C2005/1728, Transcript of Proceedings [2005] AIRCTrans 570 (8 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10658

SENIOR DEPUTY PRESIDENT HAMBERGER

C2005/1728

s.113 - application to vary an award

APPLICATION BY THE AUSTRALIAN WORKERS' UNION
(C2005/1728)
Salt Industry (Victoria) Award 2001

SYDNEY

9.39AM, FRIDAY, 25 FEBRUARY 2005

PN1

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

PN2

MS V PAUL: I appear for the Australian Industry Group.

THE SENIOR DEPUTY PRESIDENT: Mr Beard.

PN3

MR BEARD: Thank you, your Honour. There are currently three parties named as respondents to the award, and I can advise you that on 7 February 2005 the union forwarded correspondence relating to this matter to those three parties. The correspondence included a copy of the application, details in regard to today's hearing and a draft order which set out the union's position. The initial application, your Honour, was set out in an ambit claim form and the draft order then narrowed down the terms that the union was actually seeking.

PN4

The correspondence was forwarded by registered post and a statement to that effect, together with the receipt for registered post, have been prepared for your file as proof of proper service. I'll hand the document to you. The application, your Honour, seeks to vary the award in regards to increases to the casual loading currently contained in the award, and also the capacity for long term casual employees to elect to become some form of full time employee after a certain amount of time.

PN5

I was aware until five minutes before today's hearing, that one of the respondents to the award, Australian Industry Group, was agreeing to the draft order forwarded by the union. I understand, your Honour, that Anthony Dalton from the Australian Industry Group, Geelong, forwarded to you a letter on 23 February, explaining that in fact Australian Industry Group represented one of the named respondents to the award, Cheetham Salt, and that they were signifying agreement in regards to the union's proposal.

PN6

As I say, I've been advised just prior to the hearing, by another representative from the Australian Industry Group, and I am quite happy to put on transcript that I am not happy about a response from the Australian Industry Group five minutes prior to the hearing, a response which contradicts earlier written advice, especially when they had the - as I say, the information was forwarded to them on
7 February, I think that is a quite inappropriate way to address industrial matters.

PN7

Notwithstanding my disappointment in this situation, your Honour, the realistic position is that further detail will need to be ascertained in regards to whether this is a consent or going to be an arbitrated matter. I do understand that your Honour was wishing to provide some guidance to the parties in regards to the information that you seek concerning the application, and it may be appropriate that we listen to those directions or advice and then work out a schedule of where we go, if it please, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Beard. Ms Paul?

PN9

MS PAUL: Sir, I do concur that my instructions are that we are not consenting to the award, and the instructions I have is that AIG is not consenting to the award. I unfortunately was unaware of the correspondence that was sent to the Commission, I apologise on behalf of AIG with respect to that, that was sent by Mr Dalton and as such I would seek to resile from that but will confirm the position of our member as well as AIG.

PN10

THE SENIOR DEPUTY PRESIDENT: It could be that Cheetham Salt do concur, but AIG doesn't.

PN11

MS PAUL: But AIG doesn't consent as a party, and I can put that quite safely and I think the letter indicates that it is Cheetham Salt that consents to it. So in that sense there may not be the necessity to resile from the letter. So that there is no confusion, sir, we propose to send correspondence on Monday to both the Commission and the union to identify the exact position of both AIG and our member, with respect to this.

PN12

THE SENIOR DEPUTY PRESIDENT: I actually hadn't really seen this as a censure mention this morning, anyway, to discuss how we were going to deal with the matter, I wasn't going to refuse to hear submissions on the matter itself but actually, my suggestion was that I wanted to talk about how we process the matter, particularly in the light of this. I must say I do have some sympathy for Mr Beard's annoyance quite frankly - having done his best to consult the employer parties and having received a letter from AIG, which while I know it referred to the company, was from AIG, that there was consent from the other parties, and then to be told at the last minute, well, no, there wasn't, I can actually sympathise with his annoyance.

PN13

Be that as it may, my view is that whether there is consent or not, this is not - and Mr Beard actually made a distinction that I don't think was strictly correct between a matter by consent and a matter by arbitration, I understand the logic of that sort of expression, but I think in the context of the system we have on the Workplace Relations Act there is a big difference between an agreement, whether it is certified AWA or whatever, and changing the award, and while I'm not saying that consent isn't relevant to a change in an award, at the end of the day, I don't think that it is for the Commission to decide whether the award needs to be changed and while consent may be a factor, it certainly wouldn't be a determinative factor by itself. So my view is that I will need to be persuaded on the merits of the application, whether there was consent or not, quite frankly.

