C2004/3473, Transcript of Proceedings [2004] AIRCTrans 2804 (20 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)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7872
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/3473

STORAGE SERVICES - WAREHOUSING
- AWARD 1999

Application under section 113 of the Act
by the National Union of Workers to vary
the above award re the Redundancy Test
Case - March 2004 Decision (PR032004)
and the Safety Net Review - Wages May
2004 Decision

MELBOURNE

10.36 AM, TUESDAY, 29 JUNE 2004

Continued from 9.6.04

PN13

MR G. MAAS: I appear for the National Union of Workers.

PN14

MS J. WATLING: I am from the Australian Industry Group.

PN15

MR D. NORTH: I appear for Linfox Australia.

PN16

THE SENIOR DEPUTY PRESIDENT: I have on file an affidavit of service from Mr Donnelly of the union indicating service of the notice of listing and draft order upon Brambles, Kagan Brothers, Linfox, ..... and TNT Logistics. I will mark that exhibit NUW3.

EXHIBIT #NUW3 AFFIDAVIT OF SERVICE

PN17

THE SENIOR DEPUTY PRESIDENT: There is also correspondence by way of email from Brambles. Bear with me one moment. Just bear with me one moment while we locate - I am sorry, whilst Brambles is a respondent to this award the correspondence is in relation to one of the other matters so ignore the fact that I said that. Mr Maas.

PN18

MR MAAS: Thank you, your Honour. This is an application by the National Union of Workers to vary the Storage Services - Warehousing - Award pursuant to section 113 of the Act and consistent with the redundancy test case decisions issued by the Full Bench of the Commission earlier this year. If I may tender an amended draft order, your Honour.

EXHIBIT #NUW4 AMENDED DRAFT ORDER

PN19

MR MAAS: Your Honour, for the record and for the benefit of my friends who I don't have a copy of the amended draft order to hand over, if I may just outline what the amended draft order has that the original draft order didn't, and that would be namely in clause 16.3.4 where reference had been made to clause 27 for continuous service. That should actually read 3.10.

PN20

THE SENIOR DEPUTY PRESIDENT: 3.10, which is - this is the definitions section of the award?

PN21

MR MAAS: Correct, and that would make it consistent with clause 17.1.6 which also uses the definition in 3.10.

PN22

THE SENIOR DEPUTY PRESIDENT: So 27 should read 3.10, is that correct?

PN23

MR MAAS: 16.3.4 should read 3.10.

PN24

THE SENIOR DEPUTY PRESIDENT: I am sorry, down the bottom - no, sorry, I am not with you. I am looking at clause 16.3.4 and what is the amendment, Mr Maas?

PN25

MR MAAS: If you could just bear with me one moment.

PN26

THE SENIOR DEPUTY PRESIDENT: 27 appears again - - -

PN27

MR MAAS: Yes, that is incorrect and - - -

PN28

THE SENIOR DEPUTY PRESIDENT: It should be 3.10, yes.

PN29

MR MAAS: That is correct.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, very well. I am with you now, thank you.

PN31

MR MAAS: I am with me now too, your Honour, thank you. Your Honour, this draft order, amended draft order, NUW4, contains new clauses consistent with the decision. There is a new redundancy disputes procedure clause, an updated redundancy clause which defines small employers, an amended redundancy severance pay scale for employees of small employers and those other than small employers, a prospective service clause with respect to redundancy entitlements for an employee of a small employer and a new notice of termination clause replacing the previous termination of employment clause.

PN32

We reiterate again, your Honour, that these clauses in the draft order are consistent with the redundancy case, test case decisions issued earlier this year and we request that our application to vary the award be granted on the terms in which we seek and subject to any questions you have that concludes the union's submission.

PN33

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Maas. Yes, Ms Watling.

PN34

MS WATLING: Thank you, your Honour. The Australian Industry Group has received the draft order served upon us by the union. We have checked the draft order marked exhibit NUW1 and we do not oppose the variation in the terms sought. We have marked the changes to the draft that the NUW have brought up and we don't oppose those changes, thank you.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Ms Watling. Mr North.

PN36

MR NORTH: Thank you, your Honour. Linfox does not oppose the application, however the draft that I have received contains a number of errors in it so I would like the opportunity to view the newly prepared draft by the NUW just to make sure that - because there is about three or four errors in that draft that I would like to check have been rectified. Also I think it might be important to raise now just in case it was intentional rather than an inadvertent omission, 16.8 of the proposed draft that I have refers to employees exempted:

PN37

This clause does not apply to employees terminated as a consequence of serious misconduct that justifies dismissal without notice.

PN38

It is the submission of Linfox that it is appropriate to include the words "including malingering, inefficiency and neglect of duty" as the present clause reflects the Storage Services - Warehousing - Award and also as it was found to be appropriate to maintain similar wording in the Storage Services General Award. I am certain - or not certain, hopeful that won't be opposed by the National Union of Workers and it is probably just an omission but I would think it appropriate that we respectfully request seven days in which to view a new draft from the National Union of Workers. If the Commission pleases.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Maas.

PN40

MR MAAS: Thanks, your Honour. I am not sure that seven days is required given that change. We would be happy to consent to those words being included in that clause at 16.8.

PN41

THE SENIOR DEPUTY PRESIDENT: And you will go through with Mr North in due course the minor drafting matters that he wishes to raise?

PN42

MR MAAS: Yes, certainly.

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Ms Watling, do you have any difficulty with the incorporation of the additional words Mr North has proposed?

PN44

MS WATLING: No, we don't oppose the additional words being put in.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes, very well. This is an application by the National Union of Workers to vary the Storage Services - Warehousing - Award 1999 to give effect to the redundancy case decisions in prints PR032004 and 062004. I am satisfied that the NUW has effected services having regard to exhibit NUW3. The union seeks to vary the award in the terms of exhibit NUW4 to give effect to the test case decision. Mr North for Linfox has sought the inclusion of additional words which presently appear in the award in respect to misconduct and which were retained in the Storage Services variation by the Full Bench.

PN46

That course of action is consented to by the NUW and supported by AIG. In the circumstances I will include the additional words which presently appear in the award in the relevant clause, 16.8. Mr North has also raised a number of minor unspecified typographical issues. In the circumstances what I intend to do is to vary the award in the terms of NUW4 save for reference to clause 27 and 16.3.4 being the 3.10, the insertion of additional words in 16.8 and subject to confirmation of the terms of exhibit NUW - or any agreed variation arising out of the minor matters which Mr North will raise with the union, the variation will be given effect from today's date and remain in force for a period of three months but an order will not be issued immediately pending discussion between Linfox and the NUW in relation to those additional unspecified minor matters.

PN47

In the event that that raises a substantive issue the matter will be called back on. In the event that there is agreement the order should reflect minor amendment and subject to my satisfaction the order will be issued in the terms I have just indicated. I will now adjourn that matter. I should add that the parties will, of course, advise me of the outcome of those discussions. Mr Maas, perhaps if you could forward a final draft order reflecting Mr North's changes and indicating what arises out of your further discussions.

ADJOURNED INDEFINITELY [10.49am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW3 AFFIDAVIT OF SERVICE PN17
EXHIBIT #NUW4 AMENDED DRAFT ORDER PN19