C2003/6014, Transcript of Proceedings [2004] AIRCTrans 800 (3 March 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 9545

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2003/6014

THEATRICAL EMPLOYEES (RECREATION GROUNDS
AND RACEDAY RACING OFFICIALS - NSW AND ACT)
AWARD 2000

Application under section 113 of the Act
by Media, Entertainment and Arts Alliance
to vary the above award re safety net review
- wages May 2003 and casual loading

SYDNEY

10.05 AM, MONDAY, 19 JANUARY 2004

Continued from 3.11.04

PN46

THE COMMISSIONER: Could I take appearances please?

PN47

MR M. RYAN: If the Commission pleases, I appear for the Media, Entertainment and Arts Alliance.

PN48

MR P. RYAN: May it please, I appear for Employers First, continuing our appearance on behalf of our respondent members.

PN49

MR D. DAVIES: If it please the Commission, I am a consultant and I appear as agent for the Sydney Turf Club and other race clubs and for the National Coursing Association, New South Wales and other greyhound racing associations. The monitor has a list of those various organisations.

PN50

THE COMMISSIONER: Yes, thank you. Mr Davies, you've not appeared in the matter before me on the last occasion?

PN51

MR DAVIES: Only in the sense - no, I haven't, you are right in hinting to me that I should seek leave to appear, Commissioner, though I did write to you on the last occasion because I was on holidays when the matter was last before you. So I do seek leave to appear for those organisations if it please.

PN52

THE COMMISSIONER: Thank you, Mr Davies.

PN53

MS M. McDONNELL: If the Commission pleases, I appear for Australian Business Industrial on behalf of respondent members.

PN54

THE COMMISSIONER: Do we have a list of the respondent members, Ms McDonnell?

PN55

MS McDONNELL: No, I understand it's a common rule award, so no respondent members need to be provided in order to enter an appearance in this matter.

PN56

THE COMMISSIONER: A common rule award in the ACT.

PN57

MS McDONNELL: That's right, so we represent members in the ACT.

PN58

THE COMMISSIONER: Thank you, Ms McDonnell. Does any person have a view on Mr Davies application of leave to appear?

PN59

MR M. RYAN: We don't object, Commissioner.

PN60

MR P. RYAN: No objection, Commissioner.

PN61

MS McDONNELL: No objection, Commissioner.

PN62

THE COMMISSIONER: Leave is granted.

PN63

MR DAVIES: Thank you, Commissioner.

PN64

THE COMMISSIONER: The matter, as, of course, the parties realise, was before me on a previous occasion. After that matter was adjourned I advised the President of the application before me in relation to the increase of the casual loading, and I believe the parties would be aware that on 5 November the President determined that the matter should continue to be dealt with as the Commission is currently constituted. Mr Ryan?

PN65

MR M. RYAN: Thank you, Commissioner. I must say that since we were before you on 3 November the parties conferred on 27 November to see if there was a possibility of settling the matter. Surprisingly the employers have informed the Alliance in mid-December that, that was not possible, that they opposed the claim. I think I informed, by email, Mr McDonald the of the outcome of that, and that is why today's programming has been listed.

PN66

THE COMMISSIONER: Yes, a copy of that email is on the file, Mr Ryan.

PN67

MR M. RYAN: We have had discussions, since this matter was listed today, to put forward subject, obviously, to your convenience and your obligations - I understand you are on the National Wage Case, Commissioner. What we thought amongst ourselves was to try and do as much by way of writing - exchange between ourselves and yourself - so that we would supply to both the Commission and the parties the material which we seek to rely upon, in six weeks time which would be 1 March.

PN68

THE COMMISSIONER: What material is that, Mr Ryan?

PN69

MR M. RYAN: It would be our authorities, it would be our submissions, it would be any evidence that we sought to call in the way of witness statements. To give the other side - because they have a large range of members throughout New South Wales, both metropolitan and country based, they sought and I thought it was appropriate that they be given a full six weeks to respond to that.

PN70

THE COMMISSIONER: So, the parties are seeking that the matter be dealt with predominantly by way of written submissions. And then, the matter listed for hearing in the event that witnesses are required to be cross-examined and, also, to briefly speak to those submissions.

PN71

MR M. RYAN: Yes. It certainly wasn't my intention to re-read what was going to be supplied in writing, Commissioner, that is for sure.

PN72

THE COMMISSIONER: I presume you are speaking on behalf of the parties before me?

PN73

MR M. RYAN: If I have said anything wrong I am sure I will be pulled up. I think that is the understanding.

PN74

THE COMMISSIONER: So, I take it then if anybody disagrees with what you are telling me then I will hear them. All right, so from my perspective I don't particularly oppose that course of action. I think it would cut down any hearing time of the matter as well. You tell me what the parties have agreed and we will have a look at that.

