C2004/4607, Transcript of Proceedings [2004] AIRCTrans 4313 (8 November 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 14587

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2004/4607

COUNTRY PUBLISHING AND
PRINTING AWARD 2002

Application under section 113 of the Act
by the Automotive, Food, Metals, Engineering,
Printing and Kindred Industries Union to vary
the above award re termination, change, and
redundancy

SYDNEY

10.35 AM, THURSDAY, 28 OCTOBER 2004

Continued from 10.9.04

PN166

THE COMMISSIONER: Is there any change in appearances from the last occasion, please?

PN167

MS TAVERNER: May it please the Commission, I appear for the Australian Manufacturing Workers Union. Ms Taylor from our union is, unfortunately, involved in a matter in Victoria today.

PN168

THE COMMISSIONER: Thank you, Ms Taverner, and Mr Stenner, you are here appearing for your organisation as you have in the past?

PN169

MR STENNER: Yes, and the Country Press Australia.

PN170

THE COMMISSIONER: Yes, thank you. Now, the matter has been asked to be brought back on by the union, so perhaps if you would like to go ahead, please, Ms Taverner?

PN171

MS TAVERNER: Thank you, Commissioner. My understanding is, just by way of general background to this matter, that the Commission made its orders with the consent of all of the parties on 16 August in relation to the main body of the award. There have been subsequent discussions between the parties in relation to issues that remained outstanding in relation to appendix F of the award. My understanding is that the parties were in consent as late as yesterday in relation to the provisions of appendix F which related to the merging of old provisions with the new TCR standard.

PN172

However, at approximately 4 o'clock yesterday, our union learned that the Printing Industry Association does now not consent to what was the agreed position and accordingly, my understanding is that Mr Stenner has an application this morning to adjourn this morning's proceedings. However, I will leave that for him, Commissioner. Our position is that we were in consent in relation to issues that remained outstanding since 16 August, and that in relation to those issues, the consent position should be reflected in an order of the Commission with an operative date of 16 August, 2004 which is the date, I understand, that Ms Taylor put on record back on 16 August before the Commission. However, perhaps I should hand over, Commissioner, to Mr Stenner so he could make any application that he sees fit.

PN173

THE COMMISSIONER: Mr Stenner?

PN174

MR STENNER: Thank you, Commissioner. The background is substantially correct, Commission, that Ms Taylor and myself had a number of negotiations and exchanges of documents over the last month or so. On the 25th, three days ago, I forwarded an email to Ms Taylor and we had discussions about that email and a draft that was attached to it. We, as two staff members of our organisations, agreed that it was a workable document. However, I did add the rider that it was only my opinion at that stage, and the document was a very unofficial document and required approval from our organisation.

PN175

That approval has not been forthcoming, and it is true that I do seek that the matter be stood over until further discussions, and those further discussions would be centred on, from our point of view, small businesses - that is, employers with fewer than 15 employees. Our concern is that the redundancy test case supplementary decision of 8 June this year intended to allow relief to small businesses by imposing on them a lesser scale of severance payments than that for large businesses. Appendix F, in its current draft form of order, does not allow that and we would seek to have further discussions between the parties to ensure that this relief for small business could be inserted into appendix F of the award.

PN176

THE COMMISSIONER: Can I just ask, Mr Stenner, what sort of time for adjournment? I gather from Ms Taylor's letter earlier this week that you have got some leave commitments over the next few weeks?

PN177

MR STENNER: Yes, Commissioner. I depart on leave tomorrow for a little over 3 weeks and resume work on 23 November.

PN178

THE COMMISSIONER: So do I take it that any discussions would be after that date?

PN179

MR STENNER: I would expect so unless somebody can take my place in those discussions. That may well be possible.

PN180

THE COMMISSIONER: Okay. Was there anything else that you wanted to put?

PN181

MR STENNER: Yes, just that I would like to point out that the recognition of small employers has been made in the main body of the award where the amendments put in on 2 August by this Commission allowed a lesser scale of severance payments for small employers, or employers with fewer than 15 employees. Our concern is that the employers covered by the country newspapers appendix of the Country Publishing and Printing Award will be disadvantaged by not having that same severance pay scale built in that part of the award.

PN182

THE COMMISSIONER: Can I ask, just subject to what we are going to do - I mean, I think it is probably useful to have some discussions. I know what you have put, Ms Taverner, but there isn't consent and I can't, obviously, force - I can't make an order at the moment where there isn't consent. I mean, obviously I might have to if the matter ultimately isn't by consent. We may have to have a case run, but I'm certainly not prepared to make an order today. However, Mr Stenner, can I ask you or whoever would be handling it from your organisation, or you may, in fact, be able to answer this: is there any practical difficulty with this?

PN183

I mean, are there, in fact, any of the people likely to be employers covered by appendix F actually falling into that category? I suppose what I'm getting at is: are we having an academic argument in which case, okay, we can have an academic argument, or is it actually going to have an impact on the ground, if you know what I mean?

