C2004/3639, Transcript of Proceedings [2004] AIRCTrans 2293 (21 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 7408
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2004/3639

GROCERY PRODUCTS MANUFACTURE -
MANUFACTURING GROCERS AWARD 2003

Application under section 113 of the Act by
National Union of Workers to vary the above
award re jury leave for casuals in the State of Victoria

MELBOURNE

11.20 AM, WEDNESDAY, 9 JUNE 2004

PN1

MR T. LYONS: I appear for the applicant, National Union of Workers.

PN2

MR P. NOLAN: I appear on behalf of the Australian Industry Group.

PN3

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

PN4

THE VICE PRESIDENT: Mr Lyons, I have read the application. On the face of it, it appears to be an application to vary an award above the safety net. Would you agree with that?

PN5

MR LYONS: Well, your Honour, we say that the proper level of the award safety net for this matter will reflect the Victorian legislation and - - -

PN6

THE VICE PRESIDENT: Yes, okay.

PN7

MR LYONS: - - - and the purpose of the application is to bring the award in line with the Juries Act 2000 enacted - the State Parliament of Victoria and in particular section 52 of that Act which provides more make-up pay. So, I think, properly characterised, it is an update to the safety net and that the award, in its current form, does not reflect what is properly the level of the safety net for an award of this Commission. That is, persons who are covered by the award, both casuals and full time employees and ongoing employees - a matter which I will come to in a moment - are by virtue being bound by this award enjoy a lower standard of benefit or no benefit at all than that provided for by the legislation.

PN8

And because this is a matter which is regulated by the State Government the award ought properly reflect the policy position adopted by the Victorian Parliament.

PN9

THE VICE PRESIDENT: I see. So the effect of the variation, if it was granted, is to preserve the benefits that employees have under the Victorian Juries Act?

PN10

MR LYONS: Yes, that is right, your Honour. Now, my research into this matter, your Honour, reveals that the award in its current form does reflect the provisions of the state legislation as they existed before the passage of the Juries Act 2000, that is, that casuals were not included in the definition of employee for the purposes of the pre-existing Juries Act and there was a reference to ordinary time earnings, or ordinary time, or words to that effect, in the previous legislation which were the two changes that were made in the Juries Act 2000, on my instruction from review of that.

PN11

So in a similar manner, your Honour, to the approach adopted by the Commission in relation to public holidays, the default position, we say in relation to the subject matter of this nature, is that the award should reflect what the State Parliament has determined will be the conditions of employees. And so that allows some - that may mean the safety net changes over time and doesn't require, in our submission, the award would be considered to be a variation above the safety net. That said, given the nature of the matter, it may well be a matter that your Honour - and potentially the President - needs to give some consideration to, but our view is that the matter can proceed before a single member of the Commission on the basis that I have suggested.

PN12

THE VICE PRESIDENT: And if I am against you in relation to whether or not the application is above the safety net, my obligation is then to bring the matter to the President's attention. It is a matter then for the President to decide whether to proceed before a single member or a Full Bench. If I go down that path do you have a view about which course the union would support?

PN13

MR LYONS: Our view, your Honour, in the first instance, the matter can be dealt with by a single member of the Commission.

PN14

THE VICE PRESIDENT: When would you be in a position to proceed if - well, irrespective really of who deals with it - if directions were issued for the filing of written submissions and whatever material you wanted to rely upon and some opportunity, obviously, for the employers to consider that and respond, when would you be in a position to file your material?

PN15

MR LYONS: As your Honour is aware I have some involvement in the common rule proceedings and have some responsibility for the preparation of material in relation to that and that material is due on 18 June. So - - -

PN16

THE VICE PRESIDENT: Some time after - - -

PN17

MR LYONS: Some time after that. Realistically, your Honour, I would have some difficulty turning my mind to it prior to that date. But we don't need a large amount of time. I can also inform your Honour, that the union has advised the State Government of these proceedings, or this application. I understand that Industrial Relations Victoria may have written to your Honour indicating they wished to be advised.

