C2004/3527, Transcript of Proceedings [2004] AIRCTrans 2983 (2 August 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 7959
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2004/3527

FRONTLINE DEFENCE SERVICES CLERICAL
OFFICERS AWARD 2002

Application under section 113 of the Act
by the Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award re the Redundancy Test Case -
March 2004 Decision (PR032004) and the
Safety New Review - Wages May 2004 Decision
(PR002004)

MELBOURNE

11.05 AM, THURSDAY, 22 JULY 2004

PN1

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

PN2

THE COMMISSIONER: Thank you. I have had a letter from Frontline indicating they are unable to attend. And that they do not oppose the changes but would propose seven days in which to check the final draft order. What is your position Mr Nucifora?

PN3

MR NUCIFORA: Yes, Commissioner. This is an application to vary the Frontline Defence Services Clerical Officers Award for the 2004 safety net adjustment and the redundancy test case decision. If I may tender as an exhibit a bundle of documentation which for completeness goes to confirming service on the employer but also includes a draft order that will rely on this matter? If I could tender that as an exhibit, Commissioner?

EXHIBIT #ASU1 BUNDLE OF DOCUMENTS

PN4

MR NUCIFORA: Commissioner, exhibit ASU1 includes a covering letter dated Tuesday 20 July to Mr Michael Hume whom you have referred to in relation to this matter. He is the Managing Director of Frontline Defence Services. And that covering letter goes to explaining the variation of course referring to the hearing before you today when this award was last varied for the 2003 safety net adjustment in PR932886. How the allowances, particularly the meal allowance, was varied and the first day of allowance and that it refers to of course to the redundancy test case decision. Now the application is attached.

PN5

The application at that time refers to the redundancy - the substantive decision and PR032004. Of course we would amend that application to include a supplementary decision, redundancy supplementary decision, and in PR062004. Now in the rest of that documentation - sorry, Commissioner, back of that documentation of course is the transmission report which confirms that it was served on the employer. The draft order that is there, if I may take you to that, in the middle of the bundle of exhibit ASU1 - - -

PN6

THE COMMISSIONER: Yes.

PN7

MR NUCIFORA: - - - and of course we have added the $19 to the table of rights in clause 14.2. And of course we have got the new, in item A2 of the draft order, the new safety net absorption provision which we, the ASU, as per - as required under the principle gives - indicates that we are committed too. We include there of course, in the rest of the items, variations to the allowances of which our understanding is the employer has checked that and the wage rates. We have confirmed that they are in order. Commissioner, in relation to item B this of course includes the new redundancy case decision provisions.

PN8

THE COMMISSIONER: Except you have not got small business in.

PN9

MR NUCIFORA: Yes, I was about to take you to that, Commissioner.

PN10

THE COMMISSIONER: Yes.

PN11

MR NUCIFORA: Commissioner, in relation to - we have otherwise followed the model clauses.

PN12

THE COMMISSIONER: Yes, go on Mr Nucifora.

PN13

MR NUCIFORA: Commissioner, in relation to the model clauses we have sought to follow the model clauses of the supplementary decision except for references to smaller - to small employers. And we have not included in this references to apprentices as we do not believe that that is warranted. I do not think that is as much as a controversial issue as a reference to small employers. If I could take you - I will take you back to the small employer reference. I just wanted to add that there is an amendment to the operative date in (c).

PN14

In the electronic copy that I sent through to your associate this morning I have included the consent date. The employer has indicated 7 August is the anniversary date and as a result they have indicated in correspondence to our office and I think it was in the correspondence you referred to, Commissioner, that in fact that there would be an actual increase for a couple of employees and we do not dispute that. It is only a few weeks off so we - when we would have otherwise been seeking - we would have sought a waiver of the 12 month delay between the anniversary dates.

PN15

We do not otherwise pursue that position given the requirements of the principles on wavering the 12 month delay and we would agree that the draft order before you, included in exhibit ASU2, would be amended to now include 7 August as the operative date.

PN16

THE COMMISSIONER: Yes.

PN17

MR NUCIFORA: And of course that is exactly 12 months from when this award was varied in the print number I referred to earlier, PR932886. Commissioner, taking you back to the small employer reference. There have been different decisions of the Commission in relation to this. And I refer you there to a decision of Senior Deputy President Watson - - -

PN18

THE COMMISSIONER: Yes, he put it in.

PN19

MR NUCIFORA: Sorry, your Honour.

PN20

THE COMMISSIONER: He put it in didn't he?

PN21

MR NUCIFORA: No, in that decision he raises a question about whether it needs to go under principle 10 - needs to be referred to the President in that matter.

