C2005/2517, Transcript of Proceedings [2005] AIRCTrans 1322 (14 June 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11759-1

JUSTICE GIUDICE, PRESIDENT

C2005/2517 C2005/2518 C2005/2519 C2005/2520 C2005/2521 C2005/2522 C2005/2523 C2005/2524 C2005/2525 C2005/2526 C2005/2527 C2005/2528 C2005/2529 C2005/2530 C2005/2531 C2005/2532 C2005/2533 C2005/2534 C2005/2535 C2005/2536 C2005/2537 C2005/2538 C2005/2539 C2005/2540 C2005/2541 C2005/2542 C2005/2543 C2005/2544 C2005/2545 C2005/2546 C2005/2548 C2005/2550 C2005/2551 C2005/2552 C2005/2553 C2005/2554 C2005/2555 C2005/2558 C2005/2559 C2005/2560 C2005/2561 C2005/2562 C2005/2563 C2005/2564 C2005/2565 C2005/2566 C2005/2567 C2005/2568 C2005/2570 C2005/2571 C2005/2572 C2005/2573 C2005/2575 C2005/2576 C2005/2577 C2005/2579 C2005/2581 C2005/2582 C2005/2583 C2005/2584 C2005/2585 C2005/2587 C2005/2588 C2005/2589 C2005/2590 C2005/2592 C2005/2593

APPLICATION BY INDUSTRIAL REGISTRAR
s.151 - Review of operation of awards

MELBOURNE

9.37AM, WEDNESDAY, 01 JUNE 2005

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN MELBOURNE

C2005/2537
Brisbane Pilot Service Launch Vessels Award 1999

PN1

JUSTICE GIUDICE: In Sydney do we have any appearance?

PN2

MR J WYDELL: I appear for the Australian Maritime Officers Union.

PN3

JUSTICE GIUDICE: Thank you. Anybody in Brisbane?

PN4

MR M RODGERS: I appear on behalf of Queensland Marine Holdings Pty Ltd and Brisbane Marine Pilots Pty Ltd. Also I seek leave to appear on behalf of those parties.

PN5

JUSTICE GIUDICE: Yes, well, leave is granted.

PN6

MR RODGERS: Thank you, your Honour.

PN7

JUSTICE GIUDICE: What's the position in relation to this award, Mr Wydell?

PN8

MR WYDELL: Your Honour, I understand Mr Rodgers of Livingstone's has sent through some submissions to the Commission. From our point of view we would support those submissions and we would say that this award still has continuing operation.

PN9

JUSTICE GIUDICE: When was it varied last?

PN10

MR WYDELL: I believe it was probably last varied arising out of the simplification process and although this award is the Port Services Award and I am the industrial officer of the Seagoing Division, I would hazard a guess that this award has probably not been updated for the safety net reviews and I would probably further go on to say that even had the award been updated for the safety net review decisions since simplification it probably wouldn't result in a pay rise for the persons engaged under that award.

PN11

JUSTICE GIUDICE: Yes.

PN12

MR WYDELL: So I guess what I'm trying to say to you is that probably the union is maybe a bit tardy in keeping its awards up to date.

PN13

JUSTICE GIUDICE: Yes. You're not giving much away there. All right. Well, I have read the submission from Mr Rodgers. Is there anything you want to add, Mr Rodgers?

PN14

MR RODGERS: No, your Honour, I would rely on my submission.

PN15

JUSTICE GIUDICE: Yes, very well. I have read that submission and in the circumstances it seems to me it's not appropriate to make any order setting the award aside so this matter will simply be adjourned. Thank you for your assistance.

PN16

MR RODGERS: Thank you, your Honour. May I be excused, your Honour.

PN17

JUSTICE GIUDICE: Yes, you can certainly be excused. In fact I think we are going to turn you off.

PN18

MR RODGERS: Thanks very much.

- - -

C2005/2587
United Airlines Maintenance Staff Interim Enterprise Award 1999

PN19

JUSTICE GIUDICE: This is the United Airlines Maintenance Interim Enterprise Award 1999. Can I have appearances in that matter?

PN20

MR N SPEERS: I am representing the Australian Licensed Aircraft Engineers Association with regard to this matter.

PN21

JUSTICE GIUDICE: Yes, go ahead.

PN22

MS K KNOWLES: I appear for the Australian Industry Group and I represent United Airlines Incorporated and with me this morning I have MS L CLINCH who is the Human Resources Manager for United Airlines.

PN23

JUSTICE GIUDICE: Just a moment would you. Yes, I am sorry. Mr Speers, is it?

PN24

MR SPEERS: Yes, it is, your Honour.

PN25

JUSTICE GIUDICE: Yes, I am sorry, I didn't catch your name. Mr Speers, there's a letter from the ALAEA on the file indicating that the award applies to 10 employees. Is that right?

PN26

MR SPEERS: That's correct, your Honour.

PN27

JUSTICE GIUDICE: Well, I suppose the question is why it hasn't been varied for long?

PN28

MR SPEERS: Your Honour, I suspect it was the reason that was given in the previous hearing. My understanding is that probably again the union has probably been tardy but probably because it wouldn't have resulted in any pay increases because my understanding is, and I might be corrected, that I think there's been four enterprise agreements since the original award was struck.

PN29

JUSTICE GIUDICE: Yes. And your union opposed the award being set aside?

PN30

MR SPEERS: Yes, your Honour, for the reasons that was outlined in Mr Ryan's letter of 20 May. We believe for those reasons outlined in that letter that it still has ongoing relevance and we would not like to see it set aside.

PN31

JUSTICE GIUDICE: Yes. Mrs Knowles, do you have anything to add, or perhaps I should ask, have you seen that letter?

PN32

MS KNOWLES: Yes, I have, your Honour.

PN33

JUSTICE GIUDICE: Do you have anything to add?

PN34

MS KNOWLES: Only, your Honour, that by way of variation of the award, the award was simplified in 1999 before Commissioner Redmond. Also, your Honour, in this award there is no variation because the award contains no wage rates. In fact, at clause 4 of the award refers to the wage rates in the relevant agreement of which, your Honour, I have forwarded through to the registry and your chambers a copy of the current award for United Airlines - sorry, the current EBA for United Airlines.

PN35

JUSTICE GIUDICE: What does the award actually do?

PN36

MS KNOWLES: Your Honour, from United Airlines point of view, my understanding, the purpose of the award is to act as a vehicle for relations between the ALAEA and United Airlines as well as setting, by my understanding, your Honour, parameters for enterprise bargaining between the parties.

PN37

MR SPEERS: Yes, your Honour, I think as Mr Ryan outlined too, that the award does underpin it. It sets that it commits the parties to a process of period negotiation of EBAs.

PN38

JUSTICE GIUDICE: Well, it doesn't really do very much, does it?

PN39

MR SPEERS: It's not huge, your Honour.

PN40

MS KNOWLES: Your Honour, I can understand your point of view with regards to the length of this award by comparison of a number of awards that you would cast your eye over.

PN41

JUSTICE GIUDICE: Yes, well, I don't think length of itself is a virtue, but just looking at the terms of it, it commits the parties to a process of periodic negotiation and also contains a dispute resolution procedure. Presumably there's a dispute resolution procedure in the EBA as well.

PN42

MS KNOWLES: Yes, your Honour, there is.

PN43

JUSTICE GIUDICE: Yes. Well look, I'm inclined to accept your submissions and not to set the award aside but I would urge the parties to give consideration to whether the award in fact serves any particularly useful purpose given the number of agreements have been made and presumably the obligations which are in those agreements, and bearing in mind also that certified agreements continue in operation even beyond their nominal expiry date. So very much the fate of the parties in terms of their negotiations is in their own hands in any event. But as I say, I won't set the award aside. Unless there's anything else I will simply adjourn this matter.

PN44

MS KNOWLES: No, nothing else, your Honour.

PN45

MR SPEERS: Nothing else from my end, your Honour.

PN46

JUSTICE GIUDICE: All right. Thank you both.

- - -

C2205/2575
P&O Swire Containers Ltd Officers Seagoing Award 1999

PN47

JUSTICE GIUDICE: This is the P & O SWA Containers Ltd Officers Seagoing Award 1998. Are there any appearances in this matter?

PN48

MR J WYDELL: I appear in Sydney for the Australian Maritime Officers Union.

PN49

JUSTICE GIUDICE: Thank you. I think there may be somebody in Melbourne struggling to - perhaps if you come up to the bar table.

PN50

MR G. SIVARAMAN: I seek leave to appear on behalf of the MUA.

PN51

JUSTICE GIUDICE: Yes, I'm sorry, I didn't catch your name?

PN52

MR SIVARAMAN: Sivaraman.

PN53

JUSTICE GIUDICE: And you're appear on behalf of the?

PN54

MR SIVARAMAN: MUA.

PN55

JUSTICE GIUDICE: Is there any appearance on behalf of the employer respondent?

PN56

MR WYDELL: I'm in Sydney, your Honour, and they are based in Sydney.

PN57

JUSTICE GIUDICE: Yes, I think we may have somebody here.

PN58

MS S BUTTERWORTH: I'm with Australian Mines and Metals Association. I represent P & O today on another matter and unfortunately I don't have any instructions in relation to this issue.

PN59

JUSTICE GIUDICE: I see. Yes, well, thanks, Ms Butterworth. So there's no appearance in Sydney on behalf of P & O?

PN60

MR WYDELL: No, your Honour. There's no appearance in Sydney on behalf of P & O SWA Containers Ltd.

PN61

JUSTICE GIUDICE: Yes, thank you. Mr Wydell, I see a letter on the file from the MUA. Have you seen that letter?

PN62

MR WYDELL: No, I haven't, your Honour.

PN63

JUSTICE GIUDICE: Mr Sivaraman, I might ask you to speak to that letter.

PN64

MR SIVARAMAN: Yes, your Honour. That's the letter of 26 May from Mr Bill Gibbons of the union?

PN65

JUSTICE GIUDICE: Yes.

PN66

MR SIVARAMAN: As Mr Gibbons states, the award in question underpins the agreement and I can hand up a copy of the certified agreement if your Honour wishes.

PN67

JUSTICE GIUDICE: That won't be necessary.

PN68

MR SIVARAMAN: Clause 6 of the certified agreement preserves the award and furthermore, the award is the point reference or was a point reference in applying the no disadvantage test in certifying the agreement. There are still employees who are subject to, I'm instructed, subject to the award, so the award has a continuing reference. We would submit that the agreement contemplates the continued operation of the award. There are provisions within the award that are not referenced to in the agreement and in such circumstances to set aside the award or deprive employees of those particular rights. In the circumstances we would submit, your Honour, that the award should not be set aside.

PN69

JUSTICE GIUDICE: Yes. Is there any explanation for why the award hasn't been varied?

PN70

MR SIVARAMAN: Your Honour, I don't think I can proffer any particular explanation. I can say that as is stated in that letter, that the union is intending to vary the award and in fact I would say that the union has indicated it is intending to vary the awards that are before that are relevant to the MUA so as to incorporate the safety net.

PN71

JUSTICE GIUDICE: Yes. Well, it may be that the rates in the agreement are well in excess of the award rates in any event. Yes, thank you. Do you have any submission to make, Mr Wydell?

PN72

MR WYDELL: Yes, I do, your Honour. Could I just say that this award was formerly Eastern Australian Steamships Award. Your Honour will probably appreciate that that name sort of conjures up. There's a significant amount of history attached to this particular award before it was simplified. I guess the union again has been less than diligent in keeping this award up to date but the award is certainly read in conjunction with at least two existing agreements covering membership of the Australian Institute of Marine and Power Engineers and certainly the Australian Maritime Officers Union and the Maritime Union of Australia.

PN73

I guess it's fair to say that the award hasn't been kept up to date in terms of the safety net review increases, but again if it was updated of course I would think it's fairly safe to say that it wouldn't result in a pay increase for the employees because the enterprise agreement is providing for superior rates of pay. So the award certainly has continuing operation and on that basis we would request that the Commission not set the award aside.

PN74

JUSTICE GIUDICE: Yes, very well, thank you. I won't make any order in that matter either. That matter will simply be adjourned. Thank you.

PN75

MS KNOWLES: Your Honour, if we may seek your leave to absence ourselves from proceedings?

PN76

JUSTICE GIUDICE: Yes, by all means, Ms Knowles.

PN77

MR SPEERS: Your Honour, I'm just not sure if there's a Qantas matter on the long service leave award?

PN78

JUSTICE GIUDICE: Yes, it is.

PN79

MR SPEERS: Right, okay. I'm not sure when that will come up. I've just got a flight to catch interstate so I will hang on for a little while anyway.

PN80

JUSTICE GIUDICE: When do you have to leave?

PN81

MR SPEERS: I need to leave by about 10.30.

PN82

JUSTICE GIUDICE: We will call that matter on now.

- - -

C2005/2517
Airline Operations (Qantas Airways Limited) Long Service Leave Award 1999

PN83

JUSTICE GIUDICE: Appearances in that matter?

PN84

MR N SPEERS: In Sydney, your Honour, I'm representing the Australian Licensed Aircraft Engineers Association.

PN85

JUSTICE GIUDICE: Thank you.

PN86

MR J MORLEY: I appear on behalf of Qantas Airways Ltd.

PN87

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN88

MR L BENFELL: I appear on behalf of the CEPU.

PN89

JUSTICE GIUDICE: The CEPU, thank you. Well, Mr Morley, I might turn to you first.

PN90

MR MORLEY: Thank you, your Honour. I believe there's correspondence that was forward by Ms Bussell of Qantas.

PN91

JUSTICE GIUDICE: Yes, I have that. Just give me a moment to look at it.

PN92

MR MORLEY: Thank you.

PN93

JUSTICE GIUDICE: Yes, I have read that. The company's position is that this is a long service award which has continuing operation and there's no reason to set it aside.

PN94

MR MORLEY: Yes, that's correct, your Honour.

PN95

JUSTICE GIUDICE: Yes, well, that's fairly persuasive. Does anybody disagree with that position? Very well. Well, I think that there's no requirement to take that matter further. I will simply adjourn that matter. There is one other Qantas matter I think which it might be convenient to call now.

- - -

C2005/2527
Airline Operations - Professional Engineers - Qantas Airways Limited Award 1999

PN96

JUSTICE GIUDICE: Any appearances in this matter?

PN97

MS C BADCOCK: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN98

MR J MORLEY: I appear on behalf of Qantas Airways Ltd.

PN99

JUSTICE GIUDICE: Mr Morley, what's your position? It's the same as in relation to the last?

PN100

MR MORLEY: It's somewhat different, your Honour. This isn't specifically a long service leave award.

PN101

JUSTICE GIUDICE: No.