PN18

THE VICE PRESIDENT: They haven't, but that is - - -

PN19

MR LYONS: They informed me they had, your Honour, I apologise for that.

PN20

THE VICE PRESIDENT: No, that is fine, that is - - -

PN21

MR LYONS: I have spoken to Mr Corney who is the director of private sector for IRV who has indicated that he is seeking instructions from the Minister and intended to ask your Honour to be advised of any further hearings with a view, potentially ..... one way or the other in relation to the union's application. Our objective, your Honour, was to have this matter on for hearing some time in the second half of July by which I have acknowledged that we were going to have some obligation to finalise material very early in July.

PN22

THE VICE PRESIDENT: Presumably, before the end of June.

PN23

MR LYONS: Or by the end of June.

PN24

THE VICE PRESIDENT: Yes.

PN25

MR LYONS: I don't think there is an enormous amount of material, your Honour. We need to file a submission as to the basis of the application and there may be some witness evidence that we have collected from various sources about the problems that the current clause can cause for both the administration of the Court system and practical difficulties for the employees. I do, however, your Honour, need to seek to amend the application that I have made. Perhaps if I can hand up to your Honour two documents.

PN26

THE VICE PRESIDENT: Do you have those, Mr Nolan and Mr Eberhard?

PN27

MR NOLAN: Yes, your Honour.

PN28

MR LYONS: The first document, your Honour, is an amended draft order and the second document is a reprint of the current award clause with tracked changes showing the changes to the existing clause that we propose to make. Your Honour, the initial application is directed towards introducing a new sub clause that is solely of the casual employees. It has been brought to my attention, helpfully, by the Juries Commission of the State of Victoria that the effect of the application may have been to create a different standard for casuals as opposed to permanents, that is, that the current working of the award clause limits make-up pay to earnings the employee would have received in respect of ordinary time.

PN29

Section 52 of the Juries Act provides - or uses the words:

PN30

The amount that he or she could reasonably expect to have received from the employer as earnings for that period

PN31

Which, in our submission, is a broader - or may be broader than simply in respect of ordinary time. And I am thinking, your Honour, in respect of shift loading and other matters.

PN32

THE VICE PRESIDENT: Well, shift loading would normally be part of ordinary time earnings but overtime might not be.

PN33

MR LYONS: Yes, well, certainly rostered or required overtime - - -

PN34

THE VICE PRESIDENT: Yes.

PN35

MR LYONS: - - - your Honour, would form part of the Juries Act definition but would fall outside what is currently within the award.

PN36

THE VICE PRESIDENT: Yes.

PN37

MR LYONS: As a result of that we would re-cast the order that we seek - - -

PN38

THE VICE PRESIDENT: I see, I am sorry, it is ordinary working hours rather than - - -

PN39

MR LYONS: Yes.

PN40

THE VICE PRESIDENT: - - - ordinary time earnings, yes, okay.

PN41

MR LYONS: I think the formulations in the current award is in rather unusual terms and I suspect that is related to the formal words in the old Juries Act, a matter which we will deal with more substantially when the matter is on for general hearing.

PN42

THE VICE PRESIDENT: Does the award only apply in Victoria?

PN43

MR LYONS: No, the award applies in a number of states of the Commonwealth, your Honour, but the jury service provision is limited only to Victoria, that is, the document I have provided you is an extract of the current award and the matters in red show the additions and deletions that we seek, so there is no jury service provision, for example, applying in South Australia in this award.

PN44

THE VICE PRESIDENT: Yes, I see.

PN45

MR LYONS: Our application is limited to the State of Victoria, your Honour, because it is based on the terms of the Victorian legislation. So we have re-cast our application or seek leave to amend our application to remedy what might have been an unintended consequence and to - consistent with our approach we seek merely the implementation of the intention of the Victorian Parliament in the award and providing that also for ongoing employees.

PN46

THE VICE PRESIDENT: Okay.

PN47

MR LYONS: If the Commission please.

PN48

THE VICE PRESIDENT: Thank you, Mr Lyons. Firstly, is there any objection to the application for leave to amend the application - - -

PN49

MR EBERHARD: No, your Honour.

