C2004/4617, Transcript of Proceedings [2005] AIRCTrans 341 (11 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10297

VICE PRESIDENT LAWLER

C2004/4617

s.113 - application to vary an award

APPLICATION BY LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
(C2004/4617)
Australian Liquor, Hospitality and Miscellaneous Workers Union Supported Employment (Business Enterprises) Award 2001

SYDNEY

TUESDAY, 01 FEBRUARY 2005

Continued from 14/10/2004

PN1
PN2

MS S BENNETT: I appear on behalf of the LHMU.

PN3

MR J STEWART: I seek leave to appear, for and on behalf, of the Minister for Employment and Workplace Relations and I have with me MR J MACKEN.

PN4

THE VICE PRESIDENT: Thank you, Mr Stewart. I don't think the minister needs leave, does he?

PN5

MR STEWART: In relation to matters before the Commission, it is currently constituted. The need to seek leave would have been pursuant to section 43(1) of the Act.

PN6

THE VICE PRESIDENT: The Minister's automatic right to intervention doesn't apply you say?

PN7

MR STEWART: That is right.

PN8

THE VICE PRESIDENT: Okay. Thank you, Mr Stewart. Mr Capelin? Perhaps you will continue in appearance for those parties? MR AMENDOLA?

PN9

MR AMENDOLA: If the Commission pleases.

PN10

THE VICE PRESIDENT: Thank you. MS WILSON?

PN11

MS K WILSON: If the Commission pleases.

PN12

THE VICE PRESIDENT: And MS GAYNOR, for the ACTU.

PN13

MS GAYNOR: Thank you, your Honour.

PN14

THE VICE PRESIDENT: Thank you. Is there any objection to the minister being granted leave to intervene, from any party or interested person? It is a little soft down there in Melbourne - I take it there is no objection from any of the parties in Melbourne?

PN15

MS WILSON: No objection.

PN16

MS GAYNOR: No objection.

PN17

MR AMENDOLA: No objection, your Honour.

PN18

THE VICE PRESIDENT: Yes, I am satisfied that the proper exercise for discretion pursuant to section 43(1) is to grant the minister leave to intervene. The Commonwealth clearly has an interest in the outcome of this proceeding, which makes it appropriate for the minister to be given leave.

PN19

MR STEWART: Thank you, your Honour. If it pleases the Commission, the Commonwealth would like an opportunity to make a brief submission regarding some of the issues that have been discussed in the previous hearings in this matter. Given our belated intervention due to the caretaker period prior to the Federal election we did not have this opportunity at the hearing that was held last October.

PN20

THE VICE PRESIDENT: Yes.

PN21

MR STEWART: Thank you, your Honour. In particular, I would refer to the matter raised by Mr Capelin, who appeared on behalf of VECCI, and other employers, at the hearing held on 14 October 2004. He stated that the Commonwealth is collecting material, in addition to that summonsed by the Commission on the capacity of business services, to implement pro rata award wages and on whether organisations required additional funding. This is at paragraph number 141 of the transcript. Mr Capelin suggested that this information needs to be considered by all participants in the case, before a decision can be made on the likely impact of their election WU application. The material referred to by Mr Capelin is being collected as part of what are known as full capability reviews for business services.

PN22

These reviews have been undertaken, by panels of business consultants on behalf of the Commonwealth, on a business service by business service basis. Their purpose is to assess the rate at which each business service is capable of phasing, in pro rata award wages, and whether additional assistance might be needed from the Commonwealth. Full capability reviews will determine whether any additional funding is required on a case management basis in order for each business service to successfully implement award base wages. The Department of Family and Community Services initial testing of the BSWAT, revealed that it would substantially increase wage costs for business services. As a result, in April 2004 the government pledged a further 99 million business services over the next four years to assist in the implementation of pro rata award wages.

PN23

FACS full capability reviews of business services are directed at determining how this funding should be allocated and whether it is sufficient. All business services that are unable to introduce award base wages from 1 January 2005, under the new FACS quality assurance requirements, will be subject to a full capability review. FACS indicates, that 88 business services covering over six thousand six hundred employees with disabilities, were not able to do so and that is 38 per cent of the sector.

PN24

THE VICE PRESIDENT: Were not able to?

MR STEWART: Introduce pro rata award wages from 1 January 2005.

PN25

THE VICE PRESIDENT: That is 88 out of how many?

PN26

MR STEWART: Well it represents 38 per cent of the sector by employment.

PN27

THE VICE PRESIDENT: Yes, but what - that is as a result of these full capability reviews?

