C2004/4252, Transcript of Proceedings [2004] AIRCTrans 3004 (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 7985
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4252

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

CLIVE PEETERS PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re wages and conditions

MELBOURNE

2.11 PM, FRIDAY, 23 JULY 2004

PN1

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

PN2

THE SENIOR DEPUTY PRESIDENT: You are sufficiently familiar with ..... industry by now I presume.

PN3

MR RYAN: Yes, unfortunately I am too familiar with it by now.

PN4

THE SENIOR DEPUTY PRESIDENT: Very well. Can I just indicate to you that I have received a facsimile from National Retail Association. It is stated that it was copied to yourself so you may well be familiar with it anyway. But for the sake of transcript it records that they have received advice that I refused an application to adjourn the matter, indicating they will not be able to appear on behalf of Clive Peeters Pty Ltd today, indicating further there is no objection to the Commission making a finding in relation to the matter, but seeking to make more detailed submissions at a later hearing date to address resolution of the dispute.

PN5

Accordingly they are seeking an order that a dispute exists, perhaps a finding rather than an order, and that a hearing be listed for consideration of submissions on the resolution of the dispute at a date to be fixed. And then there is some additional comment. So there appears to be no objection to a dispute finding, and a request for a further date of hearing for matters in terms of resolution of the dispute.

PN6

MR RYAN: Yes, well, your Honour, whilst I note that they are effectively not objecting to a dispute finding made, it is still nevertheless the case that it is the Commission that has to be satisfied that the dispute in fact exists.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, that is absolutely correct but in addressing the requirements for the finding of a dispute, he can obviously do so on the basis that there is no objection from the employer, yes.

PN8

MR RYAN: Yes. Your Honour, we rely upon the notification of an alleged industrial dispute as filed in this matter.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR RYAN: Note that in relation to this matter on the statement of facts the letter of demand and log of claims was hand delivered to the Head Office of the company by myself on 15 June 2004 where I personally delivered it to Jane Beith, the Human Resources Manager of Clive Peeters Pty Ltd.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes.

PN12

MR RYAN: We have attached to the notification a copy of the letter of demand and the log of claims.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, well, perhaps I will mark the material filed in respect of the notification SDA1, and whilst I am at it I might mark the letter from National Retail CP1, and that statement of the SDA goes to the service, well, the letter of demand, well that certainly isn't disputed.

EXHIBIT #SDA1 MATERIAL FILED IN RESPECT OF NOTIFICATION

EXHIBIT #CP1 LETTER FROM NATIONAL RETAIL

PN14

MR RYAN: Yes, I draw attention to it only because it is normal in these matters to find at least a mail posting receipt of the letter of demand and log of claims.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR RYAN: On this occasion, it was done by hand delivery to the Head Office of the employer.

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, well there is no one here to contest that assertion, so that is accepted.

PN18

MR RYAN: Yes. Your Honour, in relation to the matters within the letter of demand and log of claims, we would certainly seek that the Commission find that, as a result of the service of the letter of demand and log of claims on 15 June on Clive Peeters Pty Ltd of 289 to 311 Bayswater Road, Bayswater North, of a letter of demand and log of claims which they did not accede to that a dispute exists as a matter of jurisdictional fact by reason of their non-accession to the claims made, but that the matters in dispute are all of those matters contained in the log of claims say - and except for claim 104 which relates to a claim for the payroll deductions of union contributions; a matter which is strongly pressed by the Association regardless of whether or not the Commission has jurisdiction in relation to the matter, and in fact the Commission does not have jurisdiction to deal with that matter as a result of the Alcan decision of the High Court which says it is not a matter pertaining directly to the relationship of employer and an employee. And I also must identify that the log of claims also contains a claim in relation to superannuation payments, and this is - - -

PN19

THE SENIOR DEPUTY PRESIDENT: It is not alphabetical, we know that much.

PN20

MR RYAN: That is right.

PN21

THE SENIOR DEPUTY PRESIDENT: 47.

