C2005/3986, Transcript of Proceedings [2005] AIRCTrans 1699 (11 August 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 12428-1

SENIOR DEPUTY PRESIDENT KAUFMAN

C2005/3986

APPLICATION BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.113 - Application to vary an Award
(C2005/3986)

MELBOURNE

10.16AM, MONDAY, 08 AUGUST 2005

PN1

MR J RYAN: I appear for the Shop, Distributive and Allied Employees Association.

PN2

MR M WELDON: I appear on behalf of the Australian Retailers Association of Victoria.

PN3

MR P EBERHARD: I appear for the Victorian Employers Chamber of Commerce and Industry, and I appear on behalf of the members responding to the award.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Ryan?

PN5

MR RYAN: Your Honour, I am also aware that the National Retail Association has faxed both to myself and to you, an acknowledgement that they consent to both applications.

PN6

THE SENIOR DEPUTY PRESIDENT: I don’t think so. Do you want to hand a copy of that, please?

PN7

MR RYAN: Yes. That is the only copy I have.

PN8

THE SENIOR DEPUTY PRESIDENT: Well, I will read it onto the transcript. It is a facsimile transmission dated 5 August 2005 on National Retail Association letterhead over the signature of Suzanna McAuliffe, M-c-A-u-l-i-f-f-e:

PN9

Dear Senior Deputy President, we write to advise that the National Retail Association consents to the SDAs application to vary the National Fast Food Retail Award 2000 in matter C2005/3986 and C2005/3987.

PN10

I don’t read any further. They’re the formalities. Yes, thank you.

PN11

MR RYAN: Your Honour, the two applications - - -

PN12

THE SENIOR DEPUTY PRESIDENT: Just before you go to that, there was an order made for substituted service beyond the two organisations that appear and the organisation that has just consented.

PN13

MR RYAN: It was one of those organisations.

PN14

THE SENIOR DEPUTY PRESIDENT: It was one of those, yes. But there are others, and this is also a Common Law Award. I think we should formally put of service, Mr Ryan.

PN15

MR RYAN: Your Honour, if I could hand up three facsimile transmission reports from our office? One is a transmission report that went to a number of organisations and the facsimile numbers on those correspond with the facsimile numbers that were on the order for substituted service. On that, it identifies that there was an error in relation to 07 number. It was to the National Retailers Association. There’s a sheet which identifies separately that the matter was re-faxed to the 07 number.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes.

PN17

MR RYAN: The third sheet is to a 08 number which is the South Australian Retailers Association, and that is a failed transmission, and that identifies that. In relation to the South Australian one, because that failed a couple of times, we made contact with the ARA of New South Wales, whom we understood had a relationship with the ARA of South Australia. They advised us that the office in South Australia was now closed and that everything now goes through the New South Wales office. So on that basis, what it will also mean is that in any of our future applications on this matter, we will have to remove the ARA of South Australia, in terms of having a separate number, and to the extent that we advise the ARA South Australia, we have to do that care of the New South Wales ARA.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN19

MR RYAN: You can see that in relation to the number of pages faxed, we faxed 29 pages, and as the Commission will be aware, when we filed these applications, whilst the applications themselves were only two-page applications, we did, in relation to the Hours of Work application, attach a number of pages which constituted extracts of transcript and award matters that had been tendered in the making of the award. So the 29 pages constituted the sum total of the material that had been filed in the Commission and it was faxed in accordance with the substituted service order.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Ryan.

EXHIBIT #SDA1 THREE FACSIMILE TRANSMISSION REPORTS

PN21

THE SENIOR DEPUTY PRESIDENT: I am satisfied that service has been effected in accordance with the order for substituted service. Yes, Mr Ryan?

PN22

MR RYAN: What I will do also, in relation to the issue of substituted service, the association has had a standard application for substituted service in relation to this award, and certainly has used it for our variation of the award for the purposes of making adjustments. In relation to the application that we made on this occasion, and one which was granted, we actually added an additional employer organisation which we haven’t normally put on with our applications for substituted service relating to the safety net adjustments. That additional organisation was the Tasmanian Chamber of Commerce and Industry.

