C2004/6341, Transcript of Proceedings [2004] AIRCTrans 4473 (18 November 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 14824

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2004/6341

LIQUOR AND ACCOMMODATION INDUSTRY -
ENGINE DRIVERS' AND FIREMEN'S -
BREWERIES - AWARD 2001

Application under section 113 of the Act
by the Construction, Forestry, Mining and
Energy Union to vary the above award re
redundancy case and redundancy supplementary
case

SYDNEY

2.15 PM, MONDAY, 8 NOVEMBER 2004

PN1

MR B. BODKIN: I appear for the CFMEU.

PN2

MS K. JASZEWSKI: I appear for Carlton United Beverages.

PN3

THE COMMISSIONER: The matter before the Commission is an application filed pursuant to section 113 of the Workplace Relations Act by the CFMEU to vary the Liquor and Accommodation Industry - Engine Drivers' and Firemen's - Breweries - Award 2001 to give effect to the Commission's redundancy test case decision of 26 March 2004 and the redundancy test case supplementary decision of 8 June 2004. Attached to the application was a draft order. On 20 October 2004, the Commission issued a notice of listing, listing the matter for today. The applicant was required to notify all respondent parties with the application of the notice of listing as per the Commission's rules.

PN4

The Commission's file now contains an affidavit filed by Mr Bodkin dated 27 October which deals with the service upon the two known respondent employers by the union together with a copy of Australia Post's registered post lodgment document dated 21 October. Mr Bodkin, it is your application, what do you have to say about it?

PN5

MR BODKIN: Yes, Commissioner, the union has had discussions with Carlton and United Breweries and we understand that we are in agreement on an amended draft order. There has been no communication to the union by the other active respondent, that is J. Boag and Son Brewing of Launceston which is fairly typical I understand, Commissioner that they - I think in the past they have more or less followed any variation that has gone through with the consent of the major respondent, that is Carlton and United Breweries.

PN6

THE COMMISSIONER: Yes, at varying times it is my experience, Mr Bodkin, that they have either forwarded to the applicant organisation or directly to the Commission some form of response but on this occasion, the Commission certainly hasn't received anything directly from Boags.

PN7

MR BODKIN: Well, neither has the union.

PN8

THE COMMISSIONER: So I think we should proceed. I am satisfied as a result of the affidavit which you have filed that proper service has been effected upon them.

PN9

MR BODKIN: Yes, Commissioner. The amended draft order has been tendered.

PN10

THE COMMISSIONER: I have that.

EXHIBIT #B1 AMENDED DRAFT ORDER

PN11

MR BODKIN: The only amendment actually, Commissioner, was the last item on page 7 which refers to clause 13.9. In the original draft it was wrongly numbered as 12.9. It is now 13.9. I would like to take you to two other parts of the draft order, firstly on page 6, clause 13.4. Let me preface my remarks by saying that this draft order is modelled on the order issued by the Full Bench varying the Metal Engineering and Associated Industries Award 1998 for redundancy. That was issued on 8 June, this year in PR947664. So in all major respects, the draft order in front of you is based on that particular Full Bench draft order.

PN12

There is one exception and that is on page 6, in 13.4, below the last dot point, there is a paragraph commencing, "Notwithstanding the foregoing provisions." That is a provision that is currently in the award at 13.7(2) and it deals with the calculation of service for a person who has completed a traineeship. In other words, if a person completes a traineeship well, then their service as a trainee is counted for the purposes of redundancy. As I said, that is a provision currently contained in the award and on my reading of the Full Bench decision and supplementary decision, it is permissible to tailor an individual award so as to reflect any unique or individual circumstances arising in the award that is before the Commission.

PN13

The other point I take you to is on page 5 of the draft order at 13.2(4). That deals with continuity of service or the calculation of continuity of service. Commissioner, in most awards of the Commission there is usually a proviso attached to that which says in effect that for an employee of a small employer, continuity of service is counted from the date of the variation. That proviso does not appear in this draft order and the reason for that is that the award itself, the existing redundancy clause does not contain the exemption for a small employer. In other words, as the award stands at the moment, if you were an employee employed by a small employer you are entitled to redundancy and so in order to preserve that entitlement we do not include the proviso in 13.2(4).

PN14

It is probably academic, Commissioner, because as I understand it neither of the two respondents are small employers as is generally understood.

PN15

THE COMMISSIONER: It depends on one's definition of "small employer", Mr Bodkin.

PN16

MR BODKIN: Yes.

PN17

THE COMMISSIONER: That is a wide and variable subject.

PN18

MR BODKIN: Yes, well, in most awards I think the reference is 15 or more and in other areas it is 20 or more but in any event I suppose it is an academic point but I would just point that out to you, Commissioner, that the proposed variation does not provide that service of a small employer would only commence from the date of the variation. We are seeking that the variation come into force on and from today's date, Commissioner, and that the order remain in force for a nominal period of 3 months. I understand, Commissioner, that this will be a consent matter and the union would request that an order issue in the terms of exhibit B1. If the Commission pleases.

PN19

THE COMMISSIONER: Thank you, Mr Bodkin. Ms Jaszewski?

PN20

MS JASZEWSKI: Yes, that is right, we have no objections to the variations that have been put forward and also in relation to the date.

PN21

THE COMMISSIONER: That is about as straightforward an application to vary an award and consent to an application as one could get. In those circumstances, having heard the submissions of Mr Bodkin and the submission of Ms Jaszewski consenting to the proposed variation, it is the Commission's decision that the award which is titled: Liquor and Accommodation Industry - Engine Drivers' and Firemen's - Breweries - Award 2001 be varied in the terms sought as set out in exhibit B1 in these proceedings. An order to that effect will issue and the order shall come into force from the beginning of the first pay period to commence on or after today's date, 8 November 2004 and shall remain in force for a period of 3 months. That concludes the matter and the Commission will adjourn.

ADJOURNED INDEFINITELY [2.25pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 AMENDED DRAFT ORDER PN11