PN22

THE COMMISSIONER: Yes.

PN23

MR NUCIFORA: And that is in PR948845. There was a number of clerical awards, in particular enterprise awards, where we had sought to take the provision out. Now this was not going to have an - these were large employers that had larger than - more than 15 employees. He has since - in another matter that - - -

PN24

THE COMMISSIONER: His conclusion was it should wasn't it? It raised principle 10?

PN25

MR NUCIFORA: It raised principle 10 in another matter before his Honour. We sought to refer it off to the Acting President, Vice President Lawler, and I may in fact just table this. It is a memorandum that has come back from Vice President Lawler to Senior Deputy President Watson in relation to this matter being - the circumstances of this variation for the model test case clause. Whilst something that could be referred back to a single member as - - -

PN26

THE COMMISSIONER: Yes.

PN27

MR NUCIFORA: - - - as his Honour, Vice President Lawler saw it. That was in C2004/3235. It was the Tabcorp Wagering Employees Award. I do not know whether - I can table this. Whether it needs to be an exhibit or not?

PN28

THE COMMISSIONER: No, that is all right.

PN29

MR NUCIFORA: But if I refer you that Commissioner, it was in the context of that particular enterprise award where of course Tabcorp has more than 15 employees and we hope it continues to have more than 15 employees otherwise we are all in trouble because everything has been automated. But Commissioner if we - if I just quote from that. His Honour goes to say that in that application:

PN30

The Australian Services Union has applied to vary the above award to amend the model clause to give effect to the redundancy case decisions pursuant to principle 10 of the statement of principles in the May 2004 safety net review. I have considered whether the application should be dealt with by a Full Bench. I have decided it should continue to be dealt with by Senior Deputy President Watson.

PN31

Now that still - we do not have a decision on that yet but his Honour, Senior Deputy President Watson, asked for further written submissions - - -

PN32

THE COMMISSIONER: Yes.

PN33

MR NUCIFORA: - - - in relation to that and we are awaiting an outcome of that at this point in time. There is another decision I want to refer you to though, Commissioner. A decision of Senior Deputy President Kaufman - - -

PN34

THE COMMISSIONER: Yes.

PN35

MR NUCIFORA: - - - in PR949586 where he - the matter had been referred to Acting President Vice President Ross. And his Honour, Vice President Ross, found that the matter could be dealt with by a single member and Senior Deputy President Kaufman found that, and I will just quote from what he says. He found in favour of the consent position between the employer and our union. That is in relation to the Home Community Care Award 2001 and he mentions, if I could quote, in that decision:

PN36

Given the circumstances of this employer I agree that the assertion of that part of the model clause that deals with employers with fewer than 15 employees would be odious.

PN37

Not a word I have used a lot before but I think the definition is superfluous. Now I - this is still a live issue before the Commission. That was Senior Deputy President Kaufman - I am aware of Senior Deputy President O'Callaghan in relation to the Community Access Services of South Australia Award 2004/3240 where on transcript in that matter - the hearing on 8 July, not in a decision but on transcript, he indicates that similarly if there is consent then he would - and he actually indicates on transcript there that there is at this point differing views of the Commission. But as a single member - - -

PN38

THE COMMISSIONER: With great respect to his Honour I think he misunderstands the jurisdictional point.

PN39

MR NUCIFORA: Yes.

PN40

THE COMMISSIONER: The jurisdictional point is 106.

PN41

MR NUCIFORA: Yes.

PN42

THE COMMISSIONER: And that is the Commission is only empowered - - -

PN43

MR NUCIFORA: Yes.

PN44

THE COMMISSIONER: - - - to vary awards in accordance with Full Bench decisions.

PN45

MR NUCIFORA: Yes.

PN46

THE COMMISSIONER: And the action taken by the two members to refer the matter to the President is a proper exercise in a jurisdictional sense - - -

PN47

MR NUCIFORA: Yes.

PN48

THE COMMISSIONER: - - - and then for the Acting Presidents to refer the matter back to the single member is the exercise of the jurisdiction.

PN49

MR NUCIFORA: Yes.

PN50

THE COMMISSIONER: It is not a merit matter.

PN51

MR NUCIFORA: Yes.

PN52

THE COMMISSIONER: It is a jurisdictional question so with the greatest respect to his Honour, Senior Deputy President O'Callaghan - - -

PN53

MR NUCIFORA: Yes.

