees
Association to vary the above awards to reflect
Safety Net Review Wages Decision May 2004 (PR002004)

MELBOURNE

2.17 PM, FRIDAY, 4 JUNE 2004

PN1

MR J. RAIMONDO: I appear on behalf of the Shop, Distributive and Allied Employees Association.

PN2

MS E. RADLEY: I seek leave to appear on behalf of Pizza Haven in relation to C2004/3342.

PN3

MR T. KLEMIS: I appear on behalf the Baking Industry Association of Victoria in respect of the Fast Foods Award.

PN4

MR M. WELDON: I appear on behalf of the Australian Retailers Association in respect to the National Fast Foods Award in C2004/3389.

PN5

THE DEPUTY PRESIDENT: Well, I have received two items of correspondence. First of all from the Australian Retailers Association SA Division in relation to the Fast Food Award stating that they are not appearing because they don't have any members who are bound by the award in question. Then there is the Chamber of Commerce and Industry, the ACT, again in relation to the Fast Food Award consenting to the application. They have seen the draft order and they consent to the application. Apparently an amendment was made to point 1, the amount being changed from 550.10 - 555.10 to 555.70. I think that is all we have. Terrific. Over to you, Mr Raimondo.

PN6

MR RAIMONDO: Thank you, your Honour.

PN7

THE DEPUTY PRESIDENT: Perhaps we can start by me asking you a few questions, if that is all right.

PN8

MR RAIMONDO: Certainly, your Honour. Did you want to deal - sorry, is that the - I assume that you want to deal with the National Fast Food Award up front?

PN9

THE DEPUTY PRESIDENT: Both of them really.

PN10

MR RAIMONDO: Okay.

PN11

THE DEPUTY PRESIDENT: Is that all right? Is there any objection to the matters being dealt with together?

PN12

MR RAIMONDO: No, there is not. I have no objection.

PN13

THE DEPUTY PRESIDENT: In that case I will deal with them both together if that is all right.

PN14

MR RAIMONDO: Certainly.

PN15

THE DEPUTY PRESIDENT: I will hear from you in a minute on issues of service and the like, if I could, but I will just ask you a few questions.

PN16

MR RAIMONDO: Certainly, your Honour.

PN17

THE DEPUTY PRESIDENT: I will take you through, if I could, principle 8 first of all. In each case I take it you are not proposing an operative date earlier than the date of variation of the award. No. Secondly, in each case has 12 months elapsed since the last adjustment?

PN18

MR RAIMONDO: That is correct, your Honour.

PN19

THE DEPUTY PRESIDENT: Yes. Thirdly, you are willing to include the clause - the required clause in the award?

PN20

MR RAIMONDO: That is correct, your Honour.

PN21

THE DEPUTY PRESIDENT: There is no issue, of course, of paid rates or anything of the sort. No. Then there is the issue of the allowances. First of all paragraph (d) of principle 5 talks about the method of changing allowances relating to work or conditions. Have you followed the - are there any such allowances that have been adjusted in these award?

PN22

MR RAIMONDO: Your Honour, within the National Fast Food Award there have been some allowances adjusted.

PN23

THE DEPUTY PRESIDENT: Are they pursuant to principle 5(d)?

PN24

MR RAIMONDO: That is correct, your Honour.

PN25

THE DEPUTY PRESIDENT: Right. How did you select the key classification for the purposes of the formula?

PN26

MR RAIMONDO: Within the - - -

PN27

THE DEPUTY PRESIDENT: Was it based on previous orders and decisions?

PN28

MR RAIMONDO: That is correct, your Honour. It is the $19 divided by the key classification of the shop assistant in the National Fast Food Award in the previous order which is $506.80.

PN29

THE DEPUTY PRESIDENT: Is that the C10 rate or something else? Is it the equivalent; I am just curious.

PN30

MR RAIMONDO: I am unsure, your Honour. I know that that has been the key rate.

PN31

THE DEPUTY PRESIDENT: I understand, but it is the key classification for that award?

