C2004/4781, Transcript of Proceedings [2004] AIRCTrans 3943 (11 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 8614

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4781, 4792-4795, 4811-4813
4783-4784, 4977, 5092 5094, 5096-5097,
5099, 5101, 5046, 5049, 5052, 5015,
5027, 4992, 5058, 5166-5169

APPLICATION FOR A COMMON
RULE AWARD

Application under section 141 of the Act
by Shop Distributive and Allied Employees
Association for a common rule award

MELBOURNE

10.14 AM, THURSDAY, 30 SEPTEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Before taking appearances I will just indicate briefly how I intend to proceed today. I have received correspondence from Mr Hubbard's secretary of the Victoria Trades Hall Council, which puts forward a proposed process which is said to have arisen out of discussions with AIG and VECCI. What I will do - I have called on all matters is to, first of all, have that position outlined for all and - with a view to adopting what I might call a general process to apply in respect of each of the matters.

PN2

Thereafter, I will call on each of the individual matters to give any party an opportunity to raise any particular matter which needs to be dealt with at this time or any departure from that general process. In the absence of anyone raising such points the particular matter will be adjourned fairly quickly thereafter, but I will take that course in case there are any specific issues which need to be addressed in relation to any of the particular matters.

PN3

I will seek appearances now and if I could ask parties to indicate which matters they are appearing in and those who are appearing in a great many might do so by resort to the written notice of appearance they have given, i.e. I am appearing for the particular organisation in respect of those matters set out in the letter of whatever date. So I will take appearances on that basis.

PN4

MR A. BANDT: I seek leave to appear on behalf of the Victorian Trades Hall Council and appearing with me MR L. HUBBARD and MR N. NIVEN. The Trades Hall Council seeks to intervene in all od the matters that are here today.

PN5

MR T. LYONS: I appear for the National Union of Workers. Your Honour, we are the applicant in relation to seven matters before you and we have also filed an R57 in relation to the Australian Workers' Union application in relation to the Airlines Operation (Domestic Airlines) Award 2000.

PN6

MS R. FRENZEL: I am appearing for the LHMU in this matter and we appear in six matters outlined in the schedule for respect of those of the hearing. We have also filed and served form R57 with respect to C2004/4784, 5015 and 5058, they being the Shop, Distributive and Allied Employees Association for the Victorian Shops Interim Award 2000, Airline Operations (Domestic Airlines) Award 200 and the Airline Operations (Transport Workers') Award 1998.

PN7

MR J. RYAN: I appear for the Shop, Distributive and Allied Employees Association. The Association appears as applicant in matters 4781, 4783 and 4784 and as an interested party in relation to matter 5101.

PN8

MS A. RICHARDS: I appear on behalf of the Transport Workers' Union of Australia. Your Honour, we are the applicant in matter C5015, Airline Operations Transport Workers') Award 1998 and we filed and served an R57 in respect of matter C5058 Airline Operations (Domestic Airlines) Award 2000.

PN9

MR P. O'DONNELL: I appear for the Media, Entertainment and Arts Alliance and we are the applicant in the matter C2004/4977.

PN10

MS E. WALTERS: I appear for the Australian Workers' Union. We appear in - the applicants in C number 2004/5015 and C2004/5027.

PN11

MR K. HARVEY: I appear on behalf of the Australian Services Union. We are the applicant with regard to 2004/5049, the Clerical Industry - Shipping Officers Award. In that matter I appear with MR N. HENDERSON and MS J. SYMES. We are also the applicant with regard to C2004/5052, the Victorian Legal Professional, Clerical and Administrative Employees Award. With regard to that matter, I appear with MS I. STITT. We are also the applicant with regard to 2004/5046, the Travel Industry - Agencies - General Award 1999 and with regard to that matter, I appear with MR N. HENDERSON and MS SYMES.

PN12

We have also filed a notice of appearance with regard to five other awards before you today, your Honour. They are 2004/5092, the Educational Services - Early Childhood Assistants - Award 1999; C2004/4812, the Market Research Industry - Consolidated Award 2003; C2004/4992, the Adult and Community Education Professional Administrative Clerical Computing and Technical Staff Award; and C2004/5015, the Airline Operations (Domestic Airlines) Award where the AWU is the applicant and with regard to that matter, I also appear MS I. STITT. And lastly, C2004/5058, the Airline Operations TWU Award where the TWU is the applicant and I also appear with MS I. STITT.

PN13

MR A. ODGERS: I appear on behalf of the Independent Education Union of Australia as applicant in respect of matters 5166 through to 5169.

PN14

MS E. FLOYD: I appear on behalf of the National Tertiary Education Industry Union. We are applicants in C number 2004/4992, Adult and Community Education, Professional, Administrative, Clerical, Computing and Technical (PACCT) Staff Award 1998, Education Industry and, your Honour, we also seek leave to vary our original application which sought to include the Centre of Adult Education in the common rule application. We have had discussions with the Centre of Adult Education. We have come to some arrangement and we are no longer seeking them to be covered by the common rule award.

PN15

MR M. RUSSELL: Of Adult and Community Education Victoria, appearing on behalf of members. Appear as an interested party in C2004/4992, Adult and Community Education Professional, Administrative, Clerical, Computing and Technical Staff Award 1996.

PN16

MR I. BRYANT: I appear on behalf of the CEPU in matter 2004/4784, the Shop, Distributive and Allied Employees Association - Victorian Shops Interim Award 2000 and notice of appearance filed on 20 September 2004.

PN17

MR P. NOLAN: I appear on Australian Industry Group. We appear in relation to 19 matters before you, Senior Deputy President and form - the R57 forms have been filed in relation to all of those.

PN18

MR P. EBERHARD: For the Victorian Employers Chamber of Commerce and Industry and VECCI has filed and served with both the Commission and also the applicants a R57 with respect to each of the matters that are currently before the Commission.

