C2004/1320, Transcript of Proceedings [2004] AIRCTrans 2849 (23 July 2004)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

O/N 12382
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER ROBERTS

C2004/1320

AUSTRALIAN LIQUOR HOSPITALITY AND
MISCELLANEOUS WORKERS UNION (ALPHA
CHEMICALS (AUSTRALIA) PTY LTD) CHEMICAL
INDUSTRY AWARD 2001

Application under section 113 of the Act
by the Liquor, Hospitality and Miscellaneous
Union to vary the above award re termination,
change and redundancy

SYDNEY

10.10 AM, WEDNESDAY, 14 JULY 2004

PN1

THE COMMISSIONER: Good morning, I'll take the appearances please.

PN2

MS S. BENNETT: If the Commission pleases, I appear on behalf of the Liquor, Hospitality and Miscellaneous Union.

PN3

MS M. McDONNELL: If the Commission pleases, I appear on behalf of the respondent company in this award being (Alpha Chemicals (Australia) Pty Ltd).

PN4

THE COMMISSIONER: Ms Bennett?

PN5

MS BENNETT: Thank you, Commissioner. I thought what I would do is make - I've got fairly substantial submissions to make in the matter - only because our redundancy clause does vary from that which other unions may be inclined to put into their awards. If it pleases the Commission, if I could possibly make my submissions in this matter and have them adopted for the rest of the three matters that would probably assist rather than - - -

PN6

THE COMMISSIONER: I'm happy with that, yes. It will save you a lot of repetition and parroting, yes.

PN7

MS BENNETT: Thank you, Commissioner. This is an application to vary the Australian, Liquor Hospitality and Miscellaneous Workers Union (Alpha Chemicals (Australia) Pty Ltd) Chemical Industry Award 2001, to reflect the Commission's new redundancy test case standard. The application is made pursuant to section 113 of the Act and is supported by sections 88A and 88B of the Act and by principles 4 and 2A of the current statement of principles.

PN8

As the Commission is aware a Full Bench has handed down two decisions in 2004 which have had the effect of substantially reviving the Commission's standard on termination changes of redundancy which was first established in 84. The first decision established a more beneficial scale of redundancy payments for employees increasing redundancy payments. The scale of payments reduced by four weeks for employees with ten or more years service was reflective of the availability of pro rata long service leave for such employees and the decision obviously also enacted a newer lesser redundancy scale for employees as small employers defined to mean an employer who employs fewer than 15 employees.

PN9

The supplementary decision arose from an argument as to the settlement of the orders arising from the first decision. In this decision the Full Bench confirmed the severance scales it had determined in the first decision but also determined a continuous service for the purposes of severance payment for employees of small employers should commence from time to time the relevant orders varying awards were made. This accommodated small business concerns that they would face considerable unfunded liabilities if the scale were to operate retrospectively.

PN10

In the first decision the Full Bench accepted an agreement made between the ACTU and National Employer Group in settlement of a wide range of issues associated with the ACTUs original claims. This agreement is substantially accepted by the LHMU with the exception that the LHMU did not support the agreed change in the definition of redundancy. The LHMU maintains through the conciliation process that the definition approves the Hospitality Award in the award simplification decision should be retained.

PN11

The LHMU expressed reservation concerning the ACTUs agreement to changed definition and this was noted in documentation handed up to the Full Bench during the case. Commissioner, I take you to the supplementary decision where the Full Bench dealt with this issue, at paragraph 25 the Full Bench stated two issues have arisen concerning the implementation of some terms of the clauses which the major parties have agreed upon. In each case the issue relates to the desire of a party to retain a particular award provision rather than adopt a term of one of the agreed clauses.

PN12

The first issue was raised by the Liquor, Hospitality and Miscellaneous Union and it concerns the Liquor and Accommodation Industry Restaurant Victoria Award 1998, the Restaurants Award. The LHMU objected to the definition of redundancy in the generally agreed redundancy dispute procedure. On that aspect the LHMU prefers the wording which was arrived at through the award simplification process and which now appears in the Restaurant Award.

PN13

We were told that the objection was made clear to the employer parties at the time the redundancy disputes procedure was agreed to by the ACTU. ACCI submitted that the agreed definition should be adopted for all awards including to those which the LHMU was a party. They go on to say at paragraph 28 the LHMUs objection was known to the party at the time agreement was reached on the terms of the new redundancy dispute procedure clause.

