C2004/4796, Transcript of Proceedings [2004] AIRCTrans 4664 (2 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 9149
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/4796-4798, 4978-4982, 4984
5024, 5028-5030, 5032, 5034, 5038,
5041, 5050, 5051, 5059-5062, 5065,
5066, 5068, 5071-5075, 5077, 5086,
5089, 5093, 5141, 5154, 5155, 5165

APPLICATIONS FOR A COMMON
RULE AWARD

Applications under section 141 of the Act
by National Union of Workers and Others
for a common rule award

MELBOURNE

10.01 AM, TUESDAY, 23 NOVEMBER 2004

Continued from 4.10.04
before Senior Deputy President Lacy

PN41

THE COMMISSIONER: I hope it is clear that what I propose to do is to deal with these matters as groups, and in particular to deal with them as groups by reference to the industries in relation to which the declarations are sought and that the first group will be a group which I style the oil and gas group. That will be the Bulk Terminals Award 2002. I beg your pardon, my associate informs me that she called the first of the oil and gas group merely because it was the first in the list, for the sake of the announcement, but we will actually deal first of all with the private transport group.

PN42

There is no need to leave the bar table if you are going to appear in another matter. I just want to try and ensure that as far as possible the record of - or the records of the proceedings can be kept in some order for the purpose of the files and the history of the proceedings. So the first group will be the private transport group. I think those of you at the bar table should have a list of the applications.

PN43

There is the Clerical and Administrative International Freight Forwarding and Customs Clearing Industry Award 2000, the Transport Workers Air Freight Forwarders and Customs Clearance Award 2000, the Transport Workers Bulk Milk Carters Award 2002, the Transport Workers Milk Carters Award 2002, the Transport Workers Passenger Vehicles Award 2002, the Transport Workers Superannuation Consolidated Award 2004 and the Transport Workers Long Distance Drivers Award 2000. So I will take the appearances in those matters, please and if those who are appearing could indicate by reference to the C number the matters in respect of which they appear.

PN44

MR. L. DUFFIN: I appear on behalf of the Transport Workers Union. It might even - - -

PN45

THE COMMISSIONER: And you appear in all of them, do you?

PN46

MR DUFFIN: I appear in all of them, Commissioner, that is correct, although by way of intervention in relation to the first one.

PN47

THE COMMISSIONER: Very well.

PN48

MR J. NUCIFORA: I appear on behalf of the Australian Services Union. I appear in relation C2004/5051 and 5062 by way of intervention. If the Commission pleases.

PN49

MR P. EBERHARD: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry and I appear in each of the matters currently before the Commission.

PN50

MR L. STEWART: I appear on behalf of the AI Group and I also appear in all the matters as listed.

PN51

THE COMMISSIONER: Thank you, Mr Stewart. Very well. Are there any issues about the applications for leave to intervene? Very well, intervention is granted in each case. I will hear from Mr Nucifora first.

PN52

MR NUCIFORA: Thank you, Commissioner. Commissioner, this is an application by the ASU for the declaration of the Clerks - Clerical and Administrative Staff Customs Clearing and International Freight - sorry, International Freight Forwarding and Customs Clearing Industry Award 2003. The application is in the form required by the Act and the principles established by the Full Bench in its decision handed down in August this year. Commissioner, two employer groups, VECCI and AIG, have lodged notices of appearances with regard to this application. Both were provided with copies of the draft declaration filed by the ASU.

PN53

Neither of those organisations expressed any opposition to the making of the declaration, other than to ensure that it is in the form required, particularly that it is expressed as a declaration rather than as an award. Commissioner, the ASU has prepared a draft declaration. If I may tender a copy of that for the Commission. This was forwarded to VECCI yesterday, Commissioner.

PN54

THE COMMISSIONER: Has it been forwarded to AIG?

PN55

MR NUCIFORA: As I am instructed, Commissioner, I am not sure if there were any further communications with AIG. They had lodged appearances.

PN56

THE COMMISSIONER: Can you provide them with a copy now as a matter of courtesy, please?

EXHIBIT #A1 DRAFT DECLARATION

PN57

MR NUCIFORA: Thank you, Commissioner. The principles also say that insofar as possible the Commission will adopt the standard form of declaration that is set out in the template attached to the Full Bench decision. The proposed draft declaration is in the required form in our submission. As the Commission is aware there has been an issue with overlapping award coverage. This issue has been resolved between the employers and the unions with respect to these matters and recorded in a report issued by Senior Deputy President Watson on an earlier date, and in particular in this matter we have - of course the TWU has been another union in the industry and we refer to in exhibit A1 an exclusion in relation to the TWU award in 5.3 - that is the Transport Workers Air Freight Forwarders and Customs Clearance Award 2000.

PN58

Commissioner, in accordance with that report - that is of Senior Deputy President Watson - I can advise that the ASU submits and undertakes that it is not our intention to seek to retrospectively enforce a common rule award in circumstances where an employer has been legitimately and appropriately applying another award which also covers the work performed by the employees.

PN59

Commissioner, this position is without prejudice to the rights of the parties to seek the making of roping-in awards and in these circumstances we believe that it satisfies the requirements of the Act and the Commission and we ask that the Commission make the declaration in the terms of the draft provided to the Commission today. Commissioner, subject to what the other parties have to say we seek to have that declaration approved today. If the Commission pleases.

PN60

THE COMMISSIONER: Thank you, Mr Nucifora. Do you wish to say anything, Mr Duffin?

PN61

MR DUFFIN: No, Commissioner.

PN62

THE COMMISSIONER: Thank you. Mr Eberhard.

PN63

MR EBERHARD: Commissioner, I actually received this from Mr Harvey yesterday; that is why I sought of had a stunned look on my face when Mr Nucifora said before that it had been forwarded to us. I responded to Mr Harvey with respect to some three changes that we would propose to the declaration. The first is in the heading and that would be to delete the reference to the Clerical and Administrative Staff International Freight Forwarding and Customs Clearing Industry Common Rule Declaration 2005. That follows a decision of SDP Watson and comments from the Registry in regards to that.

PN64

THE COMMISSIONER: Do you mean the first capitalised part of the header for the draft order? The award is mentioned - - -

PN65

MR EBERHARD: No, the award is mentioned and the award remains there and then there is a reference to underneath that the actual - the title of the common rule declaration itself.

PN66

THE COMMISSIONER: Yes.

PN67

MR EBERHARD: And that would be excluded. That would be excised from the draft. That is what SDP Watson - one of SDP Watson's reports actually mentions in that the heading should only have the reference to the parent award.

PN68

THE COMMISSIONER: Very well.

PN69

MR EBERHARD: The next comment we would make would be in regards to an additional exclusion in clause 3 and that would be that there is, I think, in this award - and I can't remember the exact name of it but there is a schedule B that applies to a particular company. It is an enterprise agreement reference and that would need to be excluded an additional 3.3, so that would be schedule B.

PN70

MR NUCIFORA: Sorry, Commissioner, which company is that?

PN71

MR EBERHARD: I am just trying to remember

PN72

MR NUCIFORA: Fed Ex.

PN73

MR EBERHARD: I think it is - - -

PN74

MR NUCIFORA: Commissioner, if I may, that particular appendix, as I have responsibility for this award, should no longer exist. In fact there is a decision of Senior Deputy President O'Callaghan actually deleting that appendix and rationalising. Federal Express was the employer involved. Subject to the checking - - -

PN75

THE COMMISSIONER: All right. Well, if that is necessary you don't have any difficulty with that.

PN76

MR NUCIFORA: If it is necessary, yes.

PN77

THE COMMISSIONER: If it is necessary to add to the order to create that effect you don't have any difficulty with that.

PN78

MR NUCIFORA: No, Commissioner. They are otherwise - - -

PN79

THE COMMISSIONER: But you think it is unnecessary.

PN80

MR NUCIFORA: It is unnecessary, yes. Thank you, Commissioner.

PN81

THE COMMISSIONER: Well, I will establish whether it - but you have no objection to its inclusion in the declaration if it is necessary?

PN82

MR NUCIFORA: Yes, Commissioner.

PN83

THE COMMISSIONER: Right. Well, my office will establish whether it is necessary or not and if it is necessary the exclusion will be provided for as clause 3.3. If it is not necessary it won't.

PN84

MR EBERHARD: I am happy with that, Commissioner. The only thing I would say is that in the version of the award that I looked at today it was still in the Commission's version of the award. That is why I proposed for its exclusion and in the next - the next comment is in regards to point 5 of the draft declaration and it applies to the third line and the second sentence contained - of that clause. It talks about in particular this award shall not apply to.

PN85

THE COMMISSIONER: This declaration.

PN86

MR EBERHARD: I was going to say the clerical and admin and then repeat the full name of the declaration shall not apply to and then it continues on to 5.1, etcetera.

PN87

THE COMMISSIONER: Can't we just say this declaration?

PN88

MR EBERHARD: I would be happy with that, Commissioner, yes.

PN89

THE COMMISSIONER: Yes, very well. Are you happy with that, Mr Nucifora?

PN90

MR NUCIFORA: Commissioner, if that is the standard approach in these matters then we are.

PN91

MR EBERHARD: And, Commissioner, given that the ASU have made the commitment as contained in SDP Watson's report of 20 October 2004, VECCI would not be opposing the application here today, save and except for the changes that we believe need to be made to the declaration. If the Commission pleases.

PN92

THE COMMISSIONER: Thank you. Mr Stewart.

PN93

MR STEWART: Commissioner, the AI Group did file a notice of appearance in respect of this matter and at that time - and in any of the matters since that time we have not raised any in-principle objection to the making of this declaration. What we have not had up until this morning is a finalised version of the draft. We did receive a draft version of the declaration some time ago. AI Group does not oppose the making of the declaration. However, we do note that we concur with the changes suggested by VECCI in relation to the declaration and we would require to have a look at the final version. However, we do not oppose the making of the declaration at this time, given that the undertaking has been given by the ASU in this matter.

PN94

THE COMMISSIONER: I don't know whether given the number of declarations that my office is going to have to deal with that we are going to be able to follow a procedure whereby we give you an opportunity to look at the final declaration. I think the better procedure is that I allow you 14 days to advise my office of any issues concerning the proposed declaration, i.e. exhibit A1 as amended and if it is necessary I will settle minutes of the declaration if there is any issue.

PN95

MR STEWART: I am happy with that. Thank you, Commissioner.

PN96

THE COMMISSIONER: Very well. Thank you.

PN97

MR NUCIFORA: Commissioner, just another point Mr Eberhard raised about the reference to the other employer, Federal Express. It doesn't - it isn't there on the award, it is on the - - -

PN98

THE COMMISSIONER: All right.