PN19

PN20

MR J. HARGRAVE: From Printing Industries. We appear in matter 4813, the Commercial Sales (Victoria) Award.

PN21

MR E. WATT: From the Timber Merchants Association. We have filed and served a R57 in 2004/4813, 2004/4783 and 2004/4784.

PN22

MS S. ZEITZ: I seek leave to appear with respect to matter C2004/5052, Victorian Legal Professional, Clerical and Administrative Employees Award 2004 in accordance with the notice of appearance R57 filed with the Commission.

PN23

MS S. WHITE: From the Australian Retailers Association of Victoria. Your Honour, we are appearing in a number of matters today being; 4781, the Airport Retail Concessions Award 1990; 4783, the Shop, Distributive and Allied Employees Association - Hardware Retail Industry Award; matter 4784, the SDAEA - Victorian Shops Interim Award 2000; matter 4795, the Storage Services - Wholesale Wine and Spirit Stores - Award 1999; matter 4813, Commercial Sales (Victoria) Award 1999; matter 5098, that would be the Photographic Industry 2002, and; matter 5101, the Liquor and Accommodation Industry - Restaurants - Victoria - Award 1998. Your Honour, R57s have been filed and served.

PN24

MR L. BLIGNAUT: I appear on behalf of the Master Grocers' Association of Victoria. We are appearing in the matter C2004/4784, the Victorian Shops Interim Award 2000 and a R57 form has been filed and served.

PN25

MS N. BOEHM: Appearing for the VACC. We appear in the matter C2004/5101 and are interested parties in C2004/4813, C2004/4977 and C2004/4784.

PN26

MR T. KLEMIS: I appear on behalf of the Baking Industry Association of Victoria and its members in respect to matter C2004/4784 and C2004/5101. I also seek leave to appear on behalf of the Australian Meat Industry Council in respect to matter C2004/4784.

PN27

THE SENIOR DEPUTY PRESIDENT: On what basis are you seeking leave, Mr Klemis?

PN28

MR KLEMIS: Basically, I am not an employee of the Australian Meat Industry Council.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Ver well. Thank you.

PN30

MS K. KNOPP: I seek leave to appear for members of the Association of Independent Schools of Victoria who will be affected by the applications in C numbers 5167, 5168 and 5169, all of which concern Victorian independent schools. In respect of those matters, notice of appearances have been filed and served, your Honour.

PN31

MR J. DAVID: I seek to appear on behalf of the staff and the school - Melbourne Rudolph Steiner school in matters relating to 5167 through to 5169. And, your Honour, I also realised just coming today that there is another way that I would have filed a R57 had I known, which relates to the Early Childhood Assistants Award 1999, matter 5092. And, with your permission, if that is acceptable to file a very late R57?

PN32

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Thank you, Mr David. Yes.

PN33

MS W. JONES: I am here on behalf of the Restaurant Catering Association Victoria in the matter C2004/5101, the Liquor and Accommodation Industry - Restaurants - Victoria - Award.

PN34

MS G. CAPASSO: I seek leave to appear for the Australian Federation of Travel Agents Limited in relation to Travel Industry - Agencies - General Award - 1999. Your Honour, a notice of appearance has not filed in relation to this appearance but we would undertake to do so today.

PN35

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you, Ms Capasso. Anyone else? Is there any objections to leave in respect of Mr Bandt, Mr Zeitz, Mr Klemis, Ms Capasso? No? Leave is granted in all cases.

PN36

MR HARVEY: Your Honour?

PN37

THE SENIOR DEPUTY PRESIDENT: Yes.

PN38

MR HARVEY: A point of clarification. The appearance announced from the front bar table with respect to our Victorian Legal Industry Award. We don't have a copy. I think the suggestion was made that a form R57 had been filed and served. We are not aware of that having been served on the Australian Services Union and I would just like a copy of it to be made available to us because we don't appear to have - the only notice of appearance that we have with regard to that particular award has been filed by the VECCI. If the Commission pleases.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes, the Commission only records a notice of appearance by VECCI. Ms Zeitz, are you able to enlighten us on that?

PN40

MS ZEITZ: I can confirm it was filed electronically with the Commission and a receipt received so - - -

PN41

THE SENIOR DEPUTY PRESIDENT: But was it served upon ASU?

PN42

MR ZEITZ: That I haven't got a record with it but if - I am happy to make another copy available to my friend.

PN43

THE SENIOR DEPUTY PRESIDENT: Thank you. That is satisfactory, Mr Harvey?

PN44

MR HARVEY: Yes. Thank you, your Honour.

PN45

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Now, there is issue in relation to, I think, late notice of appearance by the TWU in respect to C2004/5015 and the Liquor, Hospitality and Miscellaneous Union in 2004/5015, 2004/5058. Mr David, in respect to the additional matter, he is mentioned and Ms Capasso for the AFTA in relation to that matter. Is there any objection if I exercise the discretion under 111(1)(r) to extend the time for the filing of those notices? There is no objections so I do extend the time in all cases. Very well, we can start, I think. Mr Bandt?

PN46

MR BANDT: Thank you, your Honour. As your Honour and the other parties would be aware the section of the Act that these applications are filed under, section 141 found its way into the Act by amendments to the Workplace Relations Act at the end of last year and they provided that common rules could be made throughout Victoria nd to take effect no earlier than 1 January next year - any declaration would take effect from that date. Earlier this year there was a decision of the Full Bench, that I might refer to as the test case, in which the Trades Hall Council and a number of the unions here today were intimately involved with.

PN47

And in the course - in the decision that was issued in that test case the Commission set out a number of principles in respect to the making of common rule awards and also a draft template declaration which would provide that the declaration could come into force from 1 January next year. Since that decision was issued the Trades Hall has co-ordinated a process amongst a number of unions - amongst its affiliates which has involved the filing of a large number of applications. I think they were filed prior to the decision being handed down.

