C2004/4707, Transcript of Proceedings [2004] AIRCTrans 3112 (11 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 8031

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/4707

SECURITY EMPLOYEES
(VICTORIA) AWARD 1998

Application under section 113 of the Act
by Liquor, Hospitality and Miscellaneous
Union to vary the above award to implement
the decision of a Full Bench of the Commission
[PR032004 and PR062004]

MELBOURNE

11.28 AM, THURSDAY, 29 JULY 2004

PN1

MR G. KATZ: I seek leave to appear on behalf of CHUBB Security Australia Pty Ltd.

PN2

MS L. PASCALIS: I appear for the Australian Industry Group.

PN3

THE COMMISSIONER: Now there appears to be no appearance by the applicant in this matter. My associate has just - - -

PN4

MR KATZ: Commissioner, perhaps I can assist. I was just coming out of the lift and Ruth was going into the lift. And she was going to do it but she was just going down for a cup of coffee. But I expected her back by half past 11 so she is probably on her way.

PN5

THE COMMISSIONER: All right. Good. Thank you.

PN6

MR KATZ: And I believe there was going to be an appearance by Phillip Eberhard from VECCI but he is not here and also by EMA but they are not here either so.

PN7

THE COMMISSIONER: All right. Well, these applications have been attended by a fewer number than those who have been served on virtually all occasions. But I think what I will do is just to adjourn briefly and we will see if the applicant is going to appear. Thank you.

SHORT ADJOURNMENT [11.29pm]

RESUMED [11.31pm]

PN8

MR B. REDFORD: I appear on behalf of the LHMU in this matter.

PN9

THE COMMISSIONER: I gather there was some confusion between yourself and Ms Frenzel as to who would appear on behalf of the union?

PN10

MR REDFORD: Yes, that is right, Commissioner. I have just taken up the baton and I apologise for the slight delay there too.

PN11

THE COMMISSIONER: Thank you. Yes, you may proceed.

PN12

MR REDFORD: Commissioner, this is an application made by the union pursuant to section 113 of the Act to vary the Security Employees (Victoria) Award 1998. The application seeks to vary the award to implement the terms of the Full Bench's redundancy test case decision and also to insert a redundancy disputes resolution procedure into the award. The Commission will have on file a statement as to service made by the Branch Secretary of the Union showing that the material contained within it was served on 20 July 2004. And served on parties named in an order for substituted service made by the Commission.

PN13

Attached to that material is a record of registered post having been sent by the union on that day and sent to the parties named in the order for substituted service. Now also included in that material is a draft order that was proposed by the union. Now the union has since reviewed that draft order and has some changes to propose. And those changes - - -

PN14

THE COMMISSIONER: I do not have the statement of service. I have no copy of the statement of service in this matter.

PN15

MR REDFORD: Commissioner, then I would seek to tender a statement of service.

PN16

THE COMMISSIONER: Yes, very well.

EXHIBIT #A1 STATEMENT OF SERVICE

PN17

MR REDFORD: Thank you, Commissioner. Now I was just mentioning, Commissioner, that in that statement A1 there is a copy of a draft order proposed by the union. The union has some minor amendments to propose to that order and I have a copy of a amended draft order that I would seek to tender.

PN18

THE COMMISSIONER: Is that the same as the copy that was forwarded by - - -

PN19

MR REDFORD: Just for safety's sake, Commissioner, I cannot be certain that there was a draft order forwarded to your chambers yesterday.

EXHIBIT #A2 AMENDED DRAFT ORDER

PN20

MR REDFORD: Now, Commissioner, unfortunately I do not have the original draft order in front of me that was served but what I can say to you is that - - -

PN21

THE COMMISSIONER: Here I will return that to you briefly. That is in A1.

PN22

MR REDFORD: The changes that have been proposed by the union are as follows. Sorry, Commissioner. The changes that are proposed are - if the Commissioner turns to page 3 of the draft order there is a reference to clause 13.3.1 - I will withdraw that Commissioner. Well, Commissioner, it appears to me as if the draft order that was served is the same as the draft order that I was going to propose as an amended version - - -

PN23

THE COMMISSIONER: No, I don't think so. I think for example if you were to look at 14.3.4.

PN24

MR REDFORD: Yes.

PN25

THE COMMISSIONER: There is a change there.

PN26

MR REDFORD: Well, perhaps if I can say this, Commissioner.

PN27

THE COMMISSIONER: And I suspect that the date of operation is probably nominated in exhibit A1 as it is which was not the case in the draft order served.

PN28

MR REDFORD: Yes, Commissioner, it was generally the case when dealing with these matters that the union served a copy of the draft order that did not include the clause reference for the definition of continuous service or the operative date. And then has since inserted those references and sought to put that as a proposed amended draft order. So what you have before you in A2 is the version of the draft order that the union seeks the Commission use as the basis for the variation of the award.

