C2004/65, Transcript of Proceedings [2004] AIRCTrans 3419 (31 August 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 2127
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

9.20 AM, THURSDAY, 19 AUGUST 2004

Continued from 22.7.04

PN109

THE SENIOR DEPUTY PRESIDENT: I note there are no changes in appearances from the last occasion this matter was before me but I also note that the Commission's file on the matter has undergone some change in that it is a much travelled file. The matter was referred to the Acting President of the Commission on 30 July. The Acting President has subsequently referred the application back to me to be dealt with. The notice of listing in this matter indicated that I sought from the parties advice, with particular reference to the proposed clause 18.10 relating to superannuation benefits.

PN110

Ms Siami, yesterday I received from you a further revised draft consent order and I note that that has removed the clause 18.10. By definition, it has already removed the need for the parties to address me on that clause. I am working on the basis that that reflects an agreed position, Mr Sheehan, does it?

PN111

MR SHEEHAN: Unfortunately not, sir.

PN112

THE SENIOR DEPUTY PRESIDENT: It does not?

PN113

MR SHEEHAN: No, it does not, sir.

PN114

THE SENIOR DEPUTY PRESIDENT: I see.

PN115

MR SHEEHAN: I'm happy to expand on that.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes.

PN117

MR SHEEHAN: If you need me to do that now?

PN118

THE SENIOR DEPUTY PRESIDENT: It might be best if you did do that for me now, thank you, just so that I know where it is the parties have come asunder.

PN119

MR SHEEHAN: Thank you. Sir, Business SA can confirm that we have received the amended draft order of the union yesterday and we have had some brief discussions with the union in relation to our position on this application today. Our instructions are to seek an adjournment of the matter. We seek this adjournment on the basis that it would be premature and possibly even improper for Business SA to consent to an application which involves issues dealing with the departure from the test case standard that are also currently before a Full Bench of the Commission for deliberation.

PN120

In this regard, sir, we refer to a similar application relating to the Furnishing Industry National Award that involves similar departures from the test case standard as contained in the application before you today. The application was listed before Senior Deputy President Acton on 17 August at which her Honour set some initial time frames for employer responses. Her Honour did indicate at the hearing that even if the amended draft order of the union as submitted on the day was agreed to by employers, that the Full Bench would need to deliberate as to whether or not to vary the award in the terms sought or do otherwise.

PN121

She did forecast there would be further submissions - required further submissions of the parties and hearings that would necessarily follow. So what we would seek, sir, is an adjournment pending that Full Bench outcome and that would be our primary position today. If, however, the Commission is of a mind to proceed with the matter today, we would submit that the union bears the onus of justifying why the existing provisions in respect of clause 18.5 - which is titled: Alternative Employment, and 18.9: Incapacity to Pay, should be retained in preference to the test case standard as established in the supplementary decision of June.

PN122

We would submit, with respect, that justifying the retention of these provisions on the basis that they currently exist in the award and that there were also a departure from the previous test case standard as previously provided in written submissions by the union. We would submit, with respect, that it does not meet the necessary criteria required as to when a departure from the test case standard is warranted. In that regard, sir, we would refer the Commission to paragraph 30 of the supplementary decision where the Full Bench indicated that:

PN123

Variations in the model clauses as recently established were permissible only when the variation is necessary in order to accommodate the individual circumstances of a particular industry or for drafting clarity in a particular award context.

PN124

The second criteria, namely the drafting clarity, we would submit, does not apply in this instance, sir, but therefore it leaves the first criteria, namely the accommodation principle. We would submit that if the union self satisfies the Commission that the departure from the test case standard accommodates the circumstances of the Glass Merchants and Glazing Contractors Industry, then we would not oppose the application.

PN125

Sir, the departure from our original position where we did indicate at the last hearing before you on 22 July that we had come to you on the basis of the consent has changed. We refer to your particular comments in paragraph 1 of 4 on that particular hearing where you indicated that:

PN126

In the event that I haven't received any further from either party -

PN127

advice I take it -

PN128

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.