PN48

The Trades Hall co-ordinated the process since then of encouraging the applicants to talk to other affiliates and talk to other people on the unions' side of the table who might be affected. And the Trades Hall has also co-ordinated a process whereby the unions, applicants and the Trades Hall will have discussions with the key employer organisations about the form of the declarations, about the substance of the declarations themselves and also about the programming of these matters prior to the end of the year.

PN49

The - since I am instructed that a number of unions have actually prepared draft declarations and have circulated those throughout the relevant interests in their industry.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes, I think there have been some filed with the Commission as I - - -

PN51

MR BANDT: Yes, thanks, your Honour. As far as we are aware from this side of the table all of the declarations that are being sought to be made in these applications before you are in accordance with the test case principles and are based on the template declaration and don't vary in any - and to the extent that they vary they just vary on the basis of the particularities of the industry and don't vary in substance. And so at this stage the position is that we are not seeking, in respect of any of the applications currently listed, any departure from any of the test case principles.

PN52

I say all that, your Honour, to explain that there has been a significant amount of work that has already been done in preparation of these matters and it lays a background to the directions which I understand you have received a copy of from Mr Hubbard.

PN53

THE SENIOR DEPUTY PRESIDENT: Yes.

PN54

MR BANDT: I will hand up a copy of the directions that have been tailored. The date have been amended and tailored for the purposes of today's hearing. I ought to indicate that, as I am instructed, the general process is - and the steps in which we go through is something that is generally agreed on both sides, but there may be some disagreement about the dates.

PN55

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN56

MR BANDT: Your Honour, if I could perhaps - I will just note too that I have got additional copies of this document if anyone here would like a copy. Proposals - - -

PN57

THE SENIOR DEPUTY PRESIDENT: Just one moment, Mr Bandt. Does anyone require a copy?

PN58

MR BANDT: I will perhaps indicate first, your Honour, that the only way in which they - or the ways in which they vary from the document that you have received from Mr Hubbard is that the numbers one and two have been moved into a general proposed direction number one. And the proposed direction 7 in Mr Hubbard's has been split into two separate directions.

EXHIBIT #VTHC1 DRAFT DIRECTIONS

PN59

MR BANDT: In line with the fact that a large amount of work has been done on this side of the table with respect to preparing these matters for hearing, and in line with the fact that we seek to have these orders come into effect as soon as possible under the Act, we are proposing - we are kicking-off in direction 1 with a fairly truncated timetable which has the applicants filing and serving witness statements, draft declarations and any outline of argument in support of making of the award within about a fortnight, by 14 October 2004.

PN60

Now, as I have said, your Honour, some of that has already occurred. With respect to the witness statements, your Honour, that wasn't a matter that was expressly addressed in the Full Bench decision but in the Full Bench case witness statements were filed that set out the relevant basis for the industrial dispute that founded the initial award and then set out material that enabled the Commission to be satisfied that the declaration was being made in relation to the original industrial dispute and what we have in mind and also that this was the appropriate award to be declared to be common rule in the industry.

PN61

And all we have in mind is a replication of that process. So a short witness statement with some exhibits attached and with respect to the outline of argument, again, we don't, given that most of these, if not all of these, will fall within the test case principles and we don't imagine that that will be longer than a page or two setting out just those very basic matters. What we would then hope with respect to proposed directions 1 and 3 is that prior to the matter then coming back before the Commission is that there be conciliation in an attempt to resolve any matters that might arise with respect to the proposed declarations.

PN62

And our experience has been that those matters tend to arise with respect to the definition of industry and with respect to any propose exemptions from the common rule award that certain parties might be seeking. We would be hopeful that that could all happen relatively quickly and we would hope that then - there would then be that conciliation process and that the matters would then come back on for a - for, in effect, for a further hearing after our material has been filed but before the employers are required to do anything later in the week of 18 October.

PN63

And it is our proposal that on that day that the applications before each panel be listed on the same day as they have been here but in appropriate industry groupings. And if I could hand up a document to your Honour which sets out the - our suggestion for an administratively useful way of grouping the various applications.

EXHIBIT #VTHC2 PROPOSED INDUSTRY GROUPINGS

PN64

MR BANDT: There is one amendment to that document that is - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Do you have copies, Mr Bandt, for anyone - - -

PN66

MR BANDT: I do have additional copies if anyone - - -

PN67

THE SENIOR DEPUTY PRESIDENT: Yes.

PN68

MR BANDT: On the second page - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Perhaps I will have some more copies made. Yes, I will just make those arrangements.

PN70

MR BANDT: I apologise, your Honour. Perhaps if I can just indicate that there is an amendment. On the second page the Clerical Industry Shipping Officers Award 1996 ought to be placed under the Travel Industry rather than under the Clerical Industry heading.

PN71

THE SENIOR DEPUTY PRESIDENT: Yes.

PN72

MR BANDT: This is only - this proposed merely for administrative convenience. The reference to industries and the like aren't meant to be submissions from the unions that they fall within that industry or anything like that. But what we would suggest is that on the date that the matter gets brought back on that one perhaps be listed at 9 o'clock and one be listed at 9.15 and so on and it be staggered throughout the day like that.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MR BANDT: With respect to paragraph 4 of the directions what we would have in mind is that prior to the matter coming back on before the Commission, if after considering the applicants' material, the employers of the view that they do not oppose or that they consent to the making of the common rule declaration, that they notify the Commission of that fact. With respect to number five we then propose that when the matter is brought back on the Commission would then be in a position to make declarations about matters for which there is consent.

PN75

But for matters for which there is no consent which are contested they can be relisted in October and directions - any further directions could be made on 18 October but the default direction would be number seven, those objecting to the applications, file written submissions by 4 November 2004 with submissions in reply from the applicants filed by 8 November 2004. Now, your Honour, it is a fairly complicated timetable but the reasons for that is what I outlined in respect to the timing in which these declarations can come into effect and also that a large number - a large amount of work has already been done.

