C2002/5237, Transcript of Proceedings [2004] AIRCTrans 640 (13 February 2004)

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TRANSCRIPT OF PROCEEDINGS


O/N 6022

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS
SENIOR DEPUTY PRESIDENT MARSH (In Absentia)
COMMISSIONER DEEGAN (In Absentia)

C2002/5237
C2003/4271

CHILD CARE INDUSTRY (AUSTRALIAN
CAPITAL TERRITORY) AWARD 1998

CHILDREN'S SERVICES (VICTORIA)
AWARD 1998

Applications under section 113 of the Act
by Australian Liquor, Hospitality and
Miscellaneous Workers Union to vary the
above awards re variation of clauses
relating to wage rates and classification
structure, inserting new allowances and
change of award title

MELBOURNE

4.10 PM, THURSDAY, 5 FEBRUARY 2004

Continued from 19.12.03 in Canberra
THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE AND RECORDED IN MELBOURNE

PN2060

THE VICE PRESIDENT: Can I have the appearances please, firstly in Melbourne.

PN2061

MS V. ILIAS: I appear on behalf of the LHMU, along with Assistant Secretary, MS J. FARRELL.

PN2062

MS R. WAITE: I am from the Victorian Children's Services Association.

PN2063

MR P. EBERHARD: I am from the Victorian Employers Chamber of Commerce and Industry and I appear on behalf of members respondent to the Victorian award.

PN2064

MR L.E. MOLONEY: I am from Livingstones Australia as agent for the Australian Childcare Centres Association and the Childcare Centres Association of Victoria. With me is MR F. CUSMANO the Executive Officer.

PN2065

MR D. PLOENGES: I appear on behalf of Kindergarten Parents Victoria.

PN2066

MR R. CORBOY: I am from the VHIA appearing on behalf of our two respondent members in this award.

PN2067

THE VICE PRESIDENT: Nobody else in Melbourne? In Sydney? In Sydney. Ms Bellino? Hello? We will need to re-connect Sydney. Can you hear me in Canberra?

PN2068

COURT OFFICER: Yes, we can.

PN2069

THE VICE PRESIDENT: Okay. Can I have the appearances in Canberra, please.

PN2070

MS L. STUBBS: I am representing the LHMU, ACT branch.

PN2071

MR C. GAMACK: I am representing Communities at Work.

PN2072

MR D. MORPHETT: I appear on behalf of ACT Children's Services Association and Victoria Private Childcare Centres Association, Southside Community Services.

PN2073

THE VICE PRESIDENT: Thank you.

PN2074

MS L. ALLARS: I am from the Confederation of ACT Industry.

PN2075

THE VICE PRESIDENT: Thank you. Can you just bear with us for a moment, we are trying to reconnect with Sydney.

PN2076

THE VICE PRESIDENT: Ms Bellino, can you hear me? Ms Bellino? You may have your mute button on.

PN2077

MS BELLINO: I have turned it off, I can hear you.

PN2078

THE VICE PRESIDENT: I take it you are appearing for the union?

PN2079

MS S. BELLINO: Yes, I am.

PN2080

THE VICE PRESIDENT: Okay, thank you. I have received two pieces of correspondence, one from Livingstones which I understand has been prepared with the concurrence of the employer respondents, is that right?

PN2081

MR MOLONEY: That is correct, your Honour.

PN2082

THE VICE PRESIDENT: And one from the union. Am I right in thinking that the differences between the two positions really - I have got one question about the union one, I am just not sure what the comment about the submission means, but I will come back to that - but there is only a slight difference in the dates. The union proposes filing its material by 12 March, then providing the respondents with four weeks to reply, then a further two weeks for the union to reply. The employer proposition is around the other way, providing four weeks for the union, six weeks for the employer response and then two weeks for the reply.

PN2083

Is there, bearing in mind I will obviously be conferring with my other two colleagues before we issue directions but, just as a matter of practicality, in the normal course if the applicant wanted the extra week as they seek in this instance before filing their initial submission, there usually wouldn't be any difficulty with that because there is no prejudice to the respondent. If we were to go down that path and have the union file its material by 12 March, is the mid point between the two positions allowing it then five weeks, allowing till 23 April for the employers to respond and then two weeks for the union to reply by 7 May?

PN2084

Does that create - I understand it is not your preferred position, neither is it the union's, Mr Moloney, but does it create any difficulty from your perspective?

PN2085

MR MOLONEY: Your Honour, I don't think it does. I think our position was simply to accommodate the Easter holiday - - -

PN2086

THE VICE PRESIDENT: No, I understood that was why you went for the 23rd.

