C2004/299, Transcript of Proceedings [2004] AIRCTrans 4638 (2 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 9142

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/299

APPLICATION FOR A COMMON
RULE AWARD

Application under section 141 of the Act
by Musicians Union of Australia for a
common rule award

MELBOURNE

10.35 AM, MONDAY, 22 NOVEMBER 2004

PN1

MR T. NOONE: I appear on behalf of the Musicians Union of Australia.

PN2

MR P. EBERHARD: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry.

PN3

MR D. HAMILTON: I appear on behalf of the Australian Entertainment Industry Association.

PN4

THE COMMISSIONER: Yes, Mr Noone.

PN5

MR NOONE: Thank you, Commissioner. The matter today is an application by the Musicians Union of Australia for a common rule for the Musicians General Award 1998 to be declared a common rule in the State of Victoria. On 6 October 2004 the MUA submitted a form R51 application - sorry, form R55 application for a common rule the same time as an application for an order of substituted service. We were subsequently informed that the substituted service order was not necessary and that the Commission would notify the relevant parties.

PN6

On 8 October we received a listing of the matter. On 7 October the MUA sent copies of a draft declaration to the AE - Australian Entertainment Industry Association and the Victorian Arts Centre Trust, who are the usual parties notified when variations to this award are made. The copies were accompanied by a letter asking for - if they had any objections to the draft declaration. The VACT indicated by e-mail that they had no - the draft declaration posed no issues for them. The AEIA indicated by telephone that they did not oppose the application but suggested some alterations.

PN7

On 15 October the MUA received a copy of a notice of appearance from VECCI and on the 17th a revised draft declaration was sent by fax to the Victorian common rule parties, which are identified in the workplace relations, regulation 22(1)(d). Those parties are Victorian Employers Chamber of Commerce and Industry, Australian Council of Trade Unions, Australian Industry Group and the Victorian Trades Hall Council. The revised draft declaration was also sent by fax to the two respondents mentioned above, the AEIA and the VACT. This draft declaration was also lodged with the Registry electronically.

PN8

On 19 October the MUA received by e-mail from VECCI requesting the draft declaration in electronic form. Unfortunately I was out of the office until close of business but I did e-mail that document and subsequently I have spoken to Mr Eberhard about that and he has given me his response to the draft declaration. The draft declaration was prepared using the principles and template adopted in test case regarding applications for declarations of common rule in Victoria, decision print PR950653. Subsequently we have re-examined the proposed draft declaration and the re-examination has led us to believe that there is an omission and an error in clauses 5.3 and 5.4 which should be rectified so that the draft application more accurately reflects the principles and the template.

PN9

We have also inserted an operative date at 11, which would be 1 January 2005. We seek leave to submit the slightly amended draft declaration.

EXHIBIT #1 AMENDED DRAFT DECLARATION

PN10

MR NOONE: I have submitted it to the other parties already, Commissioner, and we have discussed this new one with the two parties appearing today and I understand that the Victorian Employers Chamber of Commerce and Industry has some amendments to our amended draft declaration, which we have no objections to. Having got to that point we submit that the draft declaration as finally worked out between the parties is in accordance with the template and principles outlined in decision PR950653 and, therefore, there should be no obstacle to the Commission issuing a declaration in the form of that draft. Thank you, Commissioner.

PN11

THE COMMISSIONER: Thank you, Mr Noone. Mr Eberhard.

PN12

MR EBERHARD: Commissioner, VECCI wouldn't be opposing the application by the Musicians Union of Australia here today. However, we would be proposing that a number of changes be made to the declaration tendered and recognised as exhibit 1 in these proceedings here today. And if I take the Commission through them I will notify the Commission of the changes that we would propose be made. Firstly, in regards to the heading of the documentation there is a reference to - in the exhibit of Musicians General Victorian Common Rule Award 2005, in accordance with SDP Watson's decision and the references from the Registry, that particular reference should be deleted.

PN13

So we would propose that that be deleted and then flowing through the award there is a reference to - at various parts of the award to the Musicians General Victorian Common Rule Award 2005. Well that should be Common Rule Declaration 2005, so again we have sought to vary that. If I take the Commission to point 3 of the exhibit, very pedantic, but just a numerical situation in the sense of clause 4 should be first and then clause 5 should be 3.2 and insofar as it refers to "employers bound by the award", should be attached to clause 4, "who is bound by this award".

PN14

So that whole clause would then read - it should be 3.1 in clause 4, "who is bound by this award, insofar as it refers to employers bound by the award", and then 3.2 would be clause 5, the date the award starts and period of operation. In point 4 we would submit that that should be deleted. There is no exemptions to be made in regards to this current situation so we would propose that that be exempted. Mr Noone has picked up the comment that we have made in regards to redundancy, but as - that just needs to be renumbered because that is at 5.3; that should be 5.2 because there is no 5.2.

