C2005/1779, Transcript of Proceedings [2005] AIRCTrans 651 (15 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10750

COMMISSIONER LAWSON

C2005/1779

s.99 - notification of an industrial dispute

Liquor, Hospitality and Miscellaneous Union
and
KAH Australia Pty Ltd t/as The Sydney Boulevard
(C2005/1779)
Hospitality Industry - Accommodation, Hotels, Resorts and Gaming Award 1998, The

SYDNEY

2.01PM, THURSDAY, 03 MARCH 2005

Continued from 9/2/2005

PN126

THE COMMISSIONER: I note there are no changes in appearance, but do you have somebody else with you, Mr Vance?

PN127

MR VANCE: Yes, Commissioner, Annie Hermanto, who is the unions organiser in this matter.

PN128

THE COMMISSIONER: Thanks, Mr Vance. When it was last before the Commission on 9 February 2004 when the parties presented their submissions concerning a dispute over three requests by housekeeping employees for conversion from casual employment to permanent part-time status. A complication for both the employees and the employer was the pending renovations of the hotel from mid-year this year for a period of what I understand to be up to 18 months and the impact of that, together with the seasonal fluctuations on hotel occupancy, and the impact of all of that together, on the consequent employment opportunities for housekeepers. At the conclusion of the last hearing, the parties sought a period of time to confer further on the issues and the matter is listed for the court back today. Mr Vance, it's your application, what do you have to say?

PN129

MR VANCE: Thank you, Commissioner. Since the last occasion, the parties met on 16 February and again yesterday, 2 March. I am afraid we haven't been able to come to a resolution. The company has advised the union that their forecast showed that there is not likely to be enough work to cover the hours of the existing permanent employees. The union does question those forecasts and the calculations relating to those. We were also advised yesterday that - - -

PN130

THE COMMISSIONER: To what extent have you separately examined that issue from whatever sources you choose use, Mr Vance? It is one thing to have received the employer's advice in respect of their forecasts, but if you disagree with it, that's all very well and good, but what's the alternative?

PN131

MR VANCE: Your Honour, it would be incumbent on the union to show some logic to this forecast. It is the case that it was only yesterday that we received those forecasts and we haven't had an opportunity to examine them thoroughly, nor have we had an opportunity to probably understand how those forecasts were developed. Nonetheless, they do seem quite low to us. The company also advised us yesterday that even the development application has yet to be approved, so it may be the case that there is some climate change in that application and we don't really know the timeframe, although we are advised that the company is expecting a response from the council in the next few weeks and that may well occur.

PN132

The union did propose on a without prejudice basis, a settlement, earlier this morning. That's not been able to be accepted, as is the respondent's right. The union is prepared to further discuss the situation with the employer, but it would seem that the employer's position is fairly intransigent at the moment and they are not prepared to make any of the employees permanent, whether on the hours that we say they should be or somewhat less hours. Unless there is a change in the respondent's position on that basis, the union would be seeking orders and we would seek directions for a hearing for those orders in the fullness of time.

PN133

THE COMMISSIONER: Orders don't just fall out a tree, Mr Vance. There is a dispute settling procedure in the Award. There's a dispute settling procedure, I presume, I don't know off the top of my head, but I presume it embraces this conversion of casuals issue. What is it that you propose to do? You want me to arbitrate on a state of operational requirements of the employer that you'll have to make the case?

PN134

MR VANCE: I will presume the request the union would be making is that the company seeking not to be bound by the casual conversion status on the basis of other requirements or a particular situation that exists at the moment. That is not a reasonable situation for it to make that judgment, consequently it would be open to the Commission to make orders.

PN135

THE COMMISSIONER: I'm sorry, you've lost me, just backtrack. What is it that you would see the Commission as having the capacity to order?

PN136

MR VANCE: That three particular employees be henceforth regarded as permanent part-time employees.