PN22

MR RYAN: Yes, your Honour, thank you. In relation to claim 47 it makes claims in relation to all employees of the employer, which means it makes claims both in relation to persons who are members of the union, and persons who are not members of the union. And as a result of the High Court authority, the Commission cannot find that a dispute exists in relation to that part of the claim that relates to a claim that superannuation payments on behalf of non-members be paid into a specific fund.

PN23

We are certainly able to make the claims on behalf of non-members for superannuation payments, but not to the extent of making a claim in relation to a specific fund. On the basis of exclusions of that part of clause 47 which relates to the specification of a fund for the payment of superannuation in the case of non-members of the Association and for the whole of claim 104; apart from those two matters, we ask that a finding of dispute be made in relation to the service of letter of demand and log of claims on Clive Peeters Pty Ltd and their non-accession to those claims.

PN24

Your Honour, we note that this matter is not in isolation to the real world industrial relations climate that exists between the Association and Clive Peeters Pty Ltd.

PN25

THE SENIOR DEPUTY PRESIDENT: It doesn't surprise me.

PN26

MR RYAN: Yes. And given that the authorities of the High Court make it very clear that disputes may be diminished or enlarged by the conduct of the parties during the life of the creation of a dispute and its existence, we ask that the Commission be mindful that, apart from all of the issues that are raised in the letter of demand and log of claims, there have been a number of matters which quite clearly are being agitated before you in relation to another matter, but which give flavour to the fact that the - just the claims we made are being very seriously pressed upon Clive Peeters Pty Ltd.

PN27

THE SENIOR DEPUTY PRESIDENT: Yes.

PN28

MR RYAN: And given that they will not accede to the claims and that a dispute does exist as a matter of fact, we ask that you make that finding that a dispute does so exist. We would seek very urgent action by the Commission to achieve some partial resolution of the matters in dispute. We note that exhibit CP1, the employers have indicated there - or that National Retail Association has indicated that it does not intend to be here.

PN29

However, just because the letter from Suzanna McAuliffe, Manager Employment Law Division of the National Retailers Association indicates that they would not be here given that Clive Peeters Pty Ltd is based in Bayswater, it is the Head Office; it is where the General Manager, Chief Executive Officer and the National Human Resource Manager are all located, we would suggest very strongly that the non-attendance by the company today is a deliberate ploy to prevent the Commission from further dealing with the matter in dispute by the making of any award which would be in part settlement of the dispute.

PN30

And we say that and do so very strongly on the basis that the employer, acting through National Retail Association, indicated, we understand in a letter to yourself and copied to us on 15 July 2004, that they did not want these proceedings to go ahead. We responded by correspondence to yourself and copied to the employer on 15 July that we did want the proceedings to go ahead, and notwithstanding that there have been two full days of proceedings before yourself here in Melbourne this week, at which the National Retail Association had people from Queensland together with members of the company in attendance at Commission proceedings for two full days this week.

PN31

For them to simply be absent and deliberately absent today, we say that the Commission should draw the conclusion that it is a deliberate attempt to effectively frustrate the operation of the Commission and to prevent the Commission from having the benefit of genuine argument by both parties as to whether or not an award should or should not be made as a matter of urgency

PN32

THE SENIOR DEPUTY PRESIDENT: Has that proposition been put as yet by the union to Clive Peeters that an award should be made in the terms of that award which is presumably roping in to some other instrument?

PN33

MR RYAN: Your Honour, on 15 July we did write to you by - sent a fax message - or we dated the letter on Thursday, 15 July, and as I can ascertain from our records it was faxed to you at 9.24 am on Friday, 16 July.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR RYAN: And a copy of that letter was also forwarded to Susanna McAuliffe at the National Retailers Association and in that letter - the second paragraph of that letter we did make it clear to the Commission and thus to the National Retailers Association and Clive Peeters Pty Ltd that we would be strongly pressing the Commission to quickly make an award in part settlement of the dispute.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR RYAN: Your Honour, we do press the Commission to make an award - even an interim award in relation to the matters that are in dispute in matter C No 2004/4252. We would seek that an interim award be made. The terms of the interim award between the SDA and Clive Peeters Pty Ltd would be the same terms as those of the Shop, Distributive and Allied Employees Association Victorian Shops Interim Award 2000. So we would seek an interim award to an interim award, or an interim award which reflects an interim award.