PN99

MR NUCIFORA: Recognise the - - -

PN100

THE COMMISSIONER: Look, I am not going to actually - - -

PN101

MR NUCIFORA: Yes.

PN102

THE COMMISSIONER: - - - rule on that now.

PN103

MR NUCIFORA: I am not sure if it makes a difference either way even if it was - it is only an appendix that applies to some conditions, not the whole - - -

PN104

THE COMMISSIONER: Well, as I say, I am going to avoid any confusion and defer the inclusion of a clause 3.3 or not as a matter of settling the minutes of the declaration. I understand what your intention - or what you seek is and what Mr Eberhard seeks is and I will ensure that the declaration does achieve that effect by settling the minutes myself without further reference to the parties. I am clear on what the parties' agreement is as to what the content of the declaration should be in relation to that schedule. Thank you.

PN105

Very well, I should indicate that I consider it is appropriate, having regard to the legislation and the principles which the Commission has determined in relation to the making of common rule declarations in the State of Victoria, that a declaration ought be made in relation to the award and accordingly a declaration will be issued in due course which will have effect on and from 1 January 2005. I will allow 14 days for any party to raise any issue concerning the minutes of the declaration and I will settle any issue that does arise for the purposes of the making of the declaration. Thank you. So I now call the Transport Workers Air Freight Forwarders and Customs Clearance Award 2000.

PN106

MR DUFFIN: Commissioner, perhaps just by way of an introduction, would it be the Commission's intention to go through each of these proposed declarations individually in the manner that you have just gone through the previous matter?

PN107

THE COMMISSIONER: Well, do you propose a different procedure?

PN108

MR DUFFIN: Well, given that our submissions would be essentially the same across all five matters, other than in relation to the Superannuation Award, it may be, Commissioner, for ease of convenience - - -

PN109

THE COMMISSIONER: Well, I am happy to proceed accordingly unless there is an objection to that, which I note there is not, so, yes, please, Mr Duffin.

PN110

MR DUFFIN: Commissioner, these are all applications for declarations for common rule awards. The awards are the Transport Workers Air Freight Forwarders and Custom Clearance Award 2000, the Transport Workers Bulk Milk Carters Award 2002, Transport Workers Milk Carters Award 2002, Transport Workers Passenger Vehicles Award 2002 and the Transport Workers Long Distance Drivers Award 2000. I should indicate for the purpose of completeness in the matters that you have before you today, Commissioner, that the Transport Workers Superannuation Consolidated Award is seeking an adjournment in relation to that matter for today.

PN111

Commissioner, the applications are all in the - they are all in the terms as set out in the Full Bench decision and if I might hand up copies - - -

PN112

THE COMMISSIONER: Now, these applications all have draft orders submitted to Senior Deputy President Lacy, do they not?

PN113

MR DUFFIN: They did, Commissioner, although I think - - -

PN114

THE COMMISSIONER: But they now - you are submitting alternatives, are you?

PN115

MR DUFFIN: There are some slight alternatives that arose out of conversations I had with Mr Eberhard this morning, in particular in relation to the Milk Carters, the Bulk Milk Carters - just in relation to those two awards at this stage, Commissioner.

PN116

THE COMMISSIONER: Very well.

PN117

MR DUFFIN: I will hand those up to your associate.

PN118

THE COMMISSIONER: So do I understand the situation that the declarations you seek, with the exception of these two awards, are as submitted in the drafts which were tabled before SDP Lacy?

PN119

MR DUFFIN: Commissioner, perhaps a better way of putting it, they are as were forwarded to your chambers on Friday by Ms Tisdale of our office, those versions.

PN120

THE COMMISSIONER: I should just indicate they didn't arrive until yesterday so - at least in our chambers.

PN121

MR DUFFIN: Didn't arrive.

PN122

THE COMMISSIONER: Until yesterday.

PN123

MR DUFFIN: Yes. Sorry, Commissioner.

PN124

THE COMMISSIONER: But, look, I think the - if you have copies of them I think I would rather mark them all as A1.

PN125

MR DUFFIN: Commissioner, the difficulty I have is that - Commissioner, in relation to the Passenger Vehicles and Long Distance Drivers Award matters, it might be appropriate if you are seeking copies today, then for me to adjourn those matters pending 14 days, as there were still some negotiations that would have been conducted between Mr Eberhard and myself in relation to scope clauses in relation to those awards, which don't exist - - -

PN126

THE COMMISSIONER: Well, just one moment. I think the best idea is why don't we go to conclusion with these two.

PN127

MR DUFFIN: The Milk and the - - -

PN128

THE COMMISSIONER: Just a moment, I just need to mark up my table. All right. So we will do the two milk carting awards.

PN129

MR DUFFIN: Thank you, Commissioner. In relation to - I think we have also provided to the Commission a copy of the declaration in relation to the Air Freight Forwarders and Customs Clearance matter, but if I haven't - - -

PN130

THE COMMISSIONER: You mean what you have just handed up. You gave me two.

PN131

MR DUFFIN: I will provide that one as well to you, Commissioner.

PN132

THE COMMISSIONER: I see. So we will deal with that as well.

PN133

MR DUFFIN: Yes, Commissioner. Now, I regret to say I have already marked that one as A1, Commissioner.

PN134

HE COMMISSIONER: Yes, that is all right. So they are all A1 on their respective files.

PN135

MR DUFFIN: Now, in relation to the air freight forwarders matter the issue I would refer to - and the TWU makes the undertaking as required by his Honour, Senior Deputy President Watson on 20 October. In relation to the air freight forwarders matter and for completeness, dealing with Mr Nucifora's matter which you have previously been alerted to, I would refer you to clause 5.1 which deals with the reciprocal exclusion clause. Commissioner, also in relation to the air freight forwarders matter, Mr Rochford from IR Australia has indicated his interest in this matter and has also indicated consent, and I believe that there should be a letter on the Commission's file to that.

PN136

THE COMMISSIONER: Yes, there is. Yes, it is a letter dated 1 October indicating their consent and asking to be excused from today's hearing.

PN137

MR DUFFIN: Commissioner, other than that we would indicate that the declarations are in the standard form; we have made the undertaking. Commissioner - - -

PN138

THE COMMISSIONER: I suspect Mr Eberhard is going to say that the award reference should be taken out of the title.

PN139

MR DUFFIN: In relation to the - - -

PN140

THE COMMISSIONER: The Air Freight Forwarders and Customs Clearance Award 2000.

PN141

MR DUFFIN: Commissioner, I think the - yes, that would be correct in that first line, but I will leave that for Mr Eberhard.

PN142

THE COMMISSIONER: Well, you are happy to do that in any event?

PN143

MR DUFFIN: Yes, indeed, Commissioner.

PN144

THE COMMISSIONER: So you seek declarations in these three awards?

PN145

MR DUFFIN: That is correct, effective from the first pay period on or after 1 January.

PN146

THE COMMISSIONER: No, I think it is the day.

PN147

MR DUFFIN: Sorry, on 1 January.

PN148

THE COMMISSIONER: It is on and from the day. Mr Eberhard.

PN149

MR EBERHARD: Commissioner, with respect to the three awards, certainly with regards to both Bulk Milk and the Milk Award we have had some discussion this morning with the TWU and I think they are acceptable in their present format, save and except for whatever changes - to be honest I can't remember which changes I have made to what declarations. There are quite a few that we are involved in. With regards to air freight forwarders, as in 5051 we would ask that we just be given 14 days to confirm the meetings of the final order for that.

PN150

THE COMMISSIONER: I am going to do that with all of them I should say to you.

PN151

MR EBERHARD: Well, on that basis then, Commissioner, we wouldn't be opposing the application given that the TWU have made the commitment as required in SDP Watson's report. If the Commission pleases.

PN152

THE COMMISSIONER: Very well. Mr Stewart.

PN153

MR STEWART: Thank you, Commissioner. Mr Eberhard and I have had some discussions about the suggested amendments to the various milk carting awards and in respect of all three matters before you the AI Group has not put forward an in-principle objection to the making of those declarations and given the undertaking given by the TWU this morning we will not now object to the making of those declarations. Thank you.

PN154

THE COMMISSIONER: Mr Nucifora, yes, I understand you are an intervener, yes.

PN155

MR DUFFIN: Yes, thank you, Commissioner. Just in relation to the Air Freight Forwarders and Customs Clearing the ASU concurs with the submissions that have been put.

PN156

THE COMMISSIONER: All right. You are happy with 5.1.

PN157

MR DUFFIN: We are happy with 5.1, yes, Commissioner.

PN158

THE COMMISSIONER: Very well. Yes, well, these are applications to vary the Transport - I am sorry. These are applications for the declaration of a common rule in relation to the Transport Workers Air Freight Forwarders and Customs Clearance Award 2000 and the Transport Workers Milk Carters Award 2002 and the Transport Workers Bulk Milk Carters Award 2002. The applications are not opposed and are, in my view, effectively the subject of consent on the part of parties who have appeared in relation to the applications, and in my view they are consistent with the legislation and with the Commission's principles in relation to the making of common rules in the State of Victoria.

PN159

Accordingly, it is appropriate to make the declarations sought broadly speaking in terms of the exhibits A1 in each case. However, I will provide a period of 14 days during which any party may raise with the Commission any issue as to the terms of the declarations to be issued and I will settle the minutes of the declarations if any such issue arises. The declarations will come into force on and from 1 January 2005. Thank you. Mr Duffin, Passenger Vehicles and Long Distance Drivers.

PN160

MR DUFFIN: In relation to those two matters, Commissioner, subject to your availability if we could have the matter relisted for approximately seven days from now. It is our expectation both in relation to VECCIs position and the TWUs position that that matter will be likely resolved without too much difficulty, but as I understand it VECCI is still considering the terms of the draft declarations.

[10.26am]

PN161

THE COMMISSIONER: Could you do it in a shorter period of time? Could you do it on Monday, the 29th?

PN162

MR DUFFIN: I certainly can.

PN163

MR EBERHARD: There are a number of other matters listed on that day for SDP Acton in regards to a number of the metals, or a number of AMWU applications both for variation by 113 and also - - -

PN164

THE COMMISSIONER: What if I was to list it late in the afternoon?

PN165

MR EBERHARD: That would be preferable. If it was I think three o'clock or after that time would be fine.

PN166

THE COMMISSIONER: Yes, all right. Well, three o'clock on the 29th. Does that suit the parties?

PN167

MR DUFFIN: We are content with that, Commissioner.

PN168

THE COMMISSIONER: Yes, so that is the passenger vehicles and long distance drivers?

PN169

MR DUFFIN: That is correct, Commissioner.