PN137

THE COMMISSIONER: And those employees accept the fact that should they be converted to permanent part-time employees, they are likely to then be terminated from that permanent part-time position, if and when the renovations do commence?

PN138

MR VANCE: There was some limited discussion by the parties on that point.

PN139

THE COMMISSIONER: And doesn't that logically follow? If they are now made permanent part-time employees, against the employer's expected forecasts and operational requirements, presumably when the operational requirements do change to the detriment, then those employees will be the first out the door.

PN140

MR VANCE: Indeed if the operational requirements do alter to their detriment, one of the factors for the employer to consider in determining who's appropriate to be made redundant would be length of service I imagine. I accept that's one of the relevant criteria.

PN141

THE COMMISSIONER: And under which head of power would you see me exercising those powers, Mr Vance?

PN142

MR VANCE: Commissioner, the disputes procedure provides at 11.3 that if the matter can't be resolved it might be referred to the Commission. I understand the Commission has the capacity to make orders after having conciliated a particular dispute.

PN143

THE COMMISSIONER: No, it doesn't say that. 11.3 says:

PN144

If the matter cannot resolved it may -

PN145

That's a very discretionary verb:

PN146

- it may be referred to the Commission.

PN147

That doesn't say anything more than giving the parties an opportunity to bring their dispute here. If it is referred here then there would appear to be no limitation upon the Commission's powers of conciliation and/or arbitration. The clause of course is not that specific, but it may be interpreted that way.

PN148

MR VANCE: Commissioner, section 104 of the Workplace Relations Act provides for the arbitration by the Commission in particular situations. We would say that this is one of those situations and that that section allows the Commission to make the orders that will be sought.

PN149

THE COMMISSIONER: Is that envisaged in the conversion of casuals clause? My recollection is that there is some provision.

PN150

MR VANCE: Yes, Commissioner. At clause 15.2.15 of the award, the provision is:

PN151

Any dispute about a refusal of an election to employment or about the matters referred to in 15.2.6 must be dealt with in accordance with the provisions of clause 11, procedure to avoid industrial disputation -

PN152

to which I've already referred.

PN153

THE COMMISSIONER: That's the important thing. That's the important link between what is the issue that you bring to the Commission under a section 99 dispute notification and the Commission's power to deal with the issue as you so choose.

PN154

MR VANCE: Yes, Commissioner, and 15.2.6, which is referred to in that clause I've just discussed refers to particular situations which the employer has to have regard to in converting a casual employee to permanent work, the last dot point of those being:

PN155

any other relevant matter

PN156

Which would encompass the employer's position in relation to the renovations. That certainly in my view would be, any other relevant matter, something open to consideration by the Commission.

PN157

THE COMMISSIONER: Mr Vance, do you have material that would positively persuade me that the plans that the company has are non-existent, or a fabrication, or simply don't exist?

PN158

MR VANCE: I don't think that the respondent is telling me anything that isn't true. I do note that a search of the City of Sydney website, which has a list of the development applications currently on exhibition before the council, does not include an application in respect to Sydney Boulevard Hotel. That in itself - - -

PN159

THE COMMISSIONER: Did you ask the employer that yesterday, Mr Vance, or have you just searched the website and you serve that up to me as apparent evidence?

PN160

MR VANCE: With respect, Commissioner, I was about to add that I do not say that because something doesn't appear on a website it's not the case. It's something that I would ask the employer for clarification on.

PN161

THE COMMISSIONER: But did you ask the employer of that yesterday?

PN162

MR VANCE: No, I only became aware of that this morning, Commissioner. I haven't spoken to the employer since. I might have asked him before you came on the bench, but certainly, Commissioner, it would be incumbent on the union to show that the forecasts were not reasonably made and the union would need to bring evidence to that effect.