PN38

THE SENIOR DEPUTY PRESIDENT: What is the practical urgency?

PN39

MR RYAN: At the present time, your Honour, employees employed in retail operations of Clive Peeters Pty Ltd do not have the benefit of an award of this Commission; therefore, they are not protected by a fair safety net of wages and conditions of employment as established by this Commission.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR RYAN: And that fair safety net are the terms of the Victorian Shops Interim Award. It was an award originally made in 1994. It has been the subject of award simplification, although very clearly as part of the process of award simplification the title of Interim Award was kept very specifically because the employer organisations, the Australian Retailers Association and the Victorian Employers Chamber of Commerce and Industry argued that there were matters which could still be the subject of formal hearing before the Commission as to finalisation of the terms of the award.

PN42

So they sought to continue to keep that as operating as an interim award. But as an interim award it has been determined as a result of the award simplification proceedings, to constitute a fair and effective safety net of wages and conditions of employment for employees, for employees in the retail industry until such time as an employer party to that award may seek to have it converted into a final award or until the association seeks to have it converted to a final award.

PN43

In the absence of any award coverage for Clive Peeters employees, then we would ask the Commission, and urge upon the Commission, to make or come to the view that you consider that the making of an award may be necessary to protect for an interim period, the wages and conditions of employment of the employees whom the award would cover. The protection of wages and conditions of employment would be given to those persons who would then become party, or would have the benefit of the award and the interim period would enable the employer, if it so chose, to test any of the terms and conditions of the Victorian Shops Interim Award, as to whether or not they complied with all of the principles for making a first award under the Commission's wage fixing principles.

PN44

There is more than ample case law on making of interim awards in Victoria, and one of the clear indications is that, at least in the making of an interim award, the Commission does not have to be satisfied that all of the requirements of the wage fixing principles have been met. In fact it is the opposite; the requirement for the making of an interim award as set out in section 111(1)D, is that the Commission must decide as quickly as it can whether to make an interim award, and it does so if the Commission considers that such an award may be necessary to protect for an interim period the wages and conditions of employment of the employees whom the award would cover.

PN45

Your Honour, because the company has made it very clear that it is effectively putting all of its eggs in one basket, which is to seek to have the terms and conditions of employment of retail employees covered by an agreement which they are seeking to have the Commission certify, then in the absence of an agreement being certified, workers will be without the protection of a fair and effective safety net of terms and conditions of employment, and that is - - -

PN46

THE SENIOR DEPUTY PRESIDENT: Well, why is that?

PN47

MR RYAN: Because in the absence of a certified agreement the employees will fall back - or not fall back to, the employees have nothing other than the protections of schedule 1A.

PN48

THE SENIOR DEPUTY PRESIDENT: Presently, yes.

PN49

MR RYAN: Presently.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes. But that is the normal situation, is it not? I am just trying to ascertain what the particular urgency of this matter, for example, the 1990 - sorry the matter dealt with in the - C1998/75644, involved precisely the same circumstances of - in that case it is not precisely the same circumstances.

PN51

MR RYAN: Yes.

PN52

THE SENIOR DEPUTY PRESIDENT: A large number of employers without the protection of an award safety net subject only to schedule 1A, and that matter was dealt with no doubt because of the number of employers involved over a very long period of time, but in a normal course of events matters or dispute findings are found, the parties confer and at some point an application is made. I am just trying to ascertain what is the particular urgency in this case which would require the making of an interim award now in circumstances where, for whatever reason, you have put a submission in respect to that, the employer is not represented today and has been put on notice of the intent to make an award in only the most general terms; that is the intent to make an award rather than the terms of that award. I mean, the most normal course - - -

PN53

MR RYAN: Yes, yes.

