C2004/65, Transcript of Proceedings [2004] AIRCTrans 2977 (2 August 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

ADMINISTRATOR APPOINTED

Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 1997

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/65

GLASS INDUSTRY - GLASS MERCHANTS
AND GLAZING CONTRACTORS - SOUTH
AUSTRALIA AWARD 1998

Application under section 113 of the Act
by the Construction, Forestry, Mining
and Energy Union to vary the above award
re parental leave for eligible casual
employees, reasonable overtime, TCR provisions,
relationship to National Training Wage Award,
supported wage provisions and necessary
administrative changes

ADELAIDE

4.00 PM, THURSDAY, 22 JULY 2004

Continued from 30.6.04

PN75

THE SENIOR DEPUTY PRESIDENT: I note there are no changes in appearances. On the last occasion this matter was before me I invited the parties to go away and see what they could come up with in relation to a range of issues. I note that the advice now provided to me that agreement has now been reached in terms of a draft order. There are two issues that I wanted to raise with the parties, one of which is the principal reason why I convened this further hearing. As I explained to the parties on at least one earlier occasion, my practice has been such that if the parties provided me with an agreed position relative to the adoption of one or more of the Commission's standard model or test case provisions and that agreed position did not, in my opinion, fundamentally undermine the principles upon which that test case provision were founded, then I would generally make the order in the terms that were agreed between the parties.

PN76

I have had the opportunity of discussing this position with a number of other members of the Commission, including the Acting President. The advice that I now have from the acting president is that he would prefer to have issues which involved departure from the standard referred to him. Now, it may well be that he simply decides to refer them back to me or to another member of the Commission. It is also conceivable that he would have regard to the nature of the change that was being proposed from the model provision, the extent to which any such change might be the subject of consideration in other applications and as a result adopt a position that involved the reference of the application to a full bench of the Commission.

PN77

That means that I am going to adopt a position in this matter that differs from that which I had earlier proposed to the parties and I thought it only fair to advise the parties of that for two reasons. Firstly, it has the potential to mean that the parties might arrive at a different agreed position, or secondly, it may be that the parties want to collectively or individually express a position relative to what should be done by the President if I were to refer the matter to him. I don't expect the parties to necessarily have a definitive conclusion on those matters today. They might be issues that both of you ought to take away and consider, but as I've indicated to you, given the extent to which the position I'm now putting to the parties is different to that which I previously put, I thought it only fair that I outline that for your consideration.

PN78

It occurs to me that the potential exists for the parties to advise me that, in a number of respects, they seek that the award be varied so as to effectively adopt the exact provisions of a model test case that might be relative to, for example, the national training wage or indeed, the provisions relative to reasonable over-time or any other provision, but that in other respects, for example redundancy, the parties may want to pursue a different approach. If I'm advised of that position then my intention would be to make an order that related to those matters that were agreed and were consistent with any standard and then refer the matters that were not consistent with the standard, to the President.

PN79

I would do that on the basis that it seems to me, desirable to conclude as much of the matter - as much of the application as possible in as quick a time as possible. Now, I don't know whether either of the parties want to comment or seek further clarification from me relative to this matter. My proposal to the parties is that I would not refer the terms of the draft order to the President for a period of 1 week. I'm happy to shorten that time if needs be, or I am happy to extend it if needs be, but my intention was to give the parties that period of time in which to consider whether or not they wish to, first of all, make any changes to their agreed position or secondly, whether or not they wanted to provide any written information to me that would be passed on to the President as part of my advice to him in this matter. Ms Siami, do you want to comment or seek any clarification at all?

PN80

MS SIAMI: Just in relation to that written info you just - proposing like a letter, type or?

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, it could simply be a letter if you wish it to be the case and don't get me wrong, it is not an obligation that you do so at all.

PN82

MS SIAMI: I understand that.

