C2005/2668, Transcript of Proceedings [2005] AIRCTrans 1500 (12 July 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12059-1

DEPUTY PRESIDENT HAMILTON

C2005/2668

APPLICATION BY FINANCE SECTOR UNION OF AUSTRALIA
s.113 - Application to vary an Award
(C2005/2668)

MELBOURNE

10.22AM, THURSDAY, 30 JUNE 2005

PN1

MS M MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN2

MR J MORLEY: I seek leave to appear on behalf of employee members of Australian Business Industrial including the Insurance Council of Australia.

PN3

THE DEPUTY PRESIDENT: Terrific. Thanks very much. Right. First of all correspondence. We have an email from Mr Anthony Haugh, H-a-u-g-h, advising that they don't consent to the application but are not able to appear and are seeking for another party to enter an appearance. It is Anthony Haugh from Employers First. Are you appearing for Employers First?

PN4

MR MORLEY: No, your Honour.

PN5

THE DEPUTY PRESIDENT: All right. Just says there is inconsistencies between the draft order and the test case clause consent. The first sentence at clause 24 is not consistent with parental leave decisions they say. All right. So we can check that.

PN6

MS MALONEY: Sorry, your Honour, there is more subsequent correspondence from Mr Haugh which I understand has been forwarded to you.

PN7

THE DEPUTY PRESIDENT: Yes, I will just go through it all.

PN8

MS MALONEY: Right.

PN9

THE DEPUTY PRESIDENT: I presume I will refer to that in a second. Thanks for advising me of that though. If I miss it we will come back to that. Then there is a correspondence from Mr Mussett. Two items of correspondence from Mr Mussett advising firstly they disagree and secondly that they have cited an amended application and can now advise that this meets with their objection so they don't oppose. Thirdly there is a correspondence from Margaret Maloney dated 28 June 2005 and it is again, the first sentence of paragraph, of clause 24 stating they have amended that.

PN10

It is this issue of returning to part time work and the revised sentence makes it clear that return to part time work upon returning - access to part time work upon returning from parental leave is subject to the agreement of the employer. I see. Yes I see. Thirdly there is a letter from Mr Paul Ronfeld of Australian Business Lawyers dated 28 June 2005 just advising that they are bound by the award and Act parties. There is a letter dated 28 June 2005 from Mr Tony Mussett stating that he is unable to attend.

PN11

He has conferred with the Insurance Council of Australia and adopts and supports the submissions to be put by the Insurance Council of Australia. All right. That is all the correspondence I have. I don't think I have a further letter from Employers First but it seems to be all the same issue of return to part, return from parental leave and accessing part time work whether by agreement of the employer or not. Thank you very much, Ms Maloney. Here is a letter dated - FSU has just handed up a document. And Employers First dated 30 June 2005 consenting to the amended version of the draft order on a similar basis I think to other correspondence namely the, instead of there being a right to return to part time work, accessing part time work is by agreement of the employer only. Marvellous. So, who would like to start?

PN12

MS MALONEY: I will, your Honour. Sir, the matter before you concerns an application made by the Finance Sector Union of Australia made pursuant to section 113 of the Workplace Relations Act. It seeks to vary the Insurance Industry Award 1998 by firstly varying the parental leave clause so that the clause applies to eligible casual employees and to replace the reference in clause 26 of the award in respect to updating the National Training Wage clause. The current clause refers to the National Training Wage Award 1994.

PN13

The application seeks to vary that to refer to the current award which is the National Training Wage Award 2000. Your Honour, upon receipt of the notice of the listing of the time, date and place for the hearing of today's matter, we did forward to the organisations on the order for the substituted service list for this award. The section 113 application and the notice of listing and I wish to tender the service of those listings.

PN14

THE DEPUTY PRESIDENT: Thank you.

EXHIBIT #FSU1 SERVICE OF NOTICE AND LISTING

PN15

MS MALONEY: Sir if I take the Commission to FSU1 titled the service of notice and listing. Attached thereto is copies of correspondence. The first one is addressed to Mr Noel Petersen, Chief Executive of the National Insurance Brokers Association of Australia dated 1 June 2005 referring to the section 113 application advising that it seeks to give effect to the Full Bench decision in the Parental Leave case and to update the National Training Wage. Also advise that the matter is listed before your Honour today at 10.15 and attached thereto is a copy of the application to vary, the notice of listing of today's matter.