PN14

We do not think that in the circumstances it is appropriate to force the agreed changes on unwilling parties. We have decided that the wording of the current clauses should be retained and if any party to the effected award seeks to vary the relevant clause to re-reflect the wording of the agreed clause it should be subject to a separate application. The TCR supplementary decision also confirmed a new redundancy disputes procedure which in substance restores in awards the obligation on employers to consult workers and their unions where redundancies are contemplated.

PN15

The draft order filed by the LHMU today to implement the changes referred to above is in the following form. It changes the title of the termination of employment clause in the award to notice the termination reflecting the Full Bench decision and the wording of section 89A(2)(n) of the Act. It inserts in the redundancy procedure as a new subclause in the general dispute settlement clause of the award. It replaces the termination of employment with the new model notice of termination clause.

PN16

As appropriate the model clause is cross-referenced to other relevant award clauses. It replaces the redundancy clause of the award with the new model redundancy paid clause save that the definition of redundancy determined by the award simplification Full Bench decision is inserted in place of the agreed definition in the 2004 case. It also inserts an operative date for the variation of today's date consistent with the Full Bench determination in the supplementary decision. The union would seek - - -

PN17

THE COMMISSIONER: Can I just stop your flow there for a minute. The new definition or the changed definition of redundancy which apparently is your 12.1.2, right. What I'm really interested in is to get to the meat of this where your application seeks to insert a clause or part of the clause which is different to the test case provisions.

PN18

MS BENNETT: Yes.

PN19

THE COMMISSIONER: Apart from that I roughly know what the bench was saying. I don't want to tell you how to do your job but can you take me at some stage through it so I can simply understand where your draft order varies from the test case and why in your view it should so vary. I take it the first one is a definition of redundancy, is it?

PN20

MS BENNETT: My understanding is that's the only variation from the test case standard as determined. I do have a copy of the supplementary decision which at appendix A has the definition of redundancy at 1.2 - - -

PN21

THE COMMISSIONER: I think I've got all of that. That's R.1.2, is it, of the test case?

PN22

MS BENNETT: That's correct.

PN23

THE COMMISSIONER: Can you just give me a moment? I'll just put you on the spot. Why would you seek to vary the wording of that? Because you think that the words of the Full Bench weren't felicitous or what?

PN24

MS BENNETT: To be honest it's not something that I'm totally across and it's my understanding anyway that the employer here today is going to object to the definition of redundancy as we've sought to insert it. My instructions were that should this be the case, and we have only just found out this morning that we would in fact need to have the matter adjourned and perhaps listed for a full hearing, it's not something that I have full enough instructions on unfortunately to be able to - - -

PN25

THE COMMISSIONER: So you're saying that if the employer objects you'll want an adjournment and a further hearing.

PN26

MS BENNETT: That's right.

PN27

THE COMMISSIONER: Perhaps we'll find out if the employer objects at this stage. It might be wise. We'll come back to you, I'm not cutting you off.

PN28

MS McDONNELL: Thank you, Commissioner. I can just read out the words that have been omitted from that clause if it assists you. Those words are - it's R.1.2 and the words that have been omitted are after the last word in the second line "anyone" and they are - - -

PN29

THE COMMISSIONER: So what has been deleted, the word "anyone"?

PN30

MS McDONNELL: No. After "anyone" I'm going to relay those words right now:

PN31

And that decision leads to the termination of the employee.

PN32

If I can also take you to another provision.

PN33

THE COMMISSIONER: Termination of employment of the employee.

PN34

MS McDONNELL: Termination of the employee. That's where it ceases for that clause. If I could also take you to clause - in the draft order it's 12.3.4. That also differs from the Full Bench's decision in that there's no definition of continuity of service.

PN35

THE COMMISSIONER: In the Full Bench decision?

PN36

MS McDONNELL: The Full Bench's decision does actually say continuity of service is calculated by and it's referenced to another clause in the award.

PN37

THE COMMISSIONER: Is that a problem to you?

PN38

MS McDONNELL: I'll deal with the second aspect first. It's not a problem. It's not in the award now so it would actually make no sense to have reference to calculation of continuity of service if there's no cross-reference in the award. So we don't have a problem with that. It's actually the definition of redundancy. Now I guess for today's proceedings, I'm appearing on behalf of the company, what I can do is grab some directions from them about whether they have a specific issue with the definition of redundancy and the departure from the test case and maybe - - -

PN39

THE COMMISSIONER: Just off the top of your head what do you see - I mean I've only just had a quick glance - what do you see as being the substantive difference in 12.1.2, the proposed new clause and R.1.2 of the case?