PN2087

MR MOLONEY: Exactly.

PN2088

THE VICE PRESIDENT: Yes.

PN2089

MR MOLONEY: But, I don't believe, from the perspective of the parties I represent, that would cause a problem.

PN2090

THE VICE PRESIDENT: All right. Does anyone else have a difficulty with that, from the union's perspective?

PN2091

MS ILIAS: No, your Honour.

PN2092

THE VICE PRESIDENT: No. Anyone in Canberra?

PN2093

MR MORPHETT: No, difficulty - I have no difficulty with any of those dates.

PN2094

THE VICE PRESIDENT: All right. There are already two other matters, then, if the dates are broadly agreed, or three other matters. The union has indicated that it anticipates calling four to five witnesses and the Hearing taking one to two days. I take it that is from your perspective, that is you haven't taken into account how many witnesses the employers might put - - -

PN2095

MS ILIAS: No.

PN2096

THE VICE PRESIDENT: Okay. Do you anticipate those one to two days dealing with the evidence only, and then we would set down a short process for written submissions in relation to the ACT evidence and the Victorian evidence?

PN2097

MS ILIAS: Yes, your Honour.

PN2098

THE VICE PRESIDENT: Okay, so we are looking at the evidentiary case in these directions?

PN2099

MS ILIAS: Yes.

PN2100

THE VICE PRESIDENT: You have, in your correspondence or rather the union's correspondence, there is the comment that the union is to file witness statements and submission only on the difference between the two classification structures.

PN2101

MS ILIAS: Your Honour, I might ask Ms Bellino to comment on that. I am actually on leave so she prepared the document in my absence - - -

PN2102

THE VICE PRESIDENT: I hope you are enjoying yourself, Ms Ilias.

PN2103

MS ILIAS: I am, your Honour, thank you.

PN2104

THE VICE PRESIDENT: Ms Bellino, can you comment on why you have structured the directions in that way?

PN2105

MS BELLINO: Well, I guess, your Honour, from our perspective we were seeking a bit of clarification on where to proceed from here with respect to the evidence. From our perspective we would say that the evidence in the case in Canberra has been heard and concluded and the evidence that will be filed in the next round which we are discussing today is really specific to the Victorian points, only. I guess, I would say that with considering that it was raised previously on 4 December by Mr Moloney, in the previous hearing, the issue that there was a lot of commonality between the two applications and it was one of their reasons for asking for joinder and I say that, also, keeping in mind the correspondence in relation to joinder from ..... Clapham, on 19 September, did highlight a range of points where they argued that the two applications of the unions were extremely similar in terms of the outcomes, the classification structure, the issues relating to work value, the pay relativities.

PN2106

So I was mindful that we weren't going to call the 19 or so witnesses in the Victorian case to re-prove the points that we say we made with respect to the classification structure. And more so we are going to direct our evidence towards the difference between the two classification structures which is about three or four points and any differences in the child care industry in Victoria.

PN2107

THE VICE PRESIDENT: I see. So when you talk about the differences between the two structures you mean between the two structures advanced from the union perspective in Victoria and the ACT, not the difference between the union structure and that advanced by the employers?

PN2108

MS BELLINO: Yes, that is correct, your Honour.

PN2109

THE VICE PRESIDENT: Okay. Well, certainly, the evidence, the consequence of joinder is that the evidence in the ACT matter becomes evidence in the Victorian matter and vice versa, so I certainly wouldn't be encouraging you to repeat the evidence that has already been put in. All right, I understand what you are putting now and there has already been, because of the history of the matter, some submissions put in relation to the broad position of the union and why it is agitating for the claims that it seeks.

PN2110

MS BELLINO: But the only other point I would like to raise with respect to that, your Honour, is that we would seek to reserve our rights when we file our response to the respondents witness statements and submissions in that if new evidence is raised we may need to call extra witnesses or further witnesses to contest some of that evidence but, from our perspective, we weren't looking to repeat the Canberra evidence.

PN2111

THE VICE PRESIDENT: No, all right. Mr Moloney, from your perspective, I appreciate it is difficult to make an assessment when you are responding to witness material and submissions without knowing the content of that evidence, but do you have an idea at the moment as to how many witnesses you are likely to call and how long you anticipate it being?

PN2112

MR MOLONEY: Your Honour, we would be calling, we believe, four witnesses.

PN2113

THE VICE PRESIDENT: Is that for all the employer interests or just - - -

PN2114

MR MOLONEY: No, for the parties that I represent.

