C2004/372, Transcript of Proceedings [2004] AIRCTrans 5084 (24 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
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TRANSCRIPT OF PROCEEDINGS

O/N 2662

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT O'CALLAGHAN

C2004/372
C2004/373
C2004/374
C2004/375
C2004/376
C2004/377
C2004/378

FURNISHING INDUSTRY NATIONAL AWARD 2003

Application under section 113 of the Act
by the Construction, Forestry, Mining and
Energy Union to vary the above award re
subclauses 22.2, 16.2, 21.2, clause 36,
subclause 37.3, clause 27 and subclause 28.10

ADELAIDE

2.37 PM, FRIDAY, 17 DECEMBER 2004

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning. I will take some appearances, please, starting in Adelaide.

PN2

MS SIAMI: I appear for the CFMEU in all of these matters.

PN3

MR HOWARD: I appear for Business SA.

PN4

THE SENIOR DEPUTY PRESIDENT: Can I take appearances, perhaps, in Sydney next?

PN5

MS TOPRACKI: I seek leave to appear on behalf of the respondent members of Australian Business Industrial.

PN6

MR COOPER: I appear for the respondent members of Employers First.

PN7

THE SENIOR DEPUTY PRESIDENT: In Melbourne?

PN8

MS WATT: I appear for the Cabinetmakers' Association.

PN9

MR MARASCO: I appear for the Australian Industry Group.

PN10

MR CRAVEN: I appear for the Furnishing Industry Association. I seek leave to appear on behalf of the respondent members, and also to enter an appearance today for the Australian Retailers Association.

PN11

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, do any of the parties have any objections to the applications for leave that have been sought by various of the other parties? No? All right, I will grant leave where it has been requested. Now, I have listed these applications today, fundamentally, to determine how we are going to program the dealings relative to them. I don't expect the matters to be resolved today. I should advise that I am in receipt of correspondence from Ms Siami that indicates that it is the view of the CFMEU that a number of the applications will need to be referred to the President for determination of whether or not they should be heard by a Full Bench or a single member.

PN12

In that regard, Ms Siami indicates that whilst these issues can be canvassed today, the timeframe in relation to the clauses with respect to jury service leave for each of the awards is somewhat tighter. This is, of course because both awards will be common rule in the State of Victoria from 1 January 2005, and the applications seek to ensure that employees in Victoria will be no worse off under that award. She requests that those two applications are referred to the President as soon as possible. I have not as yet done that, and have sought instead to determine two other issues, first of all, that I will raise with the parties in a moment.

PN13

The advice from Ms Siami continues to indicate that it is the opinion of the union that a Full Bench need not be convened, and that I should continue to deal with the matter. Now, before hearing from you, Ms Siami, I should indicate that two issues that I will be seeking advice on from the parties prior to deciding whether or not to refer these matters and, in particular, the jury services matters to the President. The first of those is that I would seek some advice from the other parties as to their views on that matter so as to expedite the issue. It may be that those parties can do that today, or it may be that we need to make another time.

PN14

The second issue is, potentially, far more complicated. The applications seek to vary that Furnishing Industry National Award of 2003. As a result of a recent application for the certification of an agreement under Division 3 of Part VIB of the Act, it came to my attention that the CFMEU was relying on a dispute finding in C00422 of 1961. Now, that dispute finding was made by Senior Commissioner Chambers on 7 March, 1961. Obviously, it is expressed in 1961 terminology so it details claims expressed in pounds, shillings, and pence - an ambit claim in the order of something like 45 pounds per week.

PN15

Now, on closer consideration, it appears at least possible that the Furnishing Industry National Award of 1999, which is one of the three awards brought together as a result of the award simplification process, might still be relying on that 1961 dispute finding. If it is reliant on that dispute finding, then the question - perhaps first of all - to the CFMEU is whether or not there is still ambit upon which that award is based. It is not a matter that I've turned my mind to in great detail at all but, rather, it is a question that I considered only appropriate to raise in the first instance with the CFMEU as the applicant.

PN16

If, indeed, it is the case that the CFMEU have, in effect, run out of ambit, then that might impact on the programming of the rest of the components of the application. Now, once again, I don't expect you to have an answer for that question today. The thought occurs to me that you might have as much difficulty as we had finding that 1961 dispute finding and if any of the parties wish to access that dispute finding, they could refer to my associate and we will organise a copy for them. I would had to think of people parked in the Commission's archives over the Christmas holiday period.

PN17

Now, it seems to me that the issue of the ambit for the dispute, or the operation of the award, ought to be considered first of all because it has the potential to derail the rest of the proceedings. I'm hoping to be persuaded otherwise but my suggestion to the parties is that a timeframe might be set for the consideration of that matter and, possibly, for discussion between the parties over that issue. That timeframe might very closely overlap the question of a reference to the President and if so, whether that reference is restricted just to the jury leave components or claims, or whether it is of a broader nature.