PN28

MR STEWART: Yes, 38 percent of the sector, were not able to introduce pro rata award wages from 1 January 2005.

PN29

THE VICE PRESIDENT: That is presumably an estimate based upon a sample that has already been investigated.

PN30

MR STEWART: Well, there was a process gone through before 1 January 2005 to assess whether business services were capable of introducing award base wages from 1 January 2005, and to identify those that were not capable of doing it and they were earmarked for full capability reviews, and for the phase in of award base wages, over the next four years, and consideration of whether additional government funding was needed to build their capacity to cope with award base wages.

PN31

So, that is 38 per cent of the sector by employees, which represents 88 business services. At this time, the subject of full capability reviews, subject of phase in of pro rata award wages, do not have the capacity to pay full award base wages immediately, and will have their funding requirements assessed. Each of these business services, has instead, made a commitment to phase in pro rata award wages following the full capability review and associated funding. Now, we would submit, respectfully, your Honour, that the information that comes out of those full capability reviews is critically important to both, conciliation and any arbitration, in these proceedings. It is critical information for everyone involved in forming positions on the capacity - - -

PN32

THE VICE PRESIDENT: Is that right, Mr Stewart, the award at the moment applies to, I think, four named respondents, and although we are told by the ACTU that the unions, and by Ms Bennett, that the union has in mind at the end of the day to seek to rope in other employers. This is not - the Commission is not conducting some sort of wide ranging enquiry into the capacity of business services enterprises, generally to cope with an award provision that includes the BSWAT, as an award tool or an award standard.

PN33

MR STEWART: Of the named respondents to the award, your Honour, two of them are in the category of not being able to introduce pro rata award wages from 1 January 2005. FACS advises us that those are Afford, which has over 500 employees and the other is Access which has over 200 employees. So even if we take the - - -

PN34

THE VICE PRESIDENT: No, that is fine.

PN35

MR STEWART: Thank you, your Honour. So, just briefly, your Honour, we consider that that information, as Mr Capelin foreshadowed last year, is critical to the programme of the case, the availability of the information and when it becomes available and we would make a more extensive submission in relation to that, about programming, and I could do that now or at some subsequent time.

PN36

THE VICE PRESIDENT: Do I infer that you are suggesting that the hearing ought to be postponed until after that information is available?

PN37

MR STEWART: What we are actually proposing, your Honour, is that there be report backs to get progressive reports on that information over the next five months. It is expected that the full capability reviews will be completed in June. We are not proposing that nothing happen until then, we would be suggesting report back in two months, and further report back two months after that.

PN38

They would be report backs from FACS, to conferences, giving detail of the outcomes - the progressive outcomes of the full capability reviews, and those report backs of course wouldn't identify specific business services because of the commercial in confidence nature of the information. But, making report backs in a conference setting would enable the other participants in the case to ask questions and FACS, to raise questions about further information and discuss whether further information ought to be given and whether or not to be any privacy orders and so on. That is basically the process that we would be proposing, your Honour.

PN39

THE VICE PRESIDENT: As I recollect it, and I have to confess that my recollection is a little hazy, the matter was adjourned to today for the purpose of enabling the union and employer parties to, in fact for the parties generally, to digest the information produced by the department pursuant to the summonses, and then for programming to be dealt with today in the matter, a timetable to be set. You have added a new element to the equation, because of the full capability reviews and what you have outlined, Mr Stewart. Does any party have an objection to what Mr Stewart proposes, which is essentially the lay in programming a hearing to enable the full capability reviews of the agencies in question to be completed, and for there to be report backs of the sort foreshadowed by Mr Stewart.

PN40

MS BENNETT: Your Honour, the union does have an objection to the proposed course of action by FACS. The union would seek that conciliation dates be set down today in order that discussions between the parties can begin. The union isn't of the view that any trickle in of information from FACS, will necessarily mean that conciliation can't be set down fairly quickly, in order to start the ball rolling.

PN41

THE VICE PRESIDENT: You are concerned about the delay in the process because the Act requires conciliation to occur.

PN42

MS BENNETT: That is right. And indeed, section 89 makes fairly clear that conciliation is - - -

PN43

THE VICE PRESIDENT: It is obligatory.

PN44

MS BENNETT: Obligatory indeed, and I would not have thought that any information that comes from FACS, will necessarily derail or mean that conciliation isn't helpful, particularly given that the parties seem to be heading towards a conciliation of issues surrounding the validity of the tool. I understand that two parties to the award are having - or have had difficulties meeting the 31 December deadline, and indeed it might mean that a clause needs to be considered to protect those two parties to the award, given their current difficulties. If I may, I would just like to paint a brief outline, of the history of the tool, from the union's perspective and the kind of delays that we have really faced in this industry with the implementation of the tool.

