C2004/4214, Transcript of Proceedings [2005] AIRCTrans 940 (20 April 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11181-1

SENIOR DEPUTY PRESIDENT HARRISON

C2004/4214

APPEAL BY SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES ASSOCIATION
s.45 Appeal to Full Bench
(C2004/4214)

SYDNEY

10.07AM, FRIDAY, 08 APRIL 2005

Continued from 8/10/2004

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

MR D D'ARCY: I appear on behalf of Bertha One.

PN2

MS J SWIFT: I am from Employers First appearing on behalf of Delaware North Retail Services Proprietary Limited.

PN3

MR M ZADOW: I appear for the Shop, Distributive and Allied Employees Association.

PN4

THE SENIOR DEPUTY PRESIDENT: Are there any appearances in Melbourne?

PN5

MR J RYAN: Yes, your Honour. I appear for the SDA.

PN6

THE SENIOR DEPUTY PRESIDENT: Who is going to be doing the speaking for the SDA today?

PN7

MR RYAN: I am not really certain on that. Most of it is going to be done by the employers because it is for them to respond, but either Matthew or myself can maybe making comments to you, your Honour.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I had brought to my attention an application that was filed yesterday. It is not within my panel, but it is within Senior Deputy Watson's panel but it is an application by Bertha One and Bertha Two to terminate at least one certified agreement. I haven't read the whole of the file to identify whether there is any other agreement. That, I don't think, has even been brought to the Senior Deputy President's attention yet but I thought I would let you know that I was aware of that, and I had understood that when this matter was listed before me some time ago now, that when that application was filed, the appeal that has been listed this morning for mention would be withdrawn. So I really think I am going to turn first to the SDA because it is the appeal that is the matter of concern to me. So who wants to address me on that matter? Mr Ryan?

PN9

MR RYAN: Well, I will start off, your Honour. The appeal related to a specific decision of Senior Deputy President Duncan to certify an agreement. At the time the agreement was made there was only one employer party to that agreement and that was the Bertha Group which was Bertha One Proprietary Limited and Bertha Two Proprietary Limited. Since the time the agreement was certified, a second employer has become involved in this matter, and that is Delaware North as a transmittee of the business of one of the Bertha companies. Even if Bertha One and Bertha Two have applied for the setting aside of the original agreement, it is not a matter that is solely up to them if Delaware North are involved as a transmittee of the business.

PN10

Now, I suspect that what will happen is that Delaware North may be giving undertakings or may say that they are consenting to the withdrawal of the agreement, but until it is clarified that the agreement will be terminated, not only in relation to Bertha One and Bertha Two as the two original parties but also in relation to the transmittees, then there may still be a matter that will need to be dealt with on the appeal. Now, I am hoping that as a result of the hearing this morning, that it will be clarified that the termination of the agreement is being supported by both employers, that we will certainly not be wanting to do anything other than help the termination of the agreement and if that is the case then certainly the appeal itself will disappear. We would withdraw the appeal.

PN11

THE SENIOR DEPUTY PRESIDENT: Ms Swift?

PN12

MS SWIFT: That is certainly the case. Delaware North does consent to the termination of this agreement.

PN13

THE SENIOR DEPUTY PRESIDENT: All right. Is there any reason why that application for termination of the agreement can't be dealt with now?
Mr D'Arcy?

PN14

MR D'ARCY: Your Honour, I have no objection with dealing with it now. However, I believe that just as a matter of expediency, Ms Swift and Delaware North have an agreement coming into place effectively to replace in part this ..... due to be terminated agreement, and they want to do that at the same time.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes. Is that filed, Ms Swift?

PN16

MS SWIFT: Not as yet. It is my understanding from conversations with
Mr Goven from the SDA state office and also with Mr Zadow this morning that the SDA organisers will be able to effectively begin what is colloquially known as the roll out of that agreement almost immediately and we anticipate that an application to certify what will be known, I suppose for today's purposes for ease of conversation, as the new agreement should be able to be filed within about three weeks.

PN17

THE SENIOR DEPUTY PRESIDENT: All right. Well, I am just not prepared to delay the dealing with the appeal for much longer, Mr Ryan. I have not formed a view as to whether the appearance of Delaware North in any way would be a matter of relevance to the Full Bench. I just haven't considered that matter but I note that when the matter was before me previously, there was an indication that when these applications were filed the appeal would be withdrawn. It seems now that you want to revisit that and it seems to me as if you want to know when the result of this application is known, the appeal will be withdrawn.

PN18

MR RYAN: No, your Honour. Given the statements that have been made by the two employer parties, I am quite satisfied that the requirements that we originally laid out have been met and we would certainly be prepared to withdraw the appeal.

PN19

THE SENIOR DEPUTY PRESIDENT: Excellent. Can I assume that is now done, Mr Ryan?

PN20

MR RYAN: Yes. Does the Commission require the withdrawal in writing or is it sufficient for it to be dealt with on the transcript?

PN21

THE SENIOR DEPUTY PRESIDENT: More than adequate what has already been said in the exchange, Mr Ryan. Obviously, in the unlikely event that things don't proceed in the manner in which we are now all be leaving the Commission, and I understand they are going to proceed, you will make whatever applications you think appropriate, Mr Ryan.

PN22

MR RYAN: No. We have confidence in the employers and New South Wales branch that the matter has been adequately resolved. I must say I think that it is thanks to your Honour that we have got this far so quickly because it was slowing down in terms of trying to get the paper work done to terminate the agreement and get a new agreement in place. And I think that you calling it on has spurred both of the parties including the association to get this matter fixed up. So we thank the Commission for its assistance too.

PN23

THE SENIOR DEPUTY PRESIDENT: Well, I think all of that is good. Anything any of the advocates here in Sydney wish to say? No. Thanks, Mr Ryan. The Commission now adjourns.

<ADJOURNED INDEFINITELY [10.15PM]