PN15

In the exhibit there is at 5.4 reference to accident make-up pay. There is from my reading of the award no accident make-up clause, so we would submit that that particular provision should be deleted and that then means consequential renumbering again to 5.5. And then it follows through in consequential renumbering and also the amendments needed to be made from the award 2005 to declaration 2005.

PN16

So save and except for those changes we would not be opposing the application here today. There is one matter that I do need to bring to the Commission's attention and that is that VECCI has been requiring an organisation, where they have made application, to give the commitments contained in the report of SDP Watson of 20 October 2004. In this instance the MUA hasn't given that. I don't know whether Mr Noone is aware of that or I can provide a very - a copy of that for him just so that he is aware of that situation in regards to it. It is an undertaking that has been given by all of the unions in respect to the procedure - the applications.

PN17

It may not be necessary in regards to this process in that there may not be overlap, but our position has been that irrespective of whether there is or there isn't overlap, that the undertaking should be given just for clarity of purpose with regards to that. If the Commission pleases.

PN18

THE COMMISSIONER: Thank you. Mr Hamilton.

PN19

MR HAMILTON: Thank you, Commissioner.

PN20

THE COMMISSIONER: Just before you go into the substance of the matter, have you filed a notice of appearance?

PN21

MR HAMILTON: No.

PN22

THE COMMISSIONER: You haven't?

PN23

MR HAMILTON: No.

PN24

THE COMMISSIONER: You were supposed to on the original documentation to file a notice but I will waive the rules in that respect - - -

PN25

MR HAMILTON: Thank you, Commissioner.

PN26

THE COMMISSIONER: - - - so as to allow you to file the notice, but I do want you to file the notice.

PN27

MR HAMILTON: Yes.

PN28

THE COMMISSIONER: Form R57.

PN29

MR HAMILTON: Thank you, Commissioner.

PN30

THE COMMISSIONER: It is important for our - this stream of our jurisdiction for us to make sure historically who has filed their notices of appearances, because I think if there is any further proceedings in relation to any of these declarations in the future those who are filing the notices are likely to be those who are served.

PN31

MR HAMILTON: Yes. Sorry about that, Commissioner. Commissioner, with regard to the application, the AEIA has no objection for the application to be approved as amended by both the MUA and VECCI this morning. If the Commission pleases.

PN32

THE COMMISSIONER: Very well, thank you. Mr Noone, is it suitable for you to file the undertaking in writing?

PN33

MR NOONE: If that is necessary we can do that.

PN34

THE COMMISSIONER: All right.

PN35

MR NOONE: We have no problem with the undertaking.

PN36

THE COMMISSIONER: All right.

PN37

MR NOONE: The only other - - -

PN38

THE COMMISSIONER: And do you have any issue with the amendments proposed by Mr Eberhard?

PN39

MR NOONE: None at all.

PN40

THE COMMISSIONER: All right.

PN41

MR NOONE: Other than - - -

PN42

THE COMMISSIONER: Well, look, what I propose to do in that respect - is there anything else?

PN43

MR NOONE: No, I just - we would be seeking an operative date of 1 January 2005.

PN44

THE COMMISSIONER: Yes, yes. Well, I think the decision that has been made that binds me is that it won't be before that date in any event, so there is no objection to that date as I understand it. What I propose to do is to direct Mr Eberhard file the amended application in accordance with the amendments that were recorded and that you file the undertaking. And I will list this matter for further consideration in light of the filing, because today was identified purely for mention and programming, and given the nature of the proceeding I think it is appropriate that given that there are to be some changes, you will have to come back unfortunately, and just - would Wednesday be suitable?

PN45

MR NOONE: Yes, Commissioner.

PN46

THE COMMISSIONER: So I will list this for 10 am on Wednesday and hopefully if you can attend to filing those matters by the close of business tomorrow - - -

PN47

MR NOONE: Yes, Commissioner.

PN48

THE COMMISSIONER: - - - we will have - concerning parties in all respects to the amended proposed declaration and the undertaking will have been filed. Now, if you want to make some arrangements about representation on that day to cut the number of people actually physically present in the hearing room, I am amenable to that, but somebody will have to be here and the hearing will have to be held. All right. So I will leave that to you and adjourn this matter until 10 am on Wednesday in accordance with those directions. Thank you.

ADJOURNED UNTIL WEDNESDAY, 24 NOVEMBER 2004 [10.47am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 AMENDED DRAFT DECLARATION PN10