PN16

We have also attached, your Honour, a copy of the order for substituted service so the organisations were quite aware of who was to be served and that order, sir, had I think it is eight organisations who were served and copies of the correspondence to each of those organisations is attached and also at the back of the document, sir, is copies of the facsimiles receipts confirming that the transmission was successful.

PN17

THE DEPUTY PRESIDENT: In that order the substitute of service was signed, was it?

PN18

MS MALONEY: Yes sir. That substitute of service. If I take you to, it was issued by your Honour.

PN19

THE DEPUTY PRESIDENT: It is just the copy I have wasn't signed. I'm sure can check that on the file, I'm sure I have it somewhere.

PN20

MS MALONEY: Probably should. The one, this was issued to us on 30 May 2005 with directions that the applicant is required to notify all parties in this matter as per the attached order for substituted service and we served those organisations accordingly.

PN21

THE DEPUTY PRESIDENT: Right.

PN22

MS MALONEY: So as you are aware this is one of the common rule award that was made, yes.

PN23

THE DEPUTY PRESIDENT: And I take it those parties are parties who appear in the last proceeding or something of the sort.

PN24

MS MALONEY: I assume sir they were the parties who appeared in respect to when the award was made a common rule, particularly in Victoria sir. Sir, the grounds upon which this application is made is just as I have indicated, to give effect to the Full Bench decision of 31 May 2001 in the Parental Leave application to casual employees found in print PR904631 and to as I said, update the current National Training Wage Award. Now sir we did forward to the organisations on the substitute of service list a draft order on 21 June to give them an opportunity to have a look at it before today's proceedings.

PN25

Now it was arising out of that draft order that we received the correspondence which your Honour has referred to from the Australian Business Lawyers from Mr Tony Mussett and from Employers First and the issue as your Honour has alluded to goes to the issue of the parental leave or the opening paragraph I should say of parental leave but without going into all the history of it but basically was to ensure that when a person returns from parental leave their entitlement to go to part time work was subject obviously to the agreement of the employer and that led us, your Honour, to writing to your Honour and amending the draft order and we forwarded the amended draft order to your Honour on 28 June and copies of that to all the organisations on the substitute of service list as well as Australian Business Lawyers.

PN26

THE DEPUTY PRESIDENT: And that was the only issue anybody raised, wasn't it?

PN27

MS MALONEY: That was the only issue that has been raised with us, sir. Now I understand the Australian Business Lawyers, I am assuming the correspondence, well I will probably seek clarification but I am assuming the correspondence they sent to you on about being included in the list for any further applications to vary that that is an application to be included on the substitute of service list. We will seek clarification that is the case but we did forward them the amended draft order and to all the other organisations and we also have copies of the transmission and receipts that they received it. So we forwarded them a copy of the letter that we sent to your Honour plus the amended draft order so they understood why it was being amended.

PN28

Sir, we would submit that the draft order as forwarded to your Honour, I have other copies if your Honour wishes to have them but the draft order that we forwarded to your Honour on 28 June is the draft order that we are seeking to have made in terms of the variation. We believe that the granting of the application to vary the award would be fair and equitable. We would also submit that it is consistent with the wage fixing principles. In particular it is not a claim for wages and conditions above or below the award safety net. It merely seeks to - - -

PN29

THE DEPUTY PRESIDENT: I don't think I have your letter of 28 June, do I? I will just, yes here it is.

PN30

MS MALONEY: Yes.

PN31

THE DEPUTY PRESIDENT: I don't have anything, oh yes here it is. I am sorry, I do have a copy. Apologies.

PN32

MS MALONEY: But I do have copies, more copies of the draft orders if you wish it.

PN33

THE DEPUTY PRESIDENT: No, fine. I do have one. I am going to mark this so that it doesn't get lost, FSU2.

EXHIBIT #FSU2 SUBSTITUTE DRAFT ORDER

PN34

THE DEPUTY PRESIDENT: That is the substitute of the draft order, isn't it?

PN35

MS MALONEY: Now, sir I haven't got another copy but I could provide a copy to your Honour if you want confirmation that I did forward that to all the other organisations I can provide a copy of this document to your Honour, today.

PN36

THE DEPUTY PRESIDENT: All right.