PN163

THE COMMISSIONER: All right. We're not at the point of arbitrating the rights of the individual just at this point in time, but I have to say it's disappointing to know that in the last month, effectively, nothing has changed from the position that you had when you were here on 9 February, but be that as it may, that's perhaps not an unusual position where people take extreme positions.

PN164

MR VANCE: Commissioner, the parties did attempt to settle it and there was a without prejudice proposal put to settle the matter but somewhere in between the claim that was originally put, and, nothing.

PN165

THE COMMISSIONER: I don't want to know about a without prejudice proposal because that's done between the parties away from here and unless and until that becomes an issue in itself I don't need to be made privy to it. If it's still the foundation for some resolution of the dispute, then so be it. Are you in a position to proceed with this matter, Mr Vance?

PN166

MR VANCE: Not today, Commissioner.

PN167

THE COMMISSIONER: All right, thank you, Mr Vance. Mr Ryan, what's the other side of the story?

PN168

MR RYAN: Commissioner, the parties met twice since the last time this was before the Commission, the first time on 16 February. The first meeting, in our view, was quite a good meeting in terms of, at the end of it, there were only two outstanding issues, and they were, what was the likelihood of casuals being
re-engaged as rooms were released or upon completion of the renovations, and secondly, for any casuals that were terminated following the commencement of the renovations, what assistance and planning would be given to those.

PN169

We then stood over until yesterday so that we could come up with a submission in response to the union, and it was at that meeting yesterday that other issues were raised which we thought had been resolved at the first meeting. One of those issues was the accuracy or the basis upon our forecasts. Now my friend has said that this was only raised yesterday, however the percentage occupancy rate for the second half of this year was actually read into the transcript back on 9 February. It was also examined thoroughly at the first meeting on 16 February.

PN170

THE COMMISSIONER: Have you been provided with any material that contradicts those forecasts from the union or from the three employees concerned?

PN171

MR RYAN: No, Commissioner, however just to give it, I guess in a nutshell, the forecasts are based on last year's figures less unrenewed contracts.

PN172

THE COMMISSIONER: Less what?

PN173

MR RYAN: Unrenewed contracts. The hotel has a very high proportion of inbound business from overseas. Some of those contracts have been unrenewed because they've been informed about the pending renovations, so it's the occupancy rate from last year less the unrenewed contracts, then as a percentage of the rooms available during the renovation period. So there is a degree of substance to those forecast figures.

PN174

The other issue that's been raised yesterday was the actual staff date. At the meeting yesterday the union wanted to know the actual day where people would come in and start hammering nails, painting walls, ripping up carpet.

PN175

THE COMMISSIONER: Well, with very great respect, Mr Ryan, I'm told that there's not even a DA, so can you contradict that?

PN176

MR RYAN: No, Commissioner, what - we can't give a date because the DA
has - - -

PN177

THE COMMISSIONER: Is there a DA?

PN178

MR RYAN: There is a DA, Commissioner.

PN179

THE COMMISSIONER: Where is the DA?

PN180

MR RYAN: The DA has been approved for the internal work. There is about three items that the council has asked the architects and project manager - - -

PN181

THE COMMISSIONER: When was it approved?

PN182

MR RYAN: Sorry?

PN183

THE COMMISSIONER: When was it approved by council?

PN184

MR RYAN: Just one moment, Commissioner. Commissioner, it's been just in the last 4 weeks that it's been approved.

PN185

THE COMMISSIONER: That's pretty flexible - in the last 4 weeks. Lots of things happened in the last 4 weeks, I don't accept that. A DA has a stamp on it with an approved signature and the date, it's either been approved or it hasn't been approved and I really don't want you taking instructions that are intended to mislead me or the other side.

PN186

MR RYAN: Commissioner, I'm instructed that was recently, but I haven't got the exact date. I have been instructed by the general manager that the outstanding items that the council has sought further modifications to the plans on are an extension to the front of the building where there's going to be a redevelopment for the incorporation of a café. There's a sliding garage door - - -

PN187

THE COMMISSIONER: Which has nothing to do with housekeeping, so when is it proposed that renovations will commence which will have a direct impact upon housekeepers?