PN54

THE SENIOR DEPUTY PRESIDENT: - - - following a dispute finding is discussions occur and the union will then put a draft award to the employer, generally in the forms of a roping in award, and provide - and then when the matter has been brought back on, that is the focus of the matter.

PN55

MR RYAN: Yes. Your Honour, I can say that when I hand delivered the letter of demand and log of claims to Jane Beith of the employer, I indicated the availability of the association to discuss with her issues arising both from the service of the letter of demand and log of claims as well as issues were then in existence concerning the proposed enterprise agreement. I was very politely told that discussions would not happen, that our letter of demand and log of claims would simply be referred to their legal people and responded in due course, and that the company saw no reason to talk to us in any event about the issues that they were pursuing for certification of an agreement.

PN56

We would make the very strong submission that there is no likelihood whatsoever of any conciliation or any discussions ensuing between the parties which would have any positive outcome at all in terms of resolving the dispute, and we would seek that the Commission exercise its power under section 111(1)D, to make an interim award.

PN57

But we would qualify that on the basis that, I am very conscious that if any award was to be made prior to the Commission making any decision in relation to the certification of an agreement, that it actually would cause significant administrative hurdles for an employer who had the bulk of its employees on terms and conditions of employment which complied with schedule 1A, being forced to move to terms and conditions of employment which complied with an award, and then if the Commission certified an agreement very shortly thereafter, being required to completely revise its system to comply with the terms and conditions of an agreement.

PN58

On that basis, we would urge that the Commission look to make an award at an indeterminate date, the date being the date upon which, or the date one day after the day upon which the Commission issues a decision in relation to the application for certification of the agreement, which would mean that if the Commission certifies the agreement, the award would come into operation and would simply constitute the effective safety net terms and conditions of employment of employees who were covered by the agreement into the future, for the purposes of future agreements.

PN59

It would also create a safety net of terms and conditions of employment for those persons who are excluded from the agreement but who are capable of being covered by the award and we do note that the Victorian Shops Interim Award does have classifications covering shop managers, whereas shop managers are not being covered by the certified agreement so that the award would have a real job to do in relation to a small number of employees.

PN60

But in both senses, the award would then only come - this is if the Commission certified the agreement, the award would come into effect after the certification, and for those employees covered by the agreement, the agreement would prevail over the award. If the Commission then made a decision however, not to certify the agreement, then the award would come into effect in terms of providing the fair and effective safety net terms and conditions of employment of those employees.

PN61

THE SENIOR DEPUTY PRESIDENT: And what if the Commission determined not to certify the agreement, but provided in accordance with section 170LV(1), the opportunity for the employer to make a particular undertaking which would then result in the certification of the agreement?

PN62

MR RYAN: Because the Commission does not actually make the final decision. That that is not a decision for the final rejection of an agreement, or the final acceptance of an agreement. The language in fact is, the Commission must not refuse to certify - - -

PN63

THE SENIOR DEPUTY PRESIDENT: So you don't mean "decision" you mean - - -

PN64

MR RYAN: The finalisation of.

PN65

THE SENIOR DEPUTY PRESIDENT: A decision to certify or not certify, having gone through all the steps in LV et cetera.

PN66

MR RYAN: The stage at which the Commission would be functus officio in relation the application, not decisions which may arise as procedural or interim decisions leading to that stage.

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR RYAN: We also draw some comfort, your Honour, from the fact that when the National Retailers Association, appearing on behalf of Clive Peeters Pty Ltd before Commissioner Richards in Brisbane on an application for the designation of an award, made it - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Indeed, the same award.

PN70

MR RYAN: They made it very clear in the language of the transcript of those proceedings, that they specifically, and I tender a copy of the transcript and I do note, your Honour, that this is a matter that has been drawn to your attention before in the agreement proceedings because it was an attachment to the witness statement of Jane Beith in the agreement proceedings.

[2.37pm]

PN71

THE SENIOR DEPUTY PRESIDENT: Yes, so I will mark it differently in these proceedings.

