C2004/4732, Transcript of Proceedings [2004] AIRCTrans 5116 (24 December 2004)

AUSCRIPT AUSTRALASIA PTY LTD
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Level 3, 105 St George's Tce, PERTH WA 6000
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TRANSCRIPT OF PROCEEDINGS

O/N 1099

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2004/4732

APPLICATION TO VARY AN AWARD

Application under section 113 of the Act
by The Australian Workers Union to vary the
Pastoral Industry Award 1998 re termination,
change and redundancy

PERTH

1.11 PM, WEDNESDAY, 4 NOVEMBER 2004

Continued from 20.07.04

OFF THE RECORD

RESUMED [1.41pm]

PN42

THE VICE PRESIDENT: This is matter C2004/4732. The matter was referred to me for conciliation and, if necessary, arbitration pursuant to a decision of a Full Bench of the Commission in PR952804 dated 29 October 2004. The central issue between the parties is under the Pastoral Industry Award the members of the WAFFIA are exempt from the provisions of the award that deal with redundancy and severance pay, as a result of that Full Bench's decision. The union is pressing for the removal of that exemption and the association seeks to vary, in relation to its application to its members, the provisions of the award dealing with severance pay and redundancy in essentially three respects. In relation to the definition of continuous service, they seek that workers compensation leave and jury service not be taken into account for the purpose of calculating continuous service and they seek to remove the award provisions providing for severance pay to the employees of a small employer.

PN43

I think those are the issues between the parties. They were explored in the conciliation conference and the indications are that the union is not prepared to agree to the changes that are sought. Mr Brunner, on behalf of WAFFIA, has indicated that his association wishes to pursue those changes through arbitration if necessary. In view of the positions taken by the parties I'm satisfied that there is no likelihood that within a reasonable period conciliation or further conciliation will result in an agreement by the parties on terms for the settlement of the matters in dispute and I make that finding pursuant to section 103(1)(b) of the Act.

PN44

I now proceed to move to the arbitral phase and seek the views of the parties initially before issuing directions in relation to the hearing and determination of the matter. Mr Brunner, in essence the union will be saying, as I understand it from its conciliation indications, that the exemption should be removed and the provision should apply and you will be arguing for the changes that I've referred to. What I would propose is that the parties file submissions setting out their positions. I will set a date for both parties to file, you will see each other's submission, and then we would have a hearing in order to provide you with an opportunity to make short oral submissions and also to reply to the submissions of the other side. How soon will each of you be in a position to file such a written submission?

PN45

MR P. BRUNNER: Yes. Thank you, your Honour. Two points, I guess. Firstly, on an evidentiary basis, if you want statements of evidence attached to submissions - - -

PN46

THE VICE PRESIDENT: If you propose calling any witnesses then you should attach their statements to the submissions that you file.

PN47

MR BRUNNER: Yes, yes. In that context, I'm not sure what the position is in Victoria and the other parts of Australia, but certainly in WA harvest has commenced. There is going to be some difficulty in garnering information quickly and the second tack to that is that my availability is going to be curtailed to that significantly over the course of the next two months because of a state termination change and redundancy case being heard here, late November and early December. I therefore suggest that the time lines for submissions of the parties be sort of no early than mid-December for the first occurrence of that and proceed through to perhaps 21 days period, so that we're actually at a hearing point, I guess, towards the end of January.

PN48

THE VICE PRESIDENT: Why would there need to be a gap between the filing of written submissions and the hearing of that order?

PN49

MR BRUNNER: Well, entirely up to you in that respect. I mean, yes, we could probably file submissions and have it heard seven days later or something, you know, I don't see any difficulty with that. All I'm suggesting, sir, that it is - if there is a requirement for cross-examination, towards the end of January is the most appropriate time for our people.

PN50

THE VICE PRESIDENT: So, you would be in a position to file mid-December with the hearing some time after?

PN51

MR BRUNNER: I would say closer to Christmas than mid. I think Christmas is on a Saturday and Sunday, so perhaps by the Monday of that week, prior to Christmas or the Friday of the week before, 25, 18, it is probably the 17 December.

PN52

THE VICE PRESIDENT: 17th is a Friday.

PN53

MR BRUNNER: On quick calculation, yes.

PN54

THE VICE PRESIDENT: What do you say, Ms Lambert?

PN55

MS M. LAMBERT: Your Honour, with due respect, I am quite surprised that Mr Brunner would like to wait so long before putting in submissions. I would prefer to see this matter dealt with as soon as possible, in the event that we do have members in West Australia, and Mr Brunner, likewise, has members in West Australia, and certainty needs to be provided. I, of course, will be guided by yourself and I realise that your diary is very important, your Honour, but the sooner the better, from the Australian Workers Union perspective.

PN56

THE VICE PRESIDENT: All right. Anything further in relation to this? No? I propose to issue the following directions, that written submissions and any evidentiary material upon which other party wishes to rely are to be filed by 4 pm on Monday, 13 December, it is 4 pm Western Standard Time, and those submissions should set out in full the arguments that the party wishes to rely upon and the outcome that it seeks. The matter will be listed for hearing commencing on Monday, 20 December and it will conclude that week on whatever days are required.

PN57

Once the material is filed I would ask that by 4 pm on Wednesday, 15 December that you each advise my associate in writing and the other party of whether or not you intend to, or whether or not you seek to, cross-examine the witnesses, if any, that are called by the other side.

PN58

MS LAMBERT: Your Honour, could I ask permission that submissions be filed upon the parties by the parties by fax or e-mail in this matter?

PN59

THE VICE PRESIDENT: Certainly. That would be the usual course. In fact, I would prefer e-mail, if at all possible. I would rather have the electronic version of any witness statements and the submissions.

PN60

MR BRUNNER: Your Honour, hearing listed in Perth?

PN61

THE VICE PRESIDENT: Yes, 10 am, Monday, the 20th and for such other days as are required to determine the matter. I can't really estimate how long it is likely to go at this stage until I've seen the material.

PN62

MR BRUNNER: No. Yes.

PN63

THE VICE PRESIDENT: You can take it that I will be making available the rest of that week, if required. Okay?

PN64

MR BRUNNER: Thank you, sir.

PN65

THE VICE PRESIDENT: Nothing further? Thank you, I will adjourn.

PN66

MS LAMBERT: Thank you for your time, your Honour.

PN67

THE VICE PRESIDENT: I will adjourn the matter until 10 am on Monday, 20 December.

ADJOURNED UNTIL MONDAY, 20 DECEMBER 2004 [1.51pm]