PN188

MR RYAN: Commissioner, while that doesn't have a direct impact on the housekeeping, because it's a café at the front, it does have an impact on the overall start date from the builder's point of view.

PN189

THE COMMISSIONER: So what's the best guess?

PN190

MR RYAN: At the moment it's - we put a date to the union yesterday to say that we can work off May, as 1 May to say that we can use that date as a guide and should - - -

PN191

THE COMMISSIONER: On the last occasion I recall - I think you were telling me - that it was June/July and now it's brought forward to 1 May.

PN192

MR RYAN: No, Commissioner. There was a delay saying that it was June/July the last time. That was because there was still some uncertainty, but - - -

PN193

THE COMMISSIONER: But now it's 1 May.

PN194

MR RYAN: No, we said to the union yesterday we can work off 1 May.

PN195

THE COMMISSIONER: So that's the commencement of the renovations, both internal and external?

PN196

MR RYAN: That's how the project is planned at this stage, Commissioner.

PN197

THE COMMISSIONER: When will the proposals, if they commence on 1 May, have a direct impact upon housekeepers? Again, if I remember correctly, on the last occasion you told me that a third of the hotel was going to be renovated at a time.

PN198

MR RYAN: Yes, there will be a series - - -

PN199

THE COMMISSIONER: And that's going to impact upon a third of the - - -

PN200

MR RYAN: The rooms.

PN201

THE COMMISSIONER: - - - the persons who are directly involved in working and cleaning rooms for guests.

PN202

MR RYAN: If the commencement date of 1 May is maintained on schedule it would be the last week of May that the renovations would have a direct impact upon the housekeeping department.

PN203

THE COMMISSIONER: That makes sense. And if it was not 1 May - - -

PN204

MR RYAN: 1 May would be - - -

PN205

THE COMMISSIONER: - - - the impact upon housekeeping presumably will have the same time interval, whenever the overall renovations commence. Within three or 4 weeks of the renovations commencing there will be direct impact upon the number of housekeepers.

PN206

MR RYAN: Yes, and we put the 1 May date to the union yesterday to work off that as a date where, if it was delayed through to June or July, as we were discussing previously, then there would be more work that we could call on them - if they hadn't sought alternate positions then they could accept or decline that work as their personal situation may be, but if we worked on that date that would be a date that everyone could work off and we could go from there. That was not really given much consideration yesterday at all.

PN207

THE COMMISSIONER: What's the position with the four casuals that had been engaged since the beginning of the year, which was an issue on the last occasion raised as to the apparent inconsistencies between refusing conversion from casual to permanent part-time employment to the three persons that Mr Vance is representing, and the fluctuating seasonal workloads?

PN208

MR RYAN: Those casuals, Commissioner - there were some other casuals that resigned in the November/December period, they have had a number of hours that these people have brought in too. With the resignation of those casuals, coupled with the Christmas/January trading patterns, that's why some more have been engaged during this period - during that time.

PN209

THE COMMISSIONER: That's presumably a perfectly normal fluctuation in the workforce.

PN210

MR RYAN: Yes, Commissioner.

PN211

THE COMMISSIONER: And that can be substantiated?

PN212

MR RYAN: Sorry?

PN213

THE COMMISSIONER: That can be substantiated?

PN214

MR RYAN: Yes, Commissioner, and there was nothing - - -

PN215

THE COMMISSIONER: When you put 1 May to the union yesterday, what was the union's response?

PN216

MR RYAN: They said that basically, well, you're not sure. It could be December before they begin.

PN217

THE COMMISSIONER: That doesn't make sense to me. The union can say it could be 2008, but so what? What did you read into that?