PN170

THE COMMISSIONER: Those applications will be adjourned until three pm on the 29th. Do you have a problem, Mr Stewart?

PN171

MR STEWART: Well, Commissioner, I just need to bring to your attention the matters that Mr Eberhard referred you to before SDP Acton actually commence at one pm and I am just conscious that given that it is a 113 application to vary the terms of the metals award and then make declarations in respect of a number of the parts of the Metals Award - - -

PN172

THE COMMISSIONER: Well, perhaps if we made it 4.15.

PN173

MR STEWART: That might be more appropriate. Thank you.

PN174

THE COMMISSIONER: Very well, 4.15 on 29 November, the Passenger Vehicles and the Long Distance Drivers Awards will be adjourned to that day for further hearing. The Transport Workers Superannuation Consolidated Award. Mr Duffin.

PN175

MR DUFFIN: That is a matter of somewhat longer, Commissioner. Perhaps if, Commissioner, we could have 14 days in relation to that matter.

PN176

THE COMMISSIONER: It might be a little bit longer. The reason is that my associate will be on leave for a period of time and I am loath to use relief associate support to deal with these matters because of the technicalities of the issues and I want to maintain continuity within my chambers in handling all the declarations, so it would have to be in the week beginning 13 December.

PN177

MR DUFFIN: That is fine, Commissioner.

PN178

THE COMMISSIONER: Very well. Well, I will list it for 10 am on 13 December. Very well, that completes all of the Transport Workers matters. I will now call the public transport matter which is the Railway Professional Officers Award 2002.

PN179

MR M. BUTLER: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN180

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

PN181

THE COMMISSIONER: Yes, Mr Butler.

PN182

MR BUTLER: Commissioner, in accordance with the Act and the principles established in print number 950653, the Association seeks a common rule declaration in respect to the Railway Professional Officers Award 2002. Perhaps it is appropriate at this stage, Commissioner, to table a copy of the proposed draft declaration.

EXHIBIT #A1 COPY PROPOSED DRAFT DECLARATION

PN183

MR BUTLER: And, Commissioner, perhaps if I can just point out that this draft declaration was sent to the Victorian Employers Chamber of Commerce and Industry and the AI Group some time ago and there are a number of amendments that have to be made as a consequence of that. The first one would be the heading Railway Professional Officers Victorian Common Rule Award 2005. That would have to be deleted and also the reference to award instead of declaration would have to be made. The Association has prepared a revised declaration, but unfortunately with the number of different versions floating around, the most up to date one was not brought along today, but I can provide that within 24 hours if need be.

PN184

The declaration seeks to copy the format that has been set out in the test case decision. The proposed operative date is 1 January 2005. Insofar as overlapping award coverage is concerned, the Association is prepared to give the following declaration and that is APESMA undertakes that it is not our intention to seek to retrospectively enforce a common rule declaration in circumstances where an employer has been legitimately and appropriately applying another award which also covers the work performed by the employees.

PN185

This position is advanced without prejudice to the Association's right to seek the making of roping in awards irrespective of the common rule declaration being applied by an employer or any rights under part 9 of the Act. If the Commission pleases.

PN186

THE COMMISSIONER: Yes, thank you. Yes.

PN187

MR EBERHARD: Commissioner, given that APESMA has given the undertaking as required by SDP Watson, VECCI would not be opposing the application and once again we would just ask for 14 days to finalise the order and confirm that with your chambers. If the Commission pleases.

PN188

THE COMMISSIONER: Yes, well, this is a straightforward matter. It is an application for a declaration that the Railway Professional Officers Award 2002 be a common rule award in the State of Victoria. I am satisfied that the application conforms to the legislation and the principles of the Commission in relation to the making of common rule awards in the State of Victoria.

PN189

I am also satisfied that the substantive application is subject to consent and non-opposition by any employer bodies that may be subject to the award. Under these circumstances, it is appropriate the declaration be made and the declaration will be made largely in the terms of exhibit A1. However, I will provide 14 days for any party to raise any issue as to the details of the minutes of the declaration and I will settle those minutes myself. The declaration will come into force on and from 1 January 2005. Thank you. I now call the Transport Workers Refuse Recycling and Waste Management Award 2001, C number 2004/5073.

PN190

MR L. DUFFIN: I appear for the Transport Workers' Union.

PN191

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

PN192

MR L. STEWART: I appear from the AI Group.

PN193

THE COMMISSIONER: Thank you. Yes, Mr Duffin.

PN194

MR DUFFIN: Commissioner, this is an application to declare the Transport Workers Refuse Recycling Waste Management Award Common Rule within Victoria. Commissioner, if I might hand up a draft declaration and provide a similar copy to Mr Eberhard and apologise to Mr Stewart.

EXHIBIT #A1 DRAFT DECLARATION

PN195

MR DUFFIN: Commissioner, it is in the form required by virtue of the Full Bench matter. The Transport Workers' Union makes the usual undertaking as provided by his Honour, Senior Deputy President Watson on 20 October this year in relation to overlapping award coverage. Commissioner, again we seek that the operative date be 1 January next year. Commissioner, there is one - Mr Eberhard and I have had a brief discussion about this declaration this morning, the main variation being to clause 3.3.

PN196

The insertion of the parties bound and area of operation clause is relevant in relation to the declaration for obvious reasons, Commissioner. Commissioner, again we would seek that this be effective from 1 January next year. If the Commission pleases.

PN197

THE COMMISSIONER: What is the effect? You want to delete 3.3?

PN198

MR DUFFIN: No, 3.3 has been - the words parties bound and area of operation have been inserted into that. Effectively it is to replicate 3.1 and 3.2, namely what clauses are dealt with and what their title is.

PN199

THE COMMISSIONER: Sorry, I am not really following it, because I am reading - superficially it seems to me it is an exclusion rather than inclusion.

PN200

MR DUFFIN: That is correct, it is an exclusion. That clause has been amended. It previously read clause 7 insofar as it refers to employers bound by the award and the insertion is to include what is the title of that clause effectively, parties bound and area of operation. It reflects the previous two clauses in paragraph 3 of the declaration, being 3.1 and 3.2.

PN201

THE COMMISSIONER: All right, understood. Thank you. Mr Eberhard.

PN202

MR EBERHARD: Commissioner, the exhibit that you have before you actually reflects the changes that VECCI has sought and with those changes, VECCI would not be opposing the declaration as proposed by the TWU and that is endorsed by the fact that the TWU have once again given the commitment as required by SDP Watson's report. If the Commission pleases.

PN203

THE COMMISSIONER: And you would take out the award reference and both the ODN and AW number, is that right, out of the title?

PN204

MR EBERHARD: No, well, actually I suppose I haven't picked up one thing and that is the title of the common rule declaration should be excluded, but the Transport Workers Refuse, etcetera, award should remain in and the ODN and the award reference should remain in because that is relating back to the parent award itself.

PN205

THE COMMISSIONER: Very well. Thank you, Mr Stewart, yes.

PN206

MR STEWART: Yes, Commissioner, in respect of the changes proposed by VECCI, accepted by the TWU and in light of the undertaken given by the TWU, the AI Group would not be opposing the declaration.

PN207

THE COMMISSIONER: Thank you, Mr Stewart. Well, this once again is a straightforward matter. It is an application for the making of a declaration that the Transport Workers Refuse Recycling and Waste Management Award 2001 be a common rule in the State of Victoria. I am satisfied that the application is in accordance with the legislation and the Commission's principles in relation to the declaration of common rule awards in the State of Victoria.

PN208

I also note that the application is substantially the subject of consent and accordingly a declaration will be made largely in accordance with the exhibit A1 in the proceedings. However, I will allow 14 days for the parties to settle the minutes of any issue that may arise on a reading of the proposed minutes of the declaration and I will settle those matters if they do arise myself. The declaration will come into force on and from 1 January 2005. Thank you. I now call the Transport Workers Armoured Vehicles Award 1978. I beg your pardon. It is the 2004 award.

PN209

MR DUFFIN: It is the 2004 award.

PN210

THE COMMISSIONER: I beg your pardon.

PN211

MR DUFFIN: Nonetheless, I appear in that matter, Commissioner, for the Transport Workers' Union.

PN212

THE COMMISSIONER: Yes.

PN213

MR J. NUCIFORA: I appear for the Australian Services Union, intervening in this matter. If the Commission pleases.

PN214

MR EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN215

MR STEWART: I appear from the AI Group.

PN216

THE COMMISSIONER: Any objection to the application for leave to intervene?

PN217

MR DUFFIN: No, Commissioner.

PN218

THE COMMISSIONER: Leave is granted. Yes, Mr Duffin.

PN219

MR DUFFIN: Commissioner, this is an application to declare the Transport Workers Vehicles Award 2004 Common Rule in Victoria. If I might hand up a draft declaration.

EXHIBIT #A1 DRAFT DECLARATION

PN220

MR DUFFIN: Perhaps if I might briefly go to some aspects of the declaration. Clause 5 has been varied in relation to a discussion we had with Mr Eberhard which is the underlined bit in front of you, Commissioner, the declaration replacing the words this award. In relation to Mr Nucifora's interest in this matter, clause 5.1 operates as an exclusion for those employees in the Clerical and Administrative Employees Victoria Award 1999.

PN221

Commissioner, as with the other matters, this is a declaration which is in the form as specified by the Full Bench in the common rule matter, so it is in the standard form. The Transport Workers' Union does provide the undertaking, the usual undertaking in these matters in accordance with the statement of his Honour, Senior Deputy President Watson, of 20 October of this year. Commissioner, as with the other matters, we would seek an effective date of 1 January 2005. If the Commission pleases.

PN222

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

PN223

MR EBERHARD: Commissioner, given that the TWU have given the commitment as required by SDP Watson, VECCI wouldn't be opposing the application here today. Once again we would ask for 14 days just to finalise the order. If the Commission pleases.

PN224

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

PN225

MR STEWART: Thank you, Commissioner. The AI Group does not oppose the making of the declaration in the terms sought. Again there are the minor changes that will need to be made such as the heading to be removed from A1, but with the 14 days, we can tidy that up. Thank you.

PN226

THE COMMISSIONER: This is a straightforward matter. It is an application for a declaration that the Transport Workers Armoured Vehicles Award 2004 be a common rule award in the State of Victoria. I am satisfied that the application is consistent with the legislation and the Commission's principles in relation to the making of common rule awards in the State of Victoria. I will, however, allow that - that a period of 14 days be allowed for any party to raise any issue as to the minutes of the declaration. However, the declaration will be substantively in the terms of exhibit A1. The declaration will come into force on and from 1 January 2005. Thank you.