PN102

MR MORLEY: This is correspondence that was forwarded to the Commission and as per the other matters, this award has not been varied since its simplification in 1999. Again the reason for that would be that it doesn't have an impact directly on wages or allowances that are paid to employees under the terms of the relevant certified agreements. It would be our submission that it does however have continuing operation and should not therefore be set aside.

PN103

JUSTICE GIUDICE: It does prescribe rates of pay.

PN104

MR MORLEY: It does, your Honour. They just however haven't been varied for the safety net, is my understanding.

PN105

JUSTICE GIUDICE: Yes. Ms Badcock?

PN106

MS BADCOCK: Your Honour, we would support the position of Mr Morley and say that the award has continuing operation and that it underpins the current enterprise agreement and we would seek that the Commission not set aside the award.

PN107

JUSTICE GIUDICE: Yes, very well. The award will not be set aside and I will adjourn that matter.

- - -

C2005/2577
Research & Supply Vessel (Aurora Australis) Award 1998

PN108

MR G SIVARAMAN: I seek leave to appear on behalf of the MUA.

PN109

MS S BUTTERWORTH: I appear on behalf of the Australian Mines and Metal Association, if it please the Commission, appearing on behalf of P & O Maritime Services.

PN110

JUSTICE GIUDICE: Are there any other appearances in this matter?

PN111

MR J WYDELL: In Sydney, your Honour, appearing for the Australian Maritime Officers Union.

PN112

JUSTICE GIUDICE: Yes. Mr Wydell.

PN113

MR WYDELL: Yes again, your Honour, I think that I'm going to have to plead the same points as in the first two. We probably haven't been as good as we should be in keeping the award up to date and it's probably what's attracted the Commission's attention to this award. I should say of course that the award certainly does have continuing operation. There is certainly members anyway of the Australian Maritime Officers Union employed under that award in conjunction with an enterprise agreement and on that basis, your Honour, look, we would request that the Commission not set that award aside.

PN114

Again, even if the award had have been adjusted for the safety net reviews, of course my perception is that that certainly wouldn't affect the rates of pay in terms of the current EBA anyway.

PN115

JUSTICE GIUDICE: Yes. Thank you. Mr Sivaraman.

PN116

MR SIVARAMAN: Your Honour, we would agree with that submission in that we also oppose the award being set aside. The Research and Supply Vessel Ratings Certified Agreement specifically states that it's to be read with the award, or the agreement contemplates the continued operation of the award. Again there are provisions in the award that are absent in the agreement and employees are subject to their coverage of the award and in such circumstances we would submit that the award should not be set aside. I should also point out, your Honour, there is a submission from Mr Gibbons with attached to it an email that was sent with the intent to vary the award.

PN117

JUSTICE GIUDICE: Yes.

PN118

MR SIVARAMAN: I believe at this stage there's not been a response to that but the union is certainly following it up.

PN119

JUSTICE GIUDICE: Yes, thank you. Ms Butterworth, there's a letter signed by you on the file.

PN120

MS BUTTERWORTH: Yes, your Honour.

PN121

JUSTICE GIUDICE: could you tell me how many people this award applies to?

PN122

MS BUTTERWORTH: This award, your Honour, underpins a number of certified agreements in respect of P & Os operations in relation to the Aurora Australis vessel. Certainly there is one certified agreement with the Institute of Marine and Power Engineers, one with the MUA and one with the AMOU, so it's probably difficult to pinpoint the numbers but I would estimate that it would be perhaps at least 100 employees.

PN123

JUSTICE GIUDICE: Yes, very well. Well, in the circumstances it's not appropriate to make any order in this matter either and I will adjourn that. Thank you.

PN124

MR SPEERS: Your Honour, I could seek your approval to leave the hearing?

PN125

JUSTICE GIUDICE: Do you want to catch a plane, Mr Speers?

PN126

MR SPEERS: Yes, your Honour.

PN127

JUSTICE GIUDICE: Very well. Thank you.

PN128

MR SPEERS: Thank you, your Honour.

- - -

PN129

C2005/2579

Swan Hill Pioneer Settlement Paddle Steamer Award 1998

PN130

JUSTICE GIUDICE: Mr Wydell, you're appearing in this matter as well?

PN131

MR J WYDELL: That's correct, your Honour.

PN132

JUSTICE GIUDICE: Any appearance for any other party to this award? What's the position in relation to this award, Mr Wydell?

PN133

MR WYDELL: Yes, thank you, your Honour. Again, that's an award which falls under the Port Services Division of the Maritime Officers Union. I have spoken to Michael Fleming who is the Director for the Port Services Division and he tells me that this award can be set aside. So unless you hear from someone otherwise, then I don't think that award has continuing operation.

PN134

JUSTICE GIUDICE: Thank you, Mr Wydell, for your frankness. An order setting the award aside will be made. Should circumstances alter, an application can always be made to revoke that order, but in the circumstances the appropriate thing is that the award will be set aside. Thank you.

PN135

MR WYDELL: Thank you, your Honour.

- - -

C2005/2566
Maritime Industry - Sydney Sea Pilots Pty Ltd - Launch Crews Award 1998

PN136

JUSTICE GIUDICE: Mr Sivaraman, are you appearing in this matter?

PN137

MR G SIVARAMAN: That's correct, your Honour.

PN138

JUSTICE GIUDICE: Any other appearances?

PN139

MR J WYDELL: I appear for the Australian Maritime Officers Union.

PN140

JUSTICE GIUDICE: Thank you, Mr Wydell. There's no appearance for Sydney Ports. There's a letter on the file indicating that this award underpins an enterprise agreement for Launch Crew in Sydney and that the award should not be set aside. Mr Sivaraman, do you have any submission to make about it? There's a letter here from Mr Gibbons, are you about to tell me?

PN141

MR SIVARAMAN: No, just in addition to the letter.

PN142

JUSTICE GIUDICE: Yes.

PN143

MR SIVARAMAN: There is again, I think there should be an attachment where the union prior to the listing of this matter wrote to the employer indicating that they would seek to vary the award and there is also an attachment, a copy of a letter from the general manager of human resources of the company indicating that they do not want the award set aside. I'm not sure if your Honour has a copy of that.

PN144

JUSTICE GIUDICE: Yes, that's the letter I just referred to. That's a letter of
26 May?

PN145

MR SIVARAMAN: Yes, correct. Beyond that, your Honour, we state that the enterprise agreement, the relevant agreement again contemplates the continued operation of the award.

PN146

JUSTICE GIUDICE: Yes, all right. Mr Wydell, you're in agreement with those expressions of view?

PN147

MR WYDELL: Yes, your Honour.

PN148

JUSTICE GIUDICE: Yes. In the circumstances it's not appropriate to take any action to set the award aside so I'll simply adjourn that matter as well.

- - -

C2005/2573
Ports of Victoria Consolidated Administration Award 1998

PN149

MR G CONSIDINE: I appear on behalf of APESMA.

PN150

JUSTICE GIUDICE: Thank you, Mr Considine.

PN151

MR SIVARAMAN: Your Honour, I seek leave to appear on behalf of the MUA.

PN152

JUSTICE GIUDICE: Yes, thanks, Mr Sivaraman.

PN153

MR J WYDELL: And in Sydney, you Honour, I appear for the Australian Maritime Officers Union.

PN154

JUSTICE GIUDICE: Thank you, Mr Wydell. Any other appearances? There is a letter from Minter Ellison on behalf of the Port of Melbourne Corporation. Have you seen that, Mr Considine?

PN155

MR CONSIDINE: No, your Honour. I have only received notification of this yesterday. I have made inquiries from our research office and it appears that the - well, the award still is in operation and we appear to have quite a few safety net adjustments to make on that, so we would appreciate it not being set aside. It's still in operation.

PN156

JUSTICE GIUDICE: Yes, very well. Well look, I have read the correspondence from a number of the employers, Gippsland Ports, Port of Melbourne and from the unions. It seems to me that this is a case in which the award should not be set aside so I will simply adjourn the matter. Thank you.

- - -

C2005/2555
Gladstone Ship Bunkering Operation Award, 1998

PN157

MR G SIVARAMAN: I appear on behalf of the MUA.

PN158

JUSTICE GIUDICE: Thank you, Mr Sivaraman. Mr Wydell, you're appearing as well in this matter?

PN159

MR J WYDELL: Yes, again, thank you, your Honour.

PN160

JUSTICE GIUDICE: And the position here is the same I take it, that - perhaps I should ask, is there any appearance from an employer in relation to this matter? No. Who is the employer? Do you know, Mr Sivaraman?

PN161

MR SIVARAMAN: I believe it's as set out in Mr Gibbons letter in that the employees are employed by ASP Ship Management Pty Ltd.

PN162

JUSTICE GIUDICE: Have you had any contact with that company?

PN163

MR SIVARAMAN: I've not had any contact with that company but the company has - I believe that the company has written to the Commission indicating that it was not want the award set aside and I have a copy of that letter.

PN164

JUSTICE GIUDICE: Do you? I wonder if you would furnish me with that copy, please. Yes, that doesn't seem to have reached the Commission's file but I note that the company opposes any suggestion the award should be set aside. Gentlemen, I think this is in the same category as most of the earlier awards. There will be no order setting the award aside and I will adjourn the matter.

- - -

C2005/2559
Inner Barrier Reef Cruise Vessel Award 1999

PN165

MR G SIVARAMAN: I appear on behalf of the MUA.

PN166

MR J WYDELL: In Sydney, your Honour, I appear for the Australian Maritime Officers Union.

PN167

JUSTICE GIUDICE: Thank you, Mr Wydell. Any appearance for the employer? Is the position the same in relation to this award, Mr Sivaraman?

PN168

MR SIVARAMAN: That's correct, your Honour.

PN169

JUSTICE GIUDICE: Mr Wydell?

PN170

MR WYDELL: That's quite correct, your Honour, yes.

PN171

JUSTICE GIUDICE: I have looked at the letters from the two organisations. There's no submission been received from the employer nevertheless on what's been said by the two organisations. It's not appropriate to set the award aside and the matter will be adjourned.

- - -

C2005/2576
Queensland Regional Port Authorities and Corporations Administrative, Technical, Supervisory and Professional Award 1999

PN172

MR G SIVARAMAN: I appear on behalf of the MUA, your Honour.

PN173

JUSTICE GIUDICE: Mr Wydell, are you appearing in this matter as well?

PN174

MR J WYDELL: Yes, in Sydney, your Honour, I appear for the Australian Maritime Officers Union.

PN175

JUSTICE GIUDICE: Now, it appears from the file that both unions oppose the award being set aside. There is a letter on file from Livingstone's on behalf of the Central Queensland Courts Authority. Have you gentlemen seen that letter?

PN176

MR SIVARAMAN: No, your Honour.

PN177

MR WYDELL: No, I'm not aware of it, your Honour.

PN178

JUSTICE GIUDICE: Well, that letter indicates that the Rockhampton Ports Authority no longer exists since its merger with the Gladstone Port Authority and that the Central Queensland Ports Authority supports the proposed setting aside of this award. It suggests that the white collar employees previously covered by the award are now covered by the Regional Port Authority Officers Queensland Award 1999 for which the ASU is the respondent. It would probably be desirable that Mr Sivaraman and you, Mr Wydell have a copy of this letter. It's really detailed and it seems to me to raise issues of substance as to whether the award should continue in operation.

PN179

MR WYDELL: Yes, your Honour.

PN180

JUSTICE GIUDICE: I think the most expeditious course might be to make a copy available to both of you and seek a submission in writing within seven days as to why the award should not be set aside. On receiving those submissions I will give further consideration to the matter, but one way or another would hope to deal with it without a further hearing.

PN181

MS L HEATH: I appear for the Australian Services Union not in this matter but might I ask for the record that we get a copy of those submissions given that we are the union respondent to the alternative award?

PN182

JUSTICE GIUDICE: Yes. Well, that seems to be desirable if that could be accommodated, Mr Sivaraman and Mr Wydell.

PN183

MR SIVARAMAN: I have no objection, your Honour.

PN184

JUSTICE GIUDICE: Yes, all right. Well, I will simply adjourn that matter.

PN185

MR WYDELL: Thank you, your Honour.

PN186

JUSTICE GIUDICE: Thank you, Mr Wydell. I think that may be the last Sydney matter so we might - - -

PN187

MR WYDELL: I believe that's true, yes.

PN188

JUSTICE GIUDICE: We'll bid you good morning.

PN189

MR WYDELL: Thank you, sir.

- - -

C2005/2522
Australian Higher Education Practice Teaching Supervision Award 1990

PN190

MS L GALE: I appear for the Australian Education Union.

PN191

MS C PUGSLEY: I appear for the Australian Higher Education Industrial Association. I appear for all the respondent universities in this matter with the exception of the following, the University of Sydney, the University of New South Wales, Roseworthy Agricultural College, the University of Adelaide, Monash University, University of Melbourne and the University of Western Australia.

PN192

MS L COTTER: I appear for the Independent Education Union of Australia.

PN193

MS K KNOPP: I seek leave to appear for members of the Association of Independent Schools of Victoria for whom this award purports to cover.

PN194

JUSTICE GIUDICE: This award deals with students of teaching, does it?
Ms Gale?

PN195

MS GALE: Your Honour, the award actually deals with teachers in schools who as part of their working life provide the supervision for student teachers, that is, university students engaged in an education program who do a practical component for the schools.

PN196

JUSTICE GIUDICE: Yes.

PN197

MS GALE: In the supervision of those students and the provision of reports on their practical to the university the teachers are covered by this award.

PN198

JUSTICE GIUDICE: Well, everybody objects to the award being set aside, do they?

PN199

MS GALE: Yes, your Honour.

PN200

MS PUGSLEY: Yes, your Honour.

PN201

MS KNOPP: No, your Honour.

PN202

JUSTICE GIUDICE: Well, what would you like to say, Ms Gale?

PN203

MS GALE: Your Honour, I am examining a list of the respondents to the award of the parties bound by the award and I fail to see the Independent Schools Association mentioned on that list. I acknowledge that the award affects the employees of the Independent Schools Association to the extent that they also perform work for universities through this award but I'm not clear as to what standing my friend has to comment on the operation of the award.

PN204

JUSTICE GIUDICE: Yes. Ms Knopp, what's the nature of AISVs interest and what's the association's position on this?

PN205

MS KNOPP: Your Honour, the association was involved in proceedings some years ago, 1992 and 1993. It is correct that we are not respondents to the award, independent schools are not respondents to the award. In those proceedings in 1992 and 1993 we made application to the Commission to have the award cancelled on the basis that the presumption upon which the award was made was in fact invalid. To our knowledge there has been no decision in that matter, which was quite some time ago, but we say that - - -

PN206

JUSTICE GIUDICE: Who heard it?

PN207

MS KNOPP: Senior Deputy President Harrison. It was a difficult issue at the time. We say that - - -

PN208

JUSTICE GIUDICE: Have any inquiries been made?

PN209

MS KNOPP: No, your Honour.