PN14

What I thought I might usefully try and do is discuss or maybe indicate to the parties, the sorts of things I would be looking for from submissions. I am not suggesting for a minute that these are the only things you should turn your mind to or you should address me on, and you are entitled to take a different view, but I just thought it would be helpful. My suggestion as well in terms of process was that it might be possible to deal with this, again subject to the views of the parties, predominantly through written submissions rather than oral submissions, though I'm fairly open minded on that. So, Mr Beard, you - - -

PN15

MR BEARD: First of all, your Honour, I forgot to mention in my opening address that - I did mention there were three respondents to the award, the two employer respondents are Cheetham Salt and Diamond Salt. The correspondence that was forwarded to Diamond Salt was returned and I understand that in fact Cheetham Salt bought out Diamond Salt a couple of years ago. So there is only one employer respondent to the award. Apart from that, your Honour, yes, I'm eager to listen to the advice you can provide to the parties.

PN16

THE SENIOR DEPUTY PRESIDENT: Some of the information I wouldd be seeking at least I might as well indicate, I think I would want to know how many casuals we are talking about. We are only talking about one company so this information should be relatively straightforward to identify, how many casuals there actually are employed under this award, both in, I suppose, absolute terms and as a proportion of the total workforce, if possible; what do they actually do; what are their work patterns; how long do they work for, typically or on average, it might be in the range obviously of different kind of work patterns, but certainly the length of service of a typical casual employee under this award is definitely , I would have thought, of relevance.

PN17

What are the benefits that non-casuals receive that casuals do not for an employee with a similar length of service. Obviously certain benefits are related to length of service, if casuals have a very different pattern of service from non-casuals, which may be the case but isn't automatically the case, obviously that could be a factor in identifying the relevance of different benefits. I am open to argument on that point but that would be, if you like, my prima facie case and I'd like to know, say for example, if casuals typically work for two years. You never have a casual that works more than two years, just say hypothetically, the relevance for example of long service leave would be rather different than if you have a lot of casuals that work for 15 or 20 years, as you might indeed under some awards. So I am interested in the kinds of benefits that casuals and non-casuals get that differ, but also in particular in the context of casuals and non-casuals that have similar length of service.

PN18

I am obviously interested in the monetary value of those benefits, or any other kind of value of those benefits. I am interested in - obviously certain kinds of benefits are if you like, absolute, in a sense, for example, annual leave, you get, I assume, under this award, four weeks' annual leave, if you are not a casual, even if you don't take it all up at the time, you still accrue a benefit and it gets paid out on termination, that is the typical award provision. Obviously there are certain other kinds of benefits that one might describe as contingent, for example, personal carer's leave would be an obvious example. It would be useful to know what the average take-up of non casuals is under this award, of those benefits.

PN19

So, for example, I haven't looked at the provisions in the award, but let's say you got 10 days personal carer's leave, but if what happens is that typically non casuals, under this award, only ever take, on average, let's say five days - this is purely hypothetical, I am not asserting these figures have any relationship to reality, it's just for purposes of illustration - if in fact, in the context of this award people only usually take five days leave, then that I think is potentially a relevant consideration compared to a situation where in fact everybody takes all - this is obviously not talking about the casuals, but the non-casuals take all their leave that they are entitled to, so I would be interested in that kind of information on all the contingent benefits.

PN20

I am interested in the same for bereavement leave. I am interested in the likelihood of redundancy, which is obviously again, a benefit that accrues to non-casuals. It doesn't accrue to casuals, but one needs some kind of factual basis, ideally, if I can put it that way, for attributing a value to these benefits. Now, I accept that some of this information may be difficult to obtain, some of it might be, at best, a guess, you might have to draw analogies or with other industries or with the industry as a whole, that's up to you, if I could put it that way, what information you provide me with, but obviously the more you can provide me with information that directly relates to this particular award, then the better it is in terms of establishing the case for a variation.

PN21

Now, I am not saying that I am not interested in any other kind of information and I am not saying that you shouldn't be putting other submissions in other matters, but I am trying to be helpful by indicating now the kind of information that I would think is potentially relevant to determining the merits of this application. Obviously there have been a number of other cases, arbitrated cases in relation to changes in casual provisions over the past few years and obviously I would be interested in your views as to the relevance of those cases to this particular matter, and I would be interested in your views on that. I am not trying to restrict what you put to me, I am just trying to give you an indication that this is the kind of - I suppose the trouble is, if you don't provide me with this information, I'll probably have to come back and then seek it again. I am trying to actually if you like, expedite the matter.

PN22

MR BEARD: Yes, I appreciate that.

PN23

THE SENIOR DEPUTY PRESIDENT: I suppose I would be interested to know both parties' response to what I just put, but also in terms of what timetable you think is going to be realistic to try and gather this material and present it to the Commission. As I said, I am quite happy to receive it, at least initially, in writing but if you prefer to present it orally, I am equally open to that. I don't know whether it needs to be in the form of formal evidence, I suppose it depends whether there is going to be any genuine conflict over the facts. I imagine it would be okay to present it as submissions in written form or in oral form, rather than actually having to swear and present it as sworn evidence. Mr Beard, have you any views as to how long you are going to need really?