PN129

Son 29 July we forwarded a letter to the Commission indicating that we support the approach taken in the matter in referring the matter to the President. What we also did indicate that in relation to the draft order as sought by the union, that we reserve the right to review its previous position in relation to those aspects of the draft order, that the part in the test case model clauses. My instructions today, sir, come from basically my general manager and also the Glass and Glazing Associates of South Australia who have instructed me, basically, to keep to the test case model and indicate very clearly that the onus is fairly and squarely on the union to justify any departure.

PN130

What we also say, sir, is that the matter is before the Full Bench outcome and it would be, from our point of view, desirable to wait for the Full Bench outcome rather than proceed with this particular matter and possibly get an outcome which may be different from what the Full Bench comes out with. Unless you have got any questions of me, sir.

PN131

THE SENIOR DEPUTY PRESIDENT: Mr Sheehan, I've only got one question of you. It is a question you may or may not be able to answer at the present time. In the event that the Full Bench in the Furnishing Industry Award matter determines that a variation to the standard could be countenanced by the Commission where there is an agreed position by the parties or where the Commission determines that a variation is appropriate, then is it conceivable that such a ruling by the Full Bench in that Furnishing Industry Award would return Business SA to the position that it had a few weeks ago, whereby it was supportive of the two deviations from the test case standard that are now encapsulated in this latest draft order?

PN132

MR SHEEHAN: Sir, that we would, sir. We would certainly agree. If the outcome was in the terms as currently sought by the union, either through the agreed position of the employers or through the deliberations of the Full Bench, we would not oppose the application any further. I would give you a 100 per cent commitment today. I know there have been various departures in positions by Business SA and I would also say, there have been departures in relation to the draft orders as well. The draft orders have moved to a certain degree since June when it was first lodged.

PN133

We have taken the position that as the matter has gone to a Full Bench, that requires an approach more cautious than previously envisaged and certainly if the Full Bench were of the view to approve the draft order as sought by the union, we would not propose this application in the terms sought by the union any further.

PN134

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN135

MR SHEEHAN: Thank you, sir.

PN136

THE SENIOR DEPUTY PRESIDENT: Ms Siami, it seems to me that there are a number of options open to the union at the present time. Given that the matter has been to the President for consideration and the President has referred it back to me, I would summarise the options that immediately occur to me on the following basis. The potential exists that the union might want to simply propose the adoption of the test case standard in which case the understanding I have of Mr Sheehan's position is that there would be no opposition to that test case standard.

PN137

The second option would appear to be that the matter be adjourned, pending an outcome, of the Furnishing Industry Award Full Bench deliberations and at this stage, if my memory serves me correctly, I understand that Senior Deputy President Acton presiding over that Bench, expects to hear the remaining employer positions some time next week. But I would not expect the matter to be listed for hearing until some time in September with a possibility of a decision in September or alternatively in October.

PN138

The third option would be that you may wish to argue that the application should be granted in the terms of the draft order provided to me yesterday, in which case you will need to demonstrate why it is that I should deviate from the test cast standard. Now, there may be other options. If there are, I don't immediately see them but I certainly don't want to close any other options off to you. The potential also exists that you may wish to seek instructions relative to the position adopted by Mr Sheehan. If you did wish to do so and saw that as something that could be accomplished within a few minutes, I'm very happy to facilitate, otherwise I'm happy to hear from you now.

PN139

MS SIAMI: The only other option perhaps that when Business SA raised their position yesterday, the only other option I could possible see though, on reflection it is probably not a great one, is to bury the Award, the subclauses there, the alternative employment and the incapacity to pay and leave them as they currently stand in the award until the outcome in the Full Bench decision. It does not really take in the spirit of the test case standard because that removes the ability - or does not insert the ability of a group of employers to be able to make an application under incapacity to pay.

PN140

It also does not have the transmission of business subclause in the alterative employment but that was - apart from that, the options I thought of were probably the same as yours.

PN141

THE SENIOR DEPUTY PRESIDENT: Well, I'm happy to hear whichever options you want to pursue. I seem to have in the back of my mind somewhere a recollection that there was a desire to achieve this variation reasonably quickly. That might be something that I am confusing with another matter but I'm in your hands as to how it is that you want to propose to me that this mornings hearing should proceed.