PN76

But also we are conscious that if hearings are to be listed in December and the matter goes on in December and a declaration is made there may be significant practical difficulties in announcing that to people prior to 1 January. So what we have in mind is a timetable that - we are hopeful that a large amount of these matters because they are in accordance with the test case, will simply be uncontested and processed through. But something that gives us enough time to have any hearings for contested matters and allows - with enough time prior to 1 January deadline.

PN77

THE SENIOR DEPUTY PRESIDENT: Very well.

PN78

MR BANDT: If your Honour pleases, those are submissions about the directions.

PN79

THE SENIOR DEPUTY PRESIDENT: Yes. Does anyone wish to - - -

[10.41am]

PN80

MR BANDT: And I might say, too, your Honour, that that is made on behalf of not just the Trades Hall but on behalf of all of the applicant unions today.

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, very well, so there is nothing further from the union side?

PN82

MR LYONS: Just very briefly, if I could, your Honour. My friend referred to draft declarations. We have prepared draft declarations in respect of each of the matters in which we were the applicant before you and have served those initially only on AIG and VECCI but I would seek to tender those and in effect announce to the Court, your Honour, that copies of those are available from me at the conclusion of the proceedings this morning, but if I could hand up a copy.

PN83

THE SENIOR DEPUTY PRESIDENT: And that is in relation to each of the matters in which the NUW is the applicant?

PN84

MR LYONS: Indeed, your Honour.

PN85

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. They are in a single booklet form merely for convenience but I can provide electronic copies to those who want them.

PN86

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #NUW1 COLLECTION OF DRAFT DECLARATIONS IN RESPECT TO THE MATTERS IN WHICH THE NUW IS AN APPLICANT

PN87

THE SENIOR DEPUTY PRESIDENT: Any of the employer parties with an interest in any of those matters can obtain a copy from Mr Lyons.

PN88

MR LYONS: If the Commission pleases.

PN89

THE SENIOR DEPUTY PRESIDENT: Yes.

PN90

MS FRENZEL: I might also rise and indicate to the Commission that we have filed with the Commission and served on those organisations who had served the LHMU with a notice of appearance, draft orders with respect to the matters which are currently before the Commission as presently constituted. I would tender a bundle of documents which are the draft orders which were previously filed and served.

PN91

THE SENIOR DEPUTY PRESIDENT: Again, I will mark them collectively.

EXHIBIT #LHMU1 COLLECTION OF DRAFT RECOMMENDATIONS

PN92

THE SENIOR DEPUTY PRESIDENT: And again if anyone requires a copy they can contact Ms Frenzel and that will be provided.

PN93

MR HARVEY: Now, your Honour - - -

PN94

THE SENIOR DEPUTY PRESIDENT: Yes?

PN95

MR HARVEY: - - - with regard to the ASU the two - the Clerical and Shipping Officers Award and the Travel Industry Agencies Award; draft declarations have been prepared and as I understand have been circulated to the relevant employers. I don't have them with me today. But with regard to the Legal Industry Award, the draft declaration has not been circulated previously but I would tender a copy of that today and make it available to the interested parties.

PN96

THE SENIOR DEPUTY PRESIDENT: Very well.

EXHIBIT #ASU1 DRAFT ORDER

PN97

MR HARVEY: Thank you, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: Anything further from the unions - Mr Odgers?

PN99

MR ODGERS: Yes, your Honour, can I indicate that discussions between my organisation and the Independent Schools of Victoria in respect of declarations for the three awards that are to be common ruled, 51673 to 5169, have seen the parties reach, at this stage, an agreement on the form of the declaration. The ASV represents the field bar Mr David's organisation who I think we will be seeking an exemption from the common rule declaration. I haven't had an opportunity to discuss this with him yet but I would like to - we have not prepared a declaration in respect of the English Colleges Award to date. If I can hand up these.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #IEUA1 DRAFT DECLARATIONS IN RESPECT TO MOST MATTERS

PN101

THE SENIOR DEPUTY PRESIDENT: That is all on the union side? Very well, Mr Nolan?

PN102

MR NOLAN: Thanks, your Honour. AI Group has done an extensive amount of work in relation to the current batch of applications that are before the Commission, your Honour. They are going into the detail of award coverage and current respondency where there may be areas of overlap and I do have a document which has been circulated to the Trades Hall and I might just hand up a copy of those, if I might, your Honour.

PN103

THE SENIOR DEPUTY PRESIDENT: Yes, certainly.

PN104

MR NOLAN: The reason I raise the issue is that it identifies the complexities that can arise in processing these fairly historic events of common rule declarations in Victoria.

PN105

THE SENIOR DEPUTY PRESIDENT: Very well, is it one document, Mr Nolan?

PN106

MR NOLAN: Yes, it is.

EXHIBIT #AIG1 DOCUMENT CIRCULATED TO TRADES HALL

PN107

MR NOLAN: Your Honour, in relation to VTHC1, the proposed program, it is quite true, we have had discussions with the Trades Hall Council. We agree there does have to be a program that unfolds. We understand the unions' objective is to have at least this batch of awards processed before 1 January. But in relation to the amended program that has been submitted today we would say our greatest concern is that it is jammed into a timeframe that we think is unreasonable. AI Group would probably have registered an interest in maybe 150 of the applications currently before the Commission.

PN108

We know from the work that we have already done that is contained in the exhibit that i have handed up that there is a lot of work that needs to be done even on receipt of the draft declarations and witness statements and the like. So what we would be proposing is not to dislodge the process as outlined but suggest some more realistic dates that might enable that extensive work to be properly completed so that the process can unfold in an orderly manner. And we would be suggesting in relation to VTHC1, your Honour, that at point 3 where the unions seek the applications to be relisted later in the week of 18 October, we say that is an unrealistic date by comparison with the filing of the draft declarations, witness statements and outline of argument.