PN24

MR BEARD: I think how we actually process it your Honour, is going to be dependent on whether there is agreement, or it is going to be objected to by AIG. If they're looking at having an agreed position, then it is a matter of the parties satisfying you that our position is appropriate, and I think we could do that through written submissions. However, maybe if it is going to be arbitrated, I think that is a more formal situation where, obviously, witness evidence would need to be taken. As I say, I think it depends on the approach of AIG and that sounds as if we will have a decision by Monday in regards to the position that they are taking. I think it is probably a matter of finding out just what their position is going to be, your Honour, and then we'll be in a position to - - -

PN25

THE SENIOR DEPUTY PRESIDENT: What you could do is if you are going to have - - -

PN26

MR BEARD: Sir, it would be a month or so for me to get down to the site to have a chat and get things organised.

PN27

THE SENIOR DEPUTY PRESIDENT: What we could do, is the parties confer and you can let my chambers know and we can issue, we don't have to determine it now, we can then issue directions on the basis of the information you provide to us next week.

PN28

MR BEARD: I think that's as I say, whilst I recognise that consent doesn't mean an automatic flow-through of that agreed situation, certainly an arbitrated situation where the employer industry group is objecting to the union's proposal, that's certainly a far different situation, so if we wait until that response comes through- - - .

PN29

THE SENIOR DEPUTY PRESIDENT: Yes. Ms Paul, what do you have to say?

PN30

MS PAUL: Sir, I accept that may be the case. It may be a position that we simply have the fact that one of the main employer to this may actually consent to the actual application, and it is merely AIG that objects to it, or, if I can put it this way, AIG may not consent to it, and on that basis, I believe we should be able to deal with it by submissions notwithstanding and address the issues. Certainly the application would be able to address the issues raised by your Honour with respect to this. Any submissions that AIG would make would be based on all the legal arguments, which we believe would be appropriate by submissions in any event.

PN31

THE SENIOR DEPUTY PRESIDENT: You would be happy to put those in writing?

PN32

MS PAUL: Yes, sir.

PN33

THE SENIOR DEPUTY PRESIDENT: What we could do is to presume that we are going to deal with this, at least, if possible, by written submission, and look to maybe get submissions within about a month. I won't issue formal directions to that effect. If it turns out it is going to be necessary to have further hearings, then we can always list those when we need to, or if, on receiving submissions, if I determine there are questions I need to ask or whatever, then we can list some hearings. Obviously, there are going to be further discussions between the parties in the next few days, but maybe what we should do, is, perhaps I can indicate now that what I'll be looking for, is - sorry, Ms Paul, do you think if Mr Beard, if the AWU produced written submissions within a month - we can always change this, but I am trying to get - by the end of March, let's say, how long would AIG need to respond? You should be then given, in my view, an opportunity to respond in writing to those submissions.

PN34

MS PAUL: Yes, and we would seek the same amount of time, possibly we could do that in - - -

PN35

THE SENIOR DEPUTY PRESIDENT: A couple of weeks, I was thinking.

PN36

MS PAUL: If we get three weeks it would help, but two weeks we could - - -

PN37

THE SENIOR DEPUTY PRESIDENT: Let's say a month - and then let's say two weeks, and then when I've received those submissions, I can actually decide on that basis whether I am going to need to list a formal hearing or whether I have enough information to make - and obviously if the parties have a view as to whether we need a hearing as such, then you can let me know. I think on that basis, I'll indicate now on the transcript that I would be looking to adjourn this matter. I would expect to receive written submissions, unless otherwise indicated, from the AWU, four weeks from today, is that realistic, Mr Beard?

PN38

MR BEARD: By the 24th?

PN39

THE SENIOR DEPUTY PRESIDENT: Okay. So written submissions - - -

PN40

MR BEARD: And then if I require further time, well obviously I'll - five minutes before it's due, I can get in touch with AIG and - but anyway, yes.

PN41

THE SENIOR DEPUTY PRESIDENT: Written submissions by 24 March from AWU, and then 7 April for written submissions from AIG, and then I'll have a look and we'll decide whether to, obviously if either party has problems, please let me know, but we'll assume that's the timetable at this stage, and we'll decide whether to list it for hearing probably after the receipt of those written submissions. If I have enough information to make the decision and if neither party is seeking a hearing, then we can probably make a decision based on the material I've got at that point. So I suggest we actually then - is there anything more on this matter, because I've got - I presume you're not here for the other matter are you?

MS PAUL: No, sir.

PN42

THE SENIOR DEPUTY PRESIDENT: Well, we'll adjourn this matter, thank you.

<ADJOURNED INDEFINITELY [10.10AM]