PN227

I now propose to deal with a number of applications simultaneously or as far as practical, subject to the advice of those appearing in the matter. Those are the oil and gas matters which are shown on the table of matters listed for hearing this morning which has been distributed to the parties. They are the Oil and Gas Industry Bulk Liquid Terminals Award 2002, the Oil Agents and Contractors Store Workers Award 1998, the Wholesale Oil Products Refining and Warehousing Award 2002.

PN228

I am not sure whether we are dealing with the Engineering Oil Companies Award 2000. I understand that has been withdrawn. The Hydrocarbons and Gas Production and Processing Employees Award 2002, the Transport Workers LP Gas Industry Award 2002, the Transport Workers Oil Distribution Award 2001 and the Gas Industry Contractors Mains and Services Award 2003. I invite the parties to announce their appearances in all of those matters and to indicate by their reference to the C number which matters in respect of which they appear.

PN229

MR L. DUFFIN: I appear for the Transport Workers' Union in matters C2004/5061, 5071 and 5059. If the Commission pleases.

PN230

MR G. MAAS: I appear for matters C2004/4796, 4797, 4798 and we have intervened, Commissioner, in matter 5165. If the Commission pleases.

PN231

MR C. WINTER: I appear on behalf of the Australian Workers' Union in 5165 and in relation to 5029, that has been withdrawn and notice was sent both to the employer associations and to your chambers.

PN232

THE COMMISSIONER: That was your application?

PN233

MR WINTER: Yes, Commissioner.

PN234

THE COMMISSIONER: Very well.

PN235

MR P. EBERHARD: I appear from the Victorian Employers Chamber of Commerce and Industry and I appear in each of the matters currently before the Commission.

PN236

MR L. STEWART: I appear from the AI Group. I appear in respect of all matters save 5029 which has been withdrawn and 5059. Thank you.

PN237

THE COMMISSIONER: Very well, thank you. I propose to deal with matters 4796 through 4798 first. Mr Maas.

PN238

MR MAAS: Thank you, Commissioner. This is an application or three separate applications by the National Union of Workers for declaration of those three awards as common rule. If I may tender a copy of our amended draft declarations to the Commission.

PN239

THE COMMISSIONER: Yes, please.

PN240

MR MAAS: I will just note for the record that these were e-mailed to your chambers on 11 November and also to all interested parties.

EXHIBIT #A1 COPY AMENDED DRAFT DECLARATIONS

PN241

MR MAAS: Commissioner, these draft declarations are in the form prescribed by the Full Bench in their decision on 17 August of this year and found at print number PR950653. We say, Commissioner, that they promote the object of section 493A of the Act and are consistent with the common rule statement of principles which has been adapted by the Full Bench and contained in the aforementioned decision.

PN242

Further, Commissioner, the National Union of Workers gives an undertaking in relation to any potential overlap in the same terms as given by the LHMU and contained within the report by Senior Deputy President Watson dated 20 October and found at print number 952589. The declarations are expressed to come into force on 1 January 2005 and subject to any questions that you might have, Commissioner, we seek orders to give effect to these awards that have been declared as common rule. If the Commission pleases.

PN243

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

PN244

MR EBERHARD: Commissioner, on the basis that the NUW has given the commitment as contained in SDP Watson's report, VECCI wouldn't be opposing the three applications currently before the Commission. With respect to timing, I think I have checked, but it might be worthwhile that we are given 14 days just to finalise and confirm both with the NUW and also your chambers. If the Commission pleases.

PN245

THE COMMISSIONER: Thank you, Mr Eberhard.

PN246

MR STEWART: Commissioner, the AI Group does not oppose the making of the applications in the three matters presently before you and again we will confirm the final contents of those applications to your chambers and to the applicants. Thank you.

PN247

THE COMMISSIONER: Thank you, Mr Stewart. Yes, well, these three applications which seek to have the following awards declared as common rules in the State of Victoria, the Oil and Gas Industry Bulk Liquid Terminals Award 2002, the Oil Agents and Contractors Store Workers Award 1998 and the Wholesale Oil Products Refining and Warehousing Award 2002, I am satisfied that the applications are consistent with the provisions of the legislation and the principles of the Commission determined in relation to the making of declarations of common rule awards in Victoria.

PN248

I note that in relation to each award, a draft order has been submitted in exhibit A1 and that these orders are the subject of substantive consent. However, I will provide a period of 14 days for any party to raise any issue as to the minutes of the declaration and I will settle those issues myself if necessary. The declaration which will be made will come into force on and from 1 January 2005. Thank you. I will now call the Hydrocarbons and Gas Production and Processing Employees Award 2002. Mr Winter.

PN249

MR WINTER: Thank you, Commissioner. Draft copies of the declarations have been forwarded to both your office, the AIG, VECCI and also to the NUW who are an interested party in relation to this matter.

PN250

THE COMMISSIONER: Do you want me to mark that?

PN251

MR WINTER: Sorry?

PN252

THE COMMISSIONER: Do you want me to mark that?

PN253

MR WINTER: Yes, please.

EXHIBIT #A1 COPY DRAFT DECLARATIONS

PN254

MR WINTER: As yet, I have had no response from VECCI or the AIG in relation to the declarations. The application we seek is in line with the Full Bench decision. The AWU gives the commitment in relation to overlap as expressed by SDP Watson in relation to this matter. There may need to be some minor changes to this declaration and I will leave it to the AIG and to VECCI to forward me that information and then we will forward any agreed declarations to your office within 14 days. If the Commission pleases.

PN255

THE COMMISSIONER: You can both announce your appearance and respond.

PN256

MR P. EBERHARD: I appear from the Victorian Employers Chamber of Commerce and Industry and with respect to this matter, given that the AWU have given the commitment, we wouldn't be opposing the application and once again ask for 14 days and confirmation to both your chambers and the AWU of the declaration.

PN257

THE COMMISSIONER: Thanks, Mr Eberhard.

PN258

MR STEWART: Commissioner, the AI Group has no in principle objection to the declaration being made and we will peruse the final copy and use that 14 days to notify our acceptance of that. Thank you.

PN259

THE COMMISSIONER: Thank you. This is an application by the Australian Workers' Union for a declaration that the Hydrocarbons and Gas Production and Processing Employees Award 2002 shall operate as a common rule award in the State of Victoria. I am satisfied that the application is in accordance with the legislation and the principles of the Commission determined in relation to the making of common rule awards in the State of Victoria and that a declaration substantively in the terms of exhibit A1, a draft declaration tendered by the applicant, will be made in due course.

PN260

However, I will allow a period of 14 days for any party that has appeared in the proceedings to raise any issue as to the minutes of the declaration and I will settle those minutes myself if necessary. The declaration which will be made will come into force on and from 1 January 2005. Thank you. I now call the Transport Workers LP Gas Industry Award 2002, the Transport Workers Oil Distribution Award 2001 and the Gas Industry Contractors Mains and Services Award 2003.

[10.52am]

PN261

MR DUFFIN: Commissioner, with respect to the Transport Workers LP Gas Industry Award 2002 which is C2004/5061, we would also seek that that one be adjourned to 29 November at 4.15. That is the first on the list of those three.

PN262

THE COMMISSIONER: 29 November?

PN263

MR DUFFIN: That is right, at 4.15, at the same time as the other matters we have dealt with this morning.

PN264

THE COMMISSIONER: Very well. I think we might just take the appearances.

PN265

MR DUFFIN: Commissioner, with respect to the Transport Workers Oil Distribution Award 2001, if I might hand up a draft declaration.

PN266

THE COMMISSIONER: I take it there is no objection to the adjournment.

EXHIBIT #A1 DRAFT DECLARATION

PN267

MR DUFFIN: Commissioner, the draft declaration is in the form proposed. I have just noted however that it has escaped both Mr Eberhard and I that there is a reference to an award in the title, rather than a declaration, so that would obviously need to be amended, Commissioner. Beyond that, though, it is in the form as provided by the Full Bench in August this year. Commissioner, the TWU gives the undertaking in accordance with his Honour Senior Deputy President Watson's report of 20 October 2004 and again we seen an effective date of 1 January 2005. If the Commission pleases.

PN268

THE COMMISSIONER: Mr Eberhard.

PN269

MR EBERHARD: Commissioner, with respect to the application for an adjournment for 5061, VECCI would endorse that. With respect to the application for the making of declarations in regards to 5059 and also 5071, given that the TWU have given the commitment as required, VECCI would not be opposing the application and we would once again ask that we be given 14 days to confirm the order and provide that both to the TWU and also to your chambers. If the Commission pleases.

PN270

MR DUFFIN: Commissioner, just perhaps for completeness, with respect to 5059, we have provided a draft declaration to your chambers yesterday and we have also provided them to VECCI by way of e-mail earlier. We would be relying upon that draft declaration which has been provided to your chambers in relation to this matter. There has been no amendments to that. If the Commission pleases.

PN271

THE COMMISSIONER: All right. Well, thanks for that information. Given that we have adjourned the matter in 5061 until 29 November, just at the moment I want to focus on 5071 for a reason which will become apparent in a moment. Mr Stewart.

PN272

MR STEWART: In relation to 5071, Commissioner, the AI Group has not opposed the making of the declaration and given the undertakings given by the TWU, we would not oppose it at this point and we will use the 14 day period to finalise the draft. Thank you.

PN273

THE COMMISSIONER: I should say that this morning at 9.29 am, I received an e-mail message of high importance from the Victorian Automobile Chamber of Commerce and I will read it. It was addressed to my associate. It says:

PN274

Re Transport Workers Oil Distribution Award 2001, the Victorian Automobile Chamber of Commerce, VACC, will not be consenting to the Transport Workers Oil Distribution Award 2001 draft common rule declaration in its current form. The VACC has received correspondence from the Australian Petroleum Distributors Association, APADA, dated 23 November 2004 which we understand was forwarded to your chambers.

PN275

And that is correct:

PN276

The VACC supports APADAs comments on the draft common rule declaration and subsequently we agree that the TWUs application should not be declared in the course of today's hearing.

PN277

And there is the usual salutations and contact numbers. I have also received a message from Ms Margaret Taylor in relation to this matter this morning at 9.13 am. It says:

PN278

Dear Commissioner, firstly apologies for the lateness of this message. However, we note that this matter is listed before you today and wish to formally register the fact that APADA, having received a copy of the revised draft declaration from the TWU ...(reads)... inclusion of subclauses 8.1 and 8.2 in the amended draft. We trust this clarifies APADAs position in the matter, but please have your associate contact me -

PN279

etcetera, etcetera, and the usual salutations, so it does seem a bit strange that those parties, given their objection, have not appeared today, one must observe. However, I should try and understand what the issue is. Mr Duffin, do you have any idea?

PN280

MR DUFFIN: I have some idea, Commissioner. Perhaps by way of introduction, I should say that while I have some idea, I have not been the person dealing with these matters in any great detail, but, Commissioner, putting that on the record - - -

PN281

THE COMMISSIONER: Well, it deals with superannuation, doesn't it?

PN282

MR DUFFIN: The clauses before you which are being referred to as 8.1 and 8.2 are actually the clauses which are 8.2 and 8.3 because there has been a variation as a result of discussions Mr Eberhard and I have had.

PN283

THE COMMISSIONER: So you think it is the use of the TWUs super fund is the default.

PN284

MR DUFFIN: That is correct, Commissioner. Now, Commissioner, what we are dealing with there is this relates to the Transport Workers' Superannuation Consolidated Award 2004. The TWU would ultimately intend that that matter be progressed by way of a common rule declaration. These clauses have been essentially agreed between ourselves and VECCI as the means by which - essentially as a way of resolving this issue in one sense, Commissioner.

PN285

Commissioner, beyond that, I understand APADAs concern to be that they have their own superannuation fund and, Commissioner, as far as our position in relation to that as well, this is the TWUs application. APADA is free to make its own application. Commissioner, beyond that, I am not really - I can't really provide much more assistance to the Commission. That is the nature of the dispute and we believe - well, essentially we believe that we are here and we have an entitlement to the declaration being made.

PN286

THE COMMISSIONER: My associate points out to me that the purpose of today's listing in the order of proceedings is for the making of declarations where there is consent and that that offers an explanation for the non-attendance of the parties who are indicating non-consent on the basis that they understood that today's proceedings would deal with consent matters. I think it is appropriate in the circumstances and the fact that there would be no prejudice to the position of the applicant having regard to the operative date sought in relation to the declaration that the matter be adjourned to a time and date to be fixed and I will do that accordingly.

PN287

Thank you, Mr Duffin. The parties will be advised by notice of listing in relation to that matter. It will be on either 9 or 10 December. There are dates set aside for contested matters.

PN288

MR DUFFIN: Commissioner, just in relation to those dates, is it your intention to actually specify the dates of the matters now?

PN289

THE COMMISSIONER: Well, yes, I am happy to do so if you wish.

PN290

MR DUFFIN: Simply because I know that I can't attend on the 10th.

PN291

THE COMMISSIONER: It will be the 9th, then.

PN292

MR DUFFIN: If the Commission pleases.

PN293

THE COMMISSIONER: Thank you. As for the Gas Industry Contractors Mains and Services Award 2003.

PN294

MR DUFFIN: Commissioner, as I indicated earlier, that draft declaration was provided to your chambers. That is as I understood consented to by VECCI. Subject to the Commission having received any correspondence which I am unaware of, we would seek that declaration be made and we are also quite willing to provide the usual undertaking in relation to the matter. If the Commission pleases.

PN295

THE COMMISSIONER: Very well. Thank you. I think you have already stated your position in relation to this, Mr Eberhard. What about you, Mr Stewart?

PN296

MR STEWART: I am not appearing to this matter.

PN297

THE COMMISSIONER: Thank you. The draft which was forwarded to my chambers will be marked as exhibit A1.

EXHIBIT #A1 DRAFT DECLARATION

PN298

THE COMMISSIONER: And I should indicate my decision is as follows, that this is an application by the Transport Workers' Union of Australia for a declaration that the Gas Industry Contractors Mains and Services Award 2003 should be declared as a common rule award in the State of Victoria. I am satisfied that the application is consistent with the legislation and the principles of the Commission in relation to the making of common rule awards in Victoria and that the application is the subject of consent.

PN299

A draft declaration has been filed in relation to the matter in respect of which the minutes of the order will be made. However, I will allow 14 days for any party to raise with the Commission any matter of detail in relation to the terms of the minutes of the declaration and the declaration will come into force on and from 1 January 2005. Thank you. I now propose to deal with the Drilling and Exploration Industry AWU Award 1998.

PN300

MR WINTER: I appear on behalf of the Australian Workers' Union.

PN301

THE COMMISSIONER: Thank you, Mr Winter.

PN302

MR EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry.

PN303

THE COMMISSIONER: Very well, thank you. Yes, Mr Winter.

PN304

MR WINTER: Thank you, Commissioner. Draft declarations in relation to this application have been prepared and sent to your office. Also copies of those declarations have been sent to the AIG and to VECCI in relation to this matter. The AWU seeks the making of the common rule declaration and an operative date of 1 January 2005 and gives the commitment in relation to overlap as outlined by SDP Watson in his decision. If the Commission pleases.

PN305

THE COMMISSIONER: Thank you, Mr Winter. The draft that you forwarded to my office will be marked as exhibit A1.

EXHIBIT #A1 DRAFT DECLARATION

PN306

MR EBERHARD: Again, Commissioner, given that the AWU have made the commitment as required in SDP Watson's report, VECCI wouldn't be opposing the application here today and once again we would ask for 14 days to confirm and finalise the declaration. If the Commission pleases.

PN307

THE COMMISSIONER: Very well, thank you. This is a straightforward matter. It is an application by the Australian Workers' Union for a declaration that the Drilling and Exploration Industry AWU Award 1998 be a common rule award in the State of Victoria. I am satisfied that the application is consistent with the legislation and the principles of the Commission in relation to the making of such common rule awards in Victoria and that a declaration substantively in the terms of exhibit A1 should be made in due course.

PN308

I will allow 14 days for any party to raise with the Commission the details of the minutes of the declaration to be issued. The declaration will come into force on and from 1 January 2005. I now call the Quarrying Industry Award 2000.

PN309

MR WINTER: I appear on behalf of the Australian Workers' Union.

PN310

MR EBERHARD: I appear from the Victorian Employers Chamber of Commerce and Industry.

PN311

MR STEWART: I appear from the AI Group.

PN312

THE COMMISSIONER: Thank you. Yes, Mr Winter.

PN313

MR WINTER: Thank you, Commissioner. Draft declarations have been prepared in relation to this matter and forwarded to your chambers, also to the AIG and to VECCI. The AWU seeks the making of the declaration in accordance with those draft orders with an operative date of 1 January 2005. The AWU gives the commitment in relation to overlap as outlined in the decision of SDP Watson in relation to this matter. If the Commission pleases.

PN314

THE COMMISSIONER: Thank you, Mr Winter.

PN315

MR EBERHARD: Commissioner, once again, given that the AWU has given the commitment as contained in SDP Watson's report, VECCI would not be opposing the application. It would be necessary, though, that we be given 14 days to finalise the draft declaration and confirm that with your chambers. If the Commission pleases.

PN316

THE COMMISSIONER: Yes, thank you, Mr Eberhard.

PN317

MR STEWART: Commissioner, the AI Group does not have a principal objection to the making of this declaration. However, in the latest version of the draft declaration sent through by Mr Winter to my office, we have addressed a number of the issues outstanding. However, there are still some minor drafting issues that need to be tidied up and we will do that within the 14 day period.

PN318

THE COMMISSIONER: Very well.

EXHIBIT #A1 DRAFT ORDER DATED 08/10/2004

PN319

THE COMMISSIONER: I indicate that this is an application by the Australian Workers' Union for a declaration that the Quarry Industry Award Victoria 2000 be a common rule award in the State of Victoria. I am satisfied that the application is consistent with the legislation and the principles of the Commission in relation to the making of such awards and that a declaration substantively in the terms of exhibit A1 should be made in due course. However, I note that there may be a need to settle the terms of the minutes of the declaration and I allow 14 days for any party to raise any issue as to the minutes of the declaration and the declaration that will be made will operate on and from 1 January 2005.

PN320

I now move to deal with a number of applications for common rule awards in the entertainment and broadcasting industry. These are the Entertainment Industry, Entertainment and Presentation Services Award 2000, The Actors Etcetera Television Award 1998, the Entertainment and Broadcasting Industry Actors Theatrical Award 1998, The Entertaining and Broadcasting Industry Cinema Award 1998, The Entertainment Industry Concert and Event Crewing Services Award 2000, Entertainment and Broadcasting Live Theatre and Concert Award 1998, the Exhibition Industry Award 2001, The Sports Ground Maintenance and Venue Presentation Victoria Award 2001 and I will take the appearances in any of those matters and I would ask any party appearing in any of those matters to indicate the matters in respect of which their appearance is made.

PN321

MR P. O'DONNELL: I appear for the Media, Entertainment and Arts Alliance and for the matters C2004/4978 through to 4984. If the Commission pleases.

PN322

MR WINTER: I appear on behalf of the AWU in 5030 and 5041.

PN323

MR EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry and I appear in each of the matters before the Commission.

PN324

MR STEWART: I appear for the AI Group. I appear in matters C2004/4978, 4979, 4982, 4984, 5030 and 5041. Thank you.

PN325

THE COMMISSIONER: So it is only 81 that you are not appearing, is that right?

PN326

MR STEWART: There should be two non-appearances, Commissioner, 4980 and 4981.

PN327

THE COMMISSIONER: Thank you. Yes, Mr O'Donnell. I will deal with them in two stages. You only appear up to 4984, don't you?

PN328

MR O'DONNELL: That is correct, sir.

PN329

THE COMMISSIONER: All right, I will deal with the matters 4978 through 4984.

PN330

MR O'DONNELL: Thank you, Commissioner. This is an application to make those awards common rule for the State of Victoria. I understand from my colleague that the required documentation has been forwarded to this Commission and to all parties with an interest in the matter and accordingly we would seek to have them declared that way and in all six matters there we give the required commitment.

PN331

THE COMMISSIONER: Mr Eberhard.

PN332

MR EBERHARD: Commissioner, given that the MEAA have given the commitment as required, VECCI wouldn't be opposing, but once again we would ask that 14 days be given so that we can finalise the minutes for the declaration. If the Commission pleases.

PN333

THE COMMISSIONER: Yes, thank you.

PN334

MR STEWART: Commissioner, I just should note for the record I think I indicated an appearance in 4984. That is not the case. I do not seek to appear in relation to that matter. However, in respect to the other three remaining matters in which I have notified an appearance, the AI Group does not have an in principle opposition to the making of the declaration and we will use the 14 days to notify your chambers of our acceptance of the final version. Thank you.

PN335

THE COMMISSIONER: Thank you. Mr O'Donnell, I was a little bit taken aback when you said that you understood that all of the relevant documentation had been forwarded by someone to the Commission, because my inspection of the files didn't gel with that.

PN336

MR O'DONNELL: Commissioner, I understand that Mr Jacka from our office actually has supplied to this Commission all draft declarations and other documentations.

PN337

THE COMMISSIONER: I see. Do you know when he did that?

PN338

MR O'DONNELL: It was some weeks ago, sir.

PN339

THE COMMISSIONER: No, our files show we haven't received anything in relation to these matters and, in fact, the documentation that was passed on from SDP Lacy indicates that they didn't have anything either.

PN340

MR O'DONNELL: Well, sir, to say I am surprised is an under-statement, but I - - -

PN341

THE COMMISSIONER: I don't think that is really necessarily a problem. I think it is just a question of you submitting a draft or Mr Jacka.

PN342

MR O'DONNELL: Sir, I have copies of the drafts here. I can certainly make them available, but I actually have one copy and not copies available for Mr Eberhard or Mr Stewart.

PN343

THE COMMISSIONER: I will just check with Mr Eberhard. You have seen these already?

PN344

MR EBERHARD: I am fairly sure that I have seen the majority of the MEAA draft declarations, Commissioner.

PN345

THE COMMISSIONER: All right. Would you just show me what you have got?

PN346

MR O'DONNELL: Sir, could I hand up those six.

PN347

THE COMMISSIONER: All right. Is there any reason why I can't mark these as exhibit A1?

PN348

MR O'DONNELL: Not at all, sir.

PN349

THE COMMISSIONER: In each case.

PN350

MR O'DONNELL: No, not at all.

PN351

THE COMMISSIONER: I think the provision of a 14 day period will cater for any issues in relation to the minutes. I have called all of these matters and I understand there is no objection to the issuance of a declaration that all of these awards be made common rule awards in the State of Victoria. I will indicate broadly my decision to do so. I do need to actually read the terms of the declaration in order to satisfy myself that the documentation is in accordance with the relevant principles, but I will allow a period of 14 days for the settlement of any issue.

PN352

I just indicate as a matter of decision that a declaration will be made in due course, particularly having regard to the consent that has been offered in relation to the matters. I will return these to you, Mr O'Donnell, for the moment and you might arrange for copies of these to be made for the convenience of Mr Eberhard and Mr Stewart and then return them to my office.

PN353

MR O'DONNELL: Yes, sir.

PN354

THE COMMISSIONER: I would also like you to file electronically copies of these draft orders as that will assist the Commission's management of the publication of the declarations and the filing of the relevant documents within the Commission's case management system.

PN355

MR O'DONNELL: Yes, sir, I will undertake to do that as soon as I go back to the office.

PN356

THE COMMISSIONER: Very well. Thank you. I will now call the Exhibition Industry Award 2001 and the Sports Ground Management and Venue Presentation Award Victoria 2001.

PN357

MR WINTER: I appear on behalf of the AWU.

PN358

MR EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry and I appear in both matters currently before the Commission.

PN359

MR STEWART: I appear for the AI Group in respect of both matters.

PN360

THE COMMISSIONER: Thank you. Mr Winter.

PN361

MR WINTER: If the Commission pleases, in relation to both of these matters, draft declarations have been forwarded to your office and also to the AIG and to VECCI in relation to these matters. The AWU seeks the making of the declarations dated 1 January 2005. The AWU gives a commitment in relation to overlap of the recommendation from SDP Watson. If the Commission pleases.

PN362

THE COMMISSIONER: Thank you.

EXHIBIT #A1 DRAFT ORDERS

PN363

MR EBERHARD: If the Commission pleases. Commissioner, similar to other applications before you today, given that the AWU has given the commitments required, VECCI wouldn't be opposing, but would ask that 14 days be granted so that we can confirm the declaration with both the AWU and also then subsequently with your chambers. If the Commission pleases.

PN364

THE COMMISSIONER: Thank you. Mr Stewart.

PN365

MR STEWART: Commissioner, the AI Group has no in principle objection to the making of the declaration and will use the 14 days to confirm the terms of the final declaration. Thank you.

PN366

THE COMMISSIONER: Thank you, Mr Stewart. Yes, well, these are two applications to vary respectively the Exhibition Industry Award 2001 and the Sports Ground Maintenance and Venue Presentation Victoria Award 2001 so as to make the awards common rule awards in the State of Victoria by way of declaration. I am satisfied that the applications are in accordance with the legislation and the principles of the Commission in relation to the making of common rule awards in the State of Victoria and I note that in each case, a draft order has been filed.

PN367

I will allow, however, 14 days for any party to raise with the Commission any issue as to the minutes of the draft orders and the declarations to be made. The declarations which will be made will operate on and from 1 January 2005. I now call the Business Equipment Industry Technical Service Award 1999.

PN368

MR N. HENDERSON: I appear for the Australian Services Union.

PN369

MR G. MAAS: I appear for the National Union of Workers. We are noted as an intervening party in this matter, Commissioner.

PN370

MR M. BUTLER: I appear for the Association of Professional Engineers, Scientists and Managers Australia. We hadn't notified a notice of appearance.

PN371

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

PN372

MR L. STEWART: I appear from the AI Group.

PN373

THE COMMISSIONER: Yes, Mr Henderson.

PN374

MR HENDERSON: Thank you, Commissioner. This is an application to declare the Business Equipment Industry Technical Service Award 1999 a common rule for the purposes of the State of Victoria. A draft declaration has been settled in discussions in particular with Mr Eberhard and multiple copies have been forwarded to your chambers today, so I will hand up a hard copy so that it can be crystal clear what was the final draft that was agreed.

PN375

THE COMMISSIONER: Yes, we did receive the electronic message you sent this morning.

PN376

MR HENDERSON: Yes, thank you, Commissioner.

EXHIBIT #A1 COPY DRAFT DECLARATION

PN377

MR HENDERSON: Yes, thank you. The only change, just so that it is clear to everyone, is that in clause 3, a new clause 3.2 is included to delete the operation of clause 6 of the award which is the coverage. That clause is not necessary because the industry covered by the declaration is defined in clause 1 of the draft declaration. The definition of industry was settled in discussion with the parties and in particular the CEPU which had notified an appearance as an intervener. In clause 2, the names of the three unions that are respondent to the award have been included which picked up comments made by the National Union of Workers.

PN378

Now, other than that, the declaration is as submitted much earlier, I think in October. The union seeks that the Commission determine to make an order declaring the award common rule from 1 January 2005. In our submission, the declaration complies with the requirements of the Act and the principles laid down by the Full Bench. The ASU gives an undertaking along the lines set out in the report of Senior Deputy President Watson on 20 October 2004 in print 952589. If the Commission pleases.

PN379

THE COMMISSIONER: Thank you, Mr Henderson. Mr Maas.

PN380

MR MAAS: Yes, thank you, Commissioner. The NUW has perused the draft declaration that has been submitted to us and on that basis, we consent to the making of this declaration on the terms as submitted. If the Commission pleases.

PN381

THE COMMISSIONER: Do you give the undertaking?

PN382

MR MAAS: Yes, we do, Commissioner.

PN383

THE COMMISSIONER: Thank you.

PN384

MR BUTLER: Commissioner, APESMA had earlier notified an appearance in respect to this matter, had discussions with the ASU and supports the making of the declaration.

PN385

THE COMMISSIONER: Thank you, Mr Butler. I should indicate just before we start, to Mr Henderson, isn't there an issue as to whether or not the LHMU needs to record its undertaking?

PN386

MR HENDERSON: That may well be. They are here and they have been provided with the draft, so perhaps they might do that on the record.

PN387

THE COMMISSIONER: Mr Redford, do you appear in this matter on behalf of the LHMU?

PN388

MR B. REDFORD: I do, Commissioner, and my apologies for the late entry of my appearance.

PN389

THE COMMISSIONER: That is all right. Clause 2.4 of the proposed declaration binds the ALHMWU. I think it is necessary for that organisation to give the undertaking in the circumstances.

PN390

MR REDFORD: Yes, and we do give that undertaking, Commissioner.

PN391

THE COMMISSIONER: Thank you. Mr Eberhard.

PN392

MR EBERHARD: Yes, Commissioner, given that each of the respondent unions have given the undertaking, VECCI wouldn't be opposing the application. The draft declaration has been the subject of some e-mail discussion between myself and Mr Henderson this morning and there is just one matter that I would like to draw to the Commission's attention and that is in the last paragraph at point 8. On the second line, after the word declaration, there is the letter D. That should actually be deleted and with that variation being made - - -

PN393

THE COMMISSIONER: Yes, we are very adept at this, Mr Eberhard. I sometimes wonder how you find the time to actually find these.

PN394

MR EBERHARD: The reason why I picked out the D was all I was doing was checking whether it had award or declaration and I thought what is the D doing there, so I haven't checked anything else.

PN395

THE COMMISSIONER: No, no, I think it is very helpful.

PN396

MR EBERHARD: Having been humiliated in that vein, Commissioner, I am not going to attempt to address this matter any more. We are quite happy for this matter to proceed.

PN397

THE COMMISSIONER: I was feeling sympathetic for you, the scale of your task. Mr Stewart.

PN398

MR STEWART: Yes, the AI Group is indebted to Mr Eberhard, sir, the work that he has performed and with those changes notes, we would not be opposing the declaration in the terms sought and we note the undertaking given by the three respondent unions. Thank you.

PN399

THE COMMISSIONER: Thank you, Mr Stewart. This is an application by the Australian, Municipal, Administrative, Clerical and Services Union to have the Business Equipment Industry Technical Service Award 1999 declared as a common rule in the State of Victoria. I am satisfied that the application is in accordance with the legislation and the principles of the Commission in relation to the making of such common rule declarations in Victoria and I note that a draft declaration has been filed as exhibit A1 and the declaration will be made substantively in the terms of exhibit A1.

PN400

However, I will allow a period of 14 days for any party to raise with the Commission any issue as to the minutes of the declaration which will be made. The declaration which will be made will come into force on and from 1 January 2005. Thank you. I will now deal with two awards in the clay and ceramics industry. They are the Clay and Ceramics Industry Brick and Terracotta Tile Manufacture Victoria Award 2000, the Clay and Ceramics Industry Pottery Manufacture Victoria Award 2001.

PN401

MR S. MAXWELL: I appear on behalf of the Construction, Forestry, Mining and Energy Union in both matters.

PN402

MR L. STEWART: I appear from the AI Group.

PN403

THE COMMISSIONER: Thank you.

PN404

MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry in both matters.

PN405

THE COMMISSIONER: Thank you very much. Yes.

PN406

MR MAXWELL: Thank you, Commissioner. Commissioner, these are both applications pursuant to section 141 and section 493A seeking that the Clay and Ceramics Industry Brick and Terracotta Tile Manufacture Victoria Award 2000 and the Clay and Ceramics Industry Pottery Manufacture Victoria Award 2001 be declared common rule. Commissioner, I seek to hand up draft declarations for both these awards. Electronic copies of these were forwarded to your office on Friday.