PN23

I added that in particular on this occasion because during the making of the National Fast Food Award, the Tasmanian Chamber of Commerce and Industry had a very specific interest in relation to one particular employer in Tasmania and during the making of the Fast Food Award, the Tasmanian Chamber of Commerce and Industry ran a section 111(1)(g) argument on behalf of that particular employer. On the basis that I expected that they continued to have a very specific interest in issues that would go to hours of work and sick leave, I added them to the application for substituted service. They are one of the parties that were formally notified of the hearing in relation to this matter.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. I think that’s a sensible course to adopt, if I may say so.

PN25

MR RYAN: Your Honour, the two applications have arisen because of matters that were drawn to my attention by the Department of Employment and Workplace Relations recently. The National Fast Food Award is now a common rule in the state of Victoria, and as a result of that, there have obviously been a number of inquiries to the wage line section of the department seeking clarification and understanding of the operation of this award, and in turn, the officers in the department who provide advice to the wage line group have contacted me seeking advice in relation to the award, what is intended and what was meant when the award was first made.

PN26

I may say, I have been through this process from its earliest stages in the making of the award. I conducted, not all, but 99 per cent of the hearings for the making of the National Fast Food Award. It was a process that commenced in 1994 and concluded in December of 2000, with the making of the award. So it was a very, very long process to get this award made. Amongst the unions and the employer organisations, I’m the only one that’s standing at the end of the process. Even the Commissioner who dealt with the matter, as I understand it, is no longer dealing with anything relating to these matters. I am not certain whether Commissioner O’Connor has actually retired?

PN27

THE SENIOR DEPUTY PRESIDENT: Yes, he has.

PN28

MR RYAN: Yes. So we must have worn him out as well.

PN29

THE SENIOR DEPUTY PRESIDENT: I don’t know what sort of award we give you, Mr Ryan, but you can have it.

PN30

MR RYAN: The matter which has, as I understand it, the least contentiousness attached to it concerns the - - -

PN31

THE SENIOR DEPUTY PRESIDENT: Is the application not consented to?

PN32

MR RYAN: The ARA of Victoria have advised me this morning that there appear to be some concerns in relation to the hours of work issue. But in relation to the sick leave issue, there appears to be no disagreement, that those changes are changes which simply will correct what is - that is the 3987 matter.

PN33

THE SENIOR DEPUTY PRESIDENT: That’s clause 28.2, is it?

PN34

MR RYAN: Yes. It simply clarifies the operation of the sick leave clause. It does so because of the current context of clause 28.2.3 has a reference back to 28.2.2 and appears to be a nonsensical reference. Clause 28.2.2 relates only to New South Wales and clause 28.2.3 relates to all other states and territories. The second part of that is to renumber the clauses so that what will appear after the amendment is that sick leave in relation to New South Wales will be in clause 28.2.2 with paragraphs (a) and (b) and sick leave for all other states and territories will be in clause 28.2.3, paragraphs (a) and (b).

PN35

THE SENIOR DEPUTY PRESIDENT: Just bear with me for a moment. Yes.

PN36

MR RYAN: The changes do not alter any of the entitlements, but what it will do is it will ensure that the structure of the two parts of the clause which relate to the quantum and the accrual of sick leave will be the same set-out, whether it’s for New South Wales where it’s in one paragraph, with two subparagraphs (a) and (b) and the numbering changes will now put the provisions for quantum and accrual for all other states and territories in one paragraph, with subparagraphs (a) and (b). So the two clauses will actually read in the same style, the same structure.

PN37

THE SENIOR DEPUTY PRESIDENT: That’s consented to, is it, Mr Weldon and Mr Eberhard?

PN38

MR WELDON: Yes, that’s correct, your Honour. We have no difficulty with that, on behalf of our association.

PN39

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Eberhard?

PN40

MR RYAN: I do have a - sorry.

PN41

MR EBERHARD: VECCI wouldn’t be opposing this application, your Honour.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes.