PN210

JUSTICE GIUDICE: Very well.

PN211

MS KNOPP: So that's our interest and we say that the award is invalid and we would seek to have it set aside on the basis of - - -

PN212

JUSTICE GIUDICE: Why do you say it's invalid?

PN213

MS KNOPP: Well, the award is made between the unions and the higher education associations and it's on the basis that the teachers employed by schools are in fact employed by the higher education associations during those particular times that they are supervising student teachers. That was the basis on which we challenged the award after learning that it had actually been made.

PN214

JUSTICE GIUDICE: Yes.

PN215

MR KNOPP: It was challenged by all of the independent schools around Australia and most of the Catholic school employers as well.

PN216

JUSTICE GIUDICE: I think it's rather difficult if there was a whole proceeding about this which for one reason or another hasn't been brought for finality for me to as it were, grant your application this morning. It seems that it's really a matter that your submission raises some questions of substance that would really have to be dealt with at some length and I certainly deal with this morning. Are there other submissions to be made about Ms Knopp's position? Yes.

PN217

MS COTTER: Just to support the AEUs position that the IEU has given a written submission to your Honour on its continuing operation and relevance. So regardless of the question that Ms Knopp raises on behalf of the AIS, what we do know is that teachers are paid this and that it operates in various states across Australia. Thank you, your Honour.

PN218

JUSTICE GIUDICE: Can you just clarify, it involves an extra payment, does it?

PN219

MS COTTER: Yes.

PN220

JUSTICE GIUDICE: Secondary school teachers for the period that they're supervising student teachers?

PN221

MS COTTER: Yes, the payment depends on how many subjects also they're supervising, so either on a one subject supervision or more and it's per student per day up to a maximum of 10 students.

PN222

JUSTICE GIUDICE: And who makes the payment?

PN223

MS COTTER: The university makes the payment to the teachers.

PN224

JUSTICE GIUDICE: Yes. Yes, very well. Ms Pugsley, do you have any submission to make about it?

PN225

MS PUGSLEY: Your Honour, it is true to say that there has been a question agitated from time to time about who is actually the employer in this case. That's not an issue that we're pressing today because as you have pointed out, your Honour, that would be a matter for lengthy submissions and it's not a matter that we are raising today, as I say. We would be content for this matter to be adjourned pending further discussions of the parties or indeed directions for the parties to have further discussions in relation to this matter.

PN226

As to whether or not the award should be set aside, there is a range of views around the sector. Some universities do continue to make the payments, some universities, make alternative arrangements. I guess it's fair to say the award is not obsolete in that sense in that some institutions the payments continue to be made in accordance with the award, but it's a fairly complex matter and we would be content for the matter to be adjourned pending further discussions between the parties. If your Honour pleases.

PN227

JUSTICE GIUDICE: Yes, thank you. Ms Gale.

PN228

MS GALE: Your Honour, there are complexities with this award, not the least of which that a number of administrative arrangements have come into place in different states and territories which by consent have allowed universities to make the payments through state education departments or through other education authorities in the independent school sector. The underlying fact which underpins those arrangements however is that there is an award that is a safety net that provides an entitlement for our members and an obligation on the universities and we say that the fact that there are a variety of administrative arrangements in place does not mean that we would suggest that it's not accurate that there is any university that is not paying according to this award. The manner in which the payment is delivered may vary. We would seek that the - - -

PN229

JUSTICE GIUDICE: Ms Gale, I don't want to interrupt you but I don't see any basis to set the award aside at this stage. But the issue that has been raised it seems to me to be one of real substance, in what respect are the universities the employers of these teachers.

PN230

MS GALE: It is an issue of substance, your Honour, and a substance that was aired over a decade again and we are eagerly awaiting a decision. And in fact the lack of a decision in that matter is part of the reason that there hasn't been a variation to the rates in the awards since 1992. So it is a matter of concern to the unions.

PN231

JUSTICE GIUDICE: Yes, well, I will let you get away with that one. But I think in the circumstances it would be appropriate for the parties to have some discussions about this. Just as a matter of general principle, I think it would be unfortunate if there were an award in existence which was based on legal or jurisdictional fiction and so that matter really should be dealt with. But it's not a matter that I can deal with further this morning so I'll simply adjourn the matter.

- - -

C2005/2550
Education Services Community Colleges (Western Australia) Award 1999

PN232

MS L GALE: In this matter I appear for the Australian Education Union.

PN233

JUSTICE GIUDICE: Ms Pugsley?

PN234

MS PUGSLEY: Your Honour, our association doesn't have any respondency to this award or any connection with this award.

PN235

JUSTICE GIUDICE: I see, yes. Any other appearances in this one? I have seen the letter, Ms Gale, signed by you but from the union, which indicates that the award does have some substantial continuing operation despite the fact that it hasn't been varied for quite some time. In my view it's not appropriate to set the award aside so I'll simply adjourn that matter.

- - -

C2005/2541
Business Colleges (NSW) Award 1999

PN236

MS L COTTER: I appear for the Independent Education Union.

PN237

JUSTICE GIUDICE: Any other appearance? Ms Cotter, I see the submission indicating that the award applies to teachers in 15 business colleges in New South Wales.

PN238

MS COTTER: That's right, your Honour.

PN239

JUSTICE GIUDICE: The only correspondence from any of the employers is one from Passmore's Business and Management College which simply indicates that it seeks a delay in any action to set the award aside. The award doesn't contain wage rates.

PN240

MS COTTER: No, it doesn't, your Honour, but it is a conditions award and it is the only industrial instrument for employees in those colleges.

PN241

JUSTICE GIUDICE: Yes, I understand that. Very well. In the circumstances the award will not be set aside. I will adjourn the matter.

- - -

C2005/2542
Business Colleges (Victoria) Award 1999

PN242

MR A ODGERS: I appear on behalf of the Independent Education Union of Australia in this matter.

PN243

JUSTICE GIUDICE: Any other appearances? I have a letter from Ms Cotter in relation to this, Mr Odgers. This appears to be the Victorian equivalent of the New South Wales award which I have just dealt with, is that right?

PN244

MR ODGERS: Yes, that's right, your Honour.

PN245

JUSTICE GIUDICE: There seem to be 15 business colleges on Victoria as well as 15 in New South Wales, that's a coincidence?

PN246

MR ODGERS: A coincidence, your Honour.

PN247

JUSTICE GIUDICE: And in all other respects there's no other difference?

PN248

MR ODGERS: That's right.

PN249

JUSTICE GIUDICE: All right. The award will not be set aside. Thank you.

PN250

MR ODGERS: Thank you, your Honour.

- - -

C2005/2560
Independent Schools' Support Staff (ACT) Award 1999

PN251

JUSTICE GIUDICE: Yes, you're appearing again, Ms Cotter?

PN252

MS L COTTER: Yes.

PN253

MS L HEATH: I appear for the Australian Municipal, Administrative, Clerical and Services Union in this matter also.

PN254

JUSTICE GIUDICE: Have you seen Ms Cotter's letter in relation to this?

PN255

MS HEATH: I haven't seen the letter, your Honour, but my office has had discussions with Ms Cotter and I'm aware of their position.

PN256

JUSTICE GIUDICE: Yes. And what's your position?

PN257

MS HEATH: Your Honour, our position is the same as the IEU.

PN258

JUSTICE GIUDICE: Yes, very well. There are no appearances for any of the employers in the ACT? Ms Cotter, are there agreements applying?

PN259

MS COTTER: Yes, there are, your Honour, and there's an agreement almost in its final stages of negotiations which will be a comprehensive ..... about the second I think since 1999. However, the award is still referred to, I understand, in the terms and conditions of that agreement and will still be the underpinning award.

PN260

JUSTICE GIUDICE: Yes, very well. It's not appropriate to set the award aside. I'll adjourn the matter.

- - -

C2005/2590
Victorian Electricity Industry (Mining & Energy Workers) Award 1998 [from S0215]

PN261

MS J GRAY: I appear on behalf of the CFMEU.

PN262

MR N VANDERFEEN: I appear on behalf of Loy Yang Power and Southern Hydro.

PN263

MR P CHAPPELE: I appear on behalf of Yallourn Energy Pty Ltd.

PN264

JUSTICE GIUDICE: For whom?

PN265

MR CHAPPELE: Yallourn Energy.

PN266

JUSTICE GIUDICE: Yallourn, thank you.

PN267

MR R BOSKMA: I appear on behalf of International Power Hosery.

PN268

JUSTICE GIUDICE: What's the position in relation to this award, Ms Gray?

PN269

MS GRAY: Your Honour, this award underpins a number of certified agreements, one with Hazelwood Power, Yallourn, Loy Yang and Southern Hydro Operations, two certified agreements with the last mentioned company. These are certified agreements which have followed a long history of enterprise bargaining in respect to the area covered by this award, starting back in 1992, your Honour. Your Honour, we opposed the setting aside of the awards. We do so on the basis that not only do we say that the award has relevance in respect to when the certified agreements reach their expiry date should any party seek to have the agreements terminated then the awards will have work to do.

PN270

We say that pursuant to section 170LY they currently have work to do, that the agreements themselves additional to the Act also refer back to the award in respect to areas where there is inconsistency and I'm advised by our district officials that those areas where the award and the agreements are inconsistent, or where the award applies in the absence of any regulation through the agreements
includes matters relating in substance to allowances, shift work conditions, leave provisions, hours of work and public holidays.

PN271

Your Honour, the award hasn't been varied since 1990. It has had the non allowable matters deleted from it and has not had minimum rates adjustment exercise conducted which the parties have, as I understand it, through this matter bring it to our attention and we will seek to meet and deal with that matter. We certainly would do so in conjunction with applying for the safety net review because there is going to be an enormous residual component which the safety net review increases will be able to shrink, but of course there will be no increase to actual rates of pay under the certified agreement which are massively in advance of what the award is currently.

PN272

However, in terms of the areas of conditions which I have referred to your Honour, the award has specific work to do currently and we'd oppose it being set aside and we would undertake to get moving on that matter of updating the award.

PN273

JUSTICE GIUDICE: How does this award escape the simplification safety net?

PN274

MS GRAY: I think that the item 51 rule is done, your Honour. Yes, so the
non allowable matters have gone, your Honour, but the further simplification.

PN275

JUSTICE GIUDICE: I see, not the rates.

PN276

MS GRAY: The minimum rates adjustment hasn't been done so the item 51 hasn't been done. But we accept that that has to be done. It's annualised payments which makes it somewhat more complicated but we have addressed that, your Honour. The other award in the industry to which my union is not a party has had that exercise done on annualised salaries or aggregate salaries so we're confident that it's achievable and we now wish to advise the Commission that we have the will and the intention to follow that exercise through in cooperation with the employers party to the award. May it please.

PN277

JUSTICE GIUDICE: Mr Vanderfeen, there's a letter from you on the file which I have read which really deals with the same issues I think.

PN278

MR VANDERFEEN: Yes.

PN279

JUSTICE GIUDICE: And you support Ms Gray's submissions?

PN280

MR VANDERFEEN: Yes, I do, your Honour.

PN281

JUSTICE GIUDICE: Yes. Is it the same in relation to the parties?

PN282

MS CHAPPELE: Yes, your Honour.

PN283

MR BOSKMA: Yes, your Honour.

PN284

JUSTICE GIUDICE: And you're all going to assiduously the issue of conversion to properly fixed minimum rates. The award will not be set aside and I'll adjourn the matter.

- - -

C2005/2521
Australian Submarine Corporation Pty. Ltd. Production Award, 1998

PN285

MR M RINALDI: I seek leave to appear on behalf of ASC Pty Ltd which is the new name of Australian Submarine Corporation Pty Ltd.

PN286

MR G BEARD: I appear on behalf of the Australian Workers Union.

PN287

MR L BENFELL: I appear for the CEPU.

PN288

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN289

JUSTICE GIUDICE: Yes, Mr Rinaldi.

PN290

MR RINALDI: Your Honour, there is correspondence that's been forwarded to your Honour's office.

PN291

JUSTICE GIUDICE: Yes, I'm just looking at that.

PN292

MR RINALDI: Dated 23 May in relation to each of the three awards and perhaps we can deal with them altogether.

PN293

JUSTICE GIUDICE: Is that convenient?

PN294

MR RINALDI: It may not be to the other parties.

PN295

JUSTICE GIUDICE: Are the same parties involved?

PN296

MR RINALDI: Well, APESMA is involved in one, which is obviously a different union.

PN297

JUSTICE GIUDICE: Well, just proceed in this one and you can refer to the submissions when we call the other matters.

PN298

MR RINALDI: Yes. This is the production award that you're dealing with at the moment then, your Honour.

PN299

JUSTICE GIUDICE: Well, I think the one that was called was the technical - I'm sorry, the production award, yes.

PN300

MR RINALDI: Has your Honour had an opportunity to read that letter?

PN301

JUSTICE GIUDICE: I have.

PN302

MR RINALDI: As your Honour will see, there's a certified agreement currently in operation which is underpinned by the award and regulates the terms and conditions in conjunction with the award. Obviously prevailing to the extent of any inconsistency and in view of the ongoing operation of the award all of the parties have agreed, as evidenced by the their signatures on the letter, I hope you have a copy of each signature, but in any event the representatives are here today, your Honour, the award should not be set aside.

PN303

JUSTICE GIUDICE: Yes. Is there any dissent from that proposition, Mr Beard?

PN304

MR BEARD: No, your Honour.

PN305

JUSTICE GIUDICE: Mr Sachinidis, Mr Benfell?

PN306

MR BENFELL: No. We haven't received any correspondence, your Honour, and would be obliged if we could be provided with a copy of that correspondence.

PN307

JUSTICE GIUDICE: Yes. Well, there's a letter here that has a space for the union to sign it but it hasn't been signed.

PN308

MR BENFELL: Perhaps if we received it we could have signed it.

PN309

MR SACHINIDIS: Your Honour, I think that equally applies to the AMWU.

PN310

MR RINALDI: Certainly I've got copies signed on behalf of those unions, your Honour. I can provide those to my friends. I can provide them to you.

PN311

JUSTICE GIUDICE: Well, in any event there's no dissent about the position that the parties want to take. The award will not be set aside.

PN312

MR RINALDI: Thank you, your Honour.

PN313

JUSTICE GIUDICE: I'll adjourn the matter. Thank you.

- - -

C2005/2523
Australian Submarine Corporation Pty Ltd (Technical and Supervisory Employees) Award 1998

PN314

JUSTICE GIUDICE: Yes, Mr Rinaldi.

PN315

MR M RINALDI: I appear for the company in that matter as well.

PN316

JUSTICE GIUDICE: Mr Sachinidis?

PN317

MR A SACHINIDIS: Yes, thank you.

PN318

MR RINALDI: Our position is the same, well, not exactly the same, your Honour. Perhaps I'll let your Honour read the letter that has been forwarded to the Commission. The short point here is that the award regulates wages and conditions via the Metal Industries Award and that is by way operation of clause 9 of this award. So this award still has ongoing work to do, although it does it in that way which is why it hasn't needed to be varied. It also provides for the provision for the making of agreements.

PN319

JUSTICE GIUDICE: So it incorporates by reference the classifications from the Metal Industry Award?

PN320

MR RINALDI: Yes, what it actually says, your Honour, is - - -

PN321

JUSTICE GIUDICE: I'm looking at clause 18.

PN322

MR RINALDI: Yes, it does and clause 9 says, it's interesting wording:

PN323

The conditions shall in general terms not be less favourable than the appropriate classifications under Metal Engineering and Associated Industries Award 1998 Part 2 and Part 5.

PN324

Subject to the other terms of the award. But it certainly is actively regulating the terms and conditions of the employees and the position of both the company and the union is that it ought not to be set aside, your Honour.

PN325

JUSTICE GIUDICE: Well, if it was set aside what would happen, the Metal Industry Award would apply of its own - - -

PN326

MR RINALDI: I suppose it would have to be designated as the award for the no disadvantage in the event that there's a certified agreement. I don't understand there is one at the moment and - - -

PN327

JUSTICE GIUDICE: It doesn't really do anything this award.

PN328

MR RINALDI: Well, other than applying the metal award in that way, I think its other provisions it's fair to say are fairly unremarkable. But it is applying those provisions in a way that allows the parties to have regard to it, to the metal award that is, and also have the provision which is at clause 15, your Honour, about agreements relating to packaging and method of payment of salaries and overtime. Again with a no disadvantage type of requirement in it.

PN329

JUSTICE GIUDICE: Yes. What would the disadvantage be if the award were set aside?

PN330

MR RINALDI: I think the disadvantage, your Honour, would be the convenience of the parties. They're used to working in this matter. They would have to rearrange obviously paperwork and the like, but in substance it could be and it seems to me that it could be done that way. It seems to me the other disadvantage is in the event, as I say, that if a certified agreement is sought to be made then there would be an extra step involved in having an award designated rather than having an award by which the parties are bound to act as the relevant award for the purposes of the no disadvantage test.

PN331

JUSTICE GIUDICE: Yes, well, I don't know whether the salary packaging provision would be something which would survive, but that's perhaps an indication of my lack of familiarity with the Metal Industry Award. Yes, thanks, Mr Rinaldi. Mr Sachinidis.

PN332

MR SACHINIDIS: Your Honour, I would concur with the submission for the award to continue in operation, yes. I mean it does invoke the relevant parts of 2 and 5 of the Metal Industry Award and within that of course it draws the relevance of contemporary minimum rates as far as the safety net is concerned. The award is in itself what can be described a house award reached between the parties. So I mean in the future going forward, I mean there could be options just to review its ongoing relevancy if the parties sought to formalise alternative arrangements as far as the terms of an award that would be applicable. But failing that, we would submit it is relevant. If it please the Commission.

PN333

JUSTICE GIUDICE: Yes, very well. Yes, thanks, gentlemen. It's not appropriate for the award to be set aside. I will adjourn that matter.

- - -

C2005/2526
Australian Submarine Corporation, Professional Engineers and Scientists Award 1998

PN334

MR M RINALDI: I appear for the company in that matter as well.

PN335

JUSTICE GIUDICE: Yes, thanks, Mr Rinaldi. No appearance for APESMA?

PN336

MR M GEORGIOU: Reluctantly I appear in this matter on behalf of APESMA.

PN337

JUSTICE GIUDICE: Mr Rinaldi.

PN338

MR RINALDI: Your Honour, you should have before you another letter signed by both APESMA and the company.

PN339

JUSTICE GIUDICE: Yes, I have that.

PN340

MR RINALDI: It is similar to the last matter, your Honour, in that the award, if you like, applies by reference to the minimum rates of pay and conditions under the Metal Engineering and Associated Industries Award and that is by way of clause 10 of this particular award.

PN341

JUSTICE GIUDICE: Yes.

PN342

MR RINALDI: And the same arguments apply to it as the last matter, your Honour.

PN343

JUSTICE GIUDICE: Yes. Well, there's no point reiterating that exchange. I'm not inclined to set the award aside so I'll simply adjourn the matter.

PN344

MR RINALDI: Thank you, your Honour.

- - -

C2005/2531
Brewery Employees - Superannuation - Award 1998

PN345

MR B RICHARDSON: I appear on behalf of Carlton United Beverages Ltd

PN346

MR L BENFELL: I appear for the CEPU.

PN347

MS L HEATH: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

PN348

MR A SACHINIIDIS: I appear on behalf of the AMWU in this matter, your Honour.

PN349

JUSTICE GIUDICE: Thanks, Mr Sachinidis. Any other appearances? There doesn't appear to be any correspondence on the file about this matter. Is anybody concerned they might have communicated with us and we haven't received it?

PN350

MR RICHARDSON: The only indication I have had, your Honour, is that at least one union, the LHMU, may have sent some correspondence in but I haven't had the benefit of seeing that.

PN351

JUSTICE GIUDICE: Well, we have not received anything from anyone. Nevertheless, since you're on your feet, Mr Richardson, why shouldn't this award be set aside?

PN352

MR RICHARDSON: Your Honour, we're not necessarily seeking that the award be set aside at this point. We have had some indications from certain union respondents that the award continue in operation and also an indication from those unions that they would seek to have further discussions with the company regarding the operation of the award. For our part we have no objections to entering into those discussions. We indicate that if the award is to continue in force that it does require certain updating in relation to company references in relation to the respondency citations and also in relation to the name of the superannuation fund itself which appears in the award.

PN353

Essentially the award otherwise reflects the terms of the Superannuation Guarantee Legislation but it doesn't pertain to any other matters as such in relation conditions. But for our part we have no objection to the award continuing in force and entering into those discussions with the unions.

PN354

JUSTICE GIUDICE: Have you done any consideration to the effect of the choice of fund legislation?

PN355

MR RICHARDSON: We have, your Honour.

PN356

JUSTICE GIUDICE: Will that have effect on this award?

PN357

MR RICHARDSON: In the context of the operation of the award nominating a single fund, your Honour, would obviously impact potentially on the exemption or otherwise in terms of the right - - -

PN358

JUSTICE GIUDICE: Well, it may make the award invalid, may it not?

PN359

MR RICHARDSON: That is possible.

PN360

JUSTICE GIUDICE: I think it's a matter you should look at because if' you're going to rely on the continuing operation of the award you need to be sure that it has got continued operation. It's not a matter for me but I think it's something you ought to have a look at. What does the award do, apart from, as it were, replicating the effect of the legislation? I am talking about the guarantee legislation, not the choice of fund legislation.

PN361

MR RICHARDSON: It does nothing more than impose on obligation to observe the terms of that legislation, your Honour. I might say that the company has a number of certified agreements in operation which also contain provisions relating to superannuation which effectively operate from current or prevails over the operations of particular awards.

PN362

JUSTICE GIUDICE: Yes. Well, I just wonder what useful purpose the award is currently serving

PN363

MR RICHARDSON: As I say, your Honour, we've had some indication from the unions that they wish to retain the award. It may be more appropriate to hear from those particular parties.

PN364

JUSTICE GIUDICE: All right. I think it's a handpass to you, Mr Sachinidis.

PN365

MR SACHINIDIS: Your Honour, yes. I mean we would concur with the submissions made in respect to supporting further discussions with the union about the ongoing application of it. It's right to say that it does, of course, in terms of the new legislation it's important. I mean we're not there yet and the legislation has come forward, but as I understand, it does specify a prevailing company corporate fund in the award and I understand that's still alive. As to what arises in the future given choice and whether the company is going to continue with having its discrete superannuation is a matter for discussion I think and in those discussions we would obviously consider the appropriate award now before you.

PN366

The other point of course, the parties are also conscious of the pending new legislation as far as the Act is concerned and the prospect of superannuation surviving that piece of legislation as well. So we would support the award not be set aside on those grounds. That is, that the parties will have further discussions. If it pleases the Commission.

PN367

JUSTICE GIUDICE: Well, I take it you're referring there to two different legislative possibilities. One is that superannuation ceases to be an allowable award matter and the other is the choice of funds?

PN368

MR SACHINIDIS: Indeed, yes.

PN369

JUSTICE GIUDICE: Mr Benfell, do you have any submission?

PN370

MR BENFELL: I can simply say we support the submissions, your Honour.

PN371

MS HEATH: Your Honour, we support the need for further discussions just to clarify the situation and make sure all the parties are aware of the potential impact of the choice legislation.

PN372

JUSTICE GIUDICE: I think that would be a very good idea. However, from what's been submitted I don't intend to set the award aside. I will simply adjourn the matter.

- - -

C2005/2548
Department of Education Professional, Administrative, Clerical, Computing, Technical and General Employees (Non-School Based) (Victoria) Interim Recreation Leave Allowance Award 1995

PN373

MR W TOWNSEND: I appear for the Community and Public Sector Union. There is correspondence in this matter, your Honour.

PN374

JUSTICE GIUDICE: Yes, thanks. I'll just have a look at that.

PN375

MR TOWNSEND: We support the setting aside of this award and I understand the Department of Education has provided correspondence to the same effect.

PN376

JUSTICE GIUDICE: Yes, the Department of Education and Training have written submitting that the award should be set aside and the LHMU I think might also be a party have indicated that they are not opposed to the award being set aside. So in the circumstances the appropriate course is the award be set aside.

- - -

C2005/2544
CSL Limited, Salesforce Award 1999

PN377

MR R MUFFATTI: I appear for the Community and Public Sector, PSU Group.

PN378

JUSTICE GIUDICE: Thank you, Mr Muffatti.

PN379

MR MUFFATTI: Yes, your Honour. Our submission is that this award not be set aside. Correspondence we have provided to the Commission indicates that as part of the current enterprise agreement with the company all unions are going through a process of upgrading the previous six enterprise agreements and the awards and we think that this can be handled under those provisions and eventually rolled back into the general award. I think this award and another award that's listed here arose prior to the privatisation of CSL and had some reference to the public sector provisions at that stage.

PN380

The company I think has indicated separately that they're not opposed to setting aside the award, however they wrote to you prior to discussions with us and they have now concurred with us that they're happy to follow the process that we've proposed.

PN381

JUSTICE GIUDICE: That's CSL Human Resources?

PN382

MR MUFFATTI: Yes. Mark McClelland is the manager.

PN383

JUSTICE GIUDICE: What is CSL Human Resources, is that just a department?

PN384

MR MUFFATTI: That's the Human Resources Department of CSL.

PN385

JUSTICE GIUDICE: I see, yes. Well, CSLs original position was the award doesn't have any substantial continuing operation. Who does it apply to?

PN386

MR MUFFATTI: The employees who are employed as sales reps by the company.

PN387

JUSTICE GIUDICE: Why would CSL say it didn't have any continuing operation?

PN388

MR MUFFATTI: I think they might have been a little bit mischievous. Look, they have indicated to me as late as last night on the phone that they're happy to provide a further letter to the Commission if it's required to concur with the proposal that I've put to the Commission. We have no problem about setting aside the award later down the track once it's finished the consolidation process.

PN389

JUSTICE GIUDICE: Yes, very well. Well, on that basis the award won't be set aside. Thank you, Mr Muffatti.

PN390

MR MUFFATTI: Thank you, your Honour.

PN391

JUSTICE GIUDICE: I'll adjourn that matter.

- - -

C2005/2545
CSL Senior Management Award 1999

PN392

MR R MUFFATTI: I appear on behalf of the CPSU.

PN393

MS K FLAVELL: I appear on behalf of POAV, the Professional Officers Association of Victoria.

PN394

JUSTICE GIUDICE: Well, Mr Muffatti, if I could turn to you first. This is another case in which there's a letter from the employer indicating it doesn't object because the award doesn't have substantial continuing operation. I take it there's been discussions since then, has there?

PN395

MR MUFFATTI: Absolutely. The award underpins all the pay rates in the enterprise agreements for all of their senior members and I don't think they'd be too happy too see it disappear at this point of time until we consolidate that back into the general award.

PN396

JUSTICE GIUDICE: Yes. Do you have a similar submission?

PN397

MS FLAVELL: Yes, likewise. The award is still certainly operational and we would certainly oppose it setting aside. As outlined, the consolidation process is currently going on and so long as our representational rights in the award are maintained we would go through that process. Also the POAV is currently preparing an application to the Commission to vary the award in line with safety net and living wage adjustments.

PN398

JUSTICE GIUDICE: Well, the award simply has two minimum annualised salaries, level 7 and level 8 and then a supplementary payment for those two levels and an excess payment for those two levels. It doesn't have any classification descriptions and it doesn't give any indication of what you have to do to be level 7 or level 8.

PN399

MR MUFFATTI: Exactly. Your Honour, I think those rates and additions were made in terms of that award in relation to the Public Sector Senior Managers Awards when their allowances and such were rolled into their general salary allowances at some stage in the past. We have some classification structures and processes under the enterprise agreements that identify all of those things. So what we say is that we'd like this award to continue until we've finished that process in consultation with the company and as I indicated, they have indicated to us that they don't have any problem with that process.

PN400

JUSTICE GIUDICE: Well, my only problem with it is that the award is highly indefinite in its operations, but you say that it's got some meaning to the people who work with it, is that right?

PN401

MR MUFFATTI: That's correct.

PN402

JUSTICE GIUDICE: All right. Well, I'm fairly unconvinced by that but in light of the fact that the employer seems to have had a change of heart about it I recommend that you continue your discussions and deal with the award in due course.

PN403

MR MUFFATTI: It's the parties intention to roll both of those back into the general conditions award.

PN404

JUSTICE GIUDICE: Yes, I understand. The award won't be set aside.

PN405

MR MUFFATTI: Thank you, your Honour.

- - -

C2005/2584
Transport Accident Commission Employees Award 1999

PN406

MR R WEST: I seek leave to appear on behalf of the Transport Accident in this matter.

PN407

MR W TOWNSEND: I appear on behalf of the Community and Public Sector Union.

PN408

JUSTICE GIUDICE: I have a letter from the CPSU, Mr Townsend, indicating that the award should be retained because it's still relevant.

PN409

MR TOWNSEND: That's correct, your Honour. The award contains two matters and it's our submission that it does remain relevant. As indicated in our correspondence, the union has commenced an examination of all of its awards and I think it's fair to say that these proceedings have probably given more haste to those than was otherwise the case. Whether this award can be further varied or whether the parties need to have discussions about adding the Transport Accident Commission to another relevant is discussions that the parties would need to have. In the meantime we'd submit that the award should be retained.

PN410

JUSTICE GIUDICE: It only deals with leave of absence - I'm sorry, it deals with leave loading and public holidays.

PN411

MR TOWNSEND: That's correct, your Honour, and there is also a comprehensive certified agreement in place already. It goes on about their round of bargaining in relation to those.

PN412

JUSTICE GIUDICE: Yes. Mr West.

PN413

MR WEST: Yes, your Honour. The Transport Accident Commission supports the union's position in retaining this award. It does continue to have substantial operation and we'd seek to have it retained.

PN414

JUSTICE GIUDICE: Yes, very well. The award won't be set aside. I'll adjourn that matter too.

- - -

C2005/2593
Victorian Dairy Industry Authority Award 1998

PN415

MR W TOWNSEND: I appear for the Community and Public Sector Union.

PN416

MR W DAWSON: I seek leave to appear on behalf of Dairy Foods Association.

PN417

JUSTICE GIUDICE: What's the position, Mr Townsend?

PN418

MR TOWNSEND: Your Honour, we would submit that the award should be retained. Following receipt of the listing of this matter I had some tentative discussions with Industrial Relations Victoria who I understand were in contact with the organisation now known as Dairy Foods Safety Victoria and I understand from Mr Dawson who is here today that the organisation supports the retention of the award.

PN419

JUSTICE GIUDICE: I wonder why it hasn't been updated, Mr Townsend?

PN420

MR TOWNSEND: I suspect there's been a theme this morning, your Honour. It's certainly been through the simplification process but apart from that there's not been applications made for the safety net adjustments.

PN421

JUSTICE GIUDICE: Yes, well, there are people that will say if the safety net isn't kept up to date it's not needed.

PN422

MR TOWNSEND: Yes, your Honour.

PN423

JUSTICE GIUDICE: Yes, Mr Dawson?

PN424

MR DAWSON: Thank you, your Honour. By way of background, the Victorian Dairy Industry Authority, VDIA, was reconstituted on 30 September 2000 to become Dairy Foods Safety Victoria and we've produced on the basis that the VDIA award transmitted to the new organisation. It was negotiated, the update to that award before Commissioner Merriman in both '98 and 1999 and was a thorough review of the award between us and the CPSU evidently and it's fairly ..... We do rely on that for our common law contracts of employment and we would certainly seek that the award continue. It does have relevance and perhaps it would be useful if we actually changed the title of the award now to Diary Foods Safety Victoria Award.

PN425

JUSTICE GIUDICE: Yes.

PN426

MR DAWSON: Being the only respondent employer it ought not to be too bit of a problem. So our submission would be that the award does have relevance and we would seek to have it continue.

PN427

JUSTICE GIUDICE: Yes, thanks, Mr Dawson. Yes, the award will not be set aside. I'll adjourn that matter.

- - -

C2005/2518
Australian Government (Non-APS) Part Time Work (CPSU) Award, 1999

PN428

MR R MUFFATTI: I appear on behalf of the CPSU.

PN429

JUSTICE GIUDICE: Thank you, Mr Muffatti.

PN430

MR MUFFATTI: Your Honour, I personally don't have any knowledge of this award, however my instructions are that the award arises to cover federal government agencies that have created under their own legislation and are not attached to the Public Service Award and it comes into play where that legislation doesn't create a part time provision under the agency award. It does provide a safety net and the contention is that we say it needs to remain. Beyond that, I don't have any detail but we can take it on notice and provide that if necessary.

PN431

JUSTICE GIUDICE: The Department of Employment and Workplace Relations was notified, or at least a letter was sent to them about this matter and no response was received which is uncharacteristic of that department. For that reason I'm inclined to take some action to see that the matter is drawn to the department's attention again just so that it does get to the right person in case it didn't. I see that the award purports to apply to all Commonwealth Ministers of the Crown in respect of employment in corporations and so on. So it's an award potentially of very wide effect.

PN432

MR MUFFATTI: That's correct.

PN433

JUSTICE GIUDICE: It seems extraordinary to me that nobody seems to know much about it, including yourself.

PN434

MR MUFFATTI: Unfortunately I think the advice from the Commission was held up somewhere in our internal mail and we only found out about these matters late last week.

PN435

JUSTICE GIUDICE: I see.

PN436

MR MUFFATTI: You will notice from the late submissions from me in relation to CSL matters. My instructions from our legal department in Canberra is that it does most certainly provide a safety net and we're willing to look at that further with the agencies that it might be pertain to.

PN437

JUSTICE GIUDICE: Yes, well, on the face of it that would appear to be the case. Well, I think I might get my associate to make some inquiries with the department, but unless that reveals something of significance that we haven't considered the award won't be set aside. So I'll simply adjourn the matter for the moment.

PN438

MR MUFFATTI: Okay, thank you, your Honour.

- - -

C2005/2592
Vicgrain Limited Administrative, Technical and Maintenance Employees Award 1998

PN439

JUSTICE GIUDICE: Yes, Mr Townsend, you're appearing in this matter?

PN440

MR W TOWNSEND: Certainly, your Honour. I appear for the Community and Public Sector Union. We did provide correspondence about this matter however I didn't have any advice at the time about what the status of this award was. I've since made inquiries and I'm advised that the award underpins the terms and conditions of approximately six employees of the company. The majority of these employees are now party to an AWA. There is one employee who has his terms and conditions directly regulated by the award and has salary arrangements by agreement with the company.

PN441

On that basis we'd submit that the award should be retained, and as I indicated earlier, we will need to have discussions with the company about putting the safety net review rates into the award.

PN442

JUSTICE GIUDICE: Does VicGrain operate grain storage or transport operations?

PN443

MR TOWNSEND: Your Honour, I understand it was formerly a public entity. The Grain Elevators Board I think was its original predecessor and since then privatisation has occurred and it's now VicGrain Ltd.

PN444

JUSTICE GIUDICE: Yes. And this apparently applies only at Geelong?

PN445

MR TOWNSEND: That's correct and I understand it only applies to the control room operators. There is another award which the National Union of Workers is a party to which governs the terms and conditions. There is AWAs covering the operations of our members.

PN446

JUSTICE GIUDICE: Very well, Mr Townsend. Well, I don't need to repeat what I have said earlier about the maintenance of a safety net. The award will not be set aside. I will adjourn the matter. Thank you.

- - -

C2005/2519
Ampcontrol Group of Companies (Superannuation) Award 1988

PN447

MR L BENFELL: I appear on behalf of the CEPU.

PN448

JUSTICE GIUDICE: Thanks, Mr Benfell. Mr Benfell, there's a letter on the file which you may not have seen from a firm of solicitors, Hunt and Hunt on behalf of Ampcontrol Pty Ltd in which they seek that the award be set aside and there is a submission attached to that letter of a couple of pages which you probably want to have an opportunity to have a look at.

PN449

MR BENFELL: No, your Honour, we haven't received any correspondence in relation to this matter.

PN450

JUSTICE GIUDICE: No. What's the union's position?

PN451

MR BENFELL: We have a view that it has continuing operation and request for the award to continue in operation. It applies to various employees primarily in the Newcastle area and I note that even though it's in relation to superannuation that it refers to how people are paid superannuation and how employees pay superannuation contributions if and when employees are absent from work for various reasons, which is not prescribed by the Superannuation Guarantee Legislation. In any event, your Honour, we're at a disadvantage here, they haven't given us the courtesy of - - -

PN452

JUSTICE GIUDICE: I wouldn't rule against you, Mr Benfell, without giving you an opportunity to see what they have said, but they do raise some issues, or the firm of solicitors raises some issues about the identity of a number of the respondents as well, either changes in name or some of them have gone out of the corporation. So obviously you have an opportunity to look at this and I might repeat the remarks I made earlier about the effects of a Superannuation Guarantee Legislation. It is possible that one of the effects of that legislation is that boards of this kind might become invalid, depending upon the terms. That's the choice of fund legislation I'm referring to.

PN453

MR BENFELL: Yes, your Honour, I understand.

PN454

JUSTICE GIUDICE: I think what I'll do, Mr Benfell, if it meets your convenience is to make this letter available and ask that you make a submission in writing to me within say seven days and perhaps then a copy of that submissions to Hunt and Hunt. You will see their address and the gentleman concerned on the correspondence.

PN455

MR BENFELL: Yes, your Honour.

PN456

JUSTICE GIUDICE: Yes. So when I receive that I'll attempt to decide the matter on the basis of the correspondence, Mr Benfell, but it may be that the matter will have to be called back on or it may be that I'll simply indicate that the award won't be set aside.

PN457

MR BENFELL: Thank you.

- - -

C2005/2563
Local Government Engineers Senior Staff (New South Wales) Award 1999

PN458

MS C BADCOCK: I appear for the Association of Professional Engineers, Scientists and Managers Australia.

PN459

MS D TALBOT: I seek leave to appear on behalf of the Local Government Association of New South Wales and the Shires Association of New South Wales on behalf of our members who are respondent to the award.

PN460

JUSTICE GIUDICE: Thank you, Ms Talbot. Now, this is the award that only applies in New South Wales that has every local government authority in Australia listed as a respondent?

PN461

MS BADCOCK: that's correct, your Honour, and the parties have been in negotiations prior to the matter being called on to have that respondency schedule tidied up as it were so that the schedule to be reflected to amend the coverage of the award, which as you point out, is to local government authorities within New South Wales.

PN462

JUSTICE GIUDICE: Yes. Otherwise what are the submissions about the continued operation of the award?

PN463

MS BADCOCK: The submissions of the association are that the award does have continuing operation. The award was made by virtue of the fact that senior staff employees in New South Wales are excluded from industrial arbitration under the provisions of the Local Government Act in New South Wales. So the federal award was created with respect to correcting that anomaly and so to provide an award coverage for those senior staff positions in that industry. So it's our contention that the award does have continuing operation and relevance and that contention is supported by Local Government and Shires Association and I understand there's correspondence to that effect on the file.

PN464

JUSTICE GIUDICE: Yes, thanks, Ms Badcock. Ms Talbot, do you have anything to add?

PN465

MS TALBOT: I would just rely on our written submissions, your Honour.

PN466

JUSTICE GIUDICE: Ms Badcock, the amendments which you seek, have they been notified to all of the relevant parties?

PN467

MS BADCOCK: Your Honour, no, they haven't. They haven't been filed yet because that would be presumptuous pending the outcome of today's hearing.

PN468

JUSTICE GIUDICE: Yes, certainly.

PN469

MS BADCOCK: But it is our intention to file for variation of section 113 within the next seven days and they will be served on all the respondents.

PN470

JUSTICE GIUDICE: Yes, very well. Well on that basis the award won't be set aside and I'll adjourn the matter. Thank you.

- - -

C2005/2529
BankWest/TrustWest Award 1998

PN471

MS H LEWIS: I appear on behalf of the Finance Sector Union of Australia.

PN472

JUSTICE GIUDICE: And there's a letter on file from Freehills on behalf of BankWest that indicates that they are unable to be here today.

PN473

MS LEWIS: Yes, your Honour.

PN474

JUSTICE GIUDICE: But it encloses some submissions in support of the award not being set aside. Have you seen that?

PN475

MS LEWIS: Yes, we have, your Honour, and we have also provided an extract of our submissions regarding this award to their solicitors as well.

PN476

JUSTICE GIUDICE: That's the submission in your letter of the 25th?

PN477

MS LEWIS: 25th, yes.

PN478

JUSTICE GIUDICE: Yes, very well. On the basis of those submissions the award will not be set aside. Thank you.

- - -

C2005/2530
Bank of America Award 1999

PN479

MS H LEWIS: I also appear in this matter, on behalf of the Finance Sector Union of Australia.

PN480

MS S CAYLOCK: I seek leave to appear on behalf of Bank Community in this matter.

PN481

MS LEWIS: Your Honour, we have also included submissions in our letter of
25 May regarding this award. Might I just mention that a copy of the extract our submission dealing with this award was faxed to the employer on Monday. I became only aware last night that Deakin's representing here today, and included with a copy of the extract of our submission dealing with this award the fax also included a copy of our application to vary the award and a copy of the notice of listing of the matter on 21 June.

PN482

JUSTICE GIUDICE: Ms Caylock, you're in agreement with the FSU the award should not be set aside for the reasons contained in the letter?

PN483

MS CAYLOCK: Yes, your Honour, we are, and also in our correspondence that should be on the Commission file.

PN484

JUSTICE GIUDICE: Yes, I have seen that letter. Thank you. Yes, in light of the submissions the award will not be set aside.

- - -

C2005/2539
Bendigo Bank Award 1999

PN485

MS H LEWIS: I appear in this matter on behalf of the Finance Sector Union of Australia.

PN486

MS S CAYLOCK: I seek leave to appear on behalf of Bendigo Bank in this matter.

PN487

JUSTICE GIUDICE: Thank you.

PN488

MS LEWIS: Your Honour, I also mention that in this matter a copy of the extract of our submission regarding this award were faxed to the employer on Monday, together with a copy of our application to vary this award and a copy of the listing of that matter for 21 June.

PN489

JUSTICE GIUDICE: It's surprising that an award of this kind has not been updated for so long.

PN490

MS LEWIS: Yes, your Honour, and that shouldn't occur but it has occurred and we're now seeking to remedy it. As mentioned in the application, apart from being operated in conjunction with the various, including the current Bendigo Bank Certified Agreement, it's also being used in various determinations as the designated award for certified agreements applying to community banks operating as franchisees and also what I failed to mention in the submission, it's also been the designated award for numerous AWAs that apply to community banks operating franchises, hence our haste now to have it brought up to date.

PN491

I should mention that we're seeking to apply and will be providing the bank with a draft order which will show that even though we're seeking to all outstanding safety net adjustments it won't actually represent a pay increase to any employees of Bendigo Bank because the rates will still fall below those operating within the company.

PN492

MS CAYLOCK: Your Honour, we concur with the submissions made by the union.

PN493

JUSTICE GIUDICE: Yes, all right. Thank you. The award will not be set aside.

- - -

C2005/2551
Finance Traineeship Award 1998

PN494

MS H LEWIS: I also appear in this matter on behalf of the Finance Sector Union of Australia.

PN495

JUSTICE GIUDICE: Yes, thanks, Ms Lewis.

PN496

MS LEWIS: Your Honour, I should mention that notwithstanding my comments relating to the Bendigo Bank Award, the union has as part of its award maintenance program a number of cycle of applications to seek to have our awards varied in effect to safety net increases and that's ..... cycle in September. That applies to our industry awards and various of our enterprise awards we will we know a certified agreement is in place for those employees. Unfortunately as part of this project, this review, we have identified that two awards have slipped through that and this is one of them, and as indicated in our submission we have now made application to vary the award in order to bring it up to date for all outstanding safety net adjustments and various test case decisions.

PN497

JUSTICE GIUDICE: This award only applies to one employer.

PN498

MS LEWIS: Future Staff Ltd who provide traineeships in the credit union sector.

PN499

JUSTICE GIUDICE: An employee is defined to be an employee engaged of the structured arrangement related to the Australian New Apprenticeships within the National Training Framework.

PN500

MS LEWIS: Yes, your Honour. There used to be credit union traineeships and they could be engaged directly under traineeships by individual credit unions. That became an onerous burden on the small to medium size credit unions and therefore Future Staff was established and took over the credit union traineeships. So it has limited application, it doesn't apply to all Future Staff employees but those specifically engaged under traineeships.

PN501

JUSTICE GIUDICE: Yes. But that new apprenticeship system is still current, is it?

PN502

MS LEWIS: Yes, your Honour.

PN503

JUSTICE GIUDICE: Very well. The award will not be set aside. Thank you.

- - -

C2005/2558
Insurance Officers (Motor Accident Insurance Board) Award 1998

PN504

MS H LEWIS: I appear on behalf of the Finance Sector Union of Australia. Your Honour, various enterprise agreements have operated covering MAIV employees in Tasmania. It's a Tasmanian Government business enterprise and there have been various enterprise agreements including a current agreement between the MAIV and the FSU that apply. It operates in conjunction with the award and the award does have continuing operation. A copy of our application to vary the award and notice of listing the matter on 21 June together with a copy our extract submission regarding this award were provided to the employer on Monday.

PN505

The employer has already consented to our application to vary the award in the terms of the draft order provided to them. We have been trying to vary the award and get their consent for the last couple of years and it kept on getting put on the back burner so this prompted them to forward the draft.

PN506

JUSTICE GIUDICE: Very well. Thanks, Ms Lewis. The award will not be set aside.

- - -

C2005/2568
National Mutual Trustees Limited Superannuation Award 1998

PN507

MS H LEWIS: I also appear in this matter on behalf of the Finance Sector Union of Australia. Your Honour, as per our written submissions, this is a single issue award and that's why it hasn't been varied since it was simplified. In fact this was one of our few superannuation awards that was involved in the award simplification process. There are approximately 10 other superannuation awards that the FSU is party to that VP Ross issued an order saying that they were not subject to the item 51 review of the award so they haven't been touched. As far as the continuing operation, it does have continuing operation for the moment.

PN508

In regard to the Superannuation Choice Fund Legislation it also potentially has continuing operation in that under that legislation in the event that an employee doesn't choose or make a choice of fund, if there's a designated stipulated fund in the award that becomes the default fund. So it will still have work to do. As far as announce changes to the Workplace Relations Act, then they have to review it in that context but there will be at least 10 others that we'll need to review at that time. But for the moment under the current legislative regime we say that it has ongoing operation.

PN509

JUSTICE GIUDICE: National Mutual Trustees doesn't exist any more, does it, or it hasn't got the same name?

PN510

MS LEWIS: It's part of the AXA Australia Group.

PN511

JUSTICE GIUDICE: The award provides for superannuation contribution of
3 per cent.

PN512

MS LEWIS: It's one of the old 3 per cent productivity awards, your Honour.

PN513

JUSTICE GIUDICE: I just wonder what real purpose it's serving. You say it at least would constitute a default fund under the choice of fund legislation?

PN514

MS LEWIS: Yes, your Honour.

PN515

JUSTICE GIUDICE: That assumes that in other respects it doesn't run foul to the legislation I suppose.

PN516

MS LEWIS: Yes.

PN517

JUSTICE GIUDICE: There's been no response from the employer.

PN518

MS LEWIS: And we've not had a return call from them either.

PN519

JUSTICE GIUDICE: It's possible that letters sent from the registry haven't reached the appropriate person.

PN520

MS LEWIS: I think it's more likely that it didn't excite anyone into action, sir.

PN521

JUSTICE GIUDICE: Yes. Well, it wouldn't excite me except for a section 151 I must say, so they can't really be blamed for that perhaps. Well, with some reservation, Ms Lewis, I won't set the award aside but I think it's undesirable that the award should be left in this state and one way or another it should receive some attention, if only because of the potential for legislative change to effect it. I will adjourn that matter.

- - -

C2005/2583
Trust Bank Tasmania Award 1998

PN522

MS H LEWIS: I appear in this matter on behalf of the Finance Sector Union of Australia.

PN523

JUSTICE GIUDICE: Thank you again, Ms Lewis.

PN524

MS LEWIS: Your Honour, to the best of our knowledge there are no employees currently covered by this award. Relying on my historic knowledge, I detailed the takeovers and mergers following the simplification process of this award. We made contact with the Commonwealth Bank and asked for their assessment of whether they believed that there were still any employees covered and they undertook to get back to us but despite our Commonwealth Bank officer section following up with them a number of times in the last couple of weeks we have not heard back.

PN525

I have spoken to, to confirm that my historic knowledge was accurate, I've spoken to our national president of the union who was a Trust Bank employee and who became a Colonial employee, who along with others, was forced to resign from the bank and take up new employment with the Commonwealth Bank and retain their employment following the Commonwealth Bank's takeover and she confirms that other employees offered ongoing employment after the takeover by the Commonwealth Bank were forced onto Commonwealth Bank commissions and therefore no-one is left with that Trust Bank Award covering their conditions and therefore we say has no longer operation. And a copy of this submission regarding this award was forward to the Commonwealth Bank.

PN526

JUSTICE GIUDICE: Yes, all right. Thanks, Ms Lewis. Well, I think that it's appropriate to set aside but adjourning to the rider that if anything comes to notice then an application can always be made to revoke that order. But it seems that setting the award aside is the appropriate course and I shall issue an order to that effect. Thank you.

PN527

MS LEWIS: If I may be excused?

PN528

JUSTICE GIUDICE: Yes, of course.

- - -

C2005/2525
ADI Limited (Minehunter) Award 1998

PN529

MS C BADCOCK: I appear on behalf of the Association of Professional Engineer, Scientists and Managers Australia.

PN530

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN531

JUSTICE GIUDICE: Thank you, Mr Sachinidis. What's the position in relation to this matter, Ms Badcock?

PN532

MS BADCOCK: Your Honour, I understand that there is correspondence on the file from ADI.

PN533

JUSTICE GIUDICE: Yes.

PN534

MS BADCOCK: We would support that correspondence. It is our understanding that the Mine Hunter Project is complete. The ships have sailed, so to speak, and that the award no longer has any continuing effect and we would not object to the setting aside of the award on that basis.

PN535

JUSTICE GIUDICE: Yes, very well. Mr Sachinidis?

PN536

MR SACHINIDIS: Your Honour, I note the submission made. The only thing I would ask is that that correspondence be furnished to the union. I don't believe we have that correspondence. Subject to that, could I, with your indulgence, take within say seven days to provide the Commission with our response to that?

PN537

JUSTICE GIUDICE: Yes, by all means. If there's something that arises then you entitled to bring it to my attention within say a week, but otherwise at the expiry of that time I'll an order setting the award aside.

PN538

MR SACHINIDIS: Thank you, your Honour.

PN539

JUSTICE GIUDICE: I should indicate that the letter sent to the Commission on behalf of ADI noted on the bottom that a copy was sent to Martin Schutz. I'm not sure who he is.

PN540

MR GEORGIOU: He was around 20 years ago, your Honour.

PN541

JUSTICE GIUDICE: Well, he must have been the last contact they had on the file or something.

- - -

C2005/2528
Airline Operations - Professional Engineers (Ansett Australia) Award 1999

PN542

MS C BADCOCK: I appear on behalf of the APESMA.

PN543

JUSTICE GIUDICE: Yes.

PN544

MS BADCOCK: Your Honour, I previously didn't get instruction but I have carried of this matter, I do apologise. It is our understanding though in the absence of Mr Artis who is the director of our Victorian branch that the award does have continuing operation in the wind up of Ansett and therefore we would seek that the award not be set aside.

PN545

JUSTICE GIUDICE: Well, there's a letter from Artis, have you seen that?

PN546

MS BADCOCK: No, I haven't, your Honour. I do apologise.

PN547

JUSTICE GIUDICE: Well, he says the award no longer has applicability
and - - -

PN548

MS BADCOCK: Well, I would support Mr Artis in his submission, thank you.

PN549

JUSTICE GIUDICE: Well, if there's been some error made you can let us know. But on the basis of that letter and also the letter from Arnold Bloch Leibler on behalf of Ansett Australia subject to a deed of company arrangement, both indicating that the award has no continuing operation, the award will be set aside I should order to that effect.

- - -

C2005/2570
Professional Engineers (Roads and Traffic Authority of New South Wales - Salaries) Award 1999

PN550

JUSTICE GIUDICE: Ms Badcock again?

PN551

MS C BADCOCK: Yes. Your Honour, in respect of the RTA Award I understand that there is correspondence from the respondent on the file. The position of both the association and the RTA is that this award does have continuing operation in that it is the underpinning award to our enterprise bargaining agreements. Further, the award hasn't been varied for some time as there have been negotiations between the parties in regards to a new classification structure. I understand from the industrial officer who has responsibility for this matter that an arrangement has been reached on that and we will shortly be able to furnish a variation to the award to have it updated to reflect the move to a new salary structure.

PN552

So I understand that that's why national wage case variations and safety net adjustments haven't been made and that we were waiting the outcome of those negotiations on a new salary and classification structure that the parties have undertaken to update the award if appropriate.

PN553

JUSTICE GIUDICE: Yes, very well. I have noted the correspondence from the employer that you have referred to as well. The award will not be set aside.

- - -

C2005/2533
Bulk Loading - Hay Point Services Pty Ltd Award 1998

PN554

MS J GRAY: I appear for the CFME.

PN555

MR A SACHINIDIS: I appear for the AMWU.

PN556

MR L BENFELL: I appear for the CEPU.

PN557

JUSTICE GIUDICE: Ms Gray, since you appeared first, I gather that there's general opposition to the award being set aside on the basis that it has continuing operation, is that so?

PN558

MS GRAY: It does, your Honour. There's in existence an enterprise agreement and for that reason alone we would say that the award still has work to do, at least following the nominal expiry date and at least the legislations it currently remains, it was there for the no disadvantage test. So we would oppose the setting aside of the award, your Honour. It has only had safety net review increases up to and inclusive of 1998. We would certainly seek to address that by way of very brief perhaps excuse rather than explanation, your Honour, or the other way round. As your Honour is aware, our union is a conglomerate of construction, forestry, mining and energy.

PN559

Within those divisions there are also districts. The districts within the division of the mining and energy area conduct all of the enterprise bargaining, so whereas the agreements have been conducted at a district level, which is essentially geographical, the national office has the job of award maintenance and between those two arrangements, your Honour, this award has slipped through the crack. Now that it's been brought to the national office of the mining and energy division's attention we will bring it up to date and we will continue to maintain it within the limits allowed to us under the Act currently and in the future.

PN560

JUSTICE GIUDICE: Yes.

PN561

MS GRAY: May it please.

PN562

JUSTICE GIUDICE: Thanks, Mr Gray. There's a letter from BHP Billiton and Mitsubishi Alliance.

PN563

MS GRAY: Was that separate from the one from Mr Gillespie, your Honour, or was Mr Gillespie writing on their behalf?

PN564

JUSTICE GIUDICE: Yes, this is Mr York.

PN565

MS GRAY: We weren't provided with a copy of that, although it may have gone to our Queensland district.

PN566

JUSTICE GIUDICE: Yes. In any event, that company supports the continued operation of the award and I take it that there's agreement with Ms Gray's submissions?

PN567

MR SACHINIDIS: Yes, I would support them.

PN568

JUSTICE GIUDICE: Yes. The award will not be set aside. I will adjourn that matter.

- - -

C2005/2535
Bulk Terminal Services Bulk Handling Award 1998

PN569

MS J GRAY: I appear for the CFMEU. I think I'm alone on this one today, your Honour We're the only union party to this award. Again this award hasn't had safety net review increases since 1998. We undertake to address that and bring it up to date. It does have an existing certified agreement which was made on
9 June 2004. We say the award has continuing relevance and once again it's something which has fallen between - the difficulty with this one, your Honour, is that the FEDFA rule within the amalgamated unions applies across all divisions. We all access it and so sometimes this one apparently wasn't maintained by either construction, general or mining and energy, or of course forestry, so it's now been attention to the attention of the national office of mining and energy and we'll continue to maintain it after bringing it up to date. May it please.

PN570

JUSTICE GIUDICE: Yes. There's a letter from Gillespie Consulting on behalf of Bulk Terminal Services supporting those submissions in general terms. The award will not be set aside.

PN571

MS GRAY: Thank you, your Honour.

- - -

C2005/2546
Cokeworkers (Illawarra Coke Company Pty. Ltd) Award 1999

PN572

MS J GRAY: I appear for the CFMEU.

PN573

JUSTICE GIUDICE: Yes.

PN574

MS GRAY: Your Honour, again this award has certified agreements which it's had since 1996. It has a current one made in 2003. The award only has had safety net review increases up to and including 1998. We would undertake to bring that award up to date and to keep it so. Your Honour, we would oppose the setting aside of the award for the same reasons that are expressed previously.

PN575

JUSTICE GIUDICE: Yes. This only applies to one employer.

PN576

MS GRAY: Yes, at two sites as I understand it, your Honour. I think there's probably about in the vicinity of 80 employees covered by it.

PN577

JUSTICE GIUDICE: Yes, very well. The award will not be set aside.

- - -

C2005/2538
Bass Strait Platform Drilling Rig Maintenance Award 1999

PN578

MR L BENFELL: I appear for the CFMEU.

PN579

MR A SACHINIDIS: I appear for the AMWU.

PN580

MS S BUTTERWORTH: I appear for the Australian Mines and Metals Association and I appear on behalf of International Sea Drilling.

PN581

JUSTICE GIUDICE: How many respondents are there to this award,
Ms Butterworth?

PN582

MS BUTTERWORTH: Four is my understanding, your Honour, although currently it's only International Sea Drilling that still currently has operations in Bass Strait, so my instructions are.

PN583

MR SACHINIDIS: Your Honour, that's four employers and three union respondents.

PN584

JUSTICE GIUDICE: Yes. Well, I was addressing the employer.

PN585

MR SACHINIDIS: Sorry, your Honour.

PN586

JUSTICE GIUDICE: I think the appearance was limited the matter before. But you have no instructions in relation to the other, or you have no instructions to appear in relation to the other three?

PN587

MS BUTTERWORTH: No, I don't have instructions in relation to the other employer parties to that award but it is my understanding and perhaps AMWU and CEPU may also confirm that the other employer respondents to that award are not currently operating in the Bass Strait area. That's my understanding.

PN588

JUSTICE GIUDICE: Yes. Well, what's your submission about it,
Ms Butterworth?