PN407

I should also point out that a hard copy of these was sent to Mr Stewart by fax on 10 November of this year. I would also point out that when these matters were last before you on 5 November, following that hearing you did issue a direction that the parties were to confer. I can inform the Commission that the parties did confer. Commissioner, we believe that the draft declarations submitted today meet all the concerns raised by - the only concerns we did have raised were by the AIG.

PN408

We believe those concerns have been addressed because we have heard nothing further from the AIG since 10 November. In regard to the issue of the undertaking, Commissioner, I can say on behalf of the CFMEU that it is not the intention of the CFMEU to seek to retrospectively seek to enforce a common rule award in circumstances where an employer has been legitimately and appropriately applying a different award which also covers work performed by the employees.

PN409

This position is without prejudice to the rights of the parties to seek the making of roping in awards irrespective of the common rule award being applied by an employer or any rights under part 9 of the Act. Commissioner, subject to what the other parties may seek to say today, we would seek that the draft declarations as submitted be made operative on and from 1 January 2005. If the Commission pleases.

PN410

THE COMMISSIONER: Thank you.

PN411

MR STEWART: Thank you, Commissioner. My friend is correct that we have had discussions in relation to both of these matters that are before you. The outstanding matter that still remains on my perusal of this draft declaration is in the definition of industry where as defined, the industries then mean the industry and/or industrial pursuits of all persons, etcetera and the issue that has been raised by the AI Group is that we believe the words in the definition, the industry and/or industrial pursuits of are superfluous for the purpose of this declaration and do not match the parent award.

PN412

In the conciliation phases of these applications, these concerns, along with a number of others, were brought to Mr Maxwell's attention and all save that one remaining issue have been addressed in the draft declaration which you have received as A1 in the Brick and Terracotta Tile Manufacture Victoria Award and also in the Pottery Manufacture Victoria Award as well. Commissioner, the AI Group maintains its objection to the inclusion of those awards. Those objections have not been removed at any point during the discussions that we have had with the CFMEU and at this stage we are unable to offer our consent with those words included in them.

PN413

THE COMMISSIONER: These matters will be adjourned until 9 December, then. Today was scheduled for decisions in relation to matters that were consented to by the parties.

PN414

MR MAXWELL: Commissioner, first of all I must say that I am slightly disappointed that Mr Stewart hasn't bothered to convey those concerns to our office since our fax of 10 November. I should also point out that I am unavailable on 9 December because I am overseas from 4 December.

PN415

THE COMMISSIONER: Until?

PN416

MR MAXWELL: Until 11 December.

PN417

THE COMMISSIONER: I will adjourn it to a date convenient to your return, but as I say, today was for matters for decision in relation to applications where there was consent. 14 December, is that suitable for you? You are going to face an argument obviously as to whether or not the parent award definition of industries should be included. That will have to be adjudicated at present.

PN418

MR MAXWELL: Commissioner, my understanding is that it is the inclusion of the words the industry and/or industrial pursuits. Those words have been included in a number of other declarations made by members of the Commission.

PN419

THE COMMISSIONER: Well, it may be appropriate to include them, but it is not a matter for me to decide at the moment. I am really just asking you whether or not, given that there will be an argument on that day, if you are returning from overseas is the 14th - - -

PN420

MR MAXWELL: Commissioner, the 14th is fine.

PN421

THE COMMISSIONER: Very well, 10 am on the 14th. Both those matters are adjourned to that time and date. I now call the Adhesives Industry and Gelatine Manufacturing Award.

PN422

MR B. REDFORD: I appear for the LHMU in this matter.

PN423

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

PN424

MR L. STEWART: I appear from the AI Group.

PN425

THE COMMISSIONER: Thank you. Yes, Mr Redford.

PN426

MR REDFORD: Commissioner, the LHMU seeks a common rule declaration with respect to the Adhesives Industry and Gelatine Manufacturing Award 2001. For the sake of completeness, I would like to tender a copy of a draft declaration, albeit that this document I suspect is in exactly the same terms as a similar document provided to your chambers previously and to the parties.

EXHIBIT #A1 DRAFT DECLARATION

PN427

MR REDFORD: Thank you, Commissioner. The declaration proposed is in the same terms - is consistent with the principles laid down by the Full Bench in test case proceedings concerning common rule awards and on that basis, we would seek that you make an order giving effect to this declaration. Further to that, the union is prepared to give the undertaking in the same terms as that which was considered by Senior Deputy President Watson in the Victorian Shops Interim Award case.

PN428

THE COMMISSIONER: Thank you.

PN429

MR EBERHARD: Commissioner, given that the LHMU have in this matter given the commitment as required in SDP Watson's report, VECCI wouldn't be opposing. I think we have confirmed with the LHMU, but it might be appropriate if we take that 14 days, so if the Commission would be minded to grant us 14 days to confirm the declaration with the LHMU and we will confirm that with the Commission. If the Commission pleases.

PN430

THE COMMISSIONER: Thank you.

PN431

MR STEWART: Commissioner, I have seen a version of this draft declaration and I am not sure it is the final version of it. The AI Group has no in principle objection to the making of the declaration and we will use the 14 days to confirm the final version. Thank you.

PN432

THE COMMISSIONER: Thank you. This is an application by the LHMU for a declaration that the Adhesives Industry and Gelatine Manufacturing Award 2001 be declared a common rule in the State of Victoria. I am satisfied that the application is consistent with the legislation and the principles of the Commission in relation to the making of such declarations in relation to the operation of common rule awards in Victoria.

PN433

A draft declaration has been filed as exhibit A1 in the proceedings and the declaration will be substantively in the terms of that exhibit. However, I provide a period of 14 days for any party to raise with the Commission any issue as to the minutes of the declaration and the declaration which will be made will come into force on and from 1 January 2005. I now call the Cemetery Employees Award 2003.

PN434

MR C. WINTER: I appear on behalf of the Australian Workers' Union.

PN435

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

PN436

MR L. STEWART: I appear from the AI Group.

PN437

THE COMMISSIONER: Thank you. Yes, Mr Winter.

PN438

MR WINTER: Thank you, Commissioner. Draft declarations have been prepared in relation to this matter and forwarded both to your chambers, the AIG and VECCI.

EXHIBIT #A1 DRAFT DECLARATION

PN439

MR WINTER: The AWU seeks the making of common rule declarations in relation to these matters with an operative date of 1 January 2005. The AWU gives a commitment in relation to overlap as outlined by SDP Watson in the earlier proceedings. If the Commission pleases.

PN440

THE COMMISSIONER: Thank you.

PN441

MR EBERHARD: Commissioner, we wouldn't be opposing the application here today, given that the AWU have given the commitment required, but once again would ask that we be given 14 days to confirm the declaration. If the Commission pleases.

PN442

THE COMMISSIONER: Thank you.

PN443

MR STEWART: Thank you, Commissioner. We have seen the recent version of the Cemetery Employees Award circulated by Mr Winter and we have no in principle objection to that declaration being made. Thank you.

PN444

THE COMMISSIONER: Thank you. This is an application by the Australian Workers' Union that the Cemetery Employees Award 2000 be declared to be a common rule in the State of Victoria. I am satisfied that the application meets the requirements of the legislation and the principles of the Commission. I note that a draft declaration has been filed as exhibit A1 and a declaration will therefore be made substantively in accordance with that exhibit.

PN445

However, I provide 14 days for any party to raise with the Commission the subject of the minutes of the declaration to give effect to this decision. The declaration which will be made will operate on and from 1 January 2005. I now call the Funeral Industry Award 2003.

PN446

MR C. WINTER: I appear on behalf of the AWU.

PN447

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

PN448

MR L. STEWART: I appear from the AI Group.

PN449

THE COMMISSIONER: Thank you.

PN450

MR WINTER: Thank you, Commissioner. A draft declaration in relation to this application was prepared and forwarded to your chambers, also forwarded to the AIG and to VECCI. The AWU seeks the making of common rule of the Funeral Industry Award 2003 in relation to this matter with an operative date of 1 January 2005. The AWU gives a commitment in relation to overlap as outlined in SDP Watson's recommendations. If the Commission pleases.

EXHIBIT #A1 DRAFT DECLARATION

PN451

THE COMMISSIONER: Thank you.

PN452

MR EBERHARD: Commissioner, we would be not opposing the application and that the AWU have given the commitment as required and once again would ask for 14 days to confirm the declaration. If the Commission pleases.

PN453

THE COMMISSIONER: Thank you, Mr Eberhard.

PN454

MR STEWART: Commissioner, the AI Group has perused the draft declaration forwarded by Mr Winter of the AWU and given the undertaking put on the record today, we would not be opposing the declaration.

PN455

THE COMMISSIONER: Thank you, Mr Stewart. This is an application by the Australian Workers' Union for a declaration that the Funeral Industry Award 2003 will operate as a common rule award in the State of Victoria. I am satisfied that the application conforms with the legislation and the principles of the Commission in relation to the making of common rule declarations in relation to the operation of awards as such in the State of Victoria.

PN456

I note that a draft declaration has been filed as exhibit A1 in the proceedings and that the declaration is the subject of consent. I will however allow a period of 14 days for any party to raise with the Commission the subject of any of the details of the minutes of the declaration to give effect to my decision. The declaration that will be made will operate from 1 January 2005. We will just have a brief adjournment.

SHORT ADJOURNMENT [11.42am]

RESUMED [11.45am]

PN457

THE COMMISSIONER: Mr Winter.

PN458

MR WINTER: I was going to suggest we could deal with the AWU Horse Trading Industry Award matter, Commissioner, seeing the other parties for some of the other matters aren't here.

PN459

THE COMMISSIONER: Very well, C number 2004/5034.

PN460

MR WINTER: I appear on behalf of the AWU.

PN461

THE COMMISSIONER: Thank you, Mr Winter.

PN462

MR STEWART: Commissioner, I might make an appearance on behalf of Mr Eberhard. The AI Group hasn't notified an appearance in this matter, but I know that VECCI would have and so in his absence, I will appear on his behalf.

PN463

THE COMMISSIONER: Do you know what the position of VECCI is, Mr Winter?

PN464

MR WINTER: The same as the previous matters that I have been involved with the application. The draft declarations have been made, forwarded to your office, forwarded to VECCI and even though the AIG isn't appearing in this matter, we also forwarded the declarations to them and we believe there is consent, but VECCI has indicated they wish to have the 14 days to check those declarations.

PN465

THE COMMISSIONER: I had better just wait. Is Mr Eberhard coming back, I take it?

PN466

MR STEWART: Yes.