PN109

And we would suggest a date of 15 November rather than 18 October. We have no difficulty with the provisions of item 4. The date in item 5, we would like change to 15 November and we would suggest at 6 that applications which are contested should be relisted in the week of 29 November 2004 and that those objecting to applications are to file written submissions by 22 November with submissions in reply by the 26th. We say, your Honour, that that still doesn't disrupt the unions' objectives of trying to get these matters processed effective from 1 January and it certainly builds in a more realistic timeframe for AI Group, at least, and I am sure other employers will have a view about it. A more realistic timeframe to be able to make sure that these issues are processed in a proper manner. If the Commission pleases.

PN110

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nolan. Mr Eberhard?

PN111

MR EBERHARD: Thank you, your Honour. Your Honour, with respect to the document that has been marked as VTHC VECCI would support and endorse the comments made by Mr Nolan with respect to the alterations to the dates proposed by Trades Hall. Certainly we believe that with regards to the process there needs to be adequate time from our side to review the documentation and to enter into discussions and we don't believe that it would be able to be accommodated between points 1 and 3 as proposed by VTHC.

PN112

We do acknowledge that with respect to both NUW1 and LHMU1 that we have received them and that is certainly helpful in that regard but VECCI has indicated an interest in respect to each and everyone of - somewhat stupidly - into each and everyone of the awards that are currently declared - that are proposed, not only before you, but also before the four other members of the Commission, so we have a significant amount of work to do in regards to that. And I do say, we, because I think some of my colleagues might be sitting in the back so I also say that quite literally.

PN113

But we do support Mr Nolan's comments in regards to the timing. I do think in regards to that it would be far more helpful from our point of view if we could get any draft declarations at the earliest opportunity that we can because that is far more important than the witness statements in that, sort of, respect. And in that regard we would, sort of, encourage any of the applicants to provide those draft declarations to us at any stage prior to whatever date is proposed under point 1, whether it be 14 October or another date that the Commission chooses. If the Commission pleases.

PN114

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Eberhard. Mr Hargrave?

PN115

MR HARGRAVE: If the Commission pleases. The printing industry supports the same issues as VECCI and AIG bearing in mind in this particular matter we only have an interest in one matter but we do have interest in a number of other matters which would be four other members of the Commission. So we would support the suggestion as put by Mr Nolan as to the new dates.

PN116

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Hargrave. Ms Watt?

PN117

MS WATT: Thank you, your Honour. The Timber Merchants Association hasn't been privy to these discussions prior to today and therefore I probably can't really make too much of a comment other than to say that we are involved in some half dozen matters and would appreciate a little bit extra time over and above what is being set out by the VTHC.

PN118

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Zeitz?

PN119

MS ZEITZ: Thank you, your Honour, we similarly would accept the proposal put forward by AIG and VECCI in particular. As I understand it, it has filed an appearance with respect to the matters that my clients are involved in. Can I foreshadow for the Commission that we will be raising preliminary matters that go to both the principles and to a jurisdiction. So, I am not sure how that fits in with the timetable but I just foreshadow that. If the Commission pleases.

PN120

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN121

MS WHITE: Your Honour, the ARAV would support the proposed timetable put forward by Mr Nolan. The proposed timetable in VTHC1 does not, in our view, afford us sufficient opportunity to make response properly to - to only receiving draft declarations from 14 October. And we are particularly concerned about the short timetable where applications are contested. Unfortunately there may be some matters we are involved in that will be contested and I think that the short timeframe suggested in six and seven would not afford us a justice in terms of representing our members in those matters. So we would support the comments made by Mr Nolan and Mr Eberhard.

PN122

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Blignaut?

PN123

MR BLIGNAUT: If the Commission pleases, the MGAV support the statements made by Mr Nolan, Mr Eberhard and Ms White.

PN124

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Blignaut. Ms Boehm?

PN125

MS BOEHM: Your Honour, the VACC would also support the comments made by AIG and VECCI, thank you.

PN126

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Klemis?

PN127

MR KLEMIS: Yes, as a matter of repetition, we would support the timetable set by the main employer groups and our only other comment, your Honour, is that we are not in a position really to assess as to what the applications are not having seen them. So it is, sort of, premature to say that they do in fact comply with the guidelines of the test case and we say that the employers proposals are not ..... if your Honour pleases.

PN128

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Knopp?

PN129

MS KNOPP: Your Honour, just with respect to the dates. The Association only has an interest in three matters. We understand the position that employer associations such as VECCI and AIG have but we would be ready to proceed earlier. We think we have confined our industry definitions so that there won't be any issues. However, as has been indicated today, there is an issue with respect to coverage. Mr David from the Melbourne ..... Schools indicated that he actually contests the common rule declaration but I think we have probably done sufficient background work to be able to proceed.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. Mr David?

PN131

MR DAVID: Your Honour, apart from the matter of seeking exemption in terms of the date itself I am quite willing to support whatever the RSV would prefer.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes, can I just clarify, you would be seeking exemption in respect of each of the matters you indicated an interest in?

PN133

MR DAVID: That is correct.

PN134

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Anyone further? You have seem to have garnered a wide body of support, Mr Nolan.

PN135

MR NOLAN: Your Honour, if I might just make a comment. Ms Zeitz raised an issue which I think is probably shared by a number of employers and that is the capacity to be able to make general submissions in relation to the process generally and I appreciate this part of the proceedings is devoted to looking at the program in issue. I just raise that as an issue at the appropriate point in time if those general submissions could be made, not lengthy, but fairly important.

PN136

THE SENIOR DEPUTY PRESIDENT: What is the nature of those general submissions?

PN137

MR NOLAN: Well, I think it is really - it goes to the whole process and the things that have to be taken into account. We would like to express a view as to how, as an organisation, we see the process unfolding. There will be in a number of instances concerns we have about overlap. There will be concerns about some of the awards that have been put up for common rule declaration because they may well be very limited respondency awards. There is an overarching issue that the capacity for union to rope employers into existing Federal awards is not disturbed by this process and that is always available.