PN18

Then we come to consideration of the merits, so I've tended to look at there being three broad stages that might become applicable to the determination of these claims. Now, Ms Siami, do you want to comment on that broad sort of outline?

PN19

MS SIAMI: It is not an issue I had thought about, your Honour, so I don't know whether I can answer the questions about ambit at the moment, but I will have a look and see what dispute findings are being relied upon, and have a look at that 1961 dispute finding. In relation to the three broad stages, it is probably easiest to do it in the way outlined in : well, we will look at the ambit and, perhaps, can at the same time address some of the issues within the claims themselves and then, of course, come back to the Commission for determination on merit.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. You see, what is worrying me about a reference of, certainly, the jury service matters to the President as a matter of immediacy is that if the ambit is not there for some reason, then that matter goes nowhere.

PN21

MS SIAMI: Yes.

PN22

THE SENIOR DEPUTY PRESIDENT: I'm conscious of the urgency, given that the union wants to progress these matters as soon as possible, given the impending 1 January, 2005 date. Simply put, that would not be capable of being achieved within the timeframe that I'm talking about.

PN23

MS SIAMI: No. I guess it is also further complicated by different parties being on leave over Christmas.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. Can I put to the parties consideration of the following approach? I am simply putting it for consideration at this stage, rather than having any definitive conclusion in that regard. With respect to the issue of ambit, the CFMEU would consider that question and, hopefully, provide advice to the employers by mid-January, 2005 of its position relative to ambit. That advice might consist of advice to the effect that the CFMEU believes that there is ambit, and that the question does not arise.

PN25

At the other end of the spectrum, it might entail consideration of a new log. I would list the matter for a report-back on 25 January - that overlapping that issue of ambit, so far as that is possible, the parties would give consideration in late January and early February to the question of what issues might need to be referred to the President, their collective attitudes toward that referral, and what action they propose the President might take with respect to that referral or those referrals and, finally, the priority that would attach to any such referrals.

PN26

That issue would be the subject of a further report-back hearing on 10 February, 2005. At that hearing, we would then be in a better position to know what was happening with a view to listing the matter for the consideration of any merit-related issues. Now, I'm simply putting that to the parties as a possible timeframe, given the Christmas holiday period. I am open to any suggestions from any of the parties as to a better approach. I will, perhaps, start with you, Ms Siami.

PN27

MS SIAMI: I think the approach is a good one, your Honour, but I would perhaps suggest a couple of changes in the dates, only because I will be on leave until - I will be returning to work on 24 January, and my National Secretary has tried to have telephone discussions with Martin Lewis of the FIAA, and it is being discussed to have a meeting of the parties in, perhaps, the first or second week of February to discuss all the issues anyway. So perhaps if that could be moved by about a week or so, the dates, that might just give us a bit more time and might give you a bit more information about where the parties are at, your Honour.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes, I'm happy to move them back if the parties wish. We could move toward suggesting that the union try to address the ambit issue as soon as practicable, and at the same time, the employers might give consideration to both any advice provided relative to ambit, and also give consideration to their respective positions on the referral questions, and simply list the matter for a single report-back on 10 February. Would that be a better approach?

PN29

MS SIAMI: I think so, your Honour.

PN30

THE SENIOR DEPUTY PRESIDENT: Mr Howard, are you happy with that approach?

PN31

MR HOWARD: Your Honour, those are my instructions from Business SA that if we could get an adjournment to around about mid-February so that they could consult their membership, that would be satisfactory. Bring it back to the 10th wouldn't make any difference, in my opinion. I would be quite happy to recommend to Business SA that they accept that and work through the issues that you have stated this afternoon, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: All right. Do any of the Sydney parties have a problem with that approach?

PN33

MS TOPRACKI: No, your Honour, we don't object to that approach.

PN34

MR COOPER: No, your Honour, we don't object to that.

PN35

THE SENIOR DEPUTY PRESIDENT: If any of the Melbourne parties have a problem with it, they can tell me. Otherwise, I will take it that you are in agreement in Melbourne? All right. Well, I will list the matter now for a report-back conference at 10 am, Central Standard Time, on 10 February, 2005. In the event that anything significant changes relative, particularly, to the issue of ambit, Ms Siami, I take it that you will advise me and the parties?

PN36

MS SIAMI: Yes, your Honour.

PN37

THE SENIOR DEPUTY PRESIDENT: I'm expecting that in the time between now and 10 February, the union will give consideration to that ambit question and will confer with the relevant employer parties, that the employer parties will similarly be giving consideration to the various applications, and the issues associated with the referral of those applications to the President. Does anyone seek any clarification on those approaches? Very well, I will take this opportunity of wishing everybody a Merry Christmas and adjourn the matter accordingly.

ADJOURNED UNTIL THURSDAY, 10 FEBRUARY 2005 [2.54pm]