PN2115

THE VICE PRESIDENT: Yes.

PN2116

MR MOLONEY: Four witnesses. Obviously the employers do need to confer about the evidence so that we try and eliminate duplication where we can. The nature and scope of the industry, of course, in Victoria, we say, is enormously - sorry, significantly larger than Canberra or the ACT, but there is similarities in the evidence and given that the evidence in the ACT is now on the record we need to look at that, as well, to perhaps temper some of the material that we will put in for Victoria. But, having said that, we also take the point that we don't think we should be limited in the scope of that because there is obviously a lot of issues to be addressed, but we will keep that in mind in terms of our evidence.

PN2117

I would agree that probably two days to hear the evidentiary case for Victoria would be at least necessary and then we move on from there about submissions from all parties, whether they are oral or written, I guess, will be determined by parties and the Commission, of course.

PN2118

THE VICE PRESIDENT: Can I hear - do any of the other employers have a view at this stage as to - or do you disagree with any of the estimates that have been made or have you formed a view about how many witnesses you might be calling at this point?

PN2119

MR EBERHARD: Your Honour, if I can. I suppose we are in a difficult position in the sense that I haven't really received final instructions from the members that we represent in regards to this and primarily that is because we haven't been involved in the proceedings in the ACT. We have not, as yet, received any written material - well, we have received some written material, I should qualify, but certainly haven't received all of the material that has been submitted in the ACT proceedings. So it makes our position a little bit difficult just in the sense that if we are to provide material what are we actually responding to - - -

PN2120

THE VICE PRESIDENT: Certainly.

PN2121

MR EBERHARD: - - - in the sense - well I can gather - I will gather that from the witness material, what we are responding to but we won't know from the written material. So I would actually also like to ask for the Commission to issue a direction that any material that has been presented to in the ACT be provided to those parties who haven't been given the opportunity of receiving that. Taking Mr Moloney's point of view, though, I wouldn't be intending to provide, really, any evidence that there would be duplication of anyone else's evidence. It may be that we have a witness but it may be probably more than likely that we do not - because I think our interest in this matter is probably of the lesser degree than what Mr Moloney's clients are, is that he would represent the significant numbers in this matter.

PN2122

THE VICE PRESIDENT: Okay. Just bear with me for a moment, please. Rather than issue directions, it occurs to me that it might be more helpful to set up a website for this case, post to the website the witness statements that have been filed in Canberra and all of the transcript, and in that - advise you of the website address. You can access it through the Commission portal and that way everyone can have access to it and the union can file its material to the website and each of you can access it that way. It would then allow you to download it and have a search function that might be useful in the preparation of your cases, as well. Would that meet your concern, Mr Eberhard?

PN2123

MR EBERHARD: Look, it is more just about getting access to the material and that would provide that, that would be fine.

PN2124

THE VICE PRESIDENT: All right. Does anyone else have any comments they wish to make at this stage? Yes, Ms Waite?

PN2125

MS WAITE: Yes, your Honour. I think it would be very useful for the employers to meet and see what submissions are being made and the witnesses, and then I would like to perhaps fill in a gap or two. And I also thought it would be useful - I read the transcript of the two days in Canberra and I thought it would be useful if I set down the differences between Victoria and the ACT relating to training and historical things, as well, it might be useful to the Commission.

PN2126

THE VICE PRESIDENT: No, indeed, thank you. Any other comments. Yes?

PN2127

MR PLOENGES: Your Honour, at this point in time I am satisfied with the direction of where dates may be proceeding and at this point of time KPV has no intention of calling witnesses, ourselves. However, we might review that, but at this point of time we have no intention to do so, your Honour.

PN2128

THE VICE PRESIDENT: Thank you. Mr Corboy?

PN2129

MR CORBOY: My position is similar to KPAV, thank you.

PN2130

THE VICE PRESIDENT: All right, thank you. Anything from anybody in Canberra in relation to what you have heard?

PN2131

MR MORPHETT: If it please the Commission, the - first would probably be to support what Mr Moloney has put because I believe that we are all basically singing off the same song sheet, there. We have had some preliminary discussions and come up with approximately five witnesses, possibly less, that we would like to call and we would support the one to two days for - to finalise the matter.

PN2132

The only point I would make and this is again in support of Mr Moloney's submission, that it seems - obviously we don't want to create duplication and we will be mindful of that and ensure that we don't, but it would seem not very positive to try and limit submissions that may be made, as it appears that the union is endeavouring to do. There are certainly some similarities between the operation of the industry in the ACT and Victoria but there is also some quite unique differences which the Commission needs to be made aware of. If it please the Commission.