PN29

THE COMMISSIONER: Yes, I have just - I am reading through it now page by page. I notice at page four of both there is a typographical error in the "four or less than five years service" the word "years" is misspelt. I just mark that on exhibit A1. I beg your pardon on exhibit A2.

PN30

MR REDFORD: Thank you, Commissioner.

PN31

THE COMMISSIONER: Yes, I think they are the changes from my reading of the comparison between the original draft order and the exhibit A2. I am satisfied then that they are not changes of any substance that would effect the service or notification of the parties to whom service was directed of the nature of the application or any of the effects of the variation sought.

PN32

MR REDFORD: Yes, thank you, Commissioner.

PN33

THE COMMISSIONER: Yes. Mr Katz?

PN34

MR KATZ: Thank you, Commissioner. I have sent an e-mail to Ruth Frenzel yesterday, it does not appear that she received it, where we objected to the definition of redundancy in clause 14.1.2 and also suggested there is some grammatical changes - really more form than substance, Commissioner, in 11.5. Perhaps I could just ask leave to hand up our draft order where we have actually changed the proposed amendments plus the draft order which incorporates our amendments.

PN35

THE COMMISSIONER: Very well.

PN36

MR KATZ: I have given Mr Redford copies of both.

PN37

THE COMMISSIONER: C1 and C2. In that order.

EXHIBIT #C1 DRAFT ORDER WITH CHANGES TO PROPOSED AMENDMENTS

EXHIBIT #C2 DRAFT ORDER WHICH INCORPORATES AMENDMENTS

PN38

MR KATZ: Commissioner, we see no reason for a diversion or departure from the model clauses handed down or agreed to by the parties and handed down by the Full Bench in its supplementary decision of, I believe, 8 June under PR062004. And we have really just amended the dispute - redundancy disputes procedure, we have actually added the word "procedure". That is not in the model clause as the Commission would be aware but it was agreed to by the parties as being suitable but was not actually inserted by the Commission.

PN39

Just minor amendments. By adding the word "procedure" and then instead of having a new sentence at 11.5.2 as in the union's draft, exhibit A1, it says after the third line "in good time" and then there is a full stop. It might be a comma.

PN40

THE COMMISSIONER: Comma.

PN41

MR KATZ: And then a capital W. We say we have just added a comma. We have just joined the sentence up with a "with" with a small "w". So that is really more form than anything else. But of real concern is the definition of redundancy in clause 14.1.2. We would want the model clause as per the supplementary decision in 14.1.2 rather than the old definition of redundancy, Commissioner.

PN42

THE COMMISSIONER: Very well.

PN43

MR KATZ: And that is really - that is the only changes that we suggest.

PN44

THE COMMISSIONER: Otherwise you consent?

PN45

MR KATZ: Otherwise we consent. Thank you.

PN46

THE COMMISSIONER: Thank you. Ms Pascalis?

PN47

MS PASCALIS: If the Commission pleases the Australian Industry Group is in support of the arguments put forward by Gary Katz and Associates. Otherwise we do not object to the draft order. Thank you.

PN48

MR KATZ: I should say, Commissioner, sorry. We have just raised this issue with EMA who I understand act for Wilsons and for Group Four and also with VECCI, for Eberhard, and they support our contentions. Thank you, Commissioner.

PN49

THE COMMISSIONER: Mr Redford?

PN50

MR REDFORD: Commissioner, the union does not object to the proposed amendments. The Commissioner knows what I have to say on the matter of the draft clause and in this case there is nothing that I can put to you to justify the variation from the model clause and accordingly it seems that we are compelled to consent to that proposed change as well.

PN51

THE COMMISSIONER: Very well. This is an application to vary the Security Employees (Victoria) Award 1998. The application seeks to include in the award the Commission's test case standards in relation to redundancy and also to provide a redundancy disputes provision. The application has been served on the parties to whom the Commission has directed service. I am satisfied this is the case having regard to the statement of service filed in this matter as exhibit A1 in these proceedings.

PN52

The application is not the subject of any substantial opposition however there is a difference of view as to the appropriate details of the terms of the order which has been resolved in discussion before me. I am satisfied that the parties to whom services are directed had an opportunity to appear and to notify any objection to the substantive effect of the variation sought. I am satisfied that the award should be varied to reflect the Commission's test case standards. And in the circumstances it is also appropriate to include the redundancy disputes provision.

PN53

And therefore an order should issue bearing the award to give effect to this decision. The form of the order will be in the terms of exhibit C2 which I understand is consented to by the applicant. The order will therefore come into force from the beginning of the first pay period which commences on or after 29 July 2004 and shall remain in force for a period of six months. Thank you.

ADJOURNED INDEFINITELY [11.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 STATEMENT OF SERVICE PN17
EXHIBIT #A2 AMENDED DRAFT ORDER PN20
EXHIBIT #C1 DRAFT ORDER WITH CHANGES TO PROPOSED AMENDMENTS PN38
EXHIBIT #C2 DRAFT ORDER WHICH INCORPORATES AMENDMENTS PN38