C2004/5052, Transcript of Proceedings [2005] AIRCTrans 95 (10 January 2005)

AUSCRIPT AUSTRALASIA PTY LTD
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TRANSCRIPT OF PROCEEDINGS


O/N 9577

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT WATSON

C2004/5052

APPLICATION FOR COMMON
RULE AWARD

Application under section 141 of the Act
by Australian Municipal, Administrative,
Clerical and Services Union for a common
rule award

MELBOURNE

9.32 AM, WEDNESDAY, 22 DECEMBER 2004

Continued from 7.12.04

PN92

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

PN93

MR C. CODY: Yes, your Honour. I appear on behalf of Mason Sier Turnbull, a law form, and McPherson and Kelly, another law firm, and I haven't appeared previously. In respect to the matter, obviously I am representing employers interested in the matter and otherwise ditto the remarks made on transcript by my learned friend, Mr Molnar previously. I understand the union may have something to say.

PN94

THE SENIOR DEPUTY PRESIDENT: Yes. Has there been a notice of appearance filed in - - -

PN95

MR CODY: There has been notice of appearance filed and copies served on each of the interested parties.

PN96

THE SENIOR DEPUTY PRESIDENT: In respect of McPherson Kelly?

PN97

MR CODY: Not in respect of McPherson and Kelly this stage.

PN98

THE SENIOR DEPUTY PRESIDENT: Yes.

PN99

MR CODY: And they are represented by myself only as of last evening.

PN100

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Harvey.

PN101

MR HARVEY: Yes, your Honour. Australian Services Union would oppose the notice of appearance. Somebody said the other day it is beginning to be a bit like herding cats, with respect to the legal industry that keeps popping up. But as I think I pointed out on the last occasion, your Honour, the rules of the Commission require that unless otherwise directed parties interested in these application should file a notice of appearance at least three days prior to the hearing of the matter which I think the first hearing of it was back in October.

PN102

We have received from Mason Sier Turnbull I think last Thursday or Friday a copy of their notice of appearance but it is way out of time and we don't believe - I don't think Mr Cody asked the Commission otherwise direct that the rules not be complied with, so unless that application is made we would oppose the notice of appearance. Also with respect to McPherson and Kelly that is the first we have heard of the notice of appearance from them and we have received no notification with regard to that matter. If the Commission pleases.

PN103

THE SENIOR DEPUTY PRESIDENT: Mr Cody, anything further?

PN104

MR CODY: I simply state that the rules do allow for the Commission to exercise a discretion in favour of an appearance and this matter is one where, as indicated by my learned friend last time, that the profession has been caught a bit unawares and perhaps believe that the interests of the profession were protected by a free ride situation which wasn't to be the case. There are real issues to be discussed. There have already been discussions with the union.

PN105

Particularly as this is a case where the award proposed for common rule is in fact a consent award and not designed to be universal in my submission and I think that there are matters that need to be discussed in the interests of all parties before this matter is declared. Insofar as McPherson and Kelly is concerned I indicated that I only received instructions last evening and so I seek leave to file a notice of appearance following this hearing today.

PN106

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Mr Harvey, do you have something else to - - -

PN107

MR HARVEY: Yes, sorry, your Honour. One thing I think Mr Cody said, he hinted or suggested or alluded to the fact that he was representing other employers as well and I think that we would need to have that clarified before we go any further. If the Commission pleases.

PN108

THE SENIOR DEPUTY PRESIDENT: Yes. Are you representing anyone beyond Mason Sier Turnbull, Lessem Pty Ltd and McPherson and Kelly?

PN109

MR CODY: Not at this stage, Commissioner, and it may be that there is interest expressed. There has certainly been circulation throughout the profession with direction that contact be made with the Law Institute and that contact is then directed to myself. There is an unfortunate situation with the legal profession, Commissioner, in that there is no representative body of employers.

PN110

The Law Institute employers and employees and therefore has placed itself in a situation of conflict insofar as any industrial activity is concerned and therefore unfortunately the representation for the employers is on an ad hoc basis, whereas of course the employees have representation for the union. So I do apologise for the late entry of myself into these proceedings in that respect.

PN111

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Anything further, Mr Harvey?

PN112

MR HARVEY: No, your Honour.

PN113

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I do direct that appearance be received in respect of Mason Sier Turnbull, Lessem Pty Ltd and McPherson and Kelly, provided that it is received in my chambers prior to Christmas. I should indicate beyond that receipt of notices of appearance will not be an open ended process and any members of the Law Institute wishing to be represented should very promptly file a notice of appearance in respect to these matters. Now, the matter is initially listed for report back. Who would like to lead off in respect to that?

PN114

Mr Harvey?

PN115

MR HARVEY: Yes, I think it is probably appropriate the union leads on this, your Honour.

PN116

THE SENIOR DEPUTY PRESIDENT: As the applicant, yes.

PN117

MR HARVEY: Your Honour, it would appear that employees in the Victorian legal industry are not going to have a common rule award in their Santa sacks or under the Christmas tree on Saturday morning. Your Honour, despite the best efforts of the union on their behalf and I have to say some good will and effort on behalf of the employers represented at the table today as well, we have been unable to reach agreement on the terms of any draft declaration that we would otherwise may have sought to make today.

PN118

Your Honour, particularly firstly dealing with the position between the ASU representing employees and EMA Legal and the clients that they have with regard to this matter, the parties have made strenuous efforts over the last two weeks or so since the matter was last before the Commission to attempt to reach agreement on the terms of a draft declaration but we have failed in that endeavour and have to report to you today, your Honour, that there is no agreement between the ASU and EMA Legal and it is clients, so we are not in a position to ask you to make a consent draft declaration today.

PN119

With regard to the sort of other two, if I could say, late notices of appearance, that one from Harmers which was made on the last occasion the matter was before the Commission and also with regard to Mason Sier Turnbