C2003/6951, Transcript of Proceedings [2004] AIRCTrans 912 (16 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N 9540

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT LAWLER

C2003/6951

STELLAR CUSTOMER CONTACT AWARD 2001

Application under section 113 of the Act
by the CPSU, the Community and Public Sector
Union to vary the above award re casual
leave loading and dispute resolution procedure

SYDNEY

10.00 AM, MONDAY, 23 FEBRUARY 2004

PN1

THE VICE PRESIDENT: Ms Andelman, that's your appearance?

PN2

MS ANDELMAN: Yes.

PN3

THE VICE PRESIDENT: And it's Mr Burns for Stellar?

PN4

MR BURNS: Your Honour I seek leave to appear.

PN5

THE VICE PRESIDENT: Thank you. Do you have any objection to leave being granted, Ms Andelman?

PN6

MS ANDELMAN: No, I don't, your Honour.

PN7

THE VICE PRESIDENT: Thank you, yes leave is granted Mr Burns. Ms Andelman, this matter will have to go the President under the safety net review principles. The application for an increase to the casual loading is by definition an application above the safety net and I can't deal with it unless the President determines that I should deal with it. That doesn't mean that we can't kick the ball off by having a conference today but there's - - -

PN8

MS ANDELMAN: Thank you. Well, your Honour, perhaps that matter can be left to a later date for submissions. We would submit that a single member of the Commission can vary casual loading but the major issue that has brought this application is the first variation and that is the issue about the notice boards.

PN9

THE VICE PRESIDENT: If you think that I can deal with it without referring to the President, then that's a matter that you will need to address me on today because I understand my obligation to be, under the principles, to refer it to the President. The safety net is the existing award.

PN10

MS ANDELMAN: Yes.

PN11

THE VICE PRESIDENT: This seeks to increase the casual loading in the existing award. It is not an increase that is pursuant to a safety net review decision or a test case and therefore it is within, I think, principle 8 or principle 10, as an application to vary the award above the safety net and therefore has to go to the President. Individual members do deal with these but they deal with them after the President has remitted it back to them and that is probably what will happen in this case.

PN12

MS ANDELMAN: Yes, well, perhaps I can address your Honour on that issue. I would prefer to focus on the other issue that this application encompasses which is the major issue.

PN13

THE VICE PRESIDENT: I'm happy to do that, I just wanted to, as it were, get this out of the way as a preliminary point.

PN14

MS ANDELMAN: Sure.

PN15

THE VICE PRESIDENT: Because it means that certainly I can't do anything substantive in the matter until that's been disposed of, if I am correct. So what is your authority for the proposition that I do not need to refer it to the President?

PN16

MS ANDELMAN: Your Honour, there is a matter before you this afternoon which deals with a similar matter but - - -

PN17

THE VICE PRESIDENT: I thought that was a safety net review adjustment.

PN18

MS ANDELMAN: That was an increase to casual loading.

PN19

THE VICE PRESIDENT: Well, it will be in the same boat then unless you've got some authority to point to.

PN20

MS ANDELMAN: Yes, it will be in the same boat. However, that one may be different because it is by consent but I don't have comprehensive submissions to make to you on the day about whether a single member of the Commission can make an order that we seek.

PN21

THE VICE PRESIDENT: Fine.

PN22

MS ANDELMAN: I apologise for that.

PN23

THE VICE PRESIDENT: That's fine, Ms Andelman.

PN24

MS ANDELMAN: I am aware of a number of cases where that has in fact taken place but that's not a full and thorough submission that I would seek to make on this matter.

PN25

THE VICE PRESIDENT: And do you know in those cases that the matter has not been referred to the President, as distinct from having been referred and then remitted back so that a single member has ultimately dealt with it.

PN26

MS ANDELMAN: I would have to make further submissions. Perhaps I could make written submission on that issue if this matter does progress within a reasonable time frame? Perhaps looking a bit further into it we may decide to withdraw that part of the application, but at this stage - - -

PN27

THE VICE PRESIDENT: I mean, I can't bind the President, but the President's invariable practice in these sorts of applications has been to refer it back. It is really a matter of housekeeping, but it is an important matter of housekeeping because the principles bind me and I would expect that the President would get back to me very promptly, probably before your written submissions are in, saying yes you deal with it. So do you wish to make written submissions?

PN28

MS ANDELMAN: I do wish to make written submissions.

PN29

THE VICE PRESIDENT: How long do you want?

PN30

MS ANDELMAN: By Friday.

PN31

THE VICE PRESIDENT: Friday, fine. I direct the CPSU to make any submissions that it wishes to make in support of the proposition that this application does not need to be referred to the President under the safety net review principles by the close of business on Friday, 5 March 2004. Mr Burns do you want an opportunity to put submissions in reply in? I think the better course is to wait and see what's in them.

PN32

MR BURNS: Yes, your Honour.

PN33

THE VICE PRESIDENT: Ms Andelman, I am very confident about my position here.

PN34

MR BURNS: Your Honour, that was going to be the first point I raised. I don't think there is any doubt that principle 10 requires that referral and it is a question of what the President does do. In terms of the listing I do note that it was listed for hearing and conference and the reference to conference I took to mean that we are happy to have a conference but the referral point does need to be dealt with.

PN35

THE VICE PRESIDENT: Yes. I think the listing of it for hearing is probably an error on the part of administrative staff.