PN50

MR NOLAN: No, your Honour, no objection.

PN51

THE VICE PRESIDENT: All right, leave is granted. Can I ask a view of the employer organisations as to - well, generally, in respect of the application but also as to how one would characterise it? Is it an application above the safety net or do you concur with Mr Lyons' characterisation? If it is an application above the safety net, do you have a view about whether it proceeds before a single member or is it a matter that is appropriate to be dealt with by a Full Bench?

PN52

MR NOLAN: Your Honour, I am just wondering in relation to that issue of whether it has got the safety net or not, I might just reserve my position on that for the moment. The issue I wanted to bring to the attention of the Commission about this issue relates to the common rule award proceedings that have been - the conciliation proceedings have been conducted before yourself during the month of May and the report subsequently that you have forwarded to Senior Deputy President Marsh in relation to those proceedings. Clearly - - -

PN53

THE VICE PRESIDENT: I haven't actually forwarded it yet, I think I am waiting until - - -

PN54

MR NOLAN: To the 9th - today.

PN55

THE VICE PRESIDENT: Yes, yes, tomorrow.

PN56

MR NOLAN: Yes, that is right, yes. In that draft report, your Honour, this issue of jury service has been raised by the union parties in those proceedings. We see this as being an issue that, potentially, has effect in your wording in your draft report:

PN57

The following general issues have emerged across all applications.

PN58

And one of them being this issue of jury service. It may well be as the proceedings unfold before the Full Bench this is an issue where there is no agreed position and submissions will need to be made.

PN59

THE VICE PRESIDENT: It couldn't be dealt with in the sense that - unless new applications are put in because the issue would require a 113 application, I think.

PN60

MR NOLAN: Sure, yes, yes.

PN61

THE VICE PRESIDENT: So I think all the union had done at this stage is to say there is an issue and they - well, until today haven't really articulated how they would see it being addressed.

PN62

MR NOLAN: Yes, yes.

PN63

THE VICE PRESIDENT: And I am not even sure this is the NUWs proposition, whether that reflects the views across all of them, I don't know.

PN64

MR NOLAN: Sure, well, I suppose, your Honour, what we are saying is, or what I am submitting, is that the issue has been raised in those proceedings and I believe that is an appropriate form, at least for ongoing consideration of the matter in a broad sense, given its widespread application, potentially, across awards that might be declared common rule. We - so in a sense, your Honour, we accept that the NUW has put forward an amended application today. We would want to consider those amendments. It does provide a broader base of payment than under the provisions previously in this award provision and that might lead us to the conclusion that it in fact is an application above the safety net.

PN65

And I suppose, as a primary submission, we would be saying that the processes in the common rule award matter should be allowed to unfold before any individual applications are dealt with. Now, that might be an issue of timing more than anything else, your Honour. In a sense, conciliation is not exhausted, there will still be ongoing discussions between the parties in relation to the processing of the common rule applications and I think that that is the appropriate venue for the matter to be dealt with initially. If the Commission pleases.

PN66

THE VICE PRESIDENT: Thank you, Mr Nolan. Mr Eberhard?

PN67

MR EBERHARD: Your Honour, I actually wasn't aware of this application until yesterday when I had a meeting with Mr Lyons and others and Mr Lyons indicated he had made the application and the hearing was on. I really haven't turned my mind to what the application actually seeks or what its effects may well be, but I do agree with Mr Nolan's submissions that there may be - the consequences of it may be a matter that needs to be referred to the President for his consideration under the principles. On that sort of basis, we would submit, that certainly with regards to your initial reaction of saying that we might be able to deal with this in a July hearing, like Mr Lyons, we also have some issues to put with respect to - - -

PN68

THE VICE PRESIDENT: Yes.

PN69

MR LYONS: - - - any proceedings and we are required to do that by 16 July. So we have problems with respect to some of the timing in regards to that but it certainly would be a matter, I think, that we could discuss further with Mr Lyons during the various proceedings that we have on foot in regards to the common rule and all other matters that seem to be going on at the same time in the Commission at the moment. If the Commission pleases.