EXHIBIT #SDA2 ATTACHMENT TO WITNESS STATEMENT OF JANE BEITH

PN72

MR RYAN: And, Commissioner, at paragraph 22 - or point number 22 on page 3 of 6 Ms McAuliffe says:

PN73

And the retail award that we have selected is the original Federal award ...(reads)... fall squarely within the description of the kind of work that is covered by that agreement.

PN74

Meaning the award. And then she goes on:

PN75

The sort of duties that those retail employees at the stores are engaged in ...(reads)... ringing sales through and other general retail duties.

PN76

They made it very clear that they consider that the operations - or the retail operations of Clive Peeters Pty Ltd fall fairly and squarely within the coverage of the Victorian Shops Award and on that basis we say they would be hard pressed to now try and mount an argument that it was not an appropriate award to cover their employees. The fact that they have gone to such extent to have it clearly identified and designated as you would for the no disadvantage test - - -

PN77

THE SENIOR DEPUTY PRESIDENT: But they may wish to argue that there are particular provisions which should be in different form or not included in any award applying to them.

PN78

MR RYAN: Yes. And we say that the - given that they have chosen not to have anyone - I can understand Susan McAuliffe not wanting maybe to fly back from Brisbane to here, but a human resource manager of a large national company could have attended and there are umpteen other people in Melbourne who could have been briefed.

PN79

THE SENIOR DEPUTY PRESIDENT: But if Ms Beith were here why would she not stand up now and say we were given notice in the letter of 15 June, was it - or 15 July of the desire of the SDA to make an award in part settlement of the industrial dispute. It is only now that we have been appraised of the terms of that award - proposed award - the interim award 2000. We require an adjournment in order to consider the terms of that award and whether we would consent to an award in those terms, oppose it generally or oppose particular terms within it.

PN80

MR RYAN: And if they were prepared to do that then the answer would still be make an interim award subject to an excision of some specific clauses or alternatively make the whole award as an interim award and set down for debate and argument whether or not any final award should have special terms and conditions of employment in it.

PN81

THE SENIOR DEPUTY PRESIDENT: But an interim award is generally utilised to maintain the status quo or protect some particular position, is it not?

PN82

MR RYAN: Yes.

PN83

THE SENIOR DEPUTY PRESIDENT: What is intended to be protected in this case?

PN84

MR RYAN: What we seek to protect is that should the Commission not certify the agreement then we would be very strongly concerned about the terms and conditions of employment that may apply to workers at the Clive Peeters Store. Whilst they have been operating without - - -

PN85

THE SENIOR DEPUTY PRESIDENT: As a matter of practicality where is the need for the urgency? The certification matter is left on the basis that the applicant employer is going to provide final written submissions early in August and then, as you would be aware - you are familiar with the materials the Commission has - three or four days of transcript and several forests of papers to wade through in order to determine a decision in that matter. Why would an interim award be required as there is plainly an opportunity to have the matter re-listed on the basis that the SDA clearly properly advised the employer of the terms of the award it seeks.

PN86

MR RYAN: I would be happy to do that, yes.

PN87

THE COMMISSIONER: And for the matter to be further heard.

PN88

MR RYAN: I would be happy to do that. What I have clearly done today though is foreshadow that we see this as an urgent matter. We don't want to get caught in the games - - -

PN89

THE SENIOR DEPUTY PRESIDENT: Well, that - - -

PN90

MR RYAN: - - - being played by NRA which is to - - -

PN91

THE SENIOR DEPUTY PRESIDENT: Well, that would need to be done as well, that presumably the appropriate course would be for the SDA to in writing advise Clive Peeters of the specific terms of an award being sought, whether it is a roping-in award in the usual terms or the full terms of the - - -

PN92

MR RYAN: I can advise that it would be a roping-in award in the usual terms so that the full term and effect of the SDA - - -

PN93

THE SENIOR DEPUTY PRESIDENT: Yes, would be expressed as an roping-in award. Very well. If that could be conveyed and no doubt it would be proper to advise Clive Peeters at any subsequent hearings in relation to that matter, if the matter is not capable of determination at that hearing, that you would be pressing for an interim award until final determination of the application for the award in effect.

