C2004/3305, Transcript of Proceedings [2004] AIRCTrans 2634 (13 July 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 7686

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/3305

GROUP TRAINING (VICTORIA) AWARD 1999

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award concerning the Redundancy Test
Case decision of March 2004 [PR032004]

MELBOURNE

3.01 PM, THURSDAY, 1 JULY 2004

PN1

MR N. HENDERSON: I appear for the ASU.

PN2

MR J. GLOVER: I appear for Group Training Australia.

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Henderson?

PN4

MR HENDERSON: Thank you, your Honour. This is an application to vary the Group Training Award in relation to the Redundancy Test Case decision. I have provided the Commission with a draft order to be marked.

EXHIBIT #ASU1 DRAFT ORDER

PN5

MR HENDERSON: Yes, thank you, your Honour. In this matter the parties have agreed that the less than 15 employee prescription in the test case is not appropriate to this award for one main reason and that is that the employers in this particular industry are not in business and they are not profit-making organisations, if I could put it that way. And previously, as I understand it, the less than 15 employee prescription hasn't applied. But, in any event, the parties are in agreement and I hope that is enough to depart from the stand in that respect. Other than that the order is in the form - - -

PN6

THE SENIOR DEPUTY PRESIDENT: On the basis of the employers are not profit-making organisations?

PN7

MR HENDERSON: Yes, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: How does that assist the argument?

PN9

MR HENDERSON: Well, there was a decision by a number of Full Benches and one in particular in the Family Day Care case in 1996 where the Full Bench decided that in relation to that award, which covered not for profit organisations involved in family day care, that the less than 15 employees prescription was not necessary and deleted it. And I think that flowed on from an earlier decision which I just can't call to mind off the top of my head but there were those two decisions in 1995/96 and since then there has been no further applications.

PN10

But I noted that the arguments advanced by the employers in relation to the maintenance of the less than 15 employee prescription were all advanced in relation to the capacity to pay those organisations and they all refer - all of the references in the decision relate to organisations which are in business for profit. So on that basis, I took the view, perhaps courageously, that it wasn't a prescription which was specifically necessary in the event that the employer wasn't in that particular type of pursuit and if the employer consented.

PN11

And I might add, your Honour, and it may become relevant in later proceedings, in the event that the employer doesn't consent and the union wishes to pursue it, it may be a matter for a Full Bench as it was before.

PN12

THE SENIOR DEPUTY PRESIDENT: Yes.

PN13

MR HENDERSON: But in this case, in our submission, given the consent of the employer and the nature of the industry, we would submit that that should be enough to persuade the Commission to make the order as sought. In the event that you are against us on that, your Honour, I might - the only thing I could suggest at this point is that we have an opportunity to argue the case more fully.

PN14

THE SENIOR DEPUTY PRESIDENT: Well, one opportunity may well arise in this respect, Mr Henderson, that the supplementary decision refers to capacity for variation of the scale, in particular, redundancy situations which might provide that opportunity in any case but you are talking about a more general prescription.

PN15

MR HENDERSON: Yes, your Honour and there will be - I can foreshadow for you now that the same application will be made in the Local Authorities Award which presently does not have a 15 exemption either.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR HENDERSON: So it is a matter which is going to dog me for the next - - -

PN18

THE SENIOR DEPUTY PRESIDENT: Well, it is one that Mr Nucifora has been entertained by already.

PN19

MR HENDERSON: Is it, well, perhaps I need to speak to Mr Nucifora and put a joint position. So I leave it at that, your Honour - - -

PN20

THE SENIOR DEPUTY PRESIDENT: Yes.

PN21

MR HENDERSON: - - - and invite you to seek further submissions in the event that you oppose.

PN22

THE SENIOR DEPUTY PRESIDENT: Yes.

PN23

MR HENDERSON: If the Commission pleases.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Glover?

PN25

MR GLOVER: If the Commission pleases, I have been through the draft orders as prepared by the union and the employers would support the application as it is presented by the union. If the Commission pleases.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes, I will reserve my decision at this point to the extent that I do need to further consider the small business issue and to more carefully consider the relevant decisions in that respect. I would indicate that if I am against Mr Henderson in respect of that item - issue. On my consideration of what has been put today, I will provide an opportunity for further submissions but I would like the opportunity to consider that issue further, otherwise, I am content that the order proposed does properly give effect to the decisions of the Redundancy Case Full Bench and subject to the inclusion or exclusion of the small business element, I will vary the award in one form or the other and, given the consent of the employer with effect from today's date exactly which provision will depend on my further consideration and possibly further submissions from yourselves. I will adjourn that matter on that basis.

ADJOURNED INDEFINITELY [3.08pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 DRAFT ORDER PN5