PN45

THE VICE PRESIDENT: Ms Bennett, I don't - I have a personal commitment that means I have relatively short time, and I don't know whether or not we need to deal with the history. I suspect that the parties are generally aware of it, but I appreciate that there has been, effectively, a long delay from the union's perspective in making progress in this matter, and the union is eager to see it resolved sooner, rather than later.

PN46

MS BENNETT: Yes, your Honour. That is correct.

PN47

THE VICE PRESIDENT: Yes. Mr Capelin?

PN48

MR CAPELIN: Thank you, your Honour. The parties I represent also would oppose, what we would see, is a further delay to the proceedings. Whilst I was quoted in Mr Stewart's submissions, the information I made at the time was that that information be available by the end of last year. A further delay until that further information probably confirmed what most of the parties already know - we, on my submission, would not really be to the advantage of the parties I represent in order to advantage all parties in getting this matter resolved sooner.

PN49

THE VICE PRESIDENT: Thank you, Mr Capelin. Does anyone else wish to put in their two penneth worth on this?

PN50

MS GAYNOR: Your Honour, just to note that the ACTU supports the submission of the union.

PN51

THE VICE PRESIDENT: Thank you, Ms Gaynor.

PN52

MS WILSON: Your Honour, we also support the position of the union.

PN53

THE VICE PRESIDENT: Thank you, Ms Wilson.

PN54

MR CAPELIN: If the Commission pleases, the position of ACRON is that it has had discussions with the Commonwealth, in relation to what the Commonwealth proposes. My client has been concerned that, obviously, these proceedings operate and conclude in a meaningful fashion in the sense that, once there is a conclusion, that that will operate meaningfully, in terms of business services and what they may do going into the future. So, when we had discussions with the Commonwealth about what it was proposing, my client had some concerns as it needed to be alleviated in order to feel that there would be a meaningful outcome in terms of this proceeding.

PN55

My client is satisfied, in terms of what has been put to my client by the Commonwealth, which is subject to ministerial approval which hopefully will be in the not too distant future, and on the basis of that comfort, my instructions are to support the application that has been put by the Commonwealth. If the Commission pleases.

PN56

THE VICE PRESIDENT: Yes. Can I just have an indication from the parties as to what their expectations are, in terms of evidence and the duration of a hearing, assuming the matter can't be resolved by conciliation? Mr Capelin, do you have a view?

PN57

MR CAPELIN: At this stage, your Honour, I don't have a view. The only proposal I was putting for programming this matter was up to. What I was proposing, was that the parties give an outline of submissions. I have got a timetable for that leading to a conciliation in early April. I think it is really only at that time we would be in a better position to assess what sort of evidence be required, the duration of any hearing following the conciliation.

PN58

THE VICE PRESIDENT: I must say, I had assumed that, maybe incorrectly, that the prospects for resolving this matter at conciliation were remote, to say the least.

PN59

MR CAPELIN: So pessimistic, your Honour, but I can understand why you hold that view.

PN60

THE VICE PRESIDENT: Yes. No, no but if the parties take the view that there are significant prospects in conciliation, then that is to be welcomed - that is a pretty positive development. Mr Stewart, is there any particular reason why the conciliation phase could not proceed whilst in tandem with the finalising of the full capability reviews?

PN61

MR STEWART: No, we don't see a problem, with both exercises occurring at once. In other words, the conferences that were programmed for conciliation could also serve as the venue for providing progressive information on the outcomes of the full capability reviews, and we see conciliation as being potentially, extremely beneficial in this case. We have had discussions with - as Mr Amendola indicated, with ACRON and discussions with the unions and we see that there are considerable opportunities for conciliation - particularly conciliation informed by the material that will emanate from the full capability reviews.

PN62

THE VICE PRESIDENT: Certainly. Well, in that case, I will make some directions now to facilitate conciliation. At this stage - - -

PN63

MR O'CONNOR: Excuse me, sir?

PN64

THE VICE PRESIDENT: Yes?

PN65

MR O'CONNOR: MICHAEL O'CONNOR, from Western Australia. Perhaps I should put onto the record that on behalf of my - - -

PN66

THE VICE PRESIDENT: I am sorry, Mr O'Connor, I overlooked you in taking the appearances. I apologise for that.