PN142

MS SIAMI: I might just take a couple of minutes, your Honour, to receive some further instructions.

PN143

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will adjourn the matter for 5 minutes and reconvene, having given you that opportunity.

PN144

MS SIAMI: Thank you very much.

SHORT ADJOURNMENT [9.35am]

RESUMED [9.44am]

PN145

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Siami?

PN146

MS SIAMI: Thank you for that short break, your Honour. I've received some further instructions and the position that we think would be most preferred in finalising the matter and while still allowing for the decision of the Full Bench to influence the two clauses, the "Alternative Employment" and "Incapacity to Pay" provisions, if necessary, is that we vary the award today in the terms of the draft order provided except for 18.51 which would be in the terms of the test case model standard and 18.9 which again would be in the terms of the test case model standard.

PN147

Also, your Honour, I've just noticed there should be a further paragraph in that draft order relating to public holidays and termination of employment which was accidentally omitted. But the union would request, on the basis of the understanding with Business SA, that they would not oppose inserting those words within 8 weeks of the date of termination if agreed to by the Full Bench to reserve our rights to bring that matter back on in relation to those two subclauses.

PN148

THE SENIOR DEPUTY PRESIDENT: I see. I'm a little at a loss as to the clause that you say is omitted.

PN149

MS SIAMI: Sorry, your Honour, it is - - -

PN150

THE SENIOR DEPUTY PRESIDENT: You might need to help me a bit in that regard. I understand that you are proposing, in effect, the adoption of the draft order provided to me yesterday with the exception that 18.5.1 would be changed so as to reflect the Commission's model clause and 18.9 would also be changed to reflect the Commission's model clause.

PN151

MS SIAMI: Yes.

PN152

THE SENIOR DEPUTY PRESIDENT: But I don't know about the additional clause that you say is missing.

PN153

MS SIAMI: The public holidays and termination of employment clause, your Honour, it was originally 19.5 I think in the earlier draft orders and in our written submissions, we agreed to the request of Business SA to move it to the public holidays clause. In the last draft order which was of 7 July, we had moved it to 37.6. I think that was the draft order that was attached to the written submissions.

PN154

THE SENIOR DEPUTY PRESIDENT: I see.

PN155

MS SIAMI: I've got a copy here if you want to have a look at it.

PN156

THE SENIOR DEPUTY PRESIDENT: Just bear with me for a moment, Ms Siami. I have a sizeable collection of draft orders in my file at this stage.

PN157

MS SIAMI: There is.

PN158

THE SENIOR DEPUTY PRESIDENT: The latest draft that I can identify, at this stage, still has a proposed clause 19.5.

PN159

MS SIAMI: Your Honour, I believe it was attached to the back of the written submissions. That might - I don't know if it was.

PN160

THE SENIOR DEPUTY PRESIDENT: Which written submissions, Ms Siami?

PN161

MS SIAMI: Of 7 July, they were faxed, I believe, to your chambers.

PN162

THE SENIOR DEPUTY PRESIDENT: It might be best if you give me another copy, if you have got another copy.

PN163

MS SIAMI: Yes.

PN164

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN165

MS SIAMI: The public holidays clause is in the last page, your Honour.

PN166

THE SENIOR DEPUTY PRESIDENT: Am I to understand that is an existing clause, Ms Siami?

PN167

MS SIAMI: Yes, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: So it is an existing clause. In what part of the award does it currently stand?

PN169

MS SIAMI: It is currently under the notice of termination.

PN170

THE SENIOR DEPUTY PRESIDENT: Now, can I just get you to walk me through the various components of that clause. Have you left yourself with a copy of that proposal?

PN171

MS SIAMI: I have one here.

PN172

THE SENIOR DEPUTY PRESIDENT: I understand that the proposed clause 37.1 simply states a matter of principle.

PN173

MS SIAMI: Yes.