PN43

MR RYAN: I do have a draft order to give effect to these changes and I have also emailed a copy of the draft order to your office.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, I have it. Yes, I am satisfied that the draft order is appropriate to give effect to the intention of the parties and the Commission in making the award. Accordingly, the application in matter C2005/3987 is granted and the award will be varied in terms of the draft order, to operate from today’s date for a period of 6 months. Yes, in relation to the next matter?

PN45

MR RYAN: Yes. In relation to the next matter, the potted history of the making of this award is set out in the grounds in support of the variation. We identify there that the matter had an extensive history, going over nearly 6 years, but well over 5 and a half years, in the making of the award. When the association first proposed this award, and we did that in terms of submitting a copy of a draft award to the Commission in July of 1995, exhibit FDA22, the structure of the award was that we would have an award which had a single, comprehensive set of terms and conditions of employment for the fast food industry across all states and territories.

PN46

We did that on the basis that at that stage we recognised that coming off some various and competing state awards and areas where there was very little clarity in some areas as to which state award would apply, we adopted a position of reflecting what was essentially the reality in those states at that particular time. So some clauses had lots of different provisions in them. For example, the casual rates clause, as we first proposed it, had separate casual rates for every state and Territory to simply reflect what was the current operative casual rate that was applied.

PN47

But where we could create a single universal condition of employment, we did so. One of those universal conditions that we decided upon was in relation to the hours of work. In the retail industry, the normal hours of work would be from about 7 o'clock in the morning to 9 pm at night, normally also with some form of penalty or loaded rate applying after 6 pm.

PN48

However, because the long term history of the fast food industry is that this evolved out of the café and restaurant industry, and in some states, the underpinning awards that were being used were café and restaurant awards, or Cafes and Teashops Award as it was in WA, the association took the view that in creating an award and proposing a new award, that we would adopt an expansive set of ordinary hours of work and also adopt penalty rates for ordinary hours, but non-traditional ordinary hours which were different from the retail industry.

PN49

Our very first draft, which was exhibit 22 in the matter, contained an ordinary hours of work clause which provided ordinary hours between 6 am and midnight, each of seven days a week, with a Saturday penalty of 25 per cent and a Sunday penalty of 75 per cent. Now, that is significantly different from the retail industry which had Saturday penalties depending on which state you went to, from anything from 25 per cent up to 44 per cent, as it was in Victoria, and the position also in Victoria of having a Sunday penalty of 100 per cent. But the 25 per cent and the 75 per cent reflected what was the federal standard in the hospitality industry awards, and these are the awards where the main union party is the LHMU.

PN50

So in exhibit 22 in the original award matter, the hours of work were expressed as being 6 am to midnight, seven days a week. That process continued until we got to the stage, when during ’97 and ’98, there were many discussions between the SDA and the ARA of New South Wales, in particular over how a fast food award would operate in the state of New South Wales. ARA of New South Wales ran a section 111(1)(g) argument before Commissioner O’Connor and lost, so once they were faced with the reality that an award would be made, extensive discussions were then had with them as to what would be the content of an award that would apply in New South Wales.

PN51

In order to avoid lengthy argument over each and every clause of the award, as the ARA of New South Wales threatened to do if we simply pushed ahead with a single universal standard for this industry, the association eventually agreed with the ARA of New South Wales, of inserting into the award a set of New South Wales-specific terms and conditions of employment where the specific terms and conditions would reflect exactly what was contained in the New South Wales State Shops Award. Because one of the things that was recognised throughout the hearing is that the New South Wales State Shops Award was the only retail award in the country which specifically had a reference to coverage of fast food outlets.

PN52

On that basis, the association was then prepared to concede that in relation to creating a federal award which would have coverage in New South Wales, that we would reflect accurately the terms and conditions of employment that were provided for in the New South Wales State Award. In some respects, this led to a very messy federal award being created, especially in relation to issues such as allowances. Clause 16 of the current award has the allowances that would apply, and there are a large number of New South Wales-specific allowances and a much smaller number and less-detailed set of allowances for all other states and territories.