PN589

MS BUTTERWORTH: Your Honour, we did forward our written submission to the Commission in relation to this matter indicating that a certified agreement was currently in the process of being negotiated and that this award has continuing operation in respect of underpinning that certified agreement. International Sea Drilling has also indicated that they would be willing to consent to an award variation if that was raised in respect of minimum safety net adjustments which haven't been done for a number of years. It's my understanding that that issue hasn't actually been raised by the other parties to the award at this point in time.

PN590

JUSTICE GIUDICE: Yes. Well, your client is involved in maintenance work, is it, on drilling rigs?

PN591

MS BUTTERWORTH: Yes, your Honour.

PN592

JUSTICE GIUDICE: Mr Sachinidis.

PN593

MR SACHINIDIS: Yes, your Honour. I note the submissions made and we would concur with those which seek to retain the award. It does underpin the context of bargaining with the companies and it certainly has relevance. It has been affected by item 51 and I also note that it would require safety net adjustments post 1999.

PN594

JUSTICE GIUDICE: Yes.

PN595

MR SACHINIDIS: And dare I say, any other test case standards that may well be applicable in relation to that. If it please the Commission.

PN596

JUSTICE GIUDICE: Why about the other three respondents - - -

PN597

MR SACHINIDIS: Sorry, I misled you, your Honour. It's two. Its' two. It's the AMWU and the CEPU.

PN598

JUSTICE GIUDICE: CEPU.

PN599

MR SACHINIDIS: Yes, I'm sorry.

PN600

JUSTICE GIUDICE: No, that's all right. But the other three employees who it's alleged no longer have operations, do you have any submission to make about those?

PN601

MR SACHINIDIS: Other than we not that submission. We haven't the benefit of that correspondence, your Honour, that you have before you, but I note the submission having been made and that may well be the case, but I cannot confirm that with you, your Honour.

PN602

JUSTICE GIUDICE: No, very well. Mr Benfell, do you have anything to add?

PN603

MR BENFELL: We support the continuance of the award, your Honour.

PN604

JUSTICE GIUDICE: Yes. Well, on what's been said the award shouldn't be set aside, however the issue arises of the three employers who apparently no longer have operations. But I will leave that to the parties whether any application should be made in relation to deleting and the respondency is a matter that others can consider. Otherwise I'll simply adjourn the matter.

- - -

C2005/2552
Fairfax Printers Award, 1999, The

PN605

MR A SACHINIDIS: I appear on behalf of the AMWU in this matter.

PN606

MR L BENFELL: I appear on behalf of the CEPU.

PN607

JUSTICE GIUDICE: Thank you, Mr Benfell. Mr Sachinidis, can you tell me anything about this award?

PN608

MR SACHINIDIS: Yes, your Honour. Generally the award is a consent award between Fairfax and a number of unions, including the AMWU. We understand that the award has been affected by item 51. It underpins an extant award in AG837299 and it requires some consideration as far as the wage rates are concerned because they do refer to an annualised salary and in light of course the principle of paid rates awards which no longer have application, the award would need to appropriately identify contemporary minimum rates. So it has ongoing application, your Honour. Unless there is something specific that you have in mind in relation to the award, I would submit that it not be set aside and continue in operation.

PN609

JUSTICE GIUDICE: Yes. Mr Benfell, do you have anything to say about it?

PN610

MR BENFELL: I certainly say, your Honour, that we also support its continuance. It underpins the agreement at ..... the main party in New South Wales.

PN611

JUSTICE GIUDICE: Mr Sachinidis, can I take it that the union is going to do something about the rates in the award or is that simply an observation that they need some attention?

PN612

MR SACHINIDIS: No, they do need some attention, your Honour, but suffice to say that one of the reasons why the rates have not been attended to is because of the extent of the bargaining that has been occurring.

PN613

JUSTICE GIUDICE: Yes, I understand. Yes, very well. I am just somewhat bemused that the rates have survived as long as they have without attracting the attention of the simplifiers.

PN614

MR SACHINIDIS: Yes.

PN615

JUSTICE GIUDICE: But I notice that there was a consolidation by Senior Deputy President Marsh in November 1999.

PN616

MR SACHINIDIS: That's right.

PN617

JUSTICE GIUDICE: Which at that time one would have thought perhaps the rates would have been looked at. But nevertheless, I'll simply adjourn that matter.

PN618

MR SACHINIDIS: Thank you, your Honour.

- - -

C2005/2554
Glass Industry Maintenance Employees (Hours of Work) Award 1981

PN619

JUSTICE GIUDICE: Mr Beard, are you appearing?

PN620

MR G BEARD: Yes, I am, your Honour. I appear for the Australian Workers Union.

PN621

MR J BENFELL: I appear for the CEPU.

PN622

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN623

JUSTICE GIUDICE: Yes. There's a letter on file from Dow Corning. Is there any appearance for the company? No. There's a letter on file from Dow Corning indicating the award indicating the award should be cancelled, as it's put, because they closed their manufacturing operation in 1999 and no longer have any employees under the awards. Is there any reason why that statement should be disbelieved?

PN624

MR BEARD: Your Honour, I haven't seen that particular correspondence.

PN625

JUSTICE GIUDICE: I see.

PN626

MR BEARD: However, Dow Corning isn't the only named respondent to the award and whilst there has been a rationalisation of employees in the glass industry generally the award still has application to other employers and employees. We would therefore ask that the award continue to be operative. It does have and will have a continuing operation for employees. I'm not sure why it hasn't attracted the item 51 review, your Honour. However, the type of award that it is regarding hours, apart from the item 51 review is not one that would usually be varied in regards to these matters anyway.

PN627

JUSTICE GIUDICE: Well, I think there was a determination made in 1999 that it wasn't affected by item 50. In other words, that all the matters were allowable I assume.

PN628

MR BEARD: That's correct, your Honour. So yes, we would ask that the award continue.

PN629

JUSTICE GIUDICE: Well, the only issue then would be whether it might be appropriate to vary the award by deleting Dow Corning and I suppose that could be done. Do you have any instructions to the contrary on any of those matters,
Mr Sachinidis?

PN630

MR SACHINIDIS: No, I don't but I would support the submissions from my colleague. But in terms of that employer, that may well be the case, your Honour, and it may well need an application to update that, or delete in this case, that employer. But the award, you're right, has been affected by item 51 and there has been a decision to that effect. So it has actually been reviewed.

PN631

JUSTICE GIUDICE: Yes.

PN632

MR SACHINIDIS: And it also has application in New South Wales, South Australia and Tasmania as well.

PN633

JUSTICE GIUDICE: Do you want to add anything, Mr Benfell?

PN634

MR BENFELL: No, your Honour.

PN635

JUSTICE GIUDICE: What I'm inclined to do on the basis of what's on the file is simply delete Dow Corning as a respondent. It seems that that would amount to a partial setting aside of the award. Mr Beard, do you object to that courser?

PN636

MR BEARD: I would just like to make a statement, your Honour.

PN637

JUSTICE GIUDICE: Yes.

PN638

MR BEARD: I'm always a bit concerned about deleting respondents from the award without having a closer examination of the circumstances. I'm not sure whether Dow Corning might have in fact be out of the industry entirely and not have the employees or whether those employees were in fact employed by another entity which may in fact be respondent to the award through a transmission of business. Rather than deleting Dow Corning at this stage, I would rather be just a little bit, and probably a little bit too protective, however if the parties were giving 14 working days to receive a letter from Dow Corning and explore the situation.

PN639

JUSTICE GIUDICE: Yes, very well. There's no harm in doing that.

PN640

MR BEARD: And identifying an avenue for the matter to be resolved.

PN641

JUSTICE GIUDICE: Yes. There's no harm in being cautious about these things. Schedule A says that the award applies to Crown Corning Ltd, Waterloo Plant and the letter, which you will see, indicates the manufacturing plant was closed and it's not to say that it may not have been in the circumstances in which some kind of transmission operated. So I will permit a period of 14 days for any submissions to be made as to why Dow Corning should not be deleted from the schedule of respondents.

- - -

C2005/2565
Metropolitan Transit Authority (Hours of Work) Award 1982

PN642

MS L HEATH: I appear on behalf of the Australian Municipal, Administrative, Clerical and Services Union.

PN643

MR M GEORGIOU: I appear on behalf of APESMA.

PN644

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN645

MR L BENFELL: I appear on behalf of the CEPU.

PN646

MR G BEARD: I appear on behalf of the AWU.

PN647

JUSTICE GIUDICE: There's a letter on the file from the TCFUA indicating they don't wish to make any submissions. There's a letter from Yarra Trams indicating the award has continuing operation and should therefore not be set aside. There's a letter from the Rail, Tram and Bus Union submitting the award has continuing operation and should not be set aside. Is there anyone proposing the award should be set aside? No. In those circumstances it will not be, certainly on this occasion, and I will adjourn that matter.

- - -

C2005/2572
Public Transport Corporation (Disruption to Work) Award 1990, The

PN648

MR L BENFELL: I appear on behalf of the CEPU.

PN649

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN650

MR M GEORGIOU: I appear on behalf of the APESMA.

PN651

MS L HEATH: I appear on behalf of the ASU.

PN652

MR G BEARD: I appear on behalf of the AWU.

PN653

JUSTICE GIUDICE: There's a letter from Connex which indicates that it's not a respondent to the award but uses as the basis for the payment of an allowance to its own employees and goes on to say:

PN654

The fact that the award has not been varied is not an indication its provisions are not currently being used.

PN655

There's a letter from Yarra Trams in similar terms to the previous matter indicating the award is still in operation. The NUW have written indicating that the award no longer has any operation in respect of members of that union and doesn't object to the award being set aside on that basis. There's a letter from the Rail, Tram and Bus Union indicating the award has continuing operation. And what's the position of the parties represented today?

PN656

MR BEARD: I think from the AWU perspective, your Honour, we would like to see the continuing operation of the award. My instructions are that it's still appropriate, provides appropriate coverage. Whether it does or not I'm not sure, it sounds as though it may not. However, we say that it should continue to apply. However, if the NUW seek to have their name deleted, well, that's up to them.

PN657

JUSTICE GIUDICE: Yes. Any dissent from that approach?

PN658

MS HEATH: No, dissent, your Honour. Just I think to put on record, in contrast to the previous award, this award actually does have some - there's some work to be done on updating this award because I believe that this award - or my instructions are that this award contains allowances which haven't been adjusted over the time and perhaps I think the parties attention should be drawn to that.

PN659

JUSTICE GIUDICE: Yes. It's simply an allowance to compensate for disruption for employees working in the vicinity of construction operations and that allowance is 30 cents an hour. That's what it was in 1990.

PN660

MS HEATH: Yes, that's right, your Honour. I mean the previous award is an hours of work award which may not have - the previous award that you were dealing with the Metropolitan Transport Authority one.

PN661

JUSTICE GIUDICE: Yes, I follow.

PN662

MS HEATH: Yes, but this one probably does have some work to be done on it in terms of updating that allowance.

PN663

JUSTICE GIUDICE: Well, I'm bound to say an allowance which hasn't been updated for 15 years is probably not one which is particularly relevant to anybody or any thing. Mr Sachinidis, were you going to - - -

PN664

MR SACHINIDIS: I was just going to make the observation, your Honour, that indeed the allowance may not have but there may have been enterprise agreements which actually have dealt with that allowance at the enterprise level which possibly explains why. The other point I think that needs to be noted, it has been affected by item 51 back in 1999, as I understand. So it would need to be looked at submitted by my colleague. Save and except for that, we understand that the award does have continued operation.

PN665

JUSTICE GIUDICE: Yes. Well, in any event, there don't seem to be proper grounds on which to set the award aside so it shall not be. I'll simply adjourn that matter.

- - -

C2005/2582
Telecom Twelve Hour Shift Operations Agreement 1990

PN666

MR L BENFELL: I appear on behalf of the CEPU. The award has continuing operation and ..... We would seek the award to continue.

PN667

JUSTICE GIUDICE: Yes. Well, there's been no response from Telstra. Perhaps we should have rung them up, it might have been more appropriate, and certainly, Mr Benfell, there's nothing to indicate that what you have told me is any doubt whatsoever. So maybe I'm prepared to accept that it's still current, although one wonders with the amount of change that's been in Telstra whether it still will be. But nevertheless, if there's no basis on which to set the award aside so I'll simply adjourn that matter as well.

- - -

C2005/2567
Vehicle Industry - Nissan Australia (Parts and Vehicle Distribution Operations) - Award 1998

PN668

MR R RONDINELLI: I appear for the Australian Industry Group and I appear on behalf of Nissan Motor Company Australia Pty Ltd.

PN669

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN670

JUSTICE GIUDICE: Thanks, Mr Sachinidis. What's the position in relation to this, Mr Rondinelli?

PN671

MR RONDINELLI: Your Honour, I have received instructions from the company that the award in question the Vehicle Industry Nissan Australia Parts and Vehicle Distribution Operations Award 1998 remain operative and not be set aside. It still has ongoing developments. Currently the award underpins the terms and conditions of employment of approximately 70 employees I'm instructed. Their employment is currently governed by an existing certified agreement known as the Nissan Motor Company Australia Pty Ltd Enterprise Bargaining Agreement 2002. That agreement nominal expiry date is 25 May 2005.

PN672

However, there are terms in the award which are not specifically dealt with in the EBA and therefore its relevance and importance to the terms and conditions of the employees covered by it is still current.

PN673

JUSTICE GIUDICE: Yes, very well. Thank you. Do you have any different point of view, Mr Sachinidis?

PN674

MR SACHINIDIS: No, your Honour.

PN675

JUSTICE GIUDICE: The award will not be set aside. Thank you.

- - -

C2005/2524
AWU Cementitious Products (Port Melbourne) Award 1999

PN676

MR G BEARD: I appear on behalf of the Australian Workers Union.

PN677

MR G CHARLES: I seek leave to appear for Steel Cement, Melbourne Cement and Independent Cement.

PN678

JUSTICE GIUDICE: Thanks, Mr Charles. Yes, I take it that both the company and the union are opposed to the award being set aside?

PN679

MR BEARD: That's correct, your Honour.

PN680

MR CHARLES: Yes, that's correct.

PN681

JUSTICE GIUDICE: Does this award have rates of pay in it?

PN682

MR CHARLES: As I understand it, sir, no, it doesn't. The rates of pay are contained within the various agreements and in fact the agreements provide for annualised salaries.

PN683

JUSTICE GIUDICE: Yes, very well. Mr Charles, you appear for each of the respondents?

PN684

MR CHARLES: Yes, that's correct. In fact the company - - -

PN685

JUSTICE GIUDICE: The employer respondents I should say.

PN686

MR CHARLES: Yes, that's a good point, sir. The companies in fact should have written you a letter I hope.

PN687

JUSTICE GIUDICE: I have received a letter.

PN688

MR CHARLES: Pointing out what their views are.

PN689

JUSTICE GIUDICE: Yes, and I have read that letter and taking those views into account, the award will not be set aside.