PN174

THE SENIOR DEPUTY PRESIDENT: Relative to termination of employment. I'm not at all sure as to what the effect of clause 37.6.2 is and short of having information before me about the background behind the inclusion of that provision, I'm just pondering the effect of it, given that I'm being asked to relocate it within the award. Can you help me in that regard? It seems to have the effect of establishing that where there is a dispute which would need to be taken up through the ages of an unfair dismissal application, this provision might be relied upon in relation to that issue. Is that the case? Is that the only reason for the existence of that provision?

PN175

MS SIAMI: I believe that is correct, yes. I believe so.

PN176

THE SENIOR DEPUTY PRESIDENT: Well, you see, what is prompting me to ponder about that is that successive decisions of the Commission have drawn distinctions between the finding that is required pursuant to section 170CG(3) of the Act, such that a dismissal may be harsh, unjust or unreasonable, and the issue of compliance with the award. I'm not necessarily saying that I wouldn't include it but I'm a little bemused in the absence of any further evidence as to how or what reliance could be placed upon the provision. Leaving that one aside, can you help me with the proposed 37.6.3?

PN177

Am I correct in understanding that this says that if an employee has been employed for at least a week and that if they are terminated within 1 week of a holiday, then the employee shall be paid for that holiday. Is that a correct understanding of a reasonably tortured grammar but is that your understanding of it?

PN178

MS SIAMI: Yes, that is my understanding of it.

PN179

THE SENIOR DEPUTY PRESIDENT: Mr Sheehan, do you agree with that interpretation of that provision?

PN180

MR SHEEHAN: I wouldn't go along with that, sir. We haven't had a great opportunity to actually discuss this aspect of the draft order. Suffice to say that it was purely a relocation of an existing provision from the termination to the appropriate clause, being the public holiday clause. We would see that prima facie as the intent behind that particular clause even though it is possibly drafted in a manner which is not fully apparent. I've got nothing further to add, sorry.

PN181

THE SENIOR DEPUTY PRESIDENT: Yes. Now, can I understand your position, Mr Sheehan, to be one of support in the relocation of this provision?

PN182

MR SHEEHAN: I think, sir, from memory, we actually did suggest that that particular clause be moved to the public holiday clause in the award as the appropriate location of it, rather than keeping it within the termination of employment. That was primarily to provide consistency to the test case standard in the award. So we would support that, sir, yes.

PN183

THE SENIOR DEPUTY PRESIDENT: Ms Siami, with reference to the proposed new clause 37.6, there are two other issues. First of all, are you as the applicant union saying to me that that is set out in plain English terms in accordance with the WROLA Act? Secondly, is there the potential for that provision to overlap in any way, any of the other provisions of the award with particular respect to the new redundancy and termination of employment provisions?

PN184

What is underpinning my question is that if I were to grant your amended application, such that the award was varied in terms of the redundancy test case provision, it occurs to me that it might be appropriate for this issue of public holidays and termination of employment to also be left for further consideration so that the parties could ensure that the grammar proposed was as clearly set out as they considered appropriate. Secondly, to ensure that there was minimal potential for the provisions of this clause to cause confusion, given the new provisions being inserted in the award.

PN185

I have an absolutely open mind on it at this stage but I do have a lingering doubt that the purpose of the provision may be a little obscure. Secondly, I haven't turned my mind as to the extent to which there is the potential for 37.6.3 to cause some confusion relative to the operation of the model test case provision. You may be able to answer my questions now and I'm happy for you to do so if you wish.

PN186

MS SIAMI: Your Honour, I haven't really turned my mind to that issue either, simply because I saw it just as a relocation issue. However, I do agree with you that the language is probably not best described as plain English. I would be quite happy to work with my friend, Mr Sheehan, in redrafting perhaps the clause so that it is a bit more easy to understand and also to ensure that there is no overlapping with the new redundancy provisions.

PN187

THE SENIOR DEPUTY PRESIDENT: I guess we have a window of opportunity that we are approaching the time of the year when there are not many public holidays.

PN188

MS SIAMI: Yes, exactly.

PN189

THE SENIOR DEPUTY PRESIDENT: All right. Mr Sheehan, first of all, can I take it that you are in agreement with the approach that Ms Siami has proposed to me relative to the adoption of the model provisions applicable to redundancy and termination of employment with the capacity for the parties to reactivate the variations from that model provision with respect to clauses 18.5 and 18.9?