PN53

The New South Wales approach to allowances had things expressed in very ancient language, in some respects, including the provision of the bicycle allowance which the ARA of New South Wales insisted of having, though I know of no fast food outlet that I’ve ever come across where bicycles are used as a form of delivery of a fast food. However, simply because they were matters which were in the existing state award for New South Wales, then they were matters which were faithfully replicated in the National Fast Food Award when it was finally made. The New South Wales State Shops Award had a span of hours already for fast food, which was 6 am to midnight.

PN54

So, in that sense, what was in the New South Wales State Shops Award and what we were seeking to do in relation to the National Fast Food Award was identical. The difference was that the language which was used to express those ordinary hours were slightly different from the language that we were using in relation to trying to create a universal standard. At the end of the process, however, I inserted the language from the New South Wales State Shops Award into the draft of the National Fast Food Award so that we retained the 6 am to midnight spread of ordinary hours, but used the language that was in the state New South Wales award, rather than the language which had been proposed.

PN55

It appears that as a result of doing so, the drafts that were then handed up to the Commission and finally made by the Commission had a New South Wales heading to the parts of the clause which related to the spread of ordinary hours of work within the award. The difficulty with this, and I suppose this is a genuine problem that both the ARA Victoria and VECCI now have is that the officers who dealt with that matter from their respective associations are not here. The officer from the ARA New South Wales is no longer employed within the ARA of New South Wales and the only official left standing who was involved in each and every step along the way is myself.

PN56

THE SENIOR DEPUTY PRESIDENT: It kind of makes you a living treasure, Mr Ryan.

PN57

MR RYAN: It puts me in the difficult position that I can give a recollection of what happened, but it’s not a recollection that is now shared by anyone else, and that’s unfortunate because whilst I can say categorically that the intention always was to have a spread of hours, 6 am to midnight, I can do no more in terms of proving the point than what I have done in terms of the attachments I have put to the application; that is to track through the various exhibits and to track through the parts of the transcript in the proceedings before Commissioner O’Connor which dealt with this issue of hours of work, to show that the recollection that I had is borne out by the material that was before the Commission.

PN58

I understand from Mr Weldon, speaking with me immediately prior to the hearing today, that they are concerned that because there is no specific expression of a spread of ordinary hours for the state of Victoria, it means that all hours, 24 hours a day, seven days a week, are ordinary hours.

PN59

THE SENIOR DEPUTY PRESIDENT: That would be so, wouldn’t it?

PN60

MR RYAN: Yes. And to that extent, therefore, they see that this is potentially not a change which is merely correcting a typographical error or an oversight, but may constitute a change of significance for named employees to the award who have been operating under the award since it was created in December 2000.

PN61

THE SENIOR DEPUTY PRESIDENT: Just prior to that, there was no award applying in Victoria?

PN62

MR RYAN: No, and prior to this award being made, each of the named respondents, and the Victorian-named respondents to this award were merely covered by schedule 1A and when this was first made, schedule 1A provided no more than a maximum of 38 hours of ordinary work per week, without defining any spread, and also schedule 1A at the time this award was made did not provide for any overtime rate, which meant that overtime - in other words, hours worked outside of the normal spread of 38 hours - could also be paid at the ordinary hourly rate of pay.

PN63

THE SENIOR DEPUTY PRESIDENT: This award extends beyond New South Wales and Victoria, though, doesn’t it?

PN64

MR RYAN: It does. It applies in all states and territories.

PN65

THE SENIOR DEPUTY PRESIDENT: The way the clause is currently worded, not only is no spread of hours in Victoria, there’s no spread of hours for any state but New South Wales?

PN66

MR RYAN: That’s right. Yes.

PN67

THE SENIOR DEPUTY PRESIDENT: Was that the situation that pertained prior to the making of this award?

PN68

MR RYAN: No.

PN69

THE SENIOR DEPUTY PRESIDENT: No. I thought not.

PN70

MR RYAN: Yes. Because the contention that had been run by the employers in relation to the schedule 1A arguments in the other states was that there was an award which would apply to parts of the fast food industry. There were segments of the fast food industry which were excluded from the operation of some state awards because of the way a café and restaurant award would be worded, the description of the industry did not necessarily encompass all the fast food operations, and on that basis, there was an acknowledgement that there were awards in the states which applied, but they applied to segments of the industry, they weren’t awards that applied totally to the industry.