PN218

MR RYAN: It appeared, Commissioner, they were not accepting what we were saying in terms of start dates or a varied start date due to a degree of uncertainty and their position was that these people should be converted and if it doesn't take to December then they've got a period of permanency there. If it does commence earlier, potential redundancies were foreshadowed. The without prejudice offer acknowledged a - - -

PN219

THE COMMISSIONER: I don't want to know the terms of the without prejudice offer because that's not something that need concern me.

PN220

MR RYAN: However, in terms of the forecast, we think there's substance to it. We have to try and, as a business, operate to some sort of financial stability during that time and it would be wrong for the business to plan excessive sales and occupancy levels when it's most likely - - -

PN221

THE COMMISSIONER: That's all very general, Mr Ryan. I guess that's all got to be sheeted home to what are the actual employment figures, what have then been, there have been seasonal fluctuations in the past. How has the permanent workforce adjusted to those seasonal changes in the past, or is everyone just playing a giant game at the present moment and not wanting to make commitments?

PN222

MR RYAN: That's something that would perhaps need to come out in the evidence, as Mr Vance's members pursue or proceed to arbitration.

PN223

THE COMMISSIONER: What's your view about clause 15.2.6(b), which are the issues that must be taken into account by the employer when considering whether to convert persons to full or part-time employment? Do you believe that you can establish facts, incontrovertible facts for each of those bullet points there, the six bullet points there?

PN224

MR RYAN: Well, the ones that would be relevant, Commissioner, would be the first one, the size and needs of the workplace or enterprise, the trading patterns of the workplace or enterprise, including seasonal trading patterns and any other relevant matter.

PN225

THE COMMISSIONER: And you believe you'll be in a position to deal with each of those?

PN226

MR RYAN: Yes, Commissioner.

PN227

THE COMMISSIONER: And have that information critically examined by the union as much as by the Commission - - -

PN228

MR RYAN: Yes, Commissioner.

PN229

THE COMMISSIONER: - - - for its genuineness.

PN230

MR RYAN: Yes, Commissioner. We've offered, just in relation to the other issue that was discussed yesterday, a pattern or process to allow all the casuals that would be released as much assistance as they can have to seek alternative employment. What was canvassed yesterday was the providing of a reference more substantial than statement of service, giving flexibility in rostering to allow them to attend interviews or meetings in relation to prospective employers. In addition to that, what was canvassed this morning with the union through our communications this morning was even the prospect of the HA communicating to all other accommodation division members in the Sydney area, alerting them to the prospect of the availability of trained housekeepers should there be availabilities at other hotels and we'd like to give them as much warning as possible.

PN231

Commissioner, we think at this stage the hotel's refusal has been made on reasonable grounds. We think or we would submit that given the imminent renovations that it would be inconsistent with the purpose of the casual conversion clause to convert the employees that have requested through the union conversion and that it would be unconscionable on the hotel to grant that request when it knows full well that come the middle of this year it's very, very likely that they'll be made redundant.

PN232

THE COMMISSIONER: For some reason the three people that Mr Vance represents would appear to me to be prepared to accept that risk.

PN233

MR RYAN: That's the first that we've heard they're prepared to accept that risk. We've raised that that's a possibility that it could happen at both meetings, but
we - - -

PN234

THE COMMISSIONER: It would seem to me it would not be hard to establish in any challenge of redundancy of those persons that there is an operational requirement of the employer to extract the - you know, one of the fundamental causes of 170CG(3)(a).

PN235

MR RYAN: Yes, Commissioner, I agree with that, but I don't see it would - as we say, it would be unconscionable to give these employees permanency knowing that we're going to make them redundant or that that's a possibility should the forecast that's been predicted occur. Now the union has said our forecast could be wrong and it might be higher. They could be correct. That might be good for the hotel. In that case we would recall some casuals and see if they're available. It could be lower, but based on those figures that we've discussed with them, even taking the higher month in the latter half of this year, it still leaves during that month a spare 280 hours amongst our current permanent staff. Now given that some rooms will need cleaning before release of about 80 to 100 hours, that still leaves 180 hours for our current permanent staff to work. Those occupancy rates on that basis would need to increase by another 360 room nights across the month before they get up to 38 hours for the 4 weeks of that month.