PN32

MR RAIMONDO: That is correct.

PN33

THE DEPUTY PRESIDENT: And the same with the Pizza Award?

PN34

MR RAIMONDO: That is correct, your Honour.

PN35

THE DEPUTY PRESIDENT: Right. And it has been established as such in numerous orders?

PN36

MR RAIMONDO: That is right.

PN37

THE DEPUTY PRESIDENT: Thank you. The other - have you adjusted allowances in principle 5(a), reimbursement of expenses?

PN38

MR RAIMONDO: We have, your Honour.

PN39

THE DEPUTY PRESIDENT: And do you base the changes on CPI?

PN40

MR RAIMONDO: That is correct, your Honour. In the Pizza Haven draft order I believe that is the case, we have done it.

PN41

THE DEPUTY PRESIDENT: Yes.

PN42

MR RAIMONDO: In the National Fast Food Award I don't believe - I believe we have done the same there, your Honour.

PN43

THE DEPUTY PRESIDENT: Are there any service increments?

PN44

MR RAIMONDO: Sorry, your Honour, with regards - - -

PN45

THE DEPUTY PRESIDENT: Are there any service increments.

PN46

MR RAIMONDO: Not that I know of.

PN47

THE DEPUTY PRESIDENT: That is fine. Terrific. Finally, have you had any objections notified to you?

PN48

MR RAIMONDO: Your Honour, I have only had two phone calls regarding the National Fast Food Award. One you mentioned this morning with regard to adjusting the rate from 555.10 to 555.70, but the other - and the other one just the notification that no-one was attending from South Australia. Those are the only two.

PN49

THE DEPUTY PRESIDENT: Terrific. Now, in relation to the issue of service - - -

PN50

MR RAIMONDO: Your Honour, would you like me to table - - -

PN51

THE DEPUTY PRESIDENT: - - - perhaps if you could just take me briefly through the service issue and any other issues you want to raise, of course.

PN52

MR RAIMONDO: Certainly, your Honour. I will table the new draft orders and the service if I can for both of those.

PN53

THE DEPUTY PRESIDENT: Please do. Thank you. Right. So you served by facsimile, did you?

PN54

MR RAIMONDO: That is correct, your Honour. If I can say it up front, we did - - -

PN55

THE DEPUTY PRESIDENT: I might mark these.

EXHIBIT #R1 FACSIMILE FROM MR RAIMONDO TO MR CHRISTOU OF PIZZA HAVEN

EXHIBIT #R2 REVISED DRAFT ORDER FOR PIZZA HAVEN

EXHIBIT #R3 FACSIMILE TRANSMISSION FROM MR RAIMONDO TO A NUMBER OF PERSONS RELATING TO THE FAST FOOD AWARD

EXHIBIT #R4 REVISED DRAFT ORDER FOR THE FAST FOOD AWARD

PN56

MR RAIMONDO: Thank you, your Honour.

PN57

THE DEPUTY PRESIDENT: Right, go on.

PN58

MR RAIMONDO: Your Honour, just with regards to the National Fast Food Award I notice that there is a date of 23 May 2004 as the operative date that we are seeking.

PN59

THE DEPUTY PRESIDENT: Yes.

PN60

MR RAIMONDO: Obviously that date is before today's hearing date and I would just like to put a submission, if I could, to the Commission with regards to that. It is the SDAs view, as reflected in our draft order, that the safety net adjustment should take effect from 23 May 2004 rather than today's date of 4 June 2004, as this is exactly 12 months from the date of the last safety net increase. I am seeking to raise this matter today under principle 10 of the Safety Net Wages Decision. Principle 10 allows for an issue of the operative date to be dealt with by a Full Bench or a single member and I am seeking that the Commission grant an operative date of 23 May 2004 rather than 4 June 2004 with regard to the National Fast Food for several reasons.

