C2004/3305, Transcript of Proceedings [2004] AIRCTrans 3311 (25 August 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8184

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/3305

GROUP TRAINING (VICTORIA) AWARD 1999

Application under section 113 of the Act
by Australian Municipal, Administrative,
Clerical and Services Union to vary the
above award concerning the Redundancy Test
Case Decision of March 2004[PR032004]

MELBOURNE

2.05 PM, THURSDAY, 12 AUGUST 2004

Continued from 1.7.04

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, there are no change in appearance, I note. I should indicate that application was sought by the union to amend the clause in a manner different to the Redundancy Test Case decision. The application has been referred, pursuant to principle 10, to the acting president, Vice President Ross as he then was. He is still Vice President Ross but he was then acting president and he decided the matter should continue to be dealt with by myself and the matter has been relisted to deal with the issue of the fewer than 15. I do have, Mr Henderson, an outline of submissions from you which I will mark ASU2.

EXHIBIT #ASU2 OUTLINE OF SUBMISSIONS OF MR HENDERSON

PN28

MR HENDERSON: Yes, thank you, your Honour. I thought it was useful to just jot down those few points to - so that it was clear for Mr Glover and the Commission, the additional matters that we would raise. I don't propose to read them to the Commission but these additional submissions were made, having regard to your Honour's decision in the Tabcorp matter and also a decision which Senior Deputy President Kaufman made in the Home and Community Care Award.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes.

PN30

MR HENDERSON: In relation to the additional points that we have set out on page 2 of that supplementary submission, notably, that none of the employers respondent have fewer than 15 employees and is unlikely to employ fewer than 15 employees, and we say as a consequence of that, that the fewer than 15 provision would be of no practical effect. And I am basically paraphrasing, your Honour, there, from the Tabcorp decision. The Group Training Award did not include an exclusion of employers of less than 15 in the original provision, and as I have indicated there, the employer does consent.

PN31

So I would simply rely on those submissions, if the Commission pleases and I have mentioned to Mr Glover that some assurance in relation to the prospect of an employer employing less than 15 from him would be useful to the Commission in arriving at a decision on the matter and he is in a position to give some submissions in relation to that.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes, now, the only material difference on your submissions from my reading the Tabcorp decision in terms of those various dot points, is that that particular award had application to a single employer. This award has application to - how many respondent employers?

PN33

MR HENDERSON: Yes, that is right, your Honour and I might say that is also a difference with the Home and Community Care Award which had only one - - -

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR HENDERSON: - - - large employer but Mr Glover is in a position to make some - give the Commission some information about that but I acknowledge that that is a difference in this case.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes, but it is a reasonably limited number of employer respondents?

PN37

MR HENDERSON: It is and they are all in precisely the same business, that is, the provision of group training. But if the Commission pleases, I will leave that to Mr Glover.

PN38

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Henderson. Mr Glover?

PN39

MR GLOVER: Commissioner, I concur with what Mr Henderson has just laid out. All of the respondents to this award would employ, at my best estimate at the moment, would be in excess of 200 employees. There is no activity on their part or anything I can foresee that would indicate they would ever fall below that level of employment. The number of respondents to this award is in the order of 20. They are all members of Group Training Association of Victoria which I represent so I have a very good knowledge of the numbers of employees and the activities that they carry out.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR GLOVER: At this stage I don't foresee that there are any employers outside of this award that the ASU would be likely to rope-in who would employ less than 15 employees.

PN42

THE SENIOR DEPUTY PRESIDENT: Presumably any employer the ASU sought to rope in who was in that position could seek to have that issue ventilated - - -

PN43

MR GLOVER: Could seek to have that issue raised.

PN44

THE SENIOR DEPUTY PRESIDENT: - - - in making a roping-in award. Yes, very well, the Group Training Association members obviously provide group training and I wonder if you would just explain a little - how that is arranged?

PN45

MR GLOVER: Group training activity is about finding an employment place which will support an apprentice or a trainee for the period of their training contract. The group training company becomes the employer of that apprentice and hosts the apprentice out to a host employer who can provide the training. The idea behind this model is that, should a host employer be unable to continue a contract of training because of shortness of work or insufficient breadth of training or any other commercial reason, it is the group training company's responsibility as their employer to seek another host employer for their placement so they can complete the contract of training.

PN46

THE SENIOR DEPUTY PRESIDENT: And they are funded from a common source?

