C2004/242, Transcript of Proceedings [2004] AIRCTrans 3650 (14 September 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13505

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/242

ACTOR TELEVISION PROGRAMS AWARD 2001

Application under section 113 of the Act
by Media, Entertainment and Arts Alliance
to vary the above award re safety net
review - wages May 2004 and allowances

SYDNEY

10.45 AM, FRIDAY, 3 SEPTEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: May I have appearances in this matter?

PN2

MS C. MONTGOMERY: Thank you, your Honour. If the Commission pleases I appear on behalf of the Media, Entertainment and Arts Alliance.

PN3

MR A. BAUMGARTNER: If the Commission pleases, I appear for the Screen Producers Association of Australia.

PN4

MS J. STREIMER: If the Commission pleases, I appear for the Australian Industry Group on behalf of Channel Seven and Network Ten.

PN5

MR C. GRAHAM: If the Commission pleases, I am a solicitor and I seek leave to appear, but I only appear for the Nine Network on this occasion. I would like to draw the attention of the Commission therefore to the fact that with regard to a large number of award respondents being those members of Free TV Australia an unregistered organisation other than Nine Network, Seven Network and Ten Network there is no appearance in this matter because nobody is able to represent them, because nobody has instructions to do so.

PN6

THE SENIOR DEPUTY PRESIDENT: Well why you are making the submission; just to help me?

PN7

MR GRAHAM: To be cautious, because usually I appear for more of the respondents to the award than I am able to today. The reason I am being cautious is because I only have instructions to appear for the Nine Network, not the others that I usually appear for. The reason I had no instructions I think will be clear when Ms Montgomery indicates to you some difficulties that she has had with respect to the issue of service.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. I omitted on the last occasion to grant you leave, Mr Graham. I grant leave on this occasion and the transcript of the previous matter will just have to be deficient in that respect. Ms Montgomery?

PN9

MS MONTGOMERY: Thank you, your Honour. Your Honour, the application for the order for subservice was incorrectly omitted. Free Television Australia formerly known as FACS as a party upon whom substituted service is customarily effected. The Alliance apologises for this omission. The Alliance has today provided Free TV Australia with a copy of the application and draft orders and has undertaken to draw this error to the Commission's attention.

PN10

We understand Free TV Australia is not in a position to make its view known on this matter at this point in time. Might I suggest a way for the Commission to deal with this matter, which may remove any obligation for the matter to be brought back before the Commission? The Alliance suggests that the Commission accepts the submissions of the parties at this time; reserves its decision; grants leave for Free Television Australia to object to the application within seven days, only if such an objection is received would the matter then need to be brought back before the Commission. The Alliance also suggests that if Free TV Australia is not objecting to the application that a further seven days is granted for Free TV Australia to check the figures.

PN11

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Graham, do you object to my taking that course?

PN12

MR GRAHAM: Well, your Honour, the first thing I should say is that I assume that Ms Montgomery when she is referring to Free TV Australia checking the figures she is also referring to the Nine Network checking the figures. I am acting on behalf of Nine in the matter. That is the first thing. The second thing is that I don't have any instructions in relation to those member of Free TV Australia who I usually appear for, being so-called regional television stations.

PN13

The application before you is unexceptional in the sense that it seeks a flow-on of the national wage case into the actual Television Programmers Award. I have received only this morning the draft orders. There has, Ms Montgomery said, been no service either by substituted service of direct service on Nine Network or any of the other companies usually my clients. I am able to speak, therefore, only on behalf of Nine Network and not on behalf of anyone else. So, therefore, I have to confine my comments to those who instruct me.

PN14

With regards to the Nine Network, we would require, I think, two weeks to consider the application. That is in an administrative sense, two weeks. We don't therefore have an objection to the award being varied today provided that within that period of two weeks that I seek we would be given, and the Commission would direct us to, peruse the draft order, check for any errors and advise the Commission as to whether the increases in the draft order properly reflect the flow-on of the 2004 national wage case decision. Again, your Honour, I can't speak for others that I am not instructed by.

PN15

THE SENIOR DEPUTY PRESIDENT: I understand you can't speak for them. Yes, and I wouldn't assume you did not think that I was asking you to do so. Ms Montgomery, deal with it in that manner as quickly as possible.