PN236

THE COMMISSIONER: So you say that even with the best forecast, there's insufficient work for your present, permanent employees?

PN237

MR RYAN: Current permanent employees. This was discussed and
analysed - - -

PN238

THE COMMISSIONER: Do you think you can establish that to my satisfaction?

PN239

MR RYAN: Yes. We discussed this yesterday with the union in quite some detail. In one month - I think it was October, Commissioner - sorry, November, the expected room night there for that month is 1316 - - -

PN240

THE COMMISSIONER: Sorry, this is for November '05?

PN241

MR RYAN: November '05.

PN242

THE COMMISSIONER: Forecast is what?

PN243

MR RYAN: 1316 room nights.

PN244

THE COMMISSIONER: Yes.

PN245

MR RYAN: That gives roughly 297 rooms per week which on average takes about 150 hours to clean. The current permanent staff for the same period has 418 hours available to it, which leaves us bare of about 270. Given during that period that a block of rooms that's being renovated will be released and they need a bit of a clean and a touch-up and reset with all the cups and whatnot, even if you allow for the hotel's budget for about 80 hours there, the union said that might not be enough - even if we increase that by another 20 that still leaves 170-odd hours without current permanent staff.

PN246

THE COMMISSIONER: So is this an argument over work loads, or is it an argument over the number of permanent employees versus the total number of employees?

PN247

MR RYAN: But I think really what it comes down to is they're disputing these figures on the basis that they are based on the sales forecast. Commissioner, given that the sales figures or percentages that were read by myself the last time this was before the Commission, and that they were discussed quite in detail at the first meeting on 16 February, it was only at yesterday's meeting that they were disputed, to an extent, and even more so this morning when I had discussions with my friend. I think, given that they would have been the first thing, that would have been predicting occupancy levels and therefore the requirement of housekeepers, they should have first been disputed back on 9 February or 16 February.

PN248

THE COMMISSIONER: Mr Ryan, do you have any idea why the union simply doesn't believe you?

PN249

MR RYAN: No, Commissioner, apart from what I foreshadowed, that they must not accept the forecast.

PN250

THE COMMISSIONER: All right, thank you Mr Ryan. Any responses, Mr Vance? It seems to me that you are accepting upon your shoulders a very large case to make good, that the information that you have been provided has no foundation, or is a bunch of lies, or you have information that contradicts it. It's an interesting position for the union to take. Apart from disbelieving the company, it seems to me that the onus is now upon you firmly and squarely to make the case that the forecasts, both the seasonal forecast and the impact upon the renovations, are wrong.

PN251

MR VANCE: Commissioner, the advice I had is from the union's senior co-ordinator of the hospitality industry, who does look after the hospitality in Sydney. Her advice is that those forecasts are dramatically less than she would have expected. Certainly I need more than her simply saying that. There was an earlier point made in relation, I think you asked the question about whether this is a question about workload. That is something the union would need to examine, whether there are particularly proper amounts of time being given for the work to be done in particular rooms. It has been suggested- - -

PN252

THE COMMISSIONER: With very great respect Mr Vance I don't know how you can, sort of, run that as perhaps as an afterthought. I thought you would have done all that homework before you came here today.

PN253

MR VANCE: Not at all Commissioner. It's been raised by yourself and Mr Ryan in relation to the expected occupancy within November. The figures that break down to there being roughly half an hour per room to clean, it may well be that that is how long it takes to clean a room, I would need to take instructions from my members on that. If it takes longer than that, then that would be a relevant factor, indeed if it took less than that, it would be a relevant factor, but not to my advantage.