PN467

THE COMMISSIONER: Very well, I think we had better just wait until he comes back. The other matters don't affect the AWU, do they?

PN468

MR WINTER: No.

PN469

THE COMMISSIONER: We will just wait for Mr Eberhard to come back.

PN470

MR STEWART: He is just arriving now, Commissioner.

PN471

THE COMMISSIONER: Very well. Mr Eberhard, we might deal with the Horse Trading Industry Award first.

PN472

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

PN473

THE COMMISSIONER: Thank you. Yes, Mr Winter.

PN474

MR WINTER: Yes, Commissioner, the draft declarations have been forwarded to your chambers and also to VECCI in relation to this matter. The AWU seeks the making of a common rule award known as the Horse Trading Industry Award 1998 with an operative date of 1 January 2005. The AWU gives a commitment in relation to overlap as outlined by SDP Watson. If the Commission pleases.

PN475

THE COMMISSIONER: Thank you, Mr Winter.

PN476

MR EBERHARD: Commissioner, given that the AWU have given the commitment in regards to this particular award, VECCI wouldn't be opposing the declaration. However, we would ask that we be given once again 14 days to confirm the order with both yourself and the AWU. If the Commission pleases.

PN477

THE COMMISSIONER: Thank you. This is an application by the Australian Workers' Union for a declaration that the Horse Trading Industry Award 1998 shall be a common rule in the State of Victoria. On 8 October the applicant filed with the Commission a draft declaration which will be marked as exhibit A1 in these proceedings.

EXHIBIT #A1 DRAFT DECLARATION

PN478

THE COMMISSIONER: I am satisfied that the declaration as sought is in accordance with the requirements of the legislation and the Commission's principles in relation to the making of declarations for the operation of awards as common rules in the State of Victoria. A declaration will therefore be made. It will be in the terms of exhibit A1. However, I will provide 14 days for the parties to raise with me any matter of detail concerning the minutes of the declaration. The declaration that will be made will operate on and from 1 January 2005. Thank you. I now call the following awards, the Veterinary Surgeons Award 2001.

PN479

MR M. BUTLER: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN480

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

PN481

MR BUTLER: Commissioner, in accordance with the principles established in print number 950653 and the Act, the Association seeks a common rule declaration in respect to the Veterinary Surgeons Award 2001. Perhaps if I could formally table a copy of the draft declaration and also refer, Commissioner, to correspondence that you would have received from the Australian Veterinary Practice Management Association through their representatives, SIAG, the Services Industrial Advisory Group.

PN482

THE COMMISSIONER: Yes, I have.

PN483

MR BUTLER: I also attached a copy of the draft declaration in the same terms which I have handed up.

PN484

THE COMMISSIONER: You have provided them with the draft?

PN485

MR BUTLER: Yes.

PN486

THE COMMISSIONER: Yes, well, they have filed a late notice of appearance and have indicated consent in this letter.

EXHIBIT #SIAG1 LETTER

EXHIBIT #A1 DRAFT DECLARATION

PN487

MR BUTLER: Commissioner, the format of the draft declaration follows the template as set out in the test case decision. The proposed operative date, subject to the provisos as set out in subclauses 5.1 to 5.5 is 1 January 2005. In respect of overlapping award coverage, the Association is prepared to give a commitment which is that the Association of Professional Engineers, Scientists and Managers Australia undertakes that it is not our intention to seek to retrospectively enforce the common rule declaration in circumstances where an employer has been legitimately and appropriately applying another award which also covers the work performed by the employees.

PN488

This position is advanced without prejudice to the Association's right to seek the making of roping in awards irrespective of the common rule declaration being applied by the employer or any rights under part 9 of the Act. If the Commission pleases.

PN489

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

PN490

MR EBERHARD: Thank you, Commissioner. Given that APESMA have in this matter given the commitment as required in SDP Watson's report of 20 October 2004, VECCI would not be opposing the making of such a declaration. However, we would ask once again that we be given 14 days just to confer with both APESMA in regards to the declaration and then forward the agreed document to the Commission. If the Commission pleases.

PN491

THE COMMISSIONER: Thank you, Mr Eberhard. This is an application by the Association of Professional Engineers, Scientists and Managers Australia for a declaration that the Veterinary Surgeons Award 2001 should be declared a common rule award in the State of Victoria. I am satisfied that the application is in accordance with the legislation and consistent with the principles of the Commission in relation to the making of such common rule awards in Victoria. I note that the matter is consented to and that the applicant has filed a draft declaration in the form of exhibit A1 to give effect to the application.

PN492

The declaration will be made therefore. The declaration will be substantively in the terms of exhibit A1. I will allow 14 days for any party to raise with the Commission any issue concerning the details and the minutes of the declaration to give effect to this decision and the declaration which will be made will operate on and from 1 January 2005. Is it convenient now to call the Car Parking, Fitness Industry and Veterinary Assistance Awards?

PN493

MR B. REDFORD: I suspect so, Commissioner. I appear for the LHMU in these matters.

PN494

MR P. EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry and I appear in each of the matters currently before the Commission.

PN495

MR L. STEWART: I appear only in respect of matter 5089 for the AI Group.

PN496

THE COMMISSIONER: Thank you. Mr Redford.

PN497

MR REDFORD: Commissioner, just a point of clarity. I understand the Commission will be dealing with matters C2004/5089, 5093 and 5719.

PN498

THE COMMISSIONER: Correct.

PN499

MR J. NUCIFORA: Sorry, Commissioner, there is an appearance.

PN500

THE COMMISSIONER: Which matter are you appearing in?

PN501

MR NUCIFORA: It is 5093, the Fitness Industry Victoria Interim Award. We have lodged a notice of appearance. I appear on behalf of the Australian Services Union.

PN502

THE COMMISSIONER: Mr Redford.

PN503

MR REDFORD: Thank you, Commissioner. The LHMU seeks a common rule declaration with respect to these awards. There have been draft declarations submitted with respect to each of them, but I will tender if I may copies of those.

EXHIBIT #A1 DRAFT DECLARATIONS

PN504

MR REDFORD: Thank you, Commissioner. The form of those declarations are consistent with the principles laid down by the Full Bench in test case proceedings concerning common rules. The LHMU therefore seeks orders giving effect to those declarations. There is really only one matter I might just draw your attention to, Commissioner. It is with respect to the Fitness Award. That is matter number C2004/5093. The only variation that you may not have seen before is made to clause 1.4 of that declaration where there are words inserted:

PN505

...with the fitness industry other than work in or in connection with fitness and leisure centres operated by or on behalf of local government authorities.

PN506

Those words have been inserted as a result of discussions between the LHMU and the ASU. Further to that, Commissioner, the LHMU is prepared to give the undertaking in the same terms as that which was considered by Senior Deputy President Watson in the Victorian Shops Interim Award case in respect to all of these three awards. If the Commission pleases.

PN507

THE COMMISSIONER: Thank you.

PN508

MR NUCIFORA: Thank you, Commissioner. The ASU concurs with the submissions put on behalf of the LHMU. I was able to check the wording in relation to 1.4 this morning and we confirm that that is the wording that has been agreed between the representative of both unions that were involved with the drafting of that particular clause. If the Commission pleases.

PN509

THE COMMISSIONER: Do you give the undertaking?

PN510

MR NUCIFORA: Yes, the ASU does give the undertaking.

PN511

THE COMMISSIONER: In relation to overlap.

PN512

MR NUCIFORA: Yes.

PN513

THE COMMISSIONER: In the terms recommended by Senior Deputy President Watson.

PN514

MR NUCIFORA: Yes, Commissioner.

PN515

THE COMMISSIONER: Thank you.

PN516

MR EBERHARD: Commissioner, given that the LHMU have given the undertaking as required by SDP Watson, I don't necessarily think that the ASU need to give that. They are not a respondent to any of these three particular awards.

PN517

THE COMMISSIONER: I appreciate that.

PN518

MR EBERHARD: We also accept that undertaking with regard to the Fitness Industry Award. VECCI would not be opposing the applications currently before the Commission and once again we would ask for 14 days just to finalise the orders prior to forwarding them to your office. If the Commission pleases.

PN519

THE COMMISSIONER: Mr Stewart.

PN520

MR STEWART: Commissioner, in respect to matter 5089, the AI Group has seen the copy of the draft declaration. Again, I don't know if it is the most up to date version of that and so we will utilise the 14 day period to peruse that, but we have no in principle objection and given the undertaking by the LHMU, do not oppose it being declared common rule.

PN521

THE COMMISSIONER: Thank you, Mr Stewart. This decision concerns three applications. They are all applications to vary awards in relation to the making of declarations that each award applies common rule in the State of Victoria. The applications concern the Car Parking Victoria Award 2003, the Fitness Victoria Award 2000 and the Veterinary Assistants and Animal Attendants Victoria Interim Award 2000. I have considered each of the applications and I am satisfied that each of them is in accordance with the legislation and the Commission's principles in relation to the making of declarations for the operation of awards as common rule awards in the State of Victoria.

PN522

The applicant in each case has filed a draft declaration and in each case that draft declaration has been marked as exhibit A1. The declaration which will be made will be substantively in the terms of exhibit A1 in each case. However, in respect of all applications, I will provide a period of 14 days for any party to raise with the Commission any issue or detail concerning the minutes of the declarations to be made. The declarations which will be made will operate on and from 1 January 2005. Thank you. These proceedings are adjourned.

ADJOURNED INDEFINITELY [12noon]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DRAFT DECLARATION PN57
EXHIBIT #A1 COPY PROPOSED DRAFT DECLARATION PN183
EXHIBIT #A1 DRAFT DECLARATION PN195
EXHIBIT #A1 DRAFT DECLARATION PN220
EXHIBIT #A1 COPY AMENDED DRAFT DECLARATIONS PN241
EXHIBIT #A1 COPY DRAFT DECLARATIONS PN254
EXHIBIT #A1 DRAFT DECLARATION PN267
EXHIBIT #A1 DRAFT DECLARATION PN298
EXHIBIT #A1 DRAFT DECLARATION PN306
EXHIBIT #A1 DRAFT ORDER DATED 08/10/2004 PN319
EXHIBIT #A1 DRAFT ORDERS PN363
EXHIBIT #A1 COPY DRAFT DECLARATION PN377
EXHIBIT #A1 DRAFT DECLARATION PN427
EXHIBIT #A1 DRAFT DECLARATION PN439
EXHIBIT #A1 DRAFT DECLARATION PN451
EXHIBIT #A1 DRAFT DECLARATION PN478
EXHIBIT #SIAG1 LETTER PN487
EXHIBIT #A1 DRAFT DECLARATION PN487
EXHIBIT #A1 DRAFT DECLARATIONS PN504