PN16

MS MONTGOMERY: I will, your Honour. Shall I continue with my submissions?

PN17

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN18

MS MONTGOMERY: Your Honour, this is an application to vary the award in two parts. First to increase the rates of pay in line with safety net decisions. The second to increase cost reimbursement allowances in line with the movements in the consumer price index. If I might rely on my earlier submissions in matter 241 in relation to statement of service. I am able to hand up my statement of service, and I am able to hand up my draft order, and I am able to hand up the calculations of allowances in this matter.

PN19

THE SENIOR DEPUTY PRESIDENT: The statement of service will be placed on the file. The draft order will be marked MEAA1. The methodology used will be marked MEAA2.

EXHIBIT #MEAA1 DRAFT ORDER

EXHIBIT #MEAA2 METHODOLOGY OF CALCULATIONS OF ALLOWANCES

PN20

MS MONTGOMERY: Thank you, your Honour. Your Honour, the only variation on my earlier submission is that this award has an enterprise agreement that sits on top of it. We are of the view that the performers engaged in the work the subject of the award are engaged at rates of pay in excess of those which would apply under the new award rates proposed. In this regard refer to the Unregistered Actors Television Programs Agreement 2004. The Alliance notes that it is finalising the terms of the new Actors Television Agreement which will see the rates set out in the 2004 Agreement increase further.

PN21

Therefore, the Alliance submits that expediting of the increases should impose no additional cost burden to any of the respondents, employees, performers within the scope of this award. Based on my submissions, your Honour, the Alliance seeks to vary the award effective from the date of the Commission's decision. If the Commission pleases.

PN22

THE SENIOR DEPUTY PRESIDENT: What do you mean by the date of the Commission's decision? The date?

PN23

MS MONTGOMERY: I'm sorry, I apologise. The date that the Commission hands out its decision in relation to my submission about subservice. So it would be the date from which the respondent's representatives consent to the draft order.

PN24

THE SENIOR DEPUTY PRESIDENT: I see that is what you mean by paragraph B of the draft order?

PN25

MS MONTGOMERY: Yes, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Mr Graham?

PN27

MR GRAHAM: Thank you, your Honour. I just wanted to correct the record in relation to certified agreements or common law agreements in relation to actors. My client, the Nine Network, has neither a certified agreement the scope of which covers actors, or a common law agreement the scope of which covers actors. If the Commission pleases.

PN28

THE SENIOR DEPUTY PRESIDENT: Mr Baumgartner?

PN29

MR BAUMGARTNER: Yes, your Honour, the circumstances are that the industry does adhere to the common law agreement which sets rates above the rates that appear in this award. In the light of that circumstance we have no objection to expediting the date of effect. So we would consent to the variation.

PN30

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Streimer?

PN31

MS STREIMER: Thank you, your Honour. We would agree with the submissions put forward by the MEAA today in relation to the fourteen days to consider the application and come back to both the union and the Commission. As to our consent the lack of service was brought to the attention of the MEAA today by ourselves. For the record Free Television Australia as an unregistered organisation is a member of the Australian Industry Group and instructions were given today to appear today and to notify the Commission and the union as to the lack of service. In relation to further instructions to act for particular companies my instructions are for Channel Seven and Channel Ten specifically as organisations. Thank you.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Graham?

PN33

MR GRAHAM: The only other thing I think I should add to the record is that there was no specific instruction from the Nine Network for Free Television Australia to act - I appear for them.

PN34

THE SENIOR DEPUTY PRESIDENT: What I propose to do is indicate that if I have not received advice in writing from any employer respondent to the relevant award by no later than close of business Friday, 17 September, an order in terms of exhibit MEAA1 will issue on 20 September and accordingly that will become the - that doesn't create any problems with time lag requirements?

PN35

MS MONTGOMERY: No, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Will come into operation from the first pay period on or after that day.

ADJOURNED INDEFINITELY [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MEAA1 DRAFT ORDER PN20
EXHIBIT #MEAA2 METHODOLOGY OF CALCULATIONS OF ALLOWANCES PN20