PN254

THE COMMISSIONER: Well, as I see it Mr Vance, the position that you are taking, you are effectively saying that the company's information that they are providing you is untruthful and has no foundation. It seems to me that's a very large onus that you're accepting on behalf of your union and the three employees in particular that you are seeking to represent in these proceedings. I just wonder where and how that onus upon you is going to be discharged apart from some advice that you have taken from the union's senior hospitality co-ordinator. You are effectively saying that the company is lying, that their plans are not accurate, that they are lying about the impact it is going to have on house keeping or when it is going to have an impact on house keeping. They are pretty serious charges.

PN255

MR VANCE: I'm not charging the company with lying, Commissioner. I am charging them with having figures which are not correct. It may well be that the company believes those figures, I do not suggest they have lied to myself or the Commission.

PN256

THE COMMISSIONER: Well, of course, in the circumstances the onus of proving that the company's information is incorrect will rest upon the union.

PN257

MR VANCE: It would, Commissioner, and I'm happy to take further instructions if the Commission thinks that's appropriate. Those are my instructions at present.

PN258

THE COMMISSIONER: All right. It would appear to me, and if I'm reading between the lines and reading it incorrectly, say so, but it would seem to me that conciliation in this matter is pretty much exhausted. Parties had plenty of time to talk about this face to face without the Commission, and met twice since the last hearing. The matter remains unresolved. The union does not accept the information provided by the company and the company is unmoved from its position of its forecasts and the inherent impact that those forecasts will have upon employment of housekeepers, so we're heading to some form of arbitrated outcome. Do you disagree with that?

PN259

MR VANCE: No, I think that's a fairly correct summation, Commissioner.

PN260

THE COMMISSIONER: Well, the onus is going to be upon you, Mr Vance, to make the case in any matter that is arbitrated before me, so how long do you think that you will need to prepare all of your material, because I'll give you the opportunity of plenty of time to prepare your material, file and serve it, with the Commission, have the company respond to that for each side to prepare whatever witness statements might be relevant or other documentary material that might support the contentions from each side. When do you expect that you might be ready to proceed with a case of that nature?

PN261

MR VANCE: Commissioner, I'm aware of the upcoming renovations and I wouldn't want to arrive at a situation where the facts of the matter override anything we might have submitted, and ask the Commission to decide. Sir, it is worthwhile the matter coming on fairly quickly. I did discuss this briefly with
Mr Ryan before coming to the bench and I'm of the view that I would need at least 3 weeks, perhaps 4 weeks to file the relevant material and Mr Ryan obviously would like a similar time to respond to that, and subject to the Commission's availability, we may well have the renovations near upon us, before the matter can be heard. I anticipate the matter would take, probably half a day and certainly no more than one day, there are three individuals who the union is seeking to bring as witnesses and they would be fairly brief, I would imagine- - -

PN262

THE COMMISSIONER: I think on the last occasion you indicated that you had statutory declarations from each of those three individuals, but do the statutory declarations go to the issues that need to be resolved here?

PN263

MR VANCE: Not in particular. I wouldn't want to take that- - -

PN264

THE COMMISSIONER: So the statement would need to be modified?

PN265

MR VANCE: Yes.

PN266

THE COMMISSIONER: And be more related to the issues of seasonal forecasts and renovations and the impact of the renovations and the impact upon house keeping duties?

PN267

MR VANCE: Yes. Other than those people, the union would seek to bring Ms Hermanto in the first instance, in relation to the discussions that were had from October last year.

PN268

THE COMMISSIONER: I don't think that's important any more. I've got the chronology, the chronology was handed up on the last occasion. We are now at the point where direct discussions between the parties have effectively been exhausted, now you want me to arbitrate something. What was said in October, 2004 or since, in the union's correspondence is not really relevant anymore. The issue that you need determined in your favour is that the material that the company has provided you with is wrong, that you have alternative information about the hotel's sales forecasts, occupancy rates and the impact upon employment, that would persuade me that your side of the argument is more accurate than the employer's side of the argument and as a consequence of that there will be an impact upon the number of permanent employees versus part time employees, versus casual employees in a particular category. It is as narrow as that.

