C2004/4474, Transcript of Proceedings [2005] AIRCTrans 107 (10 January 2005)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
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TRANSCRIPT OF PROCEEDINGS


O/N 9495

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/4474

TRANSPORT WORKERS - SWAN
TRANSIT AWARD 2002

Application under section 113 of the Act
by Transport Workers Union of Australia to
vary the above award

MELBOURNE

2.03 PM, THURSDAY, 16 DECEMBER 2004

THESE PROCEEDINGS WERE CONDUCTED VIA VIDEO LINK
AND WERE RECORDED IN MELBOURNE

PN1

MR M. BOWER: I appear on behalf of the Transport Workers Union of Australia.

PN2

MS E. PRIEST: I appear on behalf of the company.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Bower?

PN4

MR BOWER: Thank you, Commissioner. This is a 113 application to vary the Transport Workers - Swan Transit Award 2002, to insert the redundancy test case provisions. It was last before you on 21 July 2004, and at that hearing you raised some concerns regarding the calculation of continuous service clause in this and a number of other matters, which we have sought to rectify. There was the also the issue that Mr Dowd of Piper Alderman sought to enter an appearance, and the Commission as presently constituted thought it would be a good idea to adjourn to a later date.

PN5

On 3 November I wrote to Mr Dowd just outlining the Commission's concerns and what the union thought we should do about it, and attaching a draft order. And I will tender a copy of that correspondence, if the Commission pleases.

EXHIBIT #DO1 LETTER FROM MR BOWER TO MR DOWD DATED 03/11/2004

PN6

MR BOWER: Thank you, Commissioner. Since that time the parties have had some discussions and there has been correspondence sent between the parties which I believe you were copied into in recent days.

PN7

THE COMMISSIONER: Yes, that is right.

PN8

MR BOWER: And the parties have reached a consent position in this matter. That consent position is basically outlined in an amended draft which I faxed - - -

PN9

THE COMMISSIONER: Filed this morning?

PN10

MR BOWER: I sent a copy to your chambers this morning and also faxed a copy to David Aye, a partner at Piper Alderman, this morning. And as I am aware, Ms Priest from Piper Alderman is instructed that they consent to that amended draft order. I will tender a copy of that.

PN11

THE COMMISSIONER: Yes, tender that please.

EXHIBIT #DO2 AMENDED DRAFT ORDER

PN12

MR BOWER: Commissioner, I should note that basically that order inserts a new continuous service clause as agreed between the parties, and that Swan Transit has agreed to drop its proposal to insert qualifying words at 9.1.5, or 9.5.1(a), which qualified the phrase serious misconduct. If the Commission pleases, we rest on our submissions.

PN13

THE COMMISSIONER: Thank you very much. Ms Priest?

PN14

MS PRIEST: Thank you, Commissioner. I confirm that our instructions are to consent to the amended draft order that was faxed through to us this morning. As I understand it, the document that you have just been presented with and accepted, and I also confirm that our instructions are that the amendment that we were originally proposing to clause 9.5.1(a) has been dropped out, and the amended continuous service clause has been included. My instructions are to consent to it on the terms that you have been given.

PN15

THE COMMISSIONER: Yes, good. Thank you, Ms Priest. Well, this is a relatively straightforward matter. It is an application to vary the Transport Workers - Swan Transit Award 2002 so as to include in the award varied terms and conditions applicable to redundancy situations and, in particular, to reflect in the award the test case standards of the Commission in relation to those matters.

PN16

With the exception of an appropriate definition of continuous service, the matter was the subject of earlier notifications of consent by those upon whom the Commission had directed service in the matter. The Commission was of the view that some consideration of the original proposal contained in the application should occur, particularly in light of the terms of the original proposal, providing for a definition of continuous service.

PN17

Since that time there has been interaction between the parties in relation to the subject of that concern, and the parties have now reached an agreement. A copy of the draft order was sent to my chambers electronically this morning, and I have had time to peruse it, and I am now satisfied that that is an appropriate definition of continuous service for the purposes.

PN18

MR BOWER: Just one additional matter which I was alerted to by Mr Dowd in some earlier correspondence. I would seek to make a 111(1)(p) application to amend our original application to include the insertion of that continuous service clause given that it didn't exist in the award.

PN19

THE COMMISSIONER: In the original?

PN20

MR BOWER: Yes. Thank you, Commissioner.

PN21

THE COMMISSIONER: Yes. Well, I gather there is no objection to that in light of the consent to the draft order, that the application is formally amended. Is that right, Ms Priest?

PN22

MS PRIEST: Yes, certainly.

PN23

THE COMMISSIONER: Thank you. Well, noting that as a matter of formality, I am now satisfied that the variation sought by the parties in the form of exhibit DO2, or sought by the applicant I should say, and consented to by the respondent should be provided for in an order to be made by the Commission accordingly, and I will make an order in those terms which will come into operation from the beginning of the first pay period to commence on or after 16 December 2004, and to remain in force for a period of six months thereafter.

PN24

I will provide the parties with copies of the order in due course directly by post. Thank you.

ADJOURNED INDEFINITELY [2.09pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #DO1 LETTER FROM MR BOWER TO MR DOWD DATED 03/11/2004 PN6
EXHIBIT #DO2 AMENDED DRAFT ORDER PN12