C2004/5643, Transcript of Proceedings [2004] AIRCTrans 3817 (28 September 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 13797

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

No C2004/5643

AIRPORT CATERING AWARD 2002

Application under section 113 of the Act
by the Liquor, Hospitality and Miscellaneous
Union to vary the above award re wage rates
for casual employees - 13.3.2(a)

SYDNEY

2.33 PM, FRIDAY, 17 SEPTEMBER 2004

PN1

THE COMMISSIONER: Can I have the appearances, please.

PN2

MR N. SWANCOTT: Yes, Commissioner, I appear for the Liquor, Hospitality and Miscellaneous Union. My name is Swancott.

PN3

MR S. MARRIOTT: Mr Marriott, solicitor, seeking leave to appear for ABI on behalf of its respondent member, Eurest Australia Catering Services Management Pty Ltd.

PN4

THE COMMISSIONER: Any objection to Mr Marriott appearing?

PN5

MR SWANCOTT: No, Commissioner.

PN6

THE COMMISSIONER: Leave is granted, Mr Marriott. Yes, Mr Swancott.

PN7

MR SWANCOTT: Commissioner, I forwarded the main award to the employer representatives and to your office, an email which set out in five or six pages, the background to this matter.

PN8

THE COMMISSIONER: Yes, I will mark that. It might be more convenient, Mr Swancott, exhibit LHMU1.

EXHIBIT #LMHU1 MAIN AWARD

PN9

MR SWANCOTT: Thank you, Commissioner. It is not my intention to read or to refer to that document in any detail. As I understand the Commission has had an opportunity to peruse it. But I should address you on what we seek today. I hand up a draft order and a calculation sheet. Again I indicate that electronic copies have been forwarded to your office. If I can explain, the draft order has the effect of restoring an entitlement, for the reasons explained in LHMU1, that was dropped out during award simplification. But it has the secondary effect of indexing the rate of that allowance restored by reference to safety net adjustment announced in the Glass Merchants formula applicable in 2003 and 2004. So the restoration of the allowance is on current rates permitted by the safety net statement of principles.

PN10

Commissioner, as we indicated in LHMU1, we did have a number of options before us, one of which was to seek a correction order which would be retrospective in its operation should it be granted from Senior Deputy President Acton. What is before you doesn't remove that option for us, but what it does do is put in place the correct and updated allowance from today into the future. The question of what to do, if anything, about the lack of prescription for the overlooked allowance in two years past is something that we will take up with Senior Deputy President Acton's office. So rather than hold up the correction of the error by arguments going to retrospectivity, we seek to correct it now and have that argument if necessary at some later stage.

PN11

As I have indicated, Commissioner, the explanation and the documentation has been circulated. We have received advice from the Victorian Employers Chamber of Commerce and Industry, which I understand was copied to you, from Mr Eberhard. VECCI was intimately involved in the award certification proceedings and I suspect that with the possible exception of some printing industry awards, this was perhaps one of the longest award simplification exercises before the Commission. Mr Eberhard personally was involved and he has indicated to us that he doesn't object to the draft order that is before the Commission now having checked back on the previous award history.

PN12

If I anticipate Mr Marriott's position, Commissioner, Mr Marriott represents an employer who is obliged to pay the terms of the Airport Catering Award by operation of a roping in award. A roping in award that post dates the simplified award. So Mr Marriott's client, as I understand it, is in the position where they were not a respondent to the award prior to its simplification, therefore were not aware and had no history of paying the missing allowance, and once roped into the award in 2003 I think - - -

PN13

MR MARRIOTT: Yes.

PN14

MR SWANCOTT: - - - of course the award made no reference to the omitted allowance. Now that is a difficulty. This draft order of course, would do nothing to effect past actions, it would simply oblige Eurest along with all other respondents to the award to pay the allowance to the intended recipients from the first pay period after today's date. Thank you, Commissioner.

PN15

THE COMMISSIONER: Yes, Mr Marriott.

PN16

MR MARRIOTT: Yes, Commissioner. For several reasons today I will be asking for an adjournment for 14 days of these proceedings. Just to give you some of the background, we were served with the document 7 September 2004 and we received LHMU exhibit 1 on 13 September. We put the content of all of those documents to Eurest, which are a member of my client ABI, and they are currently considering all of the documents. As was premised by Mr Swancott, Eurest is one of six companies that have been roped into this award since the simplification process, one of six companies that has never had to pay this allowance between the hours of midnight and 7.00 a.m. As a result there will be some impact on the business, whether that be a large or a slight impact. Eurest are currently considering the sort of impact that it will have on their business and they hope to be able to come back to us with an answer within the next 14 days as to whether they consent to such a variation or otherwise. As such they have given us instructions to seek this adjournment.

PN17

I am mindful of the fact that the LHMU have decided not to bring an application for a correction order which would operate retrospectively, nevertheless I am mindful of the fact that this is a new allowance for our client and for our member and for five other companies, and it will have some impact on them. If we could wait two weeks, considering that the unions have already waited two years, I think that it may be preferable to going ahead and making an order today and then having to correct the record later on if it comes to our attention that Eurest really doesn't consent to such a variation.

PN18

THE COMMISSIONER: Yes, thank you. I will mark the draft order exhibit LHMU2 and the - what is the adjustment to reflect relevant movements in indices, exhibit LMWU3.

EXHIBIT #LMHU2 DRAFT ORDER

EXHIBIT #LMHU3 ADJUSTMENT TO REFLECT RELEVANT MOVEMENTS IN INDICES

PN19

THE COMMISSIONER: In respect of what Australian Business Lawyers indicate, let me just say this, on the face of it there is nothing to suggest that what is the explanation in LHMU1 is anything other than reflective of an error that occurred and therefore whatever Senior President Acton does as far as correcting it from an earlier date, there is nothing to suggest that it shouldn't be corrected at least from today's date prospectively.

PN20

I take on board what Eurest says, Mr Marriott, and it may very well be because they were a roping in party, they might have a particular argument that they should put, although I'm certainly not inviting that argument or indicating that it will necessarily fall on receptive ears, but obviously it presses the point, the Commission will hear it. So what I propose to do is to indicate the prima facie, the variations sought by the union will be reflected in a variation to the draft. It will not do so for a period of 14 days, but it intends at the end of those 14 days, unless it is advised otherwise, to make the variation effective the first pay period to commence on or after 17 September 2004.

PN21

If within those 14 days Eurest wants to put a formal argument as to why it particularly shouldn't be bound by that variation or something other than that, then I will deal with that at that time. But if on reflection it agrees or decides to say nothing about the proposed variation, the variation will be made at or about 14 days from now and it will be effective from today's date. The broader matter will of course be left in the hands of the union for them to take up with the Senior Deputy President. So if the Commission doesn't hear from either the union ABI or ABL in the meantime, the variation will be made. If it does hear from them then perhaps there is a need for a further proceeding either with respect to all respondents, or at least with respect to Eurest. On that basis these proceedings are adjourned for now.

ADJOURNED INDEFINITELY [2.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LMHU1 MAIN AWARD PN9
EXHIBIT #LMHU2 DRAFT ORDER PN19
EXHIBIT #LMHU3 ADJUSTMENT TO REFLECT RELEVANT MOVEMENTS IN INDICES PN19