PN54

THE COMMISSIONER: - - - he probably was not addressed on the matter and nor did it probably come to his attention that there is a provision of the Act that might constrain the variation. I think on the merit side of it I do not have any particular difficulty having sat on the bench dealing with redundancy. I do not have any particular difficulty in an enterprise specific award dealing with this matter by tailoring it. Might I say though, and it is a matter that your union should be very alive to, is that you would not want to do that too often, particularly in Victoria, when you are subsequently looking at common rule.

PN55

MR NUCIFORA: Yes, Commissioner. We have had to review our whole outlook on a number of areas. We have also got matters that should be dealt with by a Full Bench because there are less than 15 employees who have always had the same entitlement - - -

PN56

THE COMMISSIONER: Yes.

PN57

MR NUCIFORA: - - - as - there was a couple of those. But I think with this category here we are not - I actually with due respect to all their Honours but we believe that Senior Deputy President Watson was certainly correct in referring it off to the President and now - - -

PN58

THE COMMISSIONER: Yes, I think I will have to do the same thing.

PN59

MR NUCIFORA: - - - referred back to the single member. And the same with Senior Deputy President Kaufman.

PN60

THE COMMISSIONER: Yes.

PN61

MR NUCIFORA: We do have a concern in fact, with due respect, with Senior Deputy President O'Callaghan's position, because as I understand it if there is not consent by the employer there is a totally different position. And we have a view that it - - -

PN62

THE COMMISSIONER: Well, that can be a matter for argument. But I think jurisdictionally I am obliged to alert the Acting President that there is an application by consent, for example, to vary the test case standard given particular circumstances. You see if you look at 106 - - -

PN63

MR NUCIFORA: Yes.

PN64

THE COMMISSIONER: - - - it says:

PN65

After such principles, if any, have been established the power of the Commission to make or vary an award is exercisable only by a Full Bench unless the contents of the award give effect to the determination of the Full Bench.

PN66

So it is a jurisdictional matter - - -

PN67

MR NUCIFORA: We have taken a particular view on that. A more of a conservative view on industry awards. Even if the industry has employers with more than 15 employees we have kept it in. But in an award like, as I recall this one here - - -

PN68

THE COMMISSIONER: Well, I would have to be persuaded if it went beyond an enterprise award.

PN69

MR NUCIFORA: Yes, and I think our position is now that particularly an award that has an existing exemption - sorry, has no existing exemption for small business because it was always a large business then we are continuing on a tradition from the 1984 - we do not believe there is anything post 1984 to the recent decisions that otherwise changes the law, if you like, on that.

PN70

But, Commissioner, we would say that there have been a number of - apart from those that I have referred to single members of the Commission that have approved that - the same tailoring of the draft order and therefore we seek to have the order before you approved as it is subject to, Commissioner, if you - if it is a matter that you believe that you ought refer it to the Acting President first. And refer it back. Our position would be that we would continue to pursue it.

PN71

THE COMMISSIONER: Yes.

PN72

MR NUCIFORA: Now if at some stage it had to go to a Full Bench we just would not because it is an academic argument in many respects.

PN73

THE COMMISSIONER: No. No. But I think - I think you are protected if the Acting President examines the matter and sends it back - - -

PN74

MR NUCIFORA: Yes.

PN75

THE COMMISSIONER: - - - because otherwise if you have got a situation where a member of the Commission has acted without jurisdiction then unfortunately you do not have an order.

PN76

MR NUCIFORA: Yes.

PN77

THE COMMISSIONER: And the rights that you would seek to enforce on behalf of your members - if the matter went down to the Federal Court it might be moot as to whether or not they have an entitlement.

PN78

MR NUCIFORA: Yes. Appreciate that, Commissioner. Otherwise we did - with the correspondence we have received from Frontline we have made the amendment and I believe that there is otherwise a consent position, Commissioner.

PN79

THE COMMISSIONER: All right. Well, I will give them seven days and I will refer the matter up to the President. You will not - we will not have to sit again if the Acting President refers the matter back to me. I will examine what is put and accept that the small business aspect of it need not be included in this enterprise award and I will issue a decision accordingly. But out of an abundance of caution and in the interests of having an enforceable instrument I will refer the matter to the Acting President. Thanks. And in relation to the safety net variation of course the award - I do not need to refer that aspect to the Acting President. The award will be varied from the first full pay period commenced on or after 7 August was it?

PN80

MR NUCIFORA: Yes, Commissioner.

PN81

THE COMMISSIONER: 7 August. Thanks, Mr Nucifora. That matter is adjourned.

ADJOURNED INDEFINITELY [11.21am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 BUNDLE OF DOCUMENTS PN4