PN190

MR SHEEHAN: We are happy to go along with that, sir. Thank you.

PN191

THE SENIOR DEPUTY PRESIDENT: What position do you have relative to the suggestion that I put to Ms Siami that the clause 37 variations might be the subject of some further consideration?

PN192

MR SHEEHAN: More than happy, sir, to work with the union and providing some clarity to the particular provision. I'm a bit unsure as to whether or not you propose that the award be varied today in the terms sought as indicated to you or whether we put that aside as well in relation to the other matters as well.

PN193

THE SENIOR DEPUTY PRESIDENT: Yes. I'm proposing that might also be dealt with at a later occasion.

PN194

MR SHEEHAN: We are happy to go along with that, sir, and do a drafting exercise in the meantime. What we would probably seek to do, sir, is to possibly enlist your assistance in providing a redraft of that particular clause to put to you as to whether or not you are satisfied or whether you can provide any further assistance in that regard, as far as clarity.

PN195

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I'm happy to assist the parties if they can't resolve it themselves but I'm in your hands in terms of a request of that nature.

PN196

MR SHEEHAN: Yes, sir, thank you.

PN197

THE SENIOR DEPUTY PRESIDENT: Ms Siami, are you happy with that approach?

PN198

MS SIAMI: I am, your Honour. There was just one point I wanted to clarify. If the Full Bench decision is such that this award may be subject to further variation, is it just a request that we will need to make to you or will we need to - - -

PN199

THE SENIOR DEPUTY PRESIDENT: You would need to make such a request. You would need to make it within 2 weeks of any decision published by the Full Bench in that Furnishing Industry Award matter.

PN200

MS SIAMI: That is just to you?

PN201

THE SENIOR DEPUTY PRESIDENT: Yes, it would just be to me.

PN202

MS SIAMI: Thank you.

PN203

THE SENIOR DEPUTY PRESIDENT: I take it that you would be conferring with Mr Sheehan in that regard?

PN204

MS SIAMI: Yes, sir.

PN205

THE SENIOR DEPUTY PRESIDENT: He would be aware of the decision. The matter would then be called back on and in the event of an agreed position about which I was satisfied, the award would be further varied. Now, can I take it that the parties are seeking the test case or model clauses be inserted in the award with effect from today?

PN206

MS SIAMI: Yes, your Honour.

PN207

THE SENIOR DEPUTY PRESIDENT: Mr Sheehan?

PN208

MR SHEEHAN: Yes, we would go along with that, sir, thank you.

PN209

THE SENIOR DEPUTY PRESIDENT: Thank you. Very well. I will vary the Glass Merchants and Glazing Contractors General South Australia Award (1998) in the terms of the draft order provided by the CFMEU on 18 August 2004 with the exception that the proposed clause, 18.5.1, will reflect the provisions of the Commission's model clause. The provisions of clause 18.9 will also reflect the provisions of the Commission's model clause in that respect.

PN210

I will grant leave to the CFMEU to seek that the application be called on again for determination of whether any departures from that model test case provision should be inserted into the award and whether there should be further changes made to the award with respect to the public holidays provisions, provided that that request is made within 2 weeks of any decision handed down by the Full Commission in relation to the Furnishing Industry National Award.

PN211

The variation to this award will take effect from today. It will operate for a period of 1 month or until such time as a further order is determined by the Commission. That variation or that order will be provided to the parties within the next few days. Ms Siami, does that resolve the matter to your satisfaction in terms of today?

PN212

MS SIAMI: Yes, your Honour, thank you.

PN213

THE SENIOR DEPUTY PRESIDENT: I will take this opportunity to ask my associate to hand you back the document you provided to me earlier. I'm sure that that document is somewhere embedded in my file. Mr Sheehan, are you happy with that approach?

PN214

MR SHEEHAN: Yes, sir, we are happy to go along with that and we thank you for your assistance in the matter. Thank you.

PN215

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

ADJOURNED INDEFINITELY [10.05am]