C2004/3165, Transcript of Proceedings [2004] AIRCTrans 2420 (29 June 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 10, 15 Adelaide St BRISBANE Qld 4000
(PO Box 13038 George Street Post Shop Brisbane Qld 4003)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 2846

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RICHARDS

C2004/3165

CLERKS (VEHICLE INDUSTRY - REPAIR SERVICES
AND RETAIL) AWARD 2003

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the above
award re redundancy case decision of March 2004
[PR032004]

BRISBANE

10.06 AM, FRIDAY, 18 JUNE 2004

THIS HEARING WAS CONDUCTED BY VIDEOCONFERENCE
AND RECORDED IN BRISBANE

PN1

THE COMMISSIONER: Good morning, everyone. If I could just start by taking some appearances.

PN2

MR T. KOWALSKI: I appear for the VACC and the AIG.

PN3

THE COMMISSIONER: Thanks, Mr Kowalski.

PN4

MR J. NUCIFORA: If the Commission pleases, if I may remain seated. I appear for the Australian Services Union.

PN5

THE COMMISSIONER: Thanks, Mr Nucifora. Mr Kowalski?

PN6

MR KOWALSKI: It is Mr Nucifora's application.

PN7

THE COMMISSIONER: Mr Nucifora, if you would like to - whoever is going to lead off then.

PN8

MR NUCIFORA: Thank you, Commissioner. As I mentioned, if I may remain seated.

PN9

THE COMMISSIONER: Yes, that's fine.

PN10

MR NUCIFORA: Commissioner, this is an application to vary the Clerks (Vehicle Industry - Repair Services and Retail) Award 2003 in relation to redundancy and the redundancy test case decision. Commissioner, before I take you to some of the history since we have lodged this application, if I may tender as an exhibit the most recent correspondence that was sent out to all employers that are included in the order for substituted service in this matter, and that is a bundle of documentation which I have faxed on to your associate yesterday dated 17 June. If I may tender that as an exhibit.

PN11

It has a facsimile transmission cover and there are - in your copy, Commissioner, there ought be 13 pages listed on the front, because I include the transmission report confirming that the last notification that went out to employers informed them of the video link today and also informed them of amendments to the draft order. Now, all of these employers were, of course, notified at a much earlier date, and I will come back to that, Commissioner, but this is the most relevant exhibit that we would rely on today because it does have the most recent draft order with what we believe the greater majority of amendments that have been made.

PN12

THE COMMISSIONER: I will mark those A1.

EXHIBIT #A1 BUNDLE OF DOCUMENTATION CONSISTING OF 13 PAGES FORWARDED TO COMMISSION ON 17/06/2004

PN13

MR NUCIFORA: Thank you, Commissioner. Exhibit A1 is a bundle of documentation that includes reference to not only this matter before you, that is, 3165, but also the next matter. I will rely on this for notification as the most recent notification for the next matter that is before you. It includes a letter dated 17 June which attaches a listing, having this matter now heard by video link including Melbourne, and take the opportunity, Commissioner, to thank the Commission for making this facility available today.

PN14

Attached to that is the draft order for redundancy and, specifically, that is the order that we would rely on today. It is an amendment to a previous order sent out to the employers and I have sent an electronic copy of that to your associate early this morning, Commissioner. In that draft order, if I may refer you there, on the first page of the draft order, item A1 refers to, of course, the original decision in PR032004 handed down on 26 March 2004. It also refers to the supplementary decision handed down on 8 June in PR062004. As a result of that supplementary decision, we now have orders that we followed as per, of course, that supplementary decision and there are, of course, a number of test case awards and orders that we rely on, in particular, the Victorian Clerical Administrative Employees Award.

PN15

Commissioner, we go through, in clause 16, what the new notice provisions are and we do generally follow the model clauses. It includes, in addition to that, inserting a new 6.10 to the redundancy dispute - sorry, before I get to that, I mentioned that there is a new notice of determination in 6.4 and, as a result of that, in item A2, we then delete clause 6.5 and renumber the rest of the clause accordingly. We then go to item A3, which is the consent redundancy disputes procedure. That is a specific provision reached by consent between the ACTU and employer peak councils before the test case, and what we have here is a model redundancy disputes clause in a new 6.10.