PN40

MS McDONNELL: Simply it's a departure from a test case standard that was handed down by a Full Bench firstly in a decision made on 26 March 2004, then a supplementary decision where the words were settled on 8 June. A departure from those words, argument about a departure from those words should have actually been made at that time a decision was handed down in front of the Full Bench but prior to 8 June 2004. I can seek some further instructions as to whether the company would be interested in accepting those words and a departure from the test case and let your associate know. If they do actually continue to object - - -

PN41

THE COMMISSIONER: It also means whether I accept it. Can I just speak to Ms Bennett again for a moment?

PN42

MS McDONNELL: Yes, would you like me to stay in the room?

PN43

THE COMMISSIONER: Yes, we're continuing proceedings, we're just going back to Ms Bennett. Ms Bennett, given that the test case was about redundancy it seems prima facie unwise to make an application which varies the core definition of what redundancy is. I mean why, and you've told me you don't know why, but I'm just wondering why you're doing it and I think you better go off and seek some instructions on that. Are they available to you this morning?

PN44

MS BENNETT: Yes, they are.

PN45

THE COMMISSIONER: With your permission, Ms McDonnell, we'll adjourn for a few minutes. You can talk to your principals and Ms Bennett will do the same and we'll come back in 15 minutes. We're adjourned for 15 minutes.

SHORT ADJOURNMENT [10.25am]

RESUMED [10.45am]

PN46

THE COMMISSIONER: Back to you, Ms Bennett?

PN47

MS BENNETT: Thank you, Commissioner. I have had the opportunity of speaking to an industrial officer who is quite involved in the redundancy test case. The union's understanding of the supplementary decision was that the Full Bench acknowledged the LHMUs objections to the definition of redundancy and did actually state in the decision at paragraph 28 that:

PN48

If any party to the affected award seeks to vary the relevant clause to fully reflect the wording of the agreed clause that this should be the subject of a separate application.

PN49

My understanding of that statement from the Full Bench from the industrial officer concerned is that in fact if a party to the award wishes to fully reflect the ACTU agreed clause that they would need to make a separate application to fully reflect that clause.

PN50

THE COMMISSIONER: But to whom would the new application be made? Back to the Full Bench or to lucky old me?

PN51

MS BENNETT: To lucky old you I do believe.

PN52

THE COMMISSIONER: Let's find out what Ms O'Donnell says about the employer's attitude first before I go on.

PN53

MS O'DONNELL: As I have previously have sort of indicated in my submissions I am happy to get some instruction from the employer regarding the deviation from the test case in R.1.2 but I would need to do that over the next 24 hours.

PN54

THE COMMISSIONER: I see, I thought you were off doing it.

PN55

MS O'DONNELL: No, I couldn't contact the employer at that time. I have got instructions though from the office where I work that, in principle, we wouldn't have an issue given paragraph 28 of the Full Bench's decision. There is only just that one little aspect that I need to complete and that is running it past the employer, the respondent company, in this award, and I am happy to advise y our associate in writing within 24 hours.

PN56

THE COMMISSIONER: That will mean everybody trotting back here. We'll just go off the record for a moment.

OFF THE RECORD [10.47am]

RESUMED [10.49am]

PN57

THE COMMISSIONER: Ms O'Donnell?

PN58

MS O'DONNELL: Thank you, Commissioner. As previously indicated what I seek to do is to take 24 hours just to confirm with the respondent company in this award. What I will be doing is returning to the office today, contacting the respondent company. I will be talking them through the deviation from the Full Bench's decision in light of paragraph 28 of the supplementary decision that was handed down on 8 June 2004.

PN59

I don't anticipate that there would be an issue from the respondent company but I do need to cover all of my bases and that's the reason why I seek 24 hours. I will advise your associate whether there is any issue although I don't anticipate that that would occur and happy for the draft order to be made on and from the first pay period to commence on or after today's date, if that assists the Commission.

PN60

THE COMMISSIONER: Thank you. I don't need to hear you any further I don't think, Ms Bennett. Prima facie, my view is that the changed wording doesn't change the import or the intent of the Full Bench's subclause, therefore, I would be willing to grant the application as set out in the draft order subject to the right of the respondent to advise me via my associate within 24 hours as to whether there is an objection to it. If such an objection is raised the matter will come on for hearing again. On the basis we're adjourned.

ADJOURNED ACCORDINGLY [10.51am]