PN184

MR STENNER: I've asked Country Press Australia about this same question, and they have told me that they have got probably around about 120 to 130 employers nationally who would fit into the small employer category.

PN185

THE COMMISSIONER: Who aren't owned by the big end of town?

PN186

MR STENNER: Well, who would come under appendix F. I'm not too sure about which end of town they are owned by.

PN187

THE COMMISSIONER: I suppose what I'm getting at is that I'm aware of the fact that a large number of country newspapers are actually owned by, certainly, far from small employers. I hope we are not talking about them.

PN188

MR STENNER: My understanding was that it would be small autonomous employers.

PN189

THE COMMISSIONER: Independent?

PN190

MR STENNER: Yes, independent papers. I think the number was about 50 in Victoria, possibly 40 in New South Wales, and maybe 30 in Queensland.

PN191

THE COMMISSIONER: Okay, because if we wait long enough, we may not even have to worry. It may be legislated out of the Commission's being able to handle it anyway from what noises are made, but at the moment that isn't the case so we deal with the fact that we have a test case and it is a case of how it is applied. What sort of adjournment then are you looking for?

PN192

MR STENNER: I would prefer, from my point of view, something to allow me to get back into the discussions following my leave, so that would be from now close to 4 or 5 weeks minimum to allow a week for discussions.

PN193

THE COMMISSIONER: Ms Taverner?

PN194

MS TAVERNER: Commissioner, could I just indicate for the record that, firstly, obviously as the Commission would be aware, it is not my matter. Ms Taylor has carried through this matter. Ms Taylor has asked me to make a number of submissions opposing the adjournment. However, I apprehend the Commission is presently disposed to granting the adjournment?

PN195

THE COMMISSIONER: Well, you can make submissions but, certainly, I must say that unless they are fairly strong, Ms Taverner, I'm certainly not proposing to not adjourn.

PN196

MS TAVERNER: Perhaps if I could just put these on record, Commission, and perhaps if the Commission is persuaded to not grant the adjournment, the AMWU would be most happy with that. However, if I can just indicate that schedule F, which is contained in the award, is the existing safety net for employees. Secondly, when the award was varied to incorporate the 1984 TCR test case, the provision which excluded employers with less than 15 employees did not actually apply to employers producing country newspapers.

PN197

When the award was simplified, Commissioner, in 2002 by consent, the parties did not seek to disturb or to reduce the existing TCR provisions binding employers and employees by restricting the entitlements to employees of employers with more than 15 employees. So in other words, the simplification, Commissioner, as I'm sure the Commission is aware, proceeded by consent. Those provisions were not - in any way, shape or form - disturbed back in 2002. Commissioner, as you would be aware, the new TCR standard in the Full Bench decision in the supplementary decision contemplates that there would be departures from the model clause, and the Bench states that the model clause "while embodied general principles may require some modification to suit the circumstances of particular industries." That paragraph is 386, FPR03 2004, Commissioner.

PN198

We put that on record just to state that if, in fact, this is considered to be a departure from the model clause, we say that the Commission does, in fact, have the power to grant that. Briefly, Commissioner, the supplementary decision at print 06 2004 determined that "variations in the model clause are permissible but generally only where the variation is necessary to accommodate the individual circumstances of particular industries or for drafting clarity in a particular award context" and that is at paragraph 30, Commissioner. Again, we rely on that to state that if this is a departure from the model clause, then it is consistent with the historical practices within the country printing industry, Commissioner.

PN199

Sixthly, Commissioner, the industry of newspaper printing in its daily, non-daily, regional and country manifestations has historically reflected a different circumstance than what, in fact, the Commission's standard TCR test case provisions contemplate. The union's draft order, Commissioner, which, I understand, was provided to the Commission on 25 October this week, in fact, reflects a new standard in the context of the historical and existing safety net, Commissioner. In relation just to what Mr Stenner has said this morning, and as the Commission would be aware, he has only received instructions in relation to the issue of small employers this week, and only notified the union yesterday at 4 pm.

PN200

We say that within the context of the discussions that have ensued, Commissioner, since 16 August that it is particularly unfair to our members and, in fact, all workers who work under the provisions of this award to, in fact, be denied the benefit of the safety net test case model clause, which they are entitled to, only because the employer has now become aware of a detriment which it may, in fact, suffer or some issue that it may have in relation to small employers, given the numbers that Mr Stenner has outlined this morning from the Bar table in relation to the number of workers who are employed within the country printing industries in what I understand are non-metropolitan newspapers, they are not a lot of employers.

PN201

We say that it would be a large detriment and disadvantage occurring to our members if the provisions are not - if the draft order is not made, Commissioner, as provided to the Commission on 25 October. We say that the claim made by Mr Stenner is, in fact, a new claim and at this stage of the negotiations and the proceedings, Commissioner, it is vexatious and unhelpful for harmonious industrial relations. Finally, we say, Commissioner, that the employers claim is, in fact, in effect, a new claim to vary the award below the safety net. Accordingly, it is appropriately dealt with by way of a separate application under section 113 of the Act.