PN16

In item A4, we then go to the new redundancy clause which, in addition to having a definitions provisions, the model provision now includes the new table for severance pay both for large employers, that is, employing over 15 employees, and small employers, in 39.3.2, those employers who employ less than 15 employees as defined. And, of course, we make other alterations such as the Jobsearch entitlement and, of course, a transmission of business and one of the contested areas was, in 39.3.5, application can be made for a variation to the severance pay in accordance with both the substantive and supplementary decisions.

PN17

Commissioner, we seek an operative date from today in item B of the draft orders of 18 June 2004, and, of course, that is important in terms of the operative date for small businesses of which there would be a few in this industry.

PN18

Commissioner, I mentioned before that exhibit A1 is the most recent notification to the employers about this matter before you. I just want to summarise the brief history of this application. It was lodged originally on 21 April 2004 and, Commissioner, you issued a message from your chamber on 28 April indicating that if there was consent by the employers and they were properly notified and the union, as the applicant, had otherwise met with the requirements of the Act, that you would be prepared to issue a decision in chamber. I might say for the record, Commissioner, that our union is supportive of that approach, but, as things have turned out, particularly with the test case orders that were finally issued in the last few weeks, we appreciate that the matter is now listed for hearing.

PN19

Also, you issued an order for substituted service in this matter on 11 June 2004 after our union had made an application. We had certainly, following the supplementary decision, sought a re-listing and notified employers on 15 June 2004. So there was correspondence that went out to the employers on 15 June. A copy of that was sent to your office. At the time, the associate was Ms Hickey, and, on that day, we informed the employers of this matter today.

PN20

I am happy, Commissioner, either way, if that is tendered as an exhibit in relation to notification, although I might add you wouldn't have the transmission report there, but I can provide that if necessary. I am happy to have that tendered as an exhibit, Commissioner, but I just note that the draft order is the original draft order. It doesn't have the amendments that I've made as a result of having discussions with Mr Kowalski in the last few days. What is more current, of course, is exhibit A1. That is the updated amended order and, subject to what Mr Kowalski says, my understanding is it is a consent draft order with the employers. But, Commissioner, just for completeness, I may just tender that letter of notification of Tuesday, 15 June, as notification to the employers on this hearing today.

PN21

THE COMMISSIONER: We will call that A2.

EXHIBIT #A2 LETTER OF NOTIFICATION DATED 15/06/2004

PN22

MR NUCIFORA: Thank you, Commissioner. Of course, exhibit A2 was the original notification and it is in reverse chronological order. What we have then is, of course, exhibit A1 that we rely on.

PN23

As I mentioned earlier, Commissioner, I have had discussions with Mr Kowalski on behalf of the MTAQ and I understand he has had discussions with other employers and those discussions have been very positive and constructive, given that this variation is not a straight-forward one - we wouldn't say that it is. It really does affect three provisions in the award, the disputes-handling procedure, the notice of termination and redundancy and, it is my understanding though, at the end of the day, there is consent from the employers, subject to what Mr Kowalski has to say, and therefore we would seek, Commissioner, with due respect, that this matter be approved - this award variation be approved operative from today's date. If the Commission please.

PN24

THE COMMISSIONER: Good. Thanks. Thanks for that, Mr Nucifora. Mr Kowalski?

PN25

MR KOWALSKI: Thank you, Commissioner. Would it be appropriate if I remain seated?

PN26

THE COMMISSIONER: Yes, that's fine. You can remain seated.

PN27

MR KOWALSKI: Thank you, Commissioner. Commissioner, we have had the opportunity to have some extensive discussions with Mr Nucifora in relation to the model redundancy clause. In fact, it was only late yesterday afternoon that we were able to finalise our position on the exact wording of the draft order, and that's, I guess, part of the reason why this hearing today was necessitated. We certainly have no objection to the application being granted as sought and from the date being sought, being today. I believe the order as presented to you does accurately reflect the recent Full Bench decision and as such we have no objection to it going into the award as sought, if it please the Commission.

PN28

THE COMMISSIONER: Good. Thanks, Mr Kowalski.

PN29

On the basis of the submissions that have been made to me and the various exhibits, I approve the variation to the award and will issue the order as sough effective as of today's date.

ADJOURNED INDEFINITELY [10.18am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 BUNDLE OF DOCUMENTATION CONSISTING OF 13 PAGES FORWARDED TO COMMISSION ON 17/06/2004 PN13
EXHIBIT #A2 LETTER OF NOTIFICATION DATED 15/06/2004 PN22