PN61

The SDA has always filed its safety net applications on the day - or day after the National Wage Case Decision is brought down and in this case our application was filed with the Commission Registry at 12 pm on 6 May, the date of the decision being handed down. This is done to ensure that our members get the benefits of the National Wage Case as soon as possible. It would also be fair to say that employers and employees all have the expectation that wages will increase in their awards approximately every 12 months. The position we find ourselves in is that the operative date sometimes may slowly drift to 13 or 14 months. Reason two, we are not seeking an operative date less than the 12 months, but simply to keep it at the 12 months date.

PN62

When the hearing date has been before the 12 months the SDA has always honoured that 12 month period, but we are finding the operative date after the 12 months has to move. We believe that this situation places the employees in a disadvantaged position and the employers in an advantageous position. It is no-one's fault this situation has occurred and it would be unrealistic to think that hearings for safety net variations could be on the same date every year. But bearing this in mind we need to address the problem so to ensure that - - -

PN63

THE DEPUTY PRESIDENT: I think we are required to give notice. I think we are required to give notice to the parties of a hearing.

PN64

MR RAIMONDO: That is correct, your Honour.

PN65

THE DEPUTY PRESIDENT: Which inevitably places some delay in the process.

PN66

MR RAIMONDO: That is correct, your Honour. I will just go on basically to say that we have found a decision that would support our case for the backdating of this particular award. If I could table that just for your Honour's reference.

PN67

THE DEPUTY PRESIDENT: Thank you.

PN68

MR RAIMONDO: I am sorry, I don't have other copies, I only have one copy for his Honour.

PN69

THE DEPUTY PRESIDENT: This is print PR905754, a decision of Commissioner Lewin dated 28 June 2001.

PN70

MR RAIMONDO: Your Honour, if I could take you to the red tab.

PN71

THE DEPUTY PRESIDENT: To the red tab, yes.

PN72

MR RAIMONDO: I am sorry, you might have a photocopied version. That was meant to be a - - -

PN73

THE DEPUTY PRESIDENT: I see it, yes.

PN74

MR RAIMONDO: Yes. And the tabbed reasons within this document refer to the reasons for backdating in that particular case. If you would like me to read I am quite happy to go through.

PN75

THE DEPUTY PRESIDENT: I will just read it now if I could. I think it was - this award was backdated last year?

PN76

MR RAIMONDO: No, this is two years ago, your Honour, 2002 I believe.

PN77

THE DEPUTY PRESIDENT: It is and it is a different award, but was this award backdated last year?

PN78

MR RAIMONDO: This award was. I believe it was backdated - the hearing was on 12 June.

PN79

THE DEPUTY PRESIDENT: I think it was.

PN80

MR RAIMONDO: That is right.

PN81

THE DEPUTY PRESIDENT: Yes.

PN82

MR RAIMONDO: We just thought we may - we should put the case.

PN83

THE DEPUTY PRESIDENT: No, no, no, this is - I just wanted to clarify that. That was my recollection.

PN84

MR RAIMONDO: Yes.

PN85

THE DEPUTY PRESIDENT: All right. Thank you, I have read that. Go on.

PN86

MR RAIMONDO: Your Honour, with regard to that we would just simply ask that the date for the National Fast Food Award be held at 23 May 2004.

PN87

THE DEPUTY PRESIDENT: So you are asking for a backdate until 23 May?

PN88

MR RAIMONDO: That is correct. And with regard to the Pizza Haven Award the date of 22 March 2005 because that was varied this year.

PN89

THE DEPUTY PRESIDENT: One question. There seems to have been no order for substituted service issued.

PN90

MR RAIMONDO: With regard to the National Fast Food Award, there is, your Honour. I can table that if you like.

PN91

THE DEPUTY PRESIDENT: If you could, please.

PN92

MR RAIMONDO: Certainly.

PN93

THE DEPUTY PRESIDENT: I don't seem to have it on file. There is an unsigned version but not a signed one. Yes. I think that is an application but it is not signed - it hasn't been issued.