PN94

MR RYAN: Yes.

PN95

THE SENIOR DEPUTY PRESIDENT: And further, that you would no doubt invite discussions with Clive Peeters in relation to either or both of those matters. Now, you say it unlikely they will take that opportunity but I think it would be desirable in terms of the normal process, before you at least invite such discussions and certainly enter into them if they - if Clive Peeters seeks to respond positively to such an invitation. I mean if they don't then they don't and any hearing would proceed on that basis.

PN96

MR RYAN: Is it possible for the Commission to indicate a date when such a hearing would take place?

PN97

THE SENIOR DEPUTY PRESIDENT: I will set down a date prior to the adjournment of these proceedings.

PN98

MR RYAN: Because we - I would be happy to - - -

PN99

THE SENIOR DEPUTY PRESIDENT: If my associates, they will assist me with a diary - - -

PN100

MR RYAN: - - - undertake the discussions, your Honour, with Clive Peeters but only on the basis that the date existed because I would be very concerned that - - -

PN101

THE SENIOR DEPUTY PRESIDENT: Well, you could - - -

PN102

MR RYAN: - - - it be used - discussions be used as a delaying tactic by this company.

PN103

THE SENIOR DEPUTY PRESIDENT: Well, Mr Ryan, I don't think you could do any more than invite discussions. As you say you can't compel Clive Peeters to engage in them.

PN104

MR RYAN: Yes, but I don't want them writing back to you and saying well, we are unavailable for discussions on a certain day, can you please postpone the hearing further and then they offer a discussion date which is so far in advance that it defeats the purpose of the application that we have made, because I do note, your Honour, that in this matter that in their original letter to you on 15 July the company drew very clear attention to the fact that they expect to be applying the terms of the Victorian Shops Interim Award at least as from January next year. They made the presumption that they will be bound to apply that award as a common rule.

PN105

THE SENIOR DEPUTY PRESIDENT: Yes.

PN106

MR RYAN: They may know more about the processes than I do but - - -

PN107

THE SENIOR DEPUTY PRESIDENT: Well, I think the evidence - - -

PN108

MR RYAN: - - - I think we are pushing uphill to get everything done by the first - - -

PN109

THE SENIOR DEPUTY PRESIDENT: Well, I think the evidence in the other matter is suggestive of that proposition in some places, but a broader proposition in the terms of no earlier than in others.

PN110

MR RYAN: Yes.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Today is 23 July. Having established that we can move on. Yes, what I propose to do - I would think now being 23 July it would be appropriate to allow a period of some three weeks on the basis that if there is intention to - or desire by both parties to enter into discussions that can occur in that period and equally if there is any desire for conciliation within the Commission, application could be made for an earlier date than I am about to announce for the purposes of conciliation.

PN112

But otherwise I propose to re-list the matter on Friday, 13 August, maintaining free Monday, 16 August out of an abundance of caution, for the purpose of further dealing with the dispute which I will, I should indicate, shortly find and that will be on the basis that I have indicated if there is a desire for conciliation at some earlier time application could be made for that to occur. Is that all you wish to put at the moment?

PN113

MR RYAN: Yes.

PN114

THE SENIOR DEPUTY PRESIDENT: I will formalise everything. Very well.

PN115

MR RYAN: May I suggest if it wasn't - will the Commission automatically send a copy of transcript directly to Susan McAuliffe?

PN116

THE SENIOR DEPUTY PRESIDENT: Yes.

PN117

MR RYAN: Yes.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes.

PN119

MR RYAN: Thank you.

PN120

THE SENIOR DEPUTY PRESIDENT: That will occur. We have her contact details.

PN121

MR RYAN: Yes.

PN122

THE SENIOR DEPUTY PRESIDENT: So that will occur.