PN71

The decisions of Commissioner O’Connor made it very clear that he supported the making of a single federal award for the named respondents on the basis that there was no single state award which actually applied to all of the persons who would otherwise be covered by the federal award. But where awards in the states did have some application, all of those awards certainly had traditional provisions relating to the span of ordinary hours plus the penalty payments that would apply for work done outside that span, including the overtime rate.

PN72

Which is why in the approach adopted by the association in making this application is that we considered that this was correcting a minor matter in terms of it’s a heading of an award which was inappropriately put in place, rather than a substance of an award which was meant to have general application. Given that I have only been alerted first thing this morning to the concerns raised by the ARA and I presume echoed by VECCI, I am not certain how far either the ARA or VECCI are going to press an objection - - -

PN73

THE SENIOR DEPUTY PRESIDENT: Well, let’s find out and you can reply if you need to.

PN74

MR RYAN: Yes. We would seek to have the application granted and given effect to, in terms of the draft order which we have submitted to your office.

PN75

THE SENIOR DEPUTY PRESIDENT: Yes. What about the amendment to 25.1.4? Is that consented to? Yes, it is. All right.

PN76

MR RYAN: Yes, it’s the first part. If the Commission pleases.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Weldon?

PN78

MR WELDON: Yes, thank you, your Honour. As Mr Ryan has pointed out, this matter has an extensive history in the sense of 5 years approximately in negotiation of the award and then the award was made in December 2000 by Commissioner O’Connor, and there has been no substantive changes apart from when the common rule declaration was made and there were changes to the definitions of the industry as such. So what we’re looking at here is 5 years after the award was made by consent, there appears to be some difficulty.

PN79

Now, I hear what Mr Ryan says as far as what issues were put at the commencement and during the process of people’s positions, but it is my view that that may not necessarily be the outcome at the end of the day. When people are negotiating, they negotiate positions and they start off and they change. Unfortunately, as Mr Ryan points out, many of the people that were around are no longer around to verify what the position is, so the award does have - - -

PN80

THE SENIOR DEPUTY PRESIDENT: But you don’t contradict what Mr Ryan said? You have no instructions to contradict anything that Mr Ryan has said?

PN81

MR WELDON: Mr Ryan hasn’t said anything that I disagree with, only the aspect of what that entails at the end of the day as far as changing that provision in the award is concerned. Also, with the common rule now being in effect, it was agreed at the particular time the award came in that these were the provisions, so now we have more employers in Victoria that are working their particular arrangements in accordance with the award, will find themselves in breach of the award, or potentially in breach of the award, if the amendment that Mr Ryan proposes is implemented.

PN82

THE SENIOR DEPUTY PRESIDENT: He’s not seeking to have it made retrospective.

PN83

MR WELDON: No, but what I’m saying is, is that the employers that have working arrangements will now have to change those working arrangements - - -

PN84

THE SENIOR DEPUTY PRESIDENT: Yes, that’s different from being in breach of it.

PN85

MR WELDON: Sure, sure. Yes. And also, as I say, the common rule also impacts on that and I’m not necessarily sure that there aren’t other federal awards in this area that have favourable conditions, and therefore we would - or sorry, more favourable conditions, and therefore we could arguably be
disadvantaged - - -

PN86

THE SENIOR DEPUTY PRESIDENT: Well, can you point to any?

PN87

MR WELDON: Well, I think Mr Ryan would probably know what I’m talking about. I’m talking about - - -

PN88

THE SENIOR DEPUTY PRESIDENT: But I don’t.

PN89

MR WELDON: - - - the McDonalds Fast Food Award and the like. It has more favourable arrangements. So we would see that - we’re quite prepared to talk to Mr Ryan, but as Mr Ryan again quite correctly put to you, he believed they were minor amendments. We believed they were minor amendments until we looked into the issue and that was why we have adopted the approach that we have. But in respect to the other issues, we have no difficulty with. They clearly are matters that need rectifying, but we believe that the parties really need to discuss this particular issue a bit more before rushing into it, if you like.