PN67

MR O'CONNOR: Yes, I wasn't sure whether you could see me or not, sir, but perhaps I can just indicate to the record that whilst I have some reservations about the length of time the Commonwealth is seeking an adjournment of, we don't have any strong objections to an adjournment, it is important for our members, some of which will clearly have some difficulty in implementing the BSWAT, so we would want full disclosure of information and assistance to the greatest extent available. But, I agree with the other parties that I think conciliation is worthwhile and should proceed in the meantime, including, I think, perhaps some initial timeframe for discussions with the union, without necessarily involving the Commission. Not that I am opposed to the Commission being involved, but perhaps some initial phase, where the parties can separately seek to have discussions with the union, before formal conciliation before the Commission.

PN68

THE VICE PRESIDENT: Yes. I propose not to conduct the conciliation myself, so as to avoid any potential for disqualification applications based on apprehended bias of section 105 or 106 of the Act, or whatever it is and to, I am going to ask the president to permit Commissioner Gay to do it - I think Commissioner Gay has a significant background in the area and, is one of the Commission's most effective conciliators. Now, Mr Capelin did you have a - you said you had some suggested directions?

PN69

MR CAPELIN: Draft directions, if I may. I haven't had the opportunity to show the union parties - - -

PN70

THE VICE PRESIDENT: I will read these out. Mr Capelin's proposed directions are that, the applicant is to file and serve an outline of submissions in support of the application by 1 March 2005. The date for the return of summons be appointed on or about 1 March 2005. The respondents intervene is to, file and serve an outline of submissions by 29 March 2005. The matter, to be set down for conciliation on, or about, 5 April 2005. Now who would like to respond first? Ms Bennett?

PN71

MS BENNETT: Thank you, your Honour. We have a very short period of time to consider.

PN72

THE VICE PRESIDENT: It is really - the only two things that you need to focus on is an early April date, an appropriate date for you and secondly, do you have any objection to there being a direction, in respect of, an exchange of position papers, as it were?

PN73

MS BENNETT: I actually anticipated the matter would go the other way round and that we would simply set the matter down for conciliation fairly quickly. Should conciliation look to be being unsuccessful, we then set the matter very quickly down for programming, and then perhaps set a date for an outline of submissions.

PN74

THE VICE PRESIDENT: Is there a general consensus that it is unnecessary to prepare written submissions, for the purposes of the conciliation?

PN75

MR STEWART: Yes. The Commonwealth supports that.

PN76

THE VICE PRESIDENT: Yes. You think that is unnecessary, Mr Stewart?

PN77

MR STEWART: Yes.

PN78

THE VICE PRESIDENT: Mr O'Connor, did I hear you say yes?

PN79

MR O'CONNOR: Yes, I would not have thought the usual practise was to prepare submissions before conciliation.

PN80

THE VICE PRESIDENT: Thank you. Mr Amendola?

PN81

MR AMENDOLA: I would agree with the position put by Mr Stewart, and Mr O'Connor, your Honour.

PN82

THE VICE PRESIDENT: Thank you. Ms Wilson?

PN83

MS WILSON: I agree with the position put by, Ms Bennett.

PN84

THE VICE PRESIDENT: Thank you and I take it, Ms Gaynor, you support Ms Bennett's position?

PN85

MS GAYNOR: I do, your Honour.

PN86

THE VICE PRESIDENT: Thank you. Mr Capelin, you are on your lonesome so far as the suggestion that, there should be the preparation of submissions. Do you wish to argue it? It is not the usual course and I, myself, wonder whether there is a lot of utility in it.

PN87

MR CAPELIN: It is not. It is an outline of submissions. I am really proposing to get some framework about the angle of all the parties are coming at. I think I have got a reasonable idea, but I am not sure of where all the parties are coming from, and I think that would help facilitate conciliation and it would help - I would imagine, Commissioner Gay coming to it fresh, if he has got some idea of where all the parties stand on a particular matter, coming into it.

PN88

THE VICE PRESIDENT: Yes. I am not disposed to make a direction to that effect. However, I do invite the parties to communicate with one another, and to be realistic and practical about the desirability of disclosing what their broad position is to each other, in advance of the conciliation. At this stage, I will not set a date for the conciliation, I would rather adjourn the matter generally. I will be in communication with the President, directly, with a view to consulting with Commissioner Gay, and obviously a time will need to be set that is convenient with him. If I could have some suggested dates though, that are convenient to the parties, I will endeavour to accommodate the convenience of the parties as much as that is possible. Ms Bennett, your preferences were something far sooner than early April?

PN89

MS BENNETT: They are, and I have no problems with availability during February and March, and April.