PN202

We say that it is not one that can be characterised as forming part of the existing proceedings and that it should be, as I stated, Commissioner, subject to a new section 113 application and review before the Full Bench. So, accordingly, Commissioner, along those lines, we would oppose any application for an adjournment and even more strenuously now, given that Mr Stenner has indicated that he is off on leave for a couple of weeks and won't, in fact, be back to engage in full and proper discussions in relation to this minor issue until, I understand, the end of November. Thank you, Commissioner, I have nothing further.

PN203

THE COMMISSIONER: Thank you, Ms Taverner. Mr Stenner, did you want to put anything in relation to the issues that Ms Taverner has just raised about the adjournment?

PN204

MR STENNER: If the period of the suggested adjournment is too long, Commissioner, perhaps a shorter period might be suitable and acceptable. One of my colleagues could take over the negotiations and discussions in this matter. I think, in regard to the test case provisions, we believe that the principles should be applied and that the standard is allowable as it is set down in the test case supplementary decision, and that is what should apply and give relief to the small employers under appendix F, Commissioner.

PN205

THE COMMISSIONER: Well look, I'm proposing to grant the adjournment. I'm sorry that it has actually come to this, and I appreciate the union's frustration with the fact that it is, sort of, a last minute issue. I also appreciate, Mr Stenner, that you are somewhat caught and it is not your own personal doing that has led to this. I know that it may be some difficulty, in fact, making it until the end of November for discussions to occur. My preference would, in fact, be for you to continue to involved because I think that realistically for someone else from your organisation to be involved would probably only tend to prolong any discussions that would be occurring with the union anyway because that person would have to really bring themselves up to speed with what is happening.

PN206

I think, in effect, probably you and Ms Taylor would be able to have much quicker discussions than, in fact, somebody else from your organisation in any event, so I don't know that we are going to - I mean, it would be different if you were going off for long service leave or something, but it is 3 weeks. What I would propose is that you come back some time that week starting 29 November, which means - I think you said you are back the week before?

PN207

MR STENNER: On the 23rd, Commissioner.

PN208

THE COMMISSIONER: You are back on the 23rd so you will have some days that week to discuss this, and if you could come back that week starting the 29th. The only problem I have is that due to other commitments, I think realistically the only date I've got available that week is the 3rd which is the Friday, so what I propose is, subject to your availability and obviously Ms Taylor's as well - the only thing, Ms Taverner, is Ms Taylor available on a Friday? I have a feeling maybe a Friday was not a good - - -

PN209

MS TAVERNER: To be honest I'm not certain, Commissioner, but I could certainly check that.

PN210

THE COMMISSIONER: Well, maybe we could - if it suits, Mr Stenner - make it the Friday but if you could check with Ms Taylor that she would be available because I don't want to find that it is a day that she is not - would the 3rd be all right?

PN211

MR STENNER: It would be suitable to me, Commissioner, thank you.

PN212

THE COMMISSIONER: So if we list it for report-back at 10 am on 3 December and, Ms Taverner, if there is some difficulty, if you or Ms Taylor could get back to my associate to indicate that relatively soon so that we can make other arrangements.

PN213

MS TAVERNER: Thank you, Commissioner.

PN214

THE COMMISSIONER: In the meantime, obviously I would direct the parties to have discussions with a view to being able to reach some agreement. If you are not able to, well then the issue of whether it is some sort of separate application and whether it involves some application beneath the safety net and then Full Benches are involved etcetera etcetera, perhaps that can be discussed during your - well, have some thought given to that at least so that when we come back on the 3rd, if there isn't agreement, at least people might know where they are going.

PN215

MS TAVERNER: Thank you, Commissioner. Could I perhaps just also place on the record at this point that any draft order that does emanate from the discussions which will proceeding up to when we come back to the Commission on 3 December, the AMWU would be seeking an operative date for any order that does come from those discussions of 16 August, 2004. That is in accordance with the submissions made by Ms Taylor on the last occasion which, I believe, was 16 August.

PN216

THE COMMISSIONER: Well, there's been some proceedings since. I think on 10 September, there was some proceedings on that date but, certainly, yes. I don't think Mr Stenner - correct me if I'm wrong - I'm not saying you have agreed but, certainly, Ms Taylor has been up front about the fact that if there is - that the union would be seeking an operative date of 16 August unless there was some other type of agreement, I think, was the way it has been put since then.

PN217

MR STENNER: Yes, I'm aware of that intention of the union, Commissioner. However, we would reserve our position to argue in regard to the operative date.

PN218

THE COMMISSIONER: Yes. Well, I suppose what I have got to indicate is that what Ms Taverner is putting there is not new to either you or myself as far as what the union is seeking, at least.

PN219

MR STENNER: Okay.

PN220

THE COMMISSIONER: So we will just adjourn the matter until 3 December, thank you.

ADJOURNED UNTIL FRIDAY, 3 DECEMBER 2004 [10.43am]