PN123

MR RYAN: That would at least make it easier for the initiation of the discussions if they have got the transcript directly.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes, very well, I shall do that. I will deal firstly with the dispute finding. The SDA is seeking a dispute finding largely in respect of the matters within a log of claims served upon Clive Peeters in relation to the dispute between it and Clive Peeters Pty Ltd. I am satisfied that Clive Peeters has been properly served with a letter of demand and log of claims on 15 June 2004. I note from exhibit CP1 that the National Retail Association on behalf of Clive Peeters Pty Ltd does not object to a finding of dispute. Accordingly, pursuant to section 101 of the Act I will make a finding of dispute.

PN125

The parties to the dispute are the Shop, Distributive and Allied Employees Association and Clive Peeters Pty Ltd. The matters in dispute are those matters contained within 15 June 2004 log of claims attached to a letter of demand, save for clause 106 and save for that part of clause - - -

PN126

MR RYAN: Excuse me, your Honour, 104.

PN127

THE SENIOR DEPUTY PRESIDENT: I am sorry.

PN128

MR RYAN: Claim 106 is a matter that is able to be made.

PN129

THE SENIOR DEPUTY PRESIDENT: Yes. Yes, I retract that. It is save for clause 104 rather than 106 and save for that part of clause 47 which relates to a claim for superannuation payments in respect of non-members of the Association to be made into a specific superannuation fund. I will make a finding in those terms. The entity Clive Peeters Pty Ltd has been served at Bayswater North. That is its national office, is it?

PN130

MR RYAN: Yes, it is, your Honour.

PN131

THE SENIOR DEPUTY PRESIDENT: And the claim was made in respect of that organisation nationally.

PN132

MR RYAN: Yes, it was.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes. So there is no need to import reliance upon the Part 10 provisions in respect of the State of Victoria.

PN134

MR RYAN: No, no, it was made in relation to all potential, future and other employees and it does already operate, as the Commission would be aware, already in at least two states so just by its very nature it is already national.

PN135

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that. Very well. The SDA sought the making of an interim award in part settlement of the dispute pending substantive proceedings in relation to the making of an award in part settlement of the dispute. The National Retail Association on behalf of the company sought that the matter be listed for consideration of submissions and resolution of that dispute on a date to be fixed. In my view there is no proper basis for the making of an interim award at this point of time. Rather, what I shall do is to re-list this matter at 10 am on Friday, 13 August and 10 am on Monday, 16 August for the purpose of hearings in respect to the SDAs application for the making of an award and/or interim award in part settlement of the dispute.

PN136

I now direct the SDA to serve upon Clive Peeters Pty Ltd the terms of the award that it seeks to make in part settlement of the dispute, both a final award and an interim award. I further direct the SDA to contact Clive Peeters Pty Ltd and to convey its preparedness to meet to discuss with Clive Peeters Pty Ltd the settlement or partial settlement of the dispute. In the event that either party seeks the assistance of the Commission by way of conciliation such request should be conveyed to the Commission and a date will be found for such conciliation prior to the date of 13 August 2004. The hearing scheduled for 13 August 2004 will obviously only proceed in accordance with the Act, upon the Commission being satisfied that conciliation is at an end.

PN137

Accordingly, if either party does seek the assistance of the Commission by way of conciliation that should be sought in a timely fashion to allow conciliation to occur prior to the date of 13 August 2004. I will take steps to ensure a transcript of the proceedings and a copy of the dispute finding is provided to Clive Peeters Pty Ltd through its representative, the National Retail Association via Susan McAuliffe, Manager Employment Law Division. Are there any other matters, Mr Ryan or can we safely adjourn on that basis?

PN138

MR RYAN: No, your Honour.

PN139

THE SENIOR DEPUTY PRESIDENT: Very well, I will now adjourn these proceedings. The formal dispute finding will be issued in due course.

ADJOURNED UNTIL FRIDAY, 13 AUGUST 2004 [2.57pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 MATERIAL FILED IN RESPECT OF NOTIFICATION PN14
EXHIBIT #CP1 LETTER FROM NATIONAL RETAIL PN14
EXHIBIT #SDA2 ATTACHMENT TO WITNESS STATEMENT OF JANE BEITH PN72