PN90

THE SENIOR DEPUTY PRESIDENT: Mr Weldon, did your association have members bound by awards of this nature in Victoria prior to the making of this 2000 award? Who are now bound by this award?

PN91

MR WELDON: I wouldn’t believe so. I really don’t know the answer to that, your Honour. I wasn’t aware of the structure of the industry.

PN92

THE SENIOR DEPUTY PRESIDENT: Yes. And are you aware of any of your members working a span of hours beyond those contained in clause 23.2?

PN93

MR WELDON: Yes, I am. Yes.

PN94

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Eberhard?

PN95

MR EBERHARD: Your Honour, our position would be similar to the ARAV, and we would adopt and support those submissions made by Mr Weldon in regards to this. With regards to point 1 of 2005/3986, we do have some concerns that there could be some adverse situations occur as a result of any variation to the award being made, and as a result of that, we would like some further opportunities to enter into further discussions with both the ARAV and also the SDA to further review the application in regards to that. If the Commission pleases.

PN96

THE SENIOR DEPUTY PRESIDENT: Do you have members who work a span of hours beyond those contained in 23.2?

PN97

MR EBERHARD: At the moment, I am not in a position to advise the Commission as to whether we do or whether we don’t.

PN98

THE SENIOR DEPUTY PRESIDENT: Well, then you don’t know whether any of your members are likely to be harmed by it. Did you have any members who were bound by a similar clause prior to the making of this order?

PN99

MR EBERHARD: As I wasn’t with the organisation at that time, I haven’t - I wouldn’t have direct knowledge of that, no, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: And you’ve not done the research to enable an answer to that to be given?

PN101

MR EBERHARD: No.

PN102

THE SENIOR DEPUTY PRESIDENT: All right. Thank you. Yes, Mr Ryan?

PN103

MR RYAN: I can advise the Commission that each of the Victorian employers who were originally served with the letter of demand and log of claims in relation to matter C34240 of 1994 and who subsequently became a respondent to the award were award-free employers at that point of time. Each of those employers were only covered by the operation of - well, in 1994 they were covered by the minimum conditions under the Victorian legislation and then they subsequently became covered by the minimum conditions under schedule 1A to the
Workplace Relations Act.

PN104

But it was a very deliberate decision of the association to only target those persons who were award-free at that point of time in Victoria. It meant very clearly, and this is borne out extensively within the transcript, that none of the employers in Victoria were able to run arguments under section 111(1)(g) simply because there were no awards. Or whilst they technically could have tried to raise them, there was no substance to those arguments as a result of the number of Full Bench decisions which had approved the process of making awards for Victorian employers who were not respondent to any other existing state or federal award at the time.

PN105

THE SENIOR DEPUTY PRESIDENT: Mr Ryan, are there awards in the fast food industry that don’t have a span of hours at all? Having named you a living treasure, I expect you to know these things.

PN106

MR RYAN: Yes. There are at least two, I would think, that clearly don’t have a span of hours. They are consent awards - or they were made as consent awards originally under the enterprise bargaining principles which allowed an enterprise agreement to be processed before the Commission either as a certified agreement or as a consent award, and this goes back to the operation of the Industrial Relations Act, and we did process a couple of those enterprise agreements as consent awards, and they did not have a span of hours in them.

PN107

What dealt with that matter was our understanding of the very particular operations of the employers concerned and the negotiated rate of pay which reflected the buy-out of the penalties that would otherwise have applied. So that there were no difficulties in that sense in having persons who would, say, be working at 2 o'clock or 3 o'clock in the morning, in the absence of any form of penalty rates. Those consent awards had very strict provisions relating to the rostering provisions for the minimum number of hours to be worked and the number of hours each day and each week.

PN108

Those consent awards were, as a result of the award simplification process, converted into minimum awards. It didn’t alter the rates of pay, but it altered technically the status of those awards so they became minimum conditions awards, but each of those awards is a company-specific award. So it does not operate in relation to any employer other than the named employers in those awards, and they are all - depending upon the award - the employer or the franchisees for a particular fast food brand.