PN269

MR VANCE: That is certainly the argument I need to make.

PN270

THE COMMISSIONER: Okay, you see yourself requiring 3 or 4 weeks to prepare that material. Mr Ryan, what sort of time would you need to respond to that material, any idea?

PN271

MR RYAN: Equivalent time, Commissioner.

PN272

THE COMMISSIONER: Equivalent time, even though you have all the information available today?

PN273

MR RYAN: Commissioner, we would need to prepare that into a form that's suitable for filing, serving.

PN274

THE COMMISSIONER: And in response to the material that will be provided by the union.

PN275

MR RYAN: Yes, Commissioner.

PN276

THE COMMISSIONER: Okay, well that means that the arbitration of whatever issues we are looking at, early May, and surprise, surprise, that might coincide with some more accurate information on what's happening with the renovations. Mr Vance, if you have 4 weeks from today, you would be required to file and serve your submissions, any witness statements and any other relevant supporting material by the close of business on the 31 March. Mr Ryan, you'll then have until 30 April to file and serve your reply. We probably should then look at an arbitration soon thereafter, and to that end I could make either Thursday 5 or Friday 6 May available. Do either of you have a preference or an objection to those dates?

PN277

MR RYAN: Thursday 5th is suitable for the hotel.

PN278

THE COMMISSIONER: Mr Vance?

PN279

MR VANCE: Commissioner, I've got a matter on 4th that will go all day and is possibly going to go into the morning of the 5th so I'd be hesitant to book that one in. I am available on the 6th

PN280

THE COMMISSIONER: How about you, Mr Ryan?

PN281

MR RYAN: Commissioner, I'm unavailable on the 6th.

PN282

THE COMMISSIONER: We'll roll forward until Tuesday the 10th. That's suitable?

PN283

MR RYAN: That's suitable Commissioner.

PN284

THE COMMISSIONER: What we'll do is set aside a one day hearing on Tuesday, 10 May. All of this will be confirmed in directions, which I will issue following on from today's proceedings. Do you expect one day would be sufficient?

PN285

MR VANCE: Yes I do, Commissioner.

PN286

THE COMMISSIONER: Mr Ryan?

PN287

MR RYAN: Yes Commissioner.

PN288

THE COMMISSIONER: All right, with that time table in mind, of course there is nothing to prevent the parties from continuing to resolve the current issues in dispute by way of direct discussion, direct negotiation. It may well be that as time passes and we get closer towards that hearing date, that the circumstances do change and they might change quite radically for all I know, and that, once again, may impact upon how the parties are preparing their material at the time. There's nothing to prevent you, of course, in those circumstances, to then conferring directly with each other, or if the parties choose to seek some sort of conciliatory assistance from the Commission, I would make myself available with reasonable notice to assist the parties should that be a way forward, preferable to having to having the matter arbitrated.

PN289

I think, what I require, particularly in response to the union's wish to have this matter arbitrated, Mr Ryan, is that if there are any preliminary jurisdiction objections to the matter progressing as we have now proposed, that those preliminary jurisdictional objections will be raised within the next month, in other words, by that 31 March deadline, if you've got any jurisdictional issues you raise them by then. We'll deal with those as we need to, otherwise the matter will progress according to the time table that's now in the public record and will be published today or tomorrow in the form of formal directions. Is there any further before we conclude? Mr Vance?

PN290

MR VANCE: No, Commissioner.

PN291

THE COMMISSIONER: Mr Ryan?

PN292

MR RYAN: No, Commissioner.

PN293

THE COMMISSIONER: All right, these proceedings will now adjourn until
10 May.

<ADJOURNED ACCORDINGLY [2.47PM]