C2004/4977, Transcript of Proceedings [2004] AIRCTrans 4367 (12 November 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 8935

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/4977

APPLICATION FOR A COMMON
RULE AWARD

Application under section 141 of the Act
by Media, Entertainment and Arts Alliance
for a common rule award

MELBOURNE

12 NOON, WEDNESDAY, 3 NOVEMBER 2004

PN1

MR D. JACKA: I appear on behalf of the Media, Entertainment and Arts Alliance.

PN2

MR P. EBERHARD: I am from the Victorian Chamber of Commerce and Industry.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Mr Jacka.

PN4

MR JACKA: Thank you, your Honour. Your Honour, I appear today in relation to the declaration of a common rule for the Public Relations Industry Award 2003. Commissioner - sorry, your Honour, the copies of the draft declarations have been emailed to the relevant parties. I will get on to those in a second. These do not cover - the draft declarations, I believe, do not cover print number 952542 and 952589. However, in relation to the second matter we would be more than happy to provide an identical undertaking that was sought.

PN5

THE SENIOR DEPUTY PRESIDENT: Yes. And the first matter is the reference to award rather than declaration is it?

PN6

MR JACKA: Yes. I actually - I must inform the Commission that I was actually unaware of that requirement until earlier today so I would be more than happy to provide draft declarations to all parties with those amendments made.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. And in respect to this matter the relevant parties expressing an interest are VECCI and VACC. But VACC - - -

PN8

MR JACKA: That is correct, and both parties have informed the Media, Entertainment and Arts Alliance that they actually do not have an issue with the declaration of a common rule award in these matters. With respect to VECCI it would be conditional on the undertaking about overlapping, mentioned earlier.

PN9

THE SENIOR DEPUTY PRESIDENT: Yes.

PN10

MR JACKA: Your Honour, also I have with me today copies of the award in question if you would like to have those.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. The not so simplified award.

PN12

MR JACKA: Yes.

PN13

THE SENIOR DEPUTY PRESIDENT: Very well. Thank you.

PN14

MR JACKA: Your Honour, the Public Relations Industry Award covers the public relations industry nationally and is considered the industry award for that particular industry. It covers a number of organisations in relation to that as well. The award has significant coverage with respect to the number of respondents and the alliance also purposefully ropes in employers as they emerge as well. It is worth noting however that that can be quite difficult.

PN15

During the initial - sorry, during the making of the Public Industry Award 2003 his Honour, Senior Deputy President Lacy, noticed that out of the 134 particular parties to that award 26 were not registered or de-registered, 16 were registered but had no current details and 9 had changed their details so it is a fluid industry and that is one of the major reasons why we see it necessary to have this as a common rule award.

PN16

THE SENIOR DEPUTY PRESIDENT: I note that the awards are already being declared a common rule award in respect to the ACP?

PN17

MR JACKA: Yes, but for some interest and I am not too sure why, not in the Northern Territory. We don't actually have any respondents listed in the Northern Territory as well, which may be part of the reason as to why that is the case.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes. Maybe they haven't caught up to the spin industry in the Northern Territory yet.

PN19

MR JACKA: Maybe they haven't. Maybe the shock jocks haven't made their way through there yet. The initial award was actually made by a Full Bench of the Commission in 1991 according to first principles there as well. The 2003 award came into effect on 27 June 2003 and replaced both the initial award and two further roping in awards to that initial award as well. Senior Deputy President Lacy said that - also performed a review of the award under item 51, schedule 5 of the Workplace Relations and Other Legislation Amendments Act 1996.

PN20

In relation to the scope of the award the agreement - the award covers - sorry, excuse me a second, your Honour - it actually is quite broad in that it covers any branch of writing or drawing or photographic work for publicity, published instructions or public relations purposes as well. I feel that we have covered pretty much everything today except for the re-drafting of the declaration and the draft declaration there, and I commend the award to the Commission, if the Commission pleases.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you for that, Mr Jacka. Mr Eberhard.

PN22

MR EBERHARD: Your Honour, on the understanding that the MAAF have given the undertaking as prescribed in your report of 20 October 2004 we would not be opposed to the declaration being made. However, we would like the opportunity - I can't recall whether I have actually seen the declaration in this - I may have but I can't recall whether I have actually seen this one but if we could be given, say, 7 days for the parties to finalise the declaration then forward that to your Chambers that would - - -

PN23

THE SENIOR DEPUTY PRESIDENT: Then that would incorporate the reference to the declaration rather than the award, yes.

PN24

MR EBERHARD: Rather than the word, award, and the removal of the reference in the heading would also need to be made. If the proposed declaration has followed other declarations that have been made prior to the Registry's intervention, if you would like to call it that - - -

PN25

THE SENIOR DEPUTY PRESIDENT: Yes.

PN26

MR EBERHARD: - - - but with that, as I said, we would not be opposing the application here today, if the Commission pleases.

PN27

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Mr Jacka, you have no difficulty with seven days.

PN28

MR JACKA: That is all fine, thank you, your Honour.

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Very well. Thank you for that. This is an application by the MEAA to have the terms and conditions of the Public Relations Industry Award 2004 declared common rule in the State of Australia, arising out of section 493A of the Act. I am satisfied the declarations sought properly give effect to the Full Bench decision in print number 950653 and the declarations promote the object of section 493A of the Act, they declare all substantive provisions of the relevant award to operate as common rule subject to specified clauses identified.

PN30

The declaration is proposed to operate from the earliest practicable date but with sufficient time for affected employers to be notified of the terms and conditions and the material relied upon by the MEAA in terms of the making of the award - first award principles by a Full Bench of the Commission and subsequent simplification by Senior Deputy President Lacy support declarations of the awards in those terms. The terms and conditions of the relevant award have been fixed on first award principles by a Full Bench, consistent with the safety net review statement of principles.

PN31

Further, I am satisfied the draft declarations reflect the style and substance of the template declaration endorsed by the Full Bench save for the reference to award, where the reference should be to the common rule declaration. That is a matter which MEAA will rectify in settling the terms of the draft declaration. Finally, I have considered the issue of potential overlap in coverage. The declaration contains a provision as per item 6 of the Full Bench template that it shall only - shall not apply to employees respondent by any means to another award of the Commission in respect to the employment by them of employees covered by that award.

PN32

Further, the MEAA has given an undertaking in similar terms to that recorded in my report in print number 952589. On that basis, VECCI, representing interests of employers, does not oppose the making of a declaration in the terms sought and no overlap or potential overlap has been identified by the parties in relation to the declaration sought. I will provide a period of 7 day, until close of business on Wednesday, 10 November, for MEAA and VECCI to consult to settle the terms of the draft order.

PN33

The settled terms will of course deal with the declaration versus award point which was dealt with by me in relation to several declarations in print number 952542. Upon considering the terms of the declaration once settled by the parties provided that nothing arises from my consideration of that declaration which would prevent it being made, I will make the declaration to come into force from 1 January 2005 and to remain in force for a period of three months. I will await receipt from the parties of the settled declaration on 10 November and, as I said, unless there is some problem evident in the settled declaration I will issue the declaration sought. I will now adjourn these proceedings.

ADJOURNED INDEFINITELY [12.12pm]