PN94

MR RAIMONDO: Your Honour, I believe I have here with the notice of listing - I can hand this up if you like.

PN95

THE DEPUTY PRESIDENT: If you could.

PN96

MR RAIMONDO: Certainly.

EXHIBIT #R5 DRAFT ORDER

PN97

THE DEPUTY PRESIDENT: I am not sure why it is not on file but never mind. Yes, I am glad to see that I acted promptly. Right.

PN98

MR RAIMONDO: Your Honour, that is all I have.

PN99

THE DEPUTY PRESIDENT: All right, I think that is enough. Thank you very much. Who would like to go next?

PN100

MS RADLEY: Perhaps if I can, your Honour. Thank you. In relation to the Pizza Haven Award we have had the opportunity to review the calculations with respect to the increases sought by the union. We have also received the amended draft order prepared by the union and tabled before the Commission today. We are satisfied that the calculations are correct and that the application is in accordance with the principles set out in the Safety Net Review 2004 Decision of the Full Bench. On that basis the respondents do not oppose the application as sought by the union and we note, as indicated by Mr Raimondo, that the effective date is not before 22 March 2005.

PN101

THE DEPUTY PRESIDENT: Thank you.

PN102

MS RADLEY: Thank you, your Honour.

PN103

THE DEPUTY PRESIDENT: Mr Raimondo, before I forget, would you be able to e-mail a copy of the two revised orders to my associate this afternoon to save us the trouble of - - -

PN104

MR RAIMONDO: Certainly, your Honour, I think I have already done that.

PN105

THE DEPUTY PRESIDENT: You have already done that?

PN106

MR RAIMONDO: Yes.

PN107

THE DEPUTY PRESIDENT: Excellent, thank you for that. Right, who is next. Mr Weldon.

PN108

MR WELDON: Yes, sir. Thank you, your Honour. The Association is in receipt of a draft order from the SDA in respect to this award. We believe that that draft order accurately reflects the Full Bench's decision in respect of the safety net adjustment and we do not object to an order being made in the terms sought and we do not object to 23 May being the operative date. If the Commission pleases.

PN109

THE DEPUTY PRESIDENT: You have checked the numbers and they are correct, are they, Mr Weldon?

PN110

MR WELDON: Unfortunately, your Honour, I was provided with this before but I am assured that VECCI have had a look at the matter and they are satisfied.

PN111

THE DEPUTY PRESIDENT: They have. Thank you very much. Mr Klemis.

PN112

MR KLEMIS: Thank you, your Honour. My only comments really are in respect of the operative date and under the circumstances as explained by Mr Raimondo we would not object to the operative date. We do request 24 hours to check the allowances.

PN113

MR RAIMONDO: No object to that, your Honour.

PN114

THE DEPUTY PRESIDENT: Thank you, Mr Klemis. Nobody else? Fine. Excellent. Well, first of all, Mr Klemis, any comments you have should be provided to me and to Mr Raimondo within 24 hours as you propose, by close of business tomorrow. Subject to that I propose to issue an order in the form sought by Mr Raimondo in the Fast Food matter and in the Pizza Haven matter. In the circumstances the operative date will be 23 May for the Fast Food Award, given the lack of any delay on the SDAs part in filing applications and other circumstances. Is there anything else we need to do today? No. Well, thank you very much, these matters stand adjourned.

ADJOURNED INDEFINITELY [2.35pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #R1 FACSIMILE FROM MR RAIMONDO TO MR CHRISTOU OF PIZZA HAVEN PN56
EXHIBIT #R2 REVISED DRAFT ORDER FOR PIZZA HAVEN PN56
EXHIBIT #R3 FACSIMILE TRANSMISSION FROM MR RAIMONDO TO A NUMBER OF PERSONS RELATING TO THE FAST FOOD AWARD PN56
EXHIBIT #R4 REVISED DRAFT ORDER FOR THE FAST FOOD AWARD PN56
EXHIBIT #R5 DRAFT ORDER PN97