PN2133

THE VICE PRESIDENT: I am not sure the union is seeking to limit anyone. They are just indicating, as I understand it, that they would be - their submissions would be directed to explaining the difference between the classification structures they propose in the ACT and Victoria. What the employers submit is not so confined. You can advance whatever submissions you think are appropriate.

PN2134

MR MORPHETT: Thank you. Thank you, Commissioner.

PN2135

THE VICE PRESIDENT: Is there anything else? All right, well - - -

PN2136

MS BELLINO: Sorry. If I can just clarify one of - Mr Morphett's comment. Was that five witnesses for his organisation, specifically, or all the employers in their discussions of up to five witnesses?

PN2137

MR MORPHETT: If it please the Commission, Vice President, the - we are suggesting four to five witnesses from the combined employers in the ACT. That may of course change depending on our discussions with other employers in Victoria.

PN2138

THE VICE PRESIDENT: All right. So as I understand the position it is this, that there is an acceptance of dates for directions whereby the union would file its material by 12 March, the respondents by 23 April, the union in reply by 7 May. The Commission will organise a website and advise you of the details, and the material should be posted on that website. We will also put on the website the witness statements we currently have, in relation to Canberra, any exhibits in relation to Canberra that are available in electronic form. If we don't have them electronically my associate will be in touch with whoever tendered the document to try and get an electronic version; alternatively, we will scan them on, so you will be able to access all the material through the website.

PN2139

In relation to the number of witnesses, in total it is about 10 but I understand the position is reserved to see how the material develops, and it is generally felt that two days would be required for the evidentiary case. Now that should be on the basis that the witness statements should set out the evidence-in-chief of the witnesses, as was the position in Canberra, and really the witness is only there for the purpose of cross-examination and re-examination. Once we have concluded the evidentiary case in Victoria, at the end of the second day, there would be an opportunity to say what you wish to say about how the matter can be brought to a conclusion by way of either written submission or oral argument or a combination of both. Is there anything further?

PN2140

MS WAITE: No, thank you.

PN2141

MR MOLONEY: Just - - -

PN2142

THE VICE PRESIDENT: Yes, Mr Moloney?

PN2143

MR MOLONEY: Just one other point, probably more a matter of self interest, your Honour. Is there any indication from the Bench as to when those two days for the evidence may be listed?

PN2144

THE VICE PRESIDENT: Where or when?

PN2145

MR MOLONEY: When.

PN2146

THE VICE PRESIDENT: I would anticipate - do you mean which two days in May - - -

PN2147

MR MOLONEY: Yes.

PN2148

THE VICE PRESIDENT: - - - or do you mean when will we let you know?

PN2149

MR MOLONEY: Probably both.

PN2150

THE VICE PRESIDENT: Well I would certainly endeavour to let you know on Monday. I want to get the transcript of today sent to my two colleagues and then have a discussion with them on Monday and I would anticipate sending out directions either Monday or Tuesday. Is there a particular difficulty in May that you want to alert me to?

PN2151

MR MOLONEY: The very end of May, your Honour. We have some problems from about 28 May onwards for about 10 days.

PN2152

THE VICE PRESIDENT: Okay. So your preference would be from middle of May to the 28th but not after the 28th?

PN2153

MR MOLONEY: Correct.

PN2154

THE VICE PRESIDENT: Yes.

PN2155

MR MOLONEY: Thank you.

PN2156

THE VICE PRESIDENT: Does anyone else have any - want to make bid?

PN2157

MR PLOENGES: Your Honour, since we are speaking on our self interests here, your Honour, if I could make a request that, from my perspective, only as a sole voice, whether hearings could proceed probably as early after 7 May as possible, due to I will be unavailable from roughly 19 May for two weeks after that period. But seeing as I am a sole voice in this proceeding, your Honour, I will take the umpire decision.

PN2158

THE VICE PRESIDENT: Certainly. Well, from my perspective, that can be accommodated but I have two of my colleagues to slot into and - - -

PN2159

MR PLOENGES: Certainly.

PN2160

THE VICE PRESIDENT: - - - at the moment. By the time you take into account Full Bench roster, unfair dismissal rosters and every other roster imaginable, there aren't too many spare dates but we will certainly have regard to it. Anybody else? No. All right. Well I will adjourn on that basis and we will send out directions early next week. Thank you for your attendance.

ADJOURNED ACCORDINGLY [4.31pm]