PN75

MR M. RYAN: I think it goes something like this. I haven't got my diary with me - I think it is for the Alliance to supply to both the Commission and to the employer groups by 4 pm on 1 March 2004 our written submissions, evidence and any other documentation. Then, the employers to provide to both the Alliance and the Commission by 4 pm on 13 April the same sort of documentation they seek to rely upon.

PN76

THE COMMISSIONER: And also advise whether any of the witnesses are required to be present.

PN77

MR M. RYAN: Yes, that wasn't discussed between us, but that obviously makes sense. We would then be seeking, subject to your convenience, shortly thereafter, Commissioner, a quick directions hearing or programming just to set dates.

PN78

THE COMMISSIONER: Why don't we do that?

PN79

MR M. RYAN: We could do that now. It is just that there is a situation in that there are two parts to the application. One is also the safety net increase which is due on 20 May and we weren't sure whether that would be able to be slotted in, subject to your diary we dealt with the increase in the casual loading. But I certainly have no problems setting dates today.

PN80

THE COMMISSIONER: The issue in regards to the application of the 2001 Safety Net to the Award concerns the application being filed in a substantial period of time earlier than that Safety Net would be due by the legislation, ie, 20 May 2004. Now, for it to apply earlier I would require consent. I presume you do not have consent to apply a safety net prior to 20 May 2004?

PN81

MR M. RYAN: We have not sought that on that basis.

PN82

THE COMMISSIONER: Now, the issue of the application of the 2003 Safety Net to this Award is really tied up with the rates of pay and whether the casual loading is increased or not. So, therefore, the first issue is the Commission's determination in relation to the casual loading. Depending what that determination is then you would be able to file a draft order for the 2003 Safety Net adjustment?

PN83

MR M. RYAN: Commissioner, what will have to be determined is - - -

PN84

THE COMMISSIONER: Whether you will have a determination by 20 May.

PN85

MR M. RYAN: Yes. And if that is not the case - and obviously we wouldn't wish to see our Members forego a pay-rise which they are eligible for from 20 May the existing basis - the only other concern about being able to fix dates today is to what extent there is going to be witnesses and how much time is going to be needed. That was the only concern we had. That was all, it was purely on that basis.

PN86

THE COMMISSIONER: All right. Well, I am conscious of the fact that the Award can have the safety net 2003 as at 20 May. I am conscious of that date. And I for one would not want to disadvantage any employees covered by the Award in that regard. So, I am cognisant of that, Mr Ryan. So let us just concentrate on the issue with the casual loading and see how quickly we can determine that prior - - -

PN87

MR M. RYAN: So by mid-April both sides will know what is coming from the other side and make some sort of estimation of what time is going to be required for witnesses, if any, and speaking to the relevant merits of the application, the merits of opposition.

PN88

THE COMMISSIONER: So what you are saying to me then is that the parties are not sure how long they would require for the hearing of the matter. Therefore, once they exchange their material - I think you are saying to me - then can we come back and look at dates?

PN89

MR M. RYAN: Yes, because we don't want to, I suppose, in one sense much you around - is the major concern. And secondly amongst ourselves also to have some estimation of what is going to be required. So rather than try and pencil in or - - -

PN90

THE COMMISSIONER: Well, I think that is more of a difficulty. I think decisions have to be made now. At least decisions in regards to a date of hearing and anticipated length of hearing. If our estimates are out then we will have to try and adjust those estimates. I think there is a great danger in just waiting until after 13 April to start looking at dates because that may be a problem.

PN91

If no one wishes to place anything on the record at this point in time I propose to go into conference and actually start looking at some dates. And also estimates of what you people - you experienced people in this area - you should have some form of estimate of what you think is required in this case. And it is not necessarily a novel question to be answered. It is specific to your industry and the people you represent. There have been a number of cases in regards to casual loading in different industries so I think you should have a fair idea of what your requirements are going to be.

PN92

If no one wishes to place something on the record in this point in time, we will go off the record and then we will return to it.

OFF THE RECORD [10.16am]

RESUMED [10.27am]

PN93

THE COMMISSIONER: In regards to this matter, the applicant union is to file and serve written submissions, witness affidavits required and authorities by 4 pm 1 March 2004. The respondents to the Award are to file and serve written submissions, any witness affidavits relied upon and reference to authorities by 4 pm, 13 April 2004. Any material in reply required by the applicant union is to be filed and served by 4 pm, 27 April 2004. The matter is listed for hearing in Sydney. Three days have been reserved. The 5th, the 6th and the 7 May commencing at 10 am. If there is nothing further the Commission stands adjourned. Thank you.

ADJOURNED UNTIL WEDNESDAY, 5 MAY 2004 [10.30am]