- - -

C2005/2585
University of Canberra Academic Staff (Conditions of Service) Award 1999

PN690

MS C PUGSLEY: I appear on behalf of the Australian Higher Education Industrial Association. I appear on behalf of the University of Canberra who is a member of our association. Your Honour, on 24 May 2005 our association sent you a letter.

PN691

JUSTICE GIUDICE: Yes.

PN692

MS PUGSLEY: Thank you for confirming that that has been received. On the basis of the contents of that letter, unless you have any questions for me, it's our submission that the award should not be set aside. That is because it remains relevant as the safety net award for the purposes of the no disadvantage test for enterprise bargaining at the university.

PN693

JUSTICE GIUDICE: This is a conditions award.

PN694

MS PUGSLEY: That's correct, your Honour. The salaries for safety net purposes are contained in another award, the Higher Education Academic Salaries Award 2002, and the actual salaries of course are those which are paid pursuant to the certified agreement in operation at the university.

PN695

JUSTICE GIUDICE: This award actually appears to have been varied in May last year.

PN696

MS PUGSLEY: That may be the case, your Honour. I don't have instructions in relation to that, I'm sorry.

PN697

JUSTICE GIUDICE: In light of that it possibly shouldn't be on the rack as it were. All right. Well, in any event, the award won't be set aside. Thank you,
Ms Pugsley.

PN698

MS PUGSLEY: While I'm on my feet, your Honour, I wonder if I might mention matter 2005/2520. It might in fact be the next one that is listed?

PN699

JUSTICE GIUDICE: Yes.

PN700

MS PUGSLEY: Shall I wait for it to be officially called?

PN701

JUSTICE GIUDICE: Yes.

PN702

MS PUGSLEY: Thanks.

- - -

C2005/2520
Academic Staff (Australian Maritime College) Conditions of Employment Award 1999

PN703

MS C PUGSLEY: I appear on behalf of the Australian Maritime College in this matter. The college is also a member of our association. They are in much the same position as the University of Canberra in that the Academic Conditions Award underpins the enterprise agreement which applies at the Australian Maritime College in respect of some of the conditions which apply to the employees of the college and for that reason it still has some continuing relevance. If the Commission pleases.

PN704

JUSTICE GIUDICE: Yes. The award will not be set aside.

PN705

MS PUGSLEY: Thank you, your Honour.

- - -

C2005/2581
Toyota Australia (Professional Engineers and Scientists) Consent Award 1992

PN706

MR M GEORGIOU: I appear on behalf of APESMA.

PN707

JUSTICE GIUDICE: Yes, Mr Georgiou. No other appearance?

PN708

MR GEORGIOU: The company said they were going to come, your Honour, but they maybe otherwise engaged.

PN709

JUSTICE GIUDICE: Yes. Is it sought that this award continue in operation?

PN710

MR GEORGIOU: It should continue. It has relevance. If tardiness and poor drafting are a reason then we'd lose, but I don't think they are. It still has the classifications applying to professional engineers and scientists and is an underpinning for two EBAs, your Honour.

PN711

JUSTICE GIUDICE: Yes ,very well. The award will not be set aside.

- - -

C2005/2564
Municipal Officers (Queensland Harbour Boards) Long Service Leave Award 1982

PN712

MS L HEATH: I appear on behalf of the ASU.

PN713

JUSTICE GIUDICE: Yes. There's a letter from the Port of Townsville on the file indicating the award continues in operation and underpins a certified agreement. Yes.

PN714

MS HEATH: Your Honour, I don't have a copy of that correspondence but I was going submit to you today that the nature of this award is one that it was unlikely that it would be varied over the years since it's been looked at under item 51 because it is a conditions award and it only contains long service leave and those standards for the award have not changed over time.

PN715

JUSTICE GIUDICE: No.

PN716

MS HEATH: Your Honour, I note that since this award came into being there is another award which has already been referred to this morning, the Regional Port Authority Officers Queensland Award 1999 which for some of the respondents to the current award before you has picked up the long service leave provisions but not for all, your Honour, and I was unable to find out what the status was for long service leave for Bowen, Townsville, Rockhampton and Bundaberg, albeit that this morning in correspondence you received in another matter indicated that Rockhampton had actually merged with Gladstone.

PN717

But from my instruction, your Honour, my understanding is, sorry, that I was unable to get instructions to clarify the ongoing operation in relation to at least Bowen, Townsville and Bundaberg and at least one of those operations has indicated that it does have ongoing operation. So on that basis we would consider that the award should continue and not be set aside.

PN718

JUSTICE GIUDICE: Yes. Whether that survives foreshadowed legislative changes is another question I suppose. It certainly shouldn't be set aside.

PN719

MS HEATH: Thank you.

- - -

C2005/2588
Vehicle Industry (Austral Pacific Group Limited) Consolidated Award 1998

PN720

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN721

MS L HEATH: I appear on behalf of the ASU in this matter.

PN722

JUSTICE GIUDICE: There is no response from the employer. Yes,
Mr Sachinidis.

PN723

MR SACHINIDIS: Thank you, your Honour. I have intimate knowledge of the background to this award, your Honour, and I would like to submit that the company has substantially restructured over the last seven years to the point where there's one operation in South Australia which the award does have applicability. Previously you would note in the coverage of the award it extended in other states, namely Queensland, New South Wales and at some stage in Victoria. The employer as far as the proper company and reference to that has also changed.

PN724

At the moment the extant agreement is one which is referred to as the Custom Coaches Agreement. Sorry, the one which is currently being negotiated that would replace the extant agreement is one of Custom Coaches. So that is the new successor employer in respect of respondency, your Honour. So it certainly has relevancy but in light of my submissions it does require some significant attention if the award is to survive in the future but I also note in the discussions in terms of the current agreement, your Honour, it does refer to the underpinning awards being both the award now the subject of the 151 review and also the Vehicle Industry Award 2000.

PN725

Now, in the current negotiations the parties will confirm the underpinning award and in that context, your Honour, I would ask for your indulgence to provide you with a response following the agreement being reached by the parties to replace the existing agreement. That way we would know for certain as to whether this award will continue to apply at the plant in South Australia.

PN726

JUSTICE GIUDICE: Yes. Well, on what you have said it's in any event not open to me to set the award aside because there's a substantial that that might affect people's rights. The registry has attempted to get in touch with the employer and been unsuccessful, so in the circumstances I will simply adjourn the matter but in doing so commend the course you have outlined in trying to find out what continuing operation the award has and perhaps make an application either to set it aside or vary it in due course, whatever seems to be the appropriate of those two.

PN727

MR SACHINIDIS: Yes, thank you, your Honour.

PN728

JUSTICE GIUDICE: All right, thanks, Mr Sachinidis. Ms Heath, I'm sorry, anything that you wanted to say about that?

PN729

MS HEATH: No, I agree with the AMWU. I seek leave to be excused from these proceedings, your Honour?

PN730

JUSTICE GIUDICE: Yes, of course.

- - -

C2005/2532
BHP Steel Products Division Western Port Award 1998

PN731

JUSTICE GIUDICE: Mr Beard, you're appearing?

PN732

MR G BEARD: That's correct, your Honour, and we'd oppose the award being set aside.

PN733

JUSTICE GIUDICE: Yes, well, we've heard nothing from the employer.

PN734

MR BEARD: I understand that it does provide a basis for the current enterprise agreement, your Honour, and therefore the award should remain operational.

PN735

JUSTICE GIUDICE: Yes.

PN736

MR BEARD: I will take the opportunity, your Honour, because this award does in fact refer to wage rates, to advise you that the national office in Sydney now has responsibility for all of the AWU federal awards and we will be ensuring that some of these awards that have escaped through the gaps in the union's organisation in the past will be fixed up. In fact we're waiting for the current safety net review decisions for those applications to be filed. If the Commission pleases.

PN737

JUSTICE GIUDICE: Yes, very well. The award will not be set aside.

- - -

C2005/2534
BHP Steel Products Building Frames Award, 1998

PN738

MR G BEARD: Again I appear on behalf of the Australian Workers Union.

PN739

JUSTICE GIUDICE: Yes, Mr Beard, thank you.

PN740

MR BEARD: I was wondering if you in fact had any correspondence in regard to this particular award, your Honour?

PN741

JUSTICE GIUDICE: No, we have no communication of the employer's view.

PN742

MR BEARD: In fact as part of the national office in Sydney to update our awards we did write to our branch secretaries back in February in regard to this award to seek their views in regards to the ongoing relevance. We didn't receive any responses back from them, which doesn't come as a surprise either, so it's one of those situations that had the company been seeking to set it aside we may have been in that position. However, it may be again one of those matters that the parties are given 14 days to clarify the situation.

PN743

JUSTICE GIUDICE: Yes. I must say it seems a bit unusual that we have not heard from the employer at all. I think the notification was sent to BlueScope Steel. Now, I suppose that involved some estimation or guesswork as to who the appropriate company was.

PN744

MR BEARD: Apparently the person that was in discussions that occurred between you was Mr Dallas Pearce and that might be a point of contact.

PN745

JUSTICE GIUDICE: Yes. Well, Mr Beard, I would be grateful if you could - - -

PN746

MR BEARD: Your Honour, I was going to say that I have got no problems in following that up because I think it's not in the union's interest to have an award there that's not relevant.

PN747

JUSTICE GIUDICE: Yes. If you could let me know within a couple of weeks what your inquiries reveal, I will consider and then consider what should be done.

PN748

MR BEARD: Thank you, your Honour.

PN749

JUSTICE GIUDICE: Thank you for your assistance.

- - -

C2005/2536
BHP Petroleum Pty. Ltd. Hydrocarbons and Gas Award 1999

PN750

MR G BEARD: Again I appear in this matter on behalf of the Australian Workers Union. I can advise that the union seeks to have this award continue in operation and therefore are opposed to it being set aside. The award does in fact apply to the Griffin Venture, an oil and gas project in Western Australia. The wage rates haven't been increased for a considerable amount of time because of the nature of the enterprise agreements do apply to that project. Again I can advise that the wage rates and allowances and working conditions in regard to the test case provisions where appropriate will be updated in the award in the future. If it please.

PN751

JUSTICE GIUDICE: Yes, very well, Mr Beard. The award will not be set aside.

- - -

C2005/2589
Vehicle Industry - Kenworth Trucks - Award 1998 [from K0003]

PN752

MR A SACHINIDIS: I appear on behalf of the AMWU.

PN753

JUSTICE GIUDICE: Thanks, Mr Sachinidis. There's a letter from Kenworth Trucks from Mr Brearly indicating that the award should not be set aside because it applies to some 400 non salaried employees and there's a reference also to certified agreements. On the basis of that letter, unless you say anything to dissuade me, I be inclined not to set the award aside.

PN754

MR SACHINIDIS: No, other than to concur with Kenworth's letter, your Honour. Thank you, Honour.

PN755

JUSTICE GIUDICE: Thank you, Mr Sachinidis.

- - -

C2005/2540
Bekaert - BHP Steel Cord Award, 1998

PN756

JUSTICE GIUDICE: Yes, Mr Beard?

PN757

MR G BEARD: That's correct, your Honour. I understand you have had some correspondence from One Steel in regard to this particular matter.

PN758

JUSTICE GIUDICE: Yes.

PN759

MR BEARD: I think it's sufficient for me to say, your Honour, that the union concurs with the statements made by Mr Richard Cussack in his letter and therefore we believe that the award does have an ongoing operation and we would oppose the setting aside of the award.

PN760

JUSTICE GIUDICE: Yes. I have looked at that correspondence. The award will not be set aside. Thanks, Mr Beard.

- - -

C2005/2553
Glass Industry - Glass Production (Long Service Leave) - Award 1999, The

PN761

JUSTICE GIUDICE: Mr Beard?

PN762

MR G BEARD: Yes, your Honour, I appear on behalf of the Australian Workers Union.

PN763

JUSTICE GIUDICE: This is an award applying to a number of different companies. There is a letter on the file from Dow Corning, similar to - it's the same letter in fact as that I referred to earlier, in which it's indicated that company has not - or that it closed its manufacturing plant in 1999 and therefore the award should be cancelled. Again I would be inclined to delete that company from the schedule of respondents but if you sought an opportunity to get some instructions on that I would certainly give it to you in light of the earlier - - -

PN764

MR BEARD: I would appreciate that. I think that would clear up both of those matters.

PN765

JUSTICE GIUDICE: Yes. But otherwise this is a long service leave award which one would not expect to be varying in any event.

PN766

MR BEARD: Not at this stage.

PN767

JUSTICE GIUDICE: No. Very well. The award will not be set aside and my associate will in due course ensure you get a copy of that letter.

PN768

MR BEARD: Thank you, your Honour.

- - -

C2005/2561
Long Service Leave (Oil Drilling Rig Workers and Offshore Catering Workers') Award, 1999

PN769

JUSTICE GIUDICE: Yes, Mr Beard.

PN770

MR G BEARD: Yes, your Honour. I was wondering who was going to be here at the death as a matter of fact. But again the union would seek to have this particular award remain intact and not be set aside. I think that's probably all I need to say at this stage. Thank you, your Honour.

PN771

JUSTICE GIUDICE: Yes. The award will not be set aside. Thank you,
Mr Beard.

- - -

C2005/2571
Paint Industry Sites Demarcation Order 1990

PN772

JUSTICE GIUDICE: In this matter there is correspondence on the file from the Miscellaneous Workers Union and the employees first on behalf of the employers named in the order. In each case it's submitted the award has continuing operation. The letter from the NUW which submits the order has no continuing operation should be set aside. I note that the order in question was a demarcation order affecting the Liquor Trades Union, the LHMU, and the NUW in relation to their right to represent the industrial interests of employees of paint companies at certain locations. I see no proper on which the basis the award should be set aside and the order should be set aside and I will simply adjourn the matter.

- - -

C2005/2562
Liquor and Allied Industries - Wine and Spirit Stores - Superannuation Award 1998

PN773

JUSTICE GIUDICE: In this matter there's no correspondence on the file from any of the respondents to the award, be they the union, that is, the LHMU or the five employers. In the circumstances it seems to me that the appropriate course is to set the award aside. I shall only do so however after making a further attempt to contact the respondents and to indicate that in the absence of any submission the award will be set aside from a particular date. I will adjourn that matter.

- - -

C2005/2543
CSR Staff (Consolidated) Award 1998

PN774

JUSTICE GIUDICE: In relation to this award the notification of the hearing was sent to CSR and Rinker Salaried Staff Association and to CSR Ltd. In light of the failure of either party to forward a written submission or to attend the appropriate course is to set the award aside. I shall not do so however without making a further attempt to contact the respondents indicating to them that unless any submission is received to the contrary the award will be set aside from a particular specified date and I will adjourn the matter.

<ADJOURNED INDEFINITELY [12.43PM]