PN138

So it is issues of that nature that we would just make brief submission about, your Honour.

PN139

THE SENIOR DEPUTY PRESIDENT: And how would they be dealt with in a general way? Wouldn't they relate to particular matters?

PN140

MR NOLAN: Well, I suppose there is other issues about the underpinning legislation that enabled this process to unfold.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes.

PN142

MR NOLAN: In particular the issues relating to the avoidance of overlap and minimising the number of awards that would apply potentially in a particular enterprise. So they are just issues we would like to raise on the record.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN144

MR NOLAN: I suppose I have done it.

PN145

THE SENIOR DEPUTY PRESIDENT: But they are reflected in the principles, aren't they?

PN146

MR NOLAN: Yes, they are indeed.

PN147

THE SENIOR DEPUTY PRESIDENT: Those issues, yes. And an issue of overlap may not arise in respect of a particular application but may in relation to another.

PN148

MR NOLAN: Yes.

PN149

THE SENIOR DEPUTY PRESIDENT: It is not really a general issue other than it is a matter that the Commission is bound to have regard to.

PN150

MR NOLAN: Yes, indeed, that is right.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, yes, very well. Ms Zeitz, can I ask if you can identify what the jurisdictional issue is?

PN152

MS ZEITZ: There are two issues that we will raise, one is a general jurisdictional issue; one goes to the appropriateness of the nominated award, being the Victorian Legal Professional, Clerical and Administrative Employees Award.

PN153

THE SENIOR DEPUTY PRESIDENT: That goes to the specific award.

PN154

MS ZEITZ: That is a section 141 question as to whether that - - -

PN155

THE SENIOR DEPUTY PRESIDENT: Yes.

PN156

MS ZEITZ: - - - can and should be used for the purposes of common rule. The principles of the Commission are silent as to the weight that should be attached to awards that were made by consent within this case, some 12 respondents in the State of Victoria, which is hardly representative on any assessment of the number of legal firms in Victoria. And so my clients have a genuine - we believe a genuine issue with respect to whether the principles adequately address the weighting that is to be attached in such circumstances.

PN157

The second issue which goes to jurisdiction is the genuineness of the dispute finding that was originally made and thereby its validity.

PN158

THE SENIOR DEPUTY PRESIDENT: So it is a matter in respect of a particular award again, it is not - - -

PN159

MS ZEITZ: Yes.

PN160

THE SENIOR DEPUTY PRESIDENT: - - - a general - - -

PN161

MS ZEITZ: It is, yes, it relates just to this. I don't have - - -

PN162

THE SENIOR DEPUTY PRESIDENT: Yes.

PN163

MS ZEITZ: - - - instructions beyond this award, your Honour.

PN164

THE SENIOR DEPUTY PRESIDENT: Yes, very well.

PN165

MS ZEITZ: I don't know if you want me to elaborate further at this stage.

PN166

THE SENIOR DEPUTY PRESIDENT: Can you remind me again who your clients are, Ms Zeitz?

PN167

MS ZEITZ: Can I indicate at this stage - and I say that because we are in the process of garnering further interested parties on a fairly regular basis. Allens Arthur Robinson, Arnold Bloch Leibler, Blake Dawson Waldron, Clayton Utz, Corrs Chambers Westgarth, Deacons, Freehills, Mallesons, Stephen Jacques, Middletons, Minter Ellison and Phillips Fox.

PN168

THE SENIOR DEPUTY PRESIDENT: Yes but the matters you raise are matters that could be dealt with in the context, or should - possibly should be dealt with in the context of the particular application?

PN169

MS ZEITZ: Yes, we are happy to make - I just simply didn't want to become part of the overall process in terms of that particular submission - - -

PN170

THE SENIOR DEPUTY PRESIDENT: Yes.

PN171

MS ZEITZ: - - - without foreshadowing it to the Commission.

PN172

THE SENIOR DEPUTY PRESIDENT: Well, the overall process provides for, obviously, further hearings in relation to - - -

PN173

MS ZEITZ: Yes.

PN174

THE SENIOR DEPUTY PRESIDENT: - - - non consent matters and the nature of those hearings and length of them will depend on the particular issues.

PN175

MS ZEITZ: Yes.

PN176

THE SENIOR DEPUTY PRESIDENT: Yes.

PN177

MS ZEITZ: We simply didn't wish to give the impression that it would simply be a merit issue if in fact it got to that point.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anything further before I return to Mr Bandt? Mr Bandt?

PN179

MR BANDT: Your Honour, the - we don't support the proposed changes from AIG and the employers side. That, in our view, would result in a timetable that is more luxurious than the whole test case and it is not correct, as Mr Eberhard said, to say that the employers only have between 14 October - presuming that is when the draft declarations are filed - and 18 October to consider their position. What is proposed is that if after receiving the declarations there are some that they consent to then they can notify the Commission.

PN180

If not then they are required, on our proposal, to file submissions by 4 November and that is some three weeks after they have received the proposed declarations and our submissions. And in our submission that is an ample timeframe for employers, even employers who have to deal with multiple awards, to respond to the specifics of each declaration. If we can put aside along the way and deal with some that have been dealt with by consent then that will lessen the employers' workload and they will have three weeks to, perhaps, only have to deal with half of them.

PN181

Can I make the point too, your Honour, that these applications were filed in - most of them were filed in July or at the start of August. The purpose of the test case was to set out a framework that would allow all of these awards - as many awards as possible to be processed prior to 1 January deadline. So there has been - so it is not the case that October is the first that people will know about these awards, they have been on foot for some months. The - with respect to the time at which the matter gets relisted before the Commission in paragraph 3 the - if it was thought that there was some merit in extending that, by say a week, to allow more - a week and a half for the employers to consider the draft material and decide which ones they wanted to consent to and which ones they opposed, then that is something that we would be amenable to.

