C2004/2862, Transcript of Proceedings [2004] AIRCTrans 2866 (26 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 7874

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2004/2862

APPLICATION FOR A COMMON
RULE AWARD

Application under section 141 of the Act
by Shop, Distributive and Allied Employees
Association for a common rule award

MELBOURNE

2.25 PM, THURSDAY, 15 JULY 2004

PN1

MR J. RYAN: I appear for the Shop, Distributive and Allied Employees Association.

PN2

MS R. FRENZEL: I appear for the LHMU and we did file and serve a notice of appearance in this matter, your Honour.

PN3

MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN4

MR N. NIVAN: I appear for the Victorian Trades Hall Council. I am seeking leave to appear. I do think I filed a notice of appearance.

PN5

MR M. WELDON: I appear for the Australian Retailers Association of Victoria. We did lodge a notice of appearance in respect of common rule from R27 on 12 May 2004. If the Commission pleases.

PN6

THE VICE PRESIDENT: Thank you, Mr Weldon. Any objection to the applications for leave to appear or intervene? No, leave is granted. Who would like to go first?

PN7

MR RYAN: Your Honour, this is our application. When we filed this application in April it wasn't our intention to necessarily file applications for any of our awards until the test case, or a test case, type decision had at least been handed down. What happened, however, is that McDonald's Australia Pty Ltd filed an application to have the McDonald's South Australian, Northern Territory Award made as a common rule for Victoria. That award was a consent award between McDonald's and the SDA operating in the states of South Australia and the Northern Territory.

PN8

Whilst we indicated to McDonald's that we would oppose that, in order to ensure that the issue could be properly ventilated before the Commission in terms of making a common rule award that would apply to McDonald's, we filed the application in April to have the National Fast Food Retail Award made a common rule in Victoria. So in that sense it was, effectively, a counter application to the McDonald's application.

PN9

THE VICE PRESIDENT: Isn't there a McDonald's Victorian Award now?

PN10

MR RYAN: Yes, the application for the common rule award by McDonald's was dealt with by Deputy President Ives in April. As a result of discussion - - -

PN11

THE VICE PRESIDENT: Sorry, the application for a Victorian award?

PN12

MR RYAN: For a Victorian common rule award was dealt with - - -

PN13

THE VICE PRESIDENT: For a Victorian common rule award?

PN14

MR RYAN: Yes.

PN15

THE VICE PRESIDENT: Okay.

PN16

MR RYAN: Yes, it was dealt with by him. As a result of our opposition there was - a number of discussions ensued between the Association and McDonald's and the outcome of those discussions was an agreement to create a stand alone award for McDonald's in Victoria basically using the South Australian, Northern Territory Award but making some significant changes to it to ensure that its wage rates were accurate and up to date and also to make some variations, which we thought were essential, which the company agreed to.

PN17

It also occurred that McDonald's were given authority from all of their licensees in Victoria to act on their behalf so that the award which was subsequently made - and it was made by Senior Deputy President Ives in June - 3 June of this year.

PN18

THE VICE PRESIDENT: No, I remember seeing it but it wasn't made as a common rule award, was it?

PN19

MR RYAN: No, it was made as a consent award between the parties. And as a result of the making of that award McDonald's withdrew their application, or their formal application, for a common rule award to be made.

PN20

THE VICE PRESIDENT: So the - and was that matter before the Full Bench that is hearing - - -

PN21

MR RYAN: No, it wasn't.

PN22

THE VICE PRESIDENT: Right.

PN23

MR RYAN: It never was, it was always before Senior Deputy President Ives.

PN24

THE VICE PRESIDENT: No, I just recall some discussion about a proposed principle dealing with, well, essentially, directed at McDonald's application, I suspect, but - - -

PN25

MR RYAN: Yes, yes.

PN26

THE VICE PRESIDENT: Okay.

PN27

MR RYAN: Yes, so - - -

PN28

THE VICE PRESIDENT: Where does that bring us with this one?

PN29

MR RYAN: Yes, so on that basis the issue which, sort of, generated our necessity in filing this application is accounted to the McDonald's application has disappeared. We have resolved the issues with McDonald's and both McDonald's and ourselves are happy with the award that we put in place. And on that basis this matter can simply be dealt with - and probably should be dealt with - after the Full Bench has dealt with the key matters that it has before it.

