C2004/3234, Transcript of Proceedings [2004] AIRCTrans 2763 (19 July 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)
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TRANSCRIPT OF PROCEEDINGS


O/N 10964

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/3234

OFF-COURSE AGENCY EMPLOYEES AWARD 2001

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary re the
Redundancy Case decision of March 2004
(PR032004)

MELBOURNE

10.39 AM, THURSDAY, 8 JULY 2004

PN1

MR J. NUCIFORA: I appear for the Australian Services Union.

PN2

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. Yes, I have got correspondence, through my associate, from Mr Ihlein, representing the Victorian Off-Course Agents Association, indicating acceptance of the notice of application and draft order received from the union, and also from Mr Terry Bourke, indicating agreement in principle with the variation and seeking an opportunity to further examine the draft order until Friday, the 9th. Perhaps I should mark them. I will mark the e-mail from Mr Ihlein, I1, and from Mr Bourke, B1.

EXHIBIT #I1 E-MAIL FROM MR G. IHLEIN

EXHIBIT #B1 E-MAIL FROM MR T. BOURKE

PN3

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Nucifora.

PN4

MR NUCIFORA: Thank you, your Honour. Your Honour, this is an application to vary the Victorian Off-Course Agency Employees Award 2001 to insert the Redundancy Case decision, that is the redundancy decision of March 2004 in PR032004, and also reflect a supplementary decision in PR062004. And, your Honour, before I take you to the details of the variations in the draft order, if I may by way of service, tender as an exhibit a copy of a bundle of documentation which goes to serving the necessary documentation on - - -

EXHIBIT #ASU1 SERVICE DOCUMENTATION

PN5

MR NUCIFORA: Thank you, your Honour. Exhibit ASU1 is a bundle of documentation including a covering letter to Ms Mary Brown from Tabcorp dated Wednesday, 30 June. Now, that was in relation to when this matter was first listed for hearing last Thursday and, of course, as a result of that being less than ideal notice for the employers, Ms Brown had sought an adjournment to today's hearing. And of course, your Honour, you then served a notice of listing and sent that listing to Ms Brown.

PN6

We also notified Mr Graham Ihlein who would normally appear on behalf of the agencies and, of course - at that time about the hearing, and about the draft order contained within exhibit ASU1. Now, your Honour, since - we have had further discussion with Mr Terry Bourke, and our understanding is Mr Bourke, from the Australian Industry Group, is representing Tabcorp in both this matter and the next matter before you and we would seek to have that confirmed by Mr Bourke. It is not clear in any of the correspondence that he has sent through e-mails, but it is our assumption and our understanding - just confirmed in ringing their office a little while ago that they do appear for Tabcorp.

PN7

There are a couple of changes that Tabcorp were seeking and we had made those changes. We had left out the reference to apprentices and that has now gone back into the draft order. There was an amendment that was required in the draft order contained here in relation to references to the appropriate clause for continuous service and that should read, correctly, now in 19.1.6 and 3.3.1. And I think that was a little unclear in the response that we got back from Mr Bourke in terms of the electronic amended order that I sent through to your associate and Mr Bourke.

PN8

If I may now tender as an exhibit - this should be an amended copy of the draft order subject to Mr Bourke, of course, checking all of the details of that particular draft order.

EXHIBIT #ASU2 AMENDED COPY OF DRAFT ORDER

PN9

MR NUCIFORA: Thank you, your Honour. Exhibit ASU2 sets out changes to, of course - we are now referring - in the arrangement clause - to notice of termination and replies signalling reference to the title in clause 19 of Termination of Employment. We then make the model - we then replace the existing provision with the model clause for notice of termination, that is, the model clause from the supplementary decision. We do vary in A3 the disputes handling procedure to include a redundancy disputes procedure and we do include in all this, of course, the reference to less than 15 employees. So the clauses that we have ought be identical to the model clauses set out in the supplementary decision.

PN10

We then, of course, replace the existing redundancy provision in 25 with the new redundancy clause and, once again, that ought be word-for-word identical to the test case decision. The order - Mr Bourke also indicated that we ought change the operative date to 8 July and we consent to that, given that the matter was adjourned and it wasn't heard in any way, shape or form last week. That means, of course, in item B it ought read, "the 8 July 2004" as it does in the exhibit before you. And it also should read, "the 8 July" as the operative date in clause 25.3.4 when we talk about, of course, the operation of severance for small employers.

PN11

Your Honour, we say that there is - subject to Mr Bourke checking the draft order before you and confirming that he does represent Tabcorp, we have consent by Mr Ihlein on behalf of the agencies and we seek that the amended order before you be, subject to the checking, issued operative from today's date, if your Honour pleases.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. This is an application pursuant to section 113 of the Act to vary the Off-Course Agency Employees Award 2001 to give effect to the Redundancy Case decisions in prints PR032004 and 062004. The variation sought is in the terms of exhibit ASU2 which I am satisfied properly reflects the test case decision. I am satisfied that service has been properly effected. Mr Ihlein, for the Victorian Off-Course Agents Association, indicates acceptance of the application. Mr Bourke, we presume on behalf of Tabcorp, indicates agreement in principle subject to an opportunity to check the final draft by tomorrow, 9 July.

PN13

I will seek confirmation from Mr Bourke that he does, in fact, represent Tabcorp and also provide the opportunity to further check the draft order proposed. Subject to any minor drafting issues that might arise out of that checking I will vary the award in the terms of exhibit ASU2. The order shall come into effect from the first pay period commencing on or after 8 July and remain in force for a period of six months. I will adjourn that matter and call on the next matter. Thank you.

ADJOURNED INDEFINITELY [11.03am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #I1 E-MAIL FROM MR G. IHLEIN PN3
EXHIBIT #B1 E-MAIL FROM MR T. BOURKE PN3
EXHIBIT #ASU1 SERVICE DOCUMENTATION PN5
EXHIBIT #ASU2 AMENDED COPY OF DRAFT ORDER PN9