PN37

MS MALONEY: If that would help.

PN38

THE DEPUTY PRESIDENT: You might as well do that if you could. If you could provide that, that will be exhibit FSU3.

EXHIBIT #FSU3 CONFIRMATION OF COPIES SENT TO OTHER ORGANISATIONS\

PN39

THE DEPUTY PRESIDENT: We will get you a copy, don't worry.

PN40

MS MALONEY: Thank you. Sorry, sir. And that FSU3 would just - your Honour, copy of the letter we forwarded to your Honour with the amended draft order.

PN41

THE DEPUTY PRESIDENT: Perhaps if we give you a copy subsequent to these hearing.

PN42

MS MALONEY: And copies of the letters and amended draft order we forwarded to all the organisations. If we could have a copy of that I would appreciate it thank you.

PN43

THE DEPUTY PRESIDENT: Yes. You will need that.

PN44

MS MALONEY: Yes. Thank you. So sir, we would submit that the draft order as I say, seeks to implement a test case standard therefore is consistent with principle 4 and is consistent with principle 2(b). We also submit the draft order meets the statutory requirements of the Act in terms of the requirement for the Commission to establish and maintain a safety net of fair minimum wages and conditions of employment and this draft order simply seeks to do that and obviously it seeks to also ensure that the award is up to date which also is a very important part of the provisions under the Act. So in conclusion sir we would seek to have the award varied in terms of the draft order as per this order to the Commission.

PN45

THE DEPUTY PRESIDENT: That is exhibit FSU2 isn't it?

PN46

MS MALONEY: I wasn't sure if you actually.

PN47

THE DEPUTY PRESIDENT: That is what you are seeking isn't it? FSU2?

PN48

MS MALONEY: Yes, that the order, the draft order we forwarded to the Commission on 28 June.

PN49

THE DEPUTY PRESIDENT: Twenty-eighth June, which is exhibit FSU2.

PN50

MS MALONEY: Thank you, your Honour.

PN51

THE DEPUTY PRESIDENT: Thank you.

PN52

MR MORLEY: Your Honour, as Ms Maloney has correctly stated there was some negotiation between the parties about the original draft order which we submit was inconsistent with the parental leave test case standard as it provided a non discretionary entitlement for part time employees to work in connection with the birth and adoption of a child. Just for completeness I note that on behalf of our clients we sent correspondence to the union on 27 June seeking removal of what we believe was the offending paragraph and I will just tender that to the Commission now.

PN53

THE DEPUTY PRESIDENT: Thank you. Shall I call it ABL1?

EXHIBIT #ABL1 CORRESPONDENCE TO UNION ON 22/06/2005

PN54

THE DEPUTY PRESIDENT: It is exhibit ABL1, a letter dated 22 June 2005. I will just read it. Thank you.

PN55

MR MORLEY: In response to that the union has amended its draft order which we now believe is consistent with the parental leave test case and Senior Deputy President Watson's decision print number 921320. As such we would not oppose the making of the draft order in the terms sought by the order, your Honour.

PN56

THE DEPUTY PRESIDENT: Good. Thank you very much. Anything else?

PN57

MS MALONEY: No your Honour.

PN58

THE DEPUTY PRESIDENT: Marvellous. Well thank you very much for those submissions. On the basis of the submissions put and the documents filed I will amend the award as sought in the terms of exhibit FSU2. The proposed order simply ..... test case and updates a reference to the National Training Wage Award. I am satisfied that relevant parties of the award have been notified of the change and as a result of their submissions an amended order was distributed by the FSU. No objections to that order were made and in fact most parties consented to that and on that basis and the basis of the test case and the wage fixing principles I am satisfied that I should grant the application as sought. So thank you very much. Is there anything else?

PN59

MS MALONEY: No, your Honour.

PN60

THE DEPUTY PRESIDENT: Marvellous. Thanks.

<ADJOURNED INDEFINITELY [10.39AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #FSU1 SERVICE OF NOTICE AND LISTING PN14
EXHIBIT #FSU2 SUBSTITUTE DRAFT ORDER PN33
EXHIBIT #FSU3 CONFIRMATION OF COPIES SENT TO OTHER ORGANISATIONS\ PN38
EXHIBIT #ABL1 CORRESPONDENCE TO UNION ON 22/06/2005 PN53