PN30

THE VICE PRESIDENT: So you would ask that I adjourn the matter and that the matter be brought back on, presumably, at either your request or the request of one of the other interested parties after the Full Bench has handed down its decision?

PN31

MR RYAN: Either that or that the Commission simply, at its own discretion, relist the matter at some time after the Full Bench decision,.

PN32

THE VICE PRESIDENT: I think I would prefer to deal with it on application though.

PN33

MR RYAN: Yes.

PN34

THE VICE PRESIDENT: And then you will have the onus of letting me know when you want it brought back on.

PN35

MR RYAN: Yes and I can say that it was filed in the simplest manner possible. We have already started the process of having consultations with the ALHMWU to ensure that we deal with things like the duplication, or the potential crossover, between different common rule applications and we will continue that process.

PN36

THE VICE PRESIDENT: And you will have discussions with VECCI and the ARA?

PN37

MR RYAN: Yes.

PN38

THE VICE PRESIDENT: Yes.

PN39

MR RYAN: Yes, everyone has a genuine concern in this, but some of the concerns are probably - with the ARA, also dependent upon what happens with the retail industry generally. I can advise that on my way to this hearing I filed five applications for common rule awards, including the Victorian Shops Award, made a common rule. That will impact upon this matter and it will impact upon a number of other matters. So at least the basis for the discussions is well and truly there.

PN40

THE VICE PRESIDENT: Should I refer this matter to whoever is dealing with the Shops matters? Is there that extent of an overlap or not?

PN41

MR RYAN: No, in our Shops matter we simply resolve that by making the Shops Award a common rule except excluding fast food retailing and takeaway food retailing.

PN42

THE VICE PRESIDENT: I see.

PN43

MR RYAN: Which is the way we will then deal with this matter, that this would cover fast food retailing and takeaway food retailing. We would be content to simply have these matters dealt with separately. I think everything will work out in the wash in the end, in any event. If the - - -

PN44

THE VICE PRESIDENT: I hope you are right.

PN45

MR RYAN: Well, if not, we will be very busy at the end of the year.

PN46

THE VICE PRESIDENT: Good, okay. Thanks, Mr Ryan.

PN47

MR RYAN: If the Commission pleases.

PN48

THE VICE PRESIDENT: Is - rather than call on each of you individually, unless there is something in particular you want to say. Does anyone have any objection to the proposition that this matter be adjourned until after the Full Bench has concluded its deliberations and that in the meantime the parties continue to discuss the nature of the application between themselves?

PN49

Anyone want to urge a different course? Yes, Mr Weldon?

PN50

MR WELDON: I don't have any difficulty with what you are suggesting, your Honour. The only issue that we see is that there are potential issues with that particular award, mechanical issues of the application, the scope of the award and the definitions of what constitutes a fast food business. And I see those as pretty involved discussions. I don't see that our organisation would be necessarily opposed to this particular award being made a common rule but we believe that those things should be discussed so that when the matter comes on before the Commission next time that we do have some way of progressing, if you like, rather than leaving matters until - or those important matters until after the Full Bench decision in respect of the common rule.

PN51

THE VICE PRESIDENT: Well, certainly if the parties think it would be useful, after you have had an opportunity to discuss it amongst yourselves, if you feel that conciliation in relation to the matter might be productive, then just contact me and I am happy to organise that. It need not - that need not wait until after the Full Bench has handed down its decision. It is just that I am a little pressed for time in the next few weeks, but other than the dates that have already been given for the family leave test case, I can fit in some conciliation around that if that assists, Mr Weldon.

PN52

But commence your discussions and see how far you go. It may be that some of the issues that you have might need to be dealt with by way of a 113 application prior to any common rule application being determined. Anything else from anyone else? No, all right, my apologies for the delay in getting under way. I will adjourn the matter until I am advised by any of the parties that they want to have the matter called back on either for the purpose of conciliation or for directions and hearing in relation to the substantive application. Nothing further, I will adjourn.

ADJOURNED INDEFINITELY [2.35pm]