PN182

But the proposal put forward by the employers sees matters coming back for contested hearings at the end of November. And if we come back for contested hearings at the end of November then December is going to be a very busy month if we are trying to get matters out - applications declared by - to come into effect from 1 January. If the employers are willing to say that they won't hold a late timetable against any declarations coming into effect from 1 January 2005 then that is something that - we might reconsider our position.

PN183

But I imagine that they would be submitting at those hearings in December that they need another month, two months before these declarations can come into effect and we will have all sorts of arguments about the holiday period and so on and that is just not a position that we want to be in. Our proposed timetable allows enough time for the processing of matters by consent and for the dealing with any matters that are going to be contested prior to the end of the year.

PN184

THE SENIOR DEPUTY PRESIDENT: What was the extent of the variation that you did not object to? You indicated that you didn't have difficulty with some variation.

PN185

MR BANDT: If the - with respect to number three if that was to be - matters being relisted in the week of 25 October and then, obviously the other matters going out by a week, then that would give the employer organisations up to two weeks and possibly more, as we have heard most unions have given - served draft declarations - time to consider whether they would consent or not.

PN186

THE SENIOR DEPUTY PRESIDENT: Yes.

PN187

MR BANDT: What - with respect to direction number two, the direction for conciliation, what we would seek from your Honour is that some time - is it between the 14th and the 25th that you Honour set aside either a day or two half days for conciliation, that conciliation - - -

PN188

THE SENIOR DEPUTY PRESIDENT: Sorry, between the 14th and the 25th presuming matters are dealt with on the week of the 25th.

PN189

MR BANDT: Presuming that is in accordance with our revised proposal that we said, yes, your Honour. But during that time that there be one whole day or two half days set aside for conciliation and that all matters could be programmed for conciliation in a staggered way and any that have - in which - in relation to which there is consent, we can notify your Honour of that beforehand and there would be no need to turn up but otherwise we would sit the program through all of the conciliations during the course of the day.

PN190

THE SENIOR DEPUTY PRESIDENT: Yes.

PN191

MR BANDT: So that is how it happened during the course of the test case proceedings with respect to the declarations that the conciliation and - - -

PN192

THE SENIOR DEPUTY PRESIDENT: Is Vice President Ross available, do you know? I think that's how it happened in that case, isn't it?

PN193

MR BANDT: Yes. I understood, right, that there is - with respect to the issues of overlap and so on we - our view is that the general questions about how the Act is to operate were all dealt with in the course of the test case and are dealt with in the principles and we are not seeking to deviate from that. With respect to specific questions about overlap, and some other matters that have been raised, I am instructed to advise the Commission that there will be meeting - a meeting on 4 October between the unions and the relevant employer interests to discuss, specifically, questions and overlaps that have been raised by the employers. If your Honour pleases.

PN194

THE SENIOR DEPUTY PRESIDENT: Very well. Is there anything further - I might - otherwise I will adjourn briefly for probably 10 to 15 minutes and consult my diary and consider the submissions that have been put.

SHORT ADJOURNMENT [11.08am]

RESUMED [11.24am]

PN195

THE SENIOR DEPUTY PRESIDENT: Yes, what I intend to do is to announce a general program, if you like, and then as I indicated this morning provide an opportunity for any party to a particular matter to raise any additional matters or particular matters as to the timetable. Bear with me. What I propose to do is to issue directions broadly in accordance with those in the VTHC1, subject to some amendment to date and other amendment. Before doing that I indicate in relation to programming that it is my intention to make myself available for the purpose of conciliation on the days of 19 and 20 October, subject to application by any party to a particular matter to utilise a time during those days for that purpose.

PN196

I will re-list all of the matters in blocks reflecting the industry groupings in VTHC2, save that the group 7 and 8 will be combined and 9, 10 and 11 combined for the purpose of the blocks on Wednesday, 3 and Thursday, 4 November. And I will set aside the whole of the week commencing 22 November for the purpose of determination of any contested matters, subject to any necessity for additional dates if that becomes necessary having regard to the nature of the matters in contest and the likely duration of any hearings.

PN197

Subject to those dates the directions which I will issue will be first that the applicants file and serve on all relevant union and employer parties with - sorry - on all relevant union and employer parties draft declarations by no later than 7 October 2004. Secondly that applicants file and serve on all relevant union and employer parties witness statements and an outline of argument in support of the making of the award by 14 October 2004. I will thirdly direct all relevant parties to confer on the basis that the Commission will be available to assist by way of conciliation on 19 and 20 October.

PN198

Fourthly all applications will be re-listed on 3 and 4 November 2004. The matters will be listed over those two days broadly in accordance with the industry groupings contained within exhibit VTHC2. Fifth, employers are to notify the applicant and Commission no later than by close of business on 28 October of those applications to which they consent. At the hearings in the week commencing 3 and 4 November 2004 the Commission will proceed to make those declarations for which there is consent, subject of course to the satisfaction of the Commission that such declarations are appropriate.

PN199

Seventh, applications which are contested will be re-listed in the week commencing 22 November for hearing, the particular date and duration will be determined in the hearings of 3 and 4 November 2004. And eighth, those objecting to applications are to file written submissions by 15 November 2004, submissions in reply from applicants filed by 18 November 2004. I have determined those dates on the basis that I believe the original program was too constrained in terms of the amount of preparation required by the parties, in particular the employer parties, and I have also had regard obviously to my availability of fixing dates for hearing.

PN200

That is a general proposition. I will issue those directions in written form later today. Are there any particular matters both as to the general program or any other matter in relation to specific applications and if you could identify which specific application.

PN201

MS JONES: Your Honour, if the Commission pleases.

PN202

THE SENIOR DEPUTY PRESIDENT: I wonder if you could just come around closer to a microphone.