PN47

MR GLOVER: The majority of their funding now comes from industry - - -

PN48

THE SENIOR DEPUTY PRESIDENT: I see, yes.

PN49

MR GLOVER: - - - so that in - part of the craft of group training is finding host employers who are prepared to pay a bit more than the normal in order to have this service delivered to them and at the same time provide the opportunity for young people. So, essentially, the aim is about employment and training of young apprentices and trainees.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, thank you for that, Mr Glover. Anything further, Mr Henderson?

PN51

MR HENDERSON: No, your Honour, nothing further.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes, very well, well, I am in a position to reach a decision in relation to the application given what has now been put to me. I will announce that decision now and have it published in written form. This decision arises out of an application by the Australian Municipal, Administrative, Clerical and Services Union, ASU to vary the Group Training Victoria Award 1999 to give effect to the test case provisions as cited by the Redundancy case decisions in PR032004 and PR062004.

PN53

The ASU seeks to depart from the test case model provision in print PR062004 to remove provisions dealing with respondents employing fewer than 15 employees on the basis that the departure from the model clause is consented to by the employer respondents and on the basis that no existing provision exists within the award excluding redundancy provisions in respect to employers employing fewer than 15 employees. Further, it is put that the employers engage substantially more than 15 employees and are unlikely to employ fewer than 15 employees so that the fewer than 15 provision in the test case model clause would have no practical effect.

PN54

When the matter first came on I indicated that any departure from the standard would require application reference to the President. That was done in print PR948857 and application has been made by the Australian Municipal, Administrative, Clerical and Services Union, a full reference to the President. The matter was referred by me to the President who decided on 22 July 2004, having considered the application pursuant to principle 10, that the matter should continue to be dealt with by myself.

PN55

A similar matter has arisen before Senior Deputy President Kaufman, the Home and Community Care Award 2001. This was decided in print PR949586 and before myself in Tabcorp Wage and Employees Award 2003 which was decided in print PR949924. The - in the Home and Community Care Award Senior Deputy President Kaufman varied the award without the fewer than 15 employees provision within the test case provision, essentially, on the basis that that provision would have no effect in the context of that award and the provision was consented to by the parties to the award in those terms.

PN56

In the Tabcorp matter I listed a number of reasons upon which I found it appropriate that the fewer than 15 employees provision not be included in the variation in respect to that award. In the present matter the union contends and its position is confirmed by Mr Glover in respect of each of the respondent employers that none of the employers respondent to the award has fewer than 15 employees and is unlikely to employ fewer than 15 employees. The fewer than 15 provision would have no practical effect in the award.

PN57

The present award provision contains no exclusion in respect of small businesses and the employer consents to the draft order as submitted. Given that factual scenario, the circumstances in respect to this matter are entirely consistent with those in the Tabcorp matter, and indeed, the Home and Community Care Award matter. In respect to the Tabcorp matter seven matters were listed by myself as reasons for acceptance of the order in the terms proposed by the ASU. Six of them have application in respect to this matter and the only matter which is different in respect to this award than the Tabcorp Award is that the Tabcorp Award had application, and has application still, to a single employer.

PN58

In the case of the Group Training Award there are some 20 respondent employers bound by the award. I do not regard that difference as a basis for refusing the application in the terms sought by the ASU. The 20 respondent employers are all members of the Group Training Association of Victoria engaged in common activity. And in the context of each of the other six matters, applying the circumstances of this award, it is my view that the fact of a limited number of respondents rather than a single employer respondent does not warrant departure from the conclusion I reached in the Tabcorp matter.

PN59

The limited number of 20 respondents distinguishes this situation from that of a - an industry award with several hundreds or thousands of employers. Further, I note that in the event that the ASU at any point sought to bind an additional employer as a respondent to this award and that employer engaged less than - fewer employees, that employer would at the award making stage be able to put an argument for deviation from the substantive terms of the Group Training Award in respect of any roping-in award made and would be at liberty to argue in that respect that the fewer than 15 provision ought apply in the circumstances of that employer.

PN60

For those reasons I will vary the award in the terms sought by the ASU in the draft order submitted as exhibit ASU1. The order will have effect from today's date and remain in force for a period of six months. Is there any issue in respect to operative date? There are no redundancies - occurred in recent times?

PN61

MR HENDERSON: Today's date will be fine.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, very well, thank you for that. Very well, well, I will adjourn on that basis.

ADJOURNED ACCORDINGLY [2.21pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU2 OUTLINE OF SUBMISSIONS OF MR HENDERSON PN28