PN36

MR BURNS: I certainly took the approach that we would be adjourning in conference to discuss the application.

PN37

THE VICE PRESIDENT: So do you want an opportunity to put in written submissions in reply?

PN38

MR BURNS: I should reserve my position to do that. I don't think it will be necessary because - - -

PN39

THE VICE PRESIDENT: Well, could you contact my associate say by the close of business on Monday 8 - I'm sorry I've just made a mistake. I vary the direction that I have made to substitute Friday, 27 February - looking at the wrong dates around the calendar, for your submissions Ms Andelman. Mr Burns, if you could contact my associate by the close of business on Monday, 1 March to indicate whether or not you wish to make submissions and if you do, I will make some directions in chambers and if you could indicate the time frame you'd like at the time you leave that message. Unless Ms Andelman has pointed to some express authority in support of her proposition, it is unnecessary for you to make submissions.

PN40

MR BURNS: That's the only point I reserve, your Honour, I don't think we will make submissions but I'm happy to contact your office by that time.

PN41

THE VICE PRESIDENT: Now, does that only apply to item 3 in the application.

PN42

MR BURNS: Your Honour, we are taking it as one application so the whole of the application needs to be referred. I don't think you can pick and chose what parts you want to refer up. So we are taking it as one application that needs to be referred on.

PN43

THE VICE PRESIDENT: Then do you have any objection to adjourning into conference at this point?

PN44

MR BURNS: None whatsoever, your Honour.

PN45

THE VICE PRESIDENT: Fine, I'll adjourn into conference.

OFF THE RECORD

RESUMED [10.41am]

PN46

THE VICE PRESIDENT: The parties have conducted a conciliation by consent and it's apparent from that conciliation that there is no reasonable prospect that the issues in dispute and the application can be resolved by conciliation and the parties agree that I should find that conciliation is at an end and I so find. Ms Andelman, I understand that you now no longer wish to make any written submissions in respect of whether or not this application should be referred to the President pursuant to principle 10?

PN47

MS ANDELMAN: That is correct, your Honour.

PN48

THE VICE PRESIDENT: Fine. In those circumstances, I'll refer the matter to the President pursuant to principle 10 and I expect to have an answer perhaps today or certainly early this week. At that point, well, can I have an indication from the parties, assuming that the President has responded by referring the matter back to me, can I have an indication as to the directions that the parties would seek and I'll make those directions then in due course without the need to convene a further hearing?

PN49

MS ANDELMAN: Your Honour, we would be looking at a period of two to three weeks to make submissions and outline of evidence.

PN50

THE VICE PRESIDENT: Well, do you want two or three?

PN51

MS ANDELMAN: Three, your Honour.

PN52

THE VICE PRESIDENT: That's 15 March. That will be evidence and submissions. Mr Burns?

PN53

MR BURNS: Your Honour, it is a little difficult to understand what the parameters are, but we - - -

PN54

THE VICE PRESIDENT: To know until.

PN55

MR BURNS: - - - would conservatively like four weeks. We don't really know what material will be brought forward but I think it is sensible if we went an extra week on the safe side your Honour.

PN56

THE VICE PRESIDENT: Do you have any objection to that, Ms Andelman?

PN57

MS ANDELMAN: Well, your Honour, I think the issues were explored in some detail in conciliation, we'd say it is - - -

PN58

THE VICE PRESIDENT: No, but Mr Burns' point is that he doesn't know what is going to be in your statements. You may call evidence from people that they - - -

PN59

MS ANDELMAN: Well, that is generally the case that the employer is not fully aware of the evidence or the witnesses prior to them being tendered.

PN60

THE VICE PRESIDENT: So the position is this. The union has the incentive and the motivation to do things as quickly as it can, and it wants three weeks but it objects to four weeks being given to the employer. Is that the position?

PN61

MS ANDELMAN: Well, we would seek the employer to have three weeks as well.

PN62

THE VICE PRESIDENT: So I understand what your position is. How much time for evidence in reply?

PN63

MS ANDELMAN: One week.

PN64

THE VICE PRESIDENT: Fine. Well, I will make some appropriate directions once the President had got back to me without further reference to the parties. Is there anything further Mr Burns?

PN65

MR BURNS: No, you Honour.

PN66

THE VICE PRESIDENT: Ms Andelman?

PN67

MS ANDELMAN: Just to state on transcript that we do intend to make an amended order in regard to the issues and I will do that by close of business this afternoon, today.

PN68

MR BURNS: Your Honour, if that is the case then the matter shouldn't be referred until that order is in so we do know what exactly the terms of the application is going to be. I don't think you can refer it until you've got the amended order your Honour.

PN69

THE VICE PRESIDENT: Or I can but the question is whether I would then need to go and refer it again and that would depend upon the nature of the amendment.

PN70

MR BURNS: Yes.

PN71

MS ANDELMAN: Can I foreshadow that the issue about the casual loading will be unchanged.

PN72

THE VICE PRESIDENT: Yes and the only change will be to - - -

PN73

MS ANDELMAN: The dispute resolution procedure. That is to order 1, point 1, of the order.

PN74

THE VICE PRESIDENT: Ms Andelman, if you could do it by the close of business today, fax a copy of the amended order to my chambers I'll refer it at that point, as soon as I get your fax.

PN75

MS ANDELMAN: Thank you, your Honour.

PN76

THE VICE PRESIDENT: The Commission is adjourned.

ADJOURNED INDEFINITELY [10.45am]