PN203

MS JONES: If your Honour pleases, the Restaurant and Catering Association of Victoria had the opportunity to talk with both VECCI, AIG and the VACC during the break and with the LHMU and, subject to the draft declarations just being checked again given we have already been served those declarations, we would be quite happy to proceed with those - with those four awards listed under the group of the Liquor and Accommodation Industry prior to the other proceedings that are taking place.

PN204

THE SENIOR DEPUTY PRESIDENT: Yes.

PN205

MS JONES: We also understand that there is a meeting on Monday afternoon between the applicants and AIG and VECCI regarding overlap and we just would bear in mind any comments that might come out of that meeting but we are happy to proceed with those awards to go ahead - those four listed under Liquor and Accommodation.

PN206

THE SENIOR DEPUTY PRESIDENT: Yes. At an earlier time - is that the position of the other employers involved in those matters?

PN207

MS WHITE: Your Honour, I have not yet received a copy of those draft declarations so I think I need to reserve any comments until I have actually seen them.

PN208

MS FRENZEL: I can provide the RCAV with the copy of the draft declaration this afternoon by email. With respect to the matter as between the VACC and the LHMU it is our intention to insert an exclusion into the declaration with respect to restaurants, excluding persons covered by the Vehicle Industry R S and R Award. That deals with that issue. And we are more than content to, at the Commission's convenience have these matters heard and determined expeditiously, if the Commission pleases.

PN209

THE SENIOR DEPUTY PRESIDENT: Yes. And from AIG and VECCIs?

PN210

MR EBERHARD: Your Honour, I have indicated to Ms Frenzel that if she can get a clean copy or a new copy of the draft declaration to us we will look at that at the earliest convenience. We have indicated, during the break that we had, that we wouldn't oppose if applications can be agreed to that they could proceed at a different time to that which is proposed by the Commission. So, in this regard, it may well be that the more sensible thing to do may well be to wait until 3 or 4 November, as indicated by yourself, that you would hear those matters that are either - you would determine those matters that are either contested and/or those matters that are not opposed in regards to that process, and it may well be that that - that this matter would be one of those matters that would not be contested in regards to that.

PN211

THE SENIOR DEPUTY PRESIDENT: Yes. Is that adequate for your purposes?

PN212

MS FRENZEL: Well, certainly my understanding of the discussions that we had with the Restaurant and Catering Association is that, pending the re-casting of the declaration with respect to Restaurants, the other matters with respect to hotels, motel - and I know I'm going to get a couple of these wrong, licensed clubs, are uncontested, and with respect to restaurants we could deal with that matter this afternoon by email. So I would have thought that, pending what my friend has got to say about the actual draft which are being provided to him, save and except for the amended draft with respect to restaurants, then the matter could be dealt with far more expeditiously.

PN213

THE SENIOR DEPUTY PRESIDENT: When are you meeting?

PN214

MS FRENZEL: We are meeting with VECCI and AIG on the 4th.

PN215

THE SENIOR DEPUTY PRESIDENT: Yes.

PN216

MS FRENZEL: On Monday - but, as far as we are concerned, pending any minor details regarding - with respect to restaurants the matter settled between the Restaurant and Catering Association, the VACC and ourselves, it is - as I have said, I will send over a copy of the draft declarations to the to the RCAV this afternoon.

PN217

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Well, what I will do. Sorry, sorry Mr Nolan.

PN218

MR NOLAN: I would just indicate, your Honour, that given that we have included this in the exhibit that we handed up this morning, these awards that Ms Jones is talking about on our assessment we wouldn't have any significant objection to an earlier processing of those particular awards.

PN219

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. What I will do then is to leave matters as they are but on the basis that if, after the meeting of the 4 October, the parties reach a position whereby those matters withing VTHC2 and group 3 - Liquor and Accommodation, can be dealt with more quickly then I should be contacted to that effect. I will vary the directions in respect to that group and utilise part of the time on 19 or 20 October to deal with those particular matters if that's the view of the parties. Yes.

PN220

MR NOLAN: Your Honour, given that you have heard submissions in relation to the issue of programming, given that there are proceedings before other members of the Commission this afternoon and Monday - - -

PN221

THE SENIOR DEPUTY PRESIDENT: Yes.

PN222

MR NOLAN: - - - I suppose it's a request more than anything whether in fact what has been decided in relation to this programming here could at least be brought to the attention of the other members of the Commission.

PN223

THE SENIOR DEPUTY PRESIDENT: That makes a lot of sense, Mr Nolan. I will ensure that that is done. Who is sitting this afternoon?

PN224

MR NOLAN: Commissioner Smith.

PN225

THE SENIOR DEPUTY PRESIDENT: Commissioner Smith. And it's Senior Deputy President Acton on Monday.

PN226

MR NOLAN: It lists three members of the Commission on Monday.

PN227

THE SENIOR DEPUTY PRESIDENT: Three members on Monday. Okay.

PN228

MR NOLAN: Yes.

PN229

THE SENIOR DEPUTY PRESIDENT: Very well, I will ensure that they receive a copy of the dates and directions at the earliest possible time. Anything further? Very well. Well, I will adjourn subject to the issuing of those directions at the earliest possible time.

ADJOURNED UNTIL MONDAY, 3 NOVEMBER 2004 [11.37am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #VTHC1 DRAFT DIRECTIONS PN59
EXHIBIT #VTHC2 PROPOSED INDUSTRY GROUPINGS PN64
EXHIBIT #NUW1 COLLECTION OF DRAFT DECLARATIONS IN RESPECT TO THE MATTERS IN WHICH THE NUW IS AN APPLICANT PN87
EXHIBIT #LHMU1 COLLECTION OF DRAFT RECOMMENDATIONS PN92
EXHIBIT #ASU1 DRAFT ORDER PN97
EXHIBIT #IEUA1 DRAFT DECLARATIONS IN RESPECT TO MOST MATTERS PN101
EXHIBIT #AIG1 DOCUMENT CIRCULATED TO TRADES HALL PN107