PN109

In that sense, there is a very high degree of control over the operations of those entities because they operate according to very set hours of work and market rates, depending upon whether it’s a pizza operation or whether it’s a hamburger or a chicken operation. This is the only award which is a generic industry award and it was specifically created because it is a generic industry award. I’m not certain how much further we can take any negotiations over this matter, given that - - -

PN110

THE SENIOR DEPUTY PRESIDENT: No. Well, let me take you to your grounds. In ground number 3, you talk about various versions of the proposed award being tendered to the Commission as exhibits on various days and each of those versions containing a spread of hours. You were involved in those negotiations; at that time was that spread of hours agreed to?

PN111

MR RYAN: Yes. It was always - in fact, it was one of the things that the employers were grateful for, is that we didn’t try to create an artificial fight over spread of hours. We made the concession upfront that we would not ask for standard the retail industry spread, we would give them what were hospitality industry spreads, and we’ve resisted those in every other award except in this particular area of fast food where we have conceded it.

PN112

THE SENIOR DEPUTY PRESIDENT: The further thrust of what you have told me is that the heading at 23.2 went in there inadvertently?

PN113

MR RYAN: Yes.

PN114

THE SENIOR DEPUTY PRESIDENT: That’s your position?

PN115

MR RYAN: Yes.

PN116

THE SENIOR DEPUTY PRESIDENT: And it was never the intention of the parties that that heading go in?

PN117

MR RYAN: No.

PN118

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I accept that, Mr Ryan. What I propose to do is to vary the award in the terms of the draft order which has been sent to me, but it will not operate for a period of three months. It will come into operation on the first pay period on and after 7 November 2005. I will also take the unusual course of providing liberty to the employers to re-agitate this issue up to two months from today’s date if they receive instructions contradicting what Mr Ryan has told me from the bar table as to the agreement of the negotiating parties in the terms that Mr Ryan has explained to me.

PN119

I don’t expect that those instructions will be forthcoming, but I understand that those at the bar table were not involved and the matter can be re-agitated up to a month before the operative date, if those instructions are received. Yes, Mr Ryan?

PN120

MR RYAN: Given the sensitivity that’s been raised with this issue, I certainly concur and appreciate the fact that a good lead time should be given for the operation of the award. To ensure that the employers who are the named respondents to this award have a proper opportunity of taking advantage of what you have suggested as the opportunity for re-visiting this, the association is quite happy to undertake to send to each of the named respondents a copy of the draft order, or the decision of the Commission.

PN121

I certainly don’t want to have anyone say that they might have been trapped into this or misled, and if there is a degree of sensitivity because all of the key advocates from the employers’ side are no longer with us in terms of this matter, the association will undertake to make certain that each of the named respondents is given a copy of the decision and the draft order so that they will be able to activate that revision clause if they require it. We can’t do that for all of the common rule parties, obviously, but we can certainly do it of the organisations named in the common rule.

PN122

THE SENIOR DEPUTY PRESIDENT: I think that is more than sufficient. They have had an opportunity to attend today, Mr Ryan, and they didn’t do so at their own peril, but I appreciate your undertaking to do so. I hadn’t intended to reduce the decision to writing, but - - -

PN123

MR RYAN: I will take it off the transcript.

PN124

THE SENIOR DEPUTY PRESIDENT: Yes. I think that will be sufficient.

PN125

MR RYAN: That will be sufficient, your Honour.

PN126

THE SENIOR DEPUTY PRESIDENT: I will ask that the transcript be provided as a matter of urgency and that undertaking will be complied with.

PN127

MR RYAN: Yes.

PN128

THE SENIOR DEPUTY PRESIDENT: Anything else, gentlemen? Mr Weldon?

PN129

MR WELDON: No, your Honour.

PN130

THE SENIOR DEPUTY PRESIDENT: Mr Eberhard?

PN131

MR EBERHARD: No, your Honour.

PN132

THE SENIOR DEPUTY PRESIDENT: Yes, I will adjourn the Commission.

<ADJOURNED INDEFINITELY [11.00AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SDA1 THREE FACSIMILE TRANSMISSION REPORTS PN20