PN90

THE VICE PRESIDENT: Mr Stewart's suggestion was to, combine the conciliation with report back in relation to the progress on the full capability reviews. What utility do you see in not doing that, and rather, having a conciliation at an earlier time? Is it just a question of the sooner the conciliation is undertaken, the sooner the matter will either settle or you will know that there will need to be an arbitration.

PN91

MS BENNETT: That would be my view. Yes, Simply a matter of timing, your Honour.

PN92

THE VICE PRESIDENT: The precise time for the conciliation will be a matter for Commissioner Gay, because it will be his diary that will determine it, assuming the president authorises his participation in the matter. But, can I say, that it seems to me that in all the circumstances it is probably appropriate to conduct a conciliation in the timeframe suggested by, Mr Capelin and Mr Stewart and that is a timeframe that is about two months from now.

PN93

There has already been a significant delay in this matter. That doesn't mean that that provides justification for further delay, but I will be very surprised if the further information that is likely to be forthcoming from the Commonwealth, won't in fact, have a significant impact upon the outcome of the conciliation, given the obviously significant implications to award respondents who did not, as it were, make the grade and are being subject to the full capability review. Is there anything further anyone else wishes to put on the record?

PN94

MR CAPELIN: There are separate proceedings, only ones involved the application in relation to - - -

PN95

THE VICE PRESIDENT: Mr Nogen?

PN96

MR CAPELIN: Yes, it was those concerns, and some correspondence that had been sent.

PN97

THE VICE PRESIDENT: Thank you. Yes, Ms Wilson?

PN98

MS WILSON: In the matter of the application to vary the award by Ms Liz Nogen, and Ms Pat Bageter, on behalf of their sons, matter number c2002/6123 - - -

PN99

THE VICE PRESIDENT: Ms Wilson, that is not strictly a correct description of the application though is it?

PN100

MS WILSON: This application to vary the award - the application was made on - by DEAC on behalf of Ms Liz Nogen.

PN101

THE VICE PRESIDENT: And Pat Bageter.

PN102

MS WILSON: And Pat Bageter.

PN103

THE VICE PRESIDENT: Is there any reason why this matter can't just be adjourned at the moment?

PN104

MS WILSON: Yes, it can. The only thing, there is some outstanding issues raised by Australian Business Lawyers on behalf of their clients in regards to jurisdictional arguments. An application has been made, to the New South Wales Guardianship Tribunal for a formal decision, basically. There has been numerous discussions with the Tribunal, and their indication was that it was entirely appropriate for the application to be made in the form that it was. However, because of the opposition to that, we have made the application for a formal order and, depending on what the decision is, unfortunately, we couldn't - the earliest date for hearing was 15 February. So that is why we applied to have the matter adjourned for the, any argument on jurisdictional matters to be held after that, otherwise it would pre-empt the Tribunal's decision.

PN105

THE VICE PRESIDENT: Yes. Mr Capelin, I take it you are not pressing for an early resolution of the jurisdictional objection, you have simply flagged it.

PN106

MR CAPELIN: We just want to get it regularised. An application has been made, and filed, by an administrator. There is no administrator appointed for the people who have that standing, so there is a problem in a technical sense we are just suggesting that they should withdraw it - they get the right standing that can later prove a claim.

PN107

THE VICE PRESIDENT: Including whether it is merely technical. Fine. I think the appropriate course is to adjourn this matter, Ms Wilson. I will adjourn it generally, also, and it can be relisted by application to my chambers, when you know the outcome of your application.

PN108

MS WILSON: Thank you.

PN109

THE VICE PRESIDENT: And you can deal with it in a direction sense at that point. But, it seems to me clear that there is no particular reason why - let me start that again - it is the case, isn't it, that the - ultimately, this application raises the same issues as the principal application?

PN110

MS WILSON: Yes, that is right.

PN111

THE VICE PRESIDENT: And, there is no reason why there needs to be a separate, full blown hearing in relation to it.

PN112

MS WILSON: No, that is correct.

PN113

THE VICE PRESIDENT: And, that probably the better course at the end of the day is to simply adjourn this matter generally until after the principal matter has been concluded and then revisit it and depending upon the outcome of the principal matter, it may not be necessary to pursue it at all.

PN114

MS WILSON: Yes. That is what we - you know, propose.

PN115

THE VICE PRESIDENT: Mr Capelin, do you have any objection to that course?

PN116

MR CAPELIN: No.

PN117

THE VICE PRESIDENT: Fine. In the matter number c20046123, I adjourn the matter generally. In matter number c20046417 I adjourn the matter generally, but on the basis that I have already indicated in the transcript. The Commission is adjourned.

<ADJOURNED INDEFINITELY [12.36 PM]