PN83

THE SENIOR DEPUTY PRESIDENT: I simply want to extend you that opportunity if you wish to take it up. I could envisage that there might be times when the parties want to submit to the President, through the presiding member of the Commission that a matter ought not to be referred to a full bench for any range of reasons or there might be other occasions when they might say it ought to be referred. Does that clarify the position from your point of view?

PN84

MS SIAMI: That does. I would like to outline - the CFMEUs position would be that we would probably prefer to have the matter split up almost so that - as you kind of suggested so that those parts which do reflect the test case, word for word, could be dealt with.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'm happy to either do that now or alternatively I'm happy to consider that in the context of the advice that the parties might provide to me. I'm in your hands in that regard.

PN86

MS SIAMI: I see no reason why it wouldn't be able to be done, none without ill effect, except for perhaps the arrangement that might need be left - - -

PN87

THE SENIOR DEPUTY PRESIDENT: Further varied later.

PN88

MS SIAMI: Yes.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes, arrangement clauses are good at that. You'd be saying to me then that which clauses in the draft order exactly reflect the provisions of the relevant standard?

PN90

MS SIAMI: It would be the one relating to the national training wage which is currently clause 2. Redundancy disputes does fit into that category but I don't know whether it is more sensible to leave that with the redundancy provisions.

PN91

THE SENIOR DEPUTY PRESIDENT: I would think it would be preferable. I would have thought the inclusion of the redundancy disputes procedure without the other primary portions of that provision might be problematical.

PN92

MS SIAMI: Also the provisions relating to the supportive wage, subclause 23.3.2 and 23.9.3.

PN93

THE SENIOR DEPUTY PRESIDENT: Sorry, you are going a little quickly for me there.

PN94

MS SIAMI: Sorry. I think it is point 7 and 8 in the draft order.

PN95

THE SENIOR DEPUTY PRESIDENT: Yes.

PN96

MS SIAMI: And the provision relating to reasonable overtime, point 9, and also the union's point 10 relating to parental leave for eligible casual employees.

PN97

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN98

MS SIAMI: Thank you.

PN99

THE SENIOR DEPUTY PRESIDENT: Mr Sheehan, are there any issues of clarification that you seek?

PN100

MR SHEEHAN: No more than what my friend has indicated, sir. We did come here on a consent basis in the - I guess, the hope that the award would be varied, given the previous approach adopted by the Commission in these sort of matters, but given the departure from that particular approach we are happy to go along with the approach of varying the award in relation to aspects of the draft order that are consistent with the previous test case standards as outlined just now by my friend and meet the provisions in relation to termination redundancies for another day.

PN101

THE SENIOR DEPUTY PRESIDENT: Very well.

PN102

MR SHEEHAN: Thank you, sir.

PN103

THE SENIOR DEPUTY PRESIDENT: Thank you. On that basis I will order that changes - or the award be varied in the terms of the draft order provided to me on 20 July relative to clause 8.2, being the national training wage; clause 23.9.3, the supportive wage provisions; 31.3 the reasonable overtime provisions; and 34 the parental leave provisions. Consequent changes would also be made to the provisions of clause 2, being arrangement. Those variations will come into effect from the first pay period to commence after today's date. They will have effect for a period of 1 month and an order in those terms will be forwarded out to the parties in the near future.

PN104

In the event that I haven't received any further from either party within the next week, I do intend to refer the terms of the agreed position relative to redundancy to the President. My advice to the President will incorporate recognition of the fact that this is an agreed position and in the event that I am provided with advice from either or both parties I will include that advice with my reference to the president. When I'm advised of the President's position I will ensure that the parties are accordingly informed. Is there anything further, Ms Siami?

PN105

MS SIAMI: No, your Honour.

PN106

THE SENIOR DEPUTY PRESIDENT: Mr Sheehan?

PN107

MR SHEEHAN: No Commissioner.

PN108

THE SENIOR DEPUTY PRESIDENT: Very well, I will adjourn the matter on that basis.

ADJOURNED ACCORDINGLY [4.14pm]