PN70

THE VICE PRESIDENT: Thank you. Look, it seems to me there is a threshold issue of the nature of the application because from that I have got certain obligations as to how it might be dealt with. Do you have anything in reply, Mr Lyons?

PN71

MR LYONS: Just a couple - - -

PN72

THE VICE PRESIDENT: Yes.

PN73

MR LYONS: First of all, it is important, we say, to note the award we have made application to vary is not one of the awards that is before the Full Bench.

PN74

THE VICE PRESIDENT: Before the common rule Full Bench?

PN75

MR LYONS: Yes, yes, that is, this is an application to vary an award which is not presently before her Honour, Senior Deputy President Marsh and the other members of that Bench for making a common rule declaration. The union, while it has foreshadowed to the employers the intention at some point that this award would be a candidate to be made common rule, we have lodged no application to that effect. The - we say that we have a right to have this matter agitated notwithstanding those proceedings.

PN76

We also don't think, with respect, that the proceedings before the Full Bench are likely to resolve the substantive issue because we have raised, by virtue of this application, the issue of the inconsistency. It is our submission, the only option open to the Full Bench in relation to jury service would be - in those awards - would be simply to exempt a provision of the award from being made common rule on the basis of some suggestion about the Victorian legislation. And that, with respect, doesn't remedy the problem that the union has identified and seems to have dealt with.

PN77

THE VICE PRESIDENT: Does it resolve the problem for named respondents?

PN78

MR LYONS: No, and this is a very substantial award of the Commission, your Honour and it applies to a large number of businesses in the State of Victoria, a large number of employees in food manufacturing, a significant number of whom are casuals and we seek to have an inconsistency remedied and we say we are entitled to have that application heard and determined. That said, I don't want to give the impression we are not happy to conciliate the matter with the employers, we are very happy to do so and I am happy to have discussions when they have given the matter some further consideration.

PN79

However, we do say that a proper course would be that there - the matter proceed to hearing in a form consistent with the view your Honour forms about the question of the safety net, and if necessary, the view, his Honour the President forms, and some directions issued accordingly. I have great a great deal of sympathy with my friends about the material they have got to comply with by the common rule and we are all in the same boat, your Honour - - -

PN80

THE VICE PRESIDENT: Yes, yes.

PN81

MR LYONS: - - - and we are all in the same boat, your Honour.

PN82

THE VICE PRESIDENT: Yes, I think whichever outcome it is, either a single member or a Full Bench, depending on the views formed, I would certainly ensure that if I am not dealing with it, then whoever is, is made aware of those commitments and you would have sufficient time around them.

PN83

MR LYONS: Yes.

PN84

THE VICE PRESIDENT: In fact, probably the safer course would be, if that is the path the matter goes down, for draft directions to be provided for the consideration of the parties to make sure they don't create any difficulties.

PN85

MR LYONS: If the Commission pleases.

PN86

THE VICE PRESIDENT: Well, it seems to me, I need to - I appreciate your position in particular, Mr Eberhard, in that you have only just got it and Mr Nolan has only recently received the amendments, but I would seek your views about the characterisation of the application, whether it is above the safety net or not. My own preliminary view is that - and really, out of an abundance of caution - is that I think it is above, so I would follow the path provided in the principles in that regard though I may well be persuaded to a different view if the employer organisations were of the same view as Mr Lyons. That would obviously be a significant factor.

PN87

So what I propose to do is provide you with a very shortish opportunity to just advise as to that issue. It can be a short advice as to what view you have taken on that and also single member or Full Bench; if you would be able to do that by 4 o'clock tomorrow. If I do form a concluded view on receipt of that, that the matter is above the safety net I would ensure - that would allow me to provide a copy of the transcript and a brief report to the President as to the views of the parties. Okay, so we will adopt that course.

PN88

I will let the parties know the outcome of that process and where the matter goes from here having regard to the views that have been expressed. Nothing further, thanks for your attendance and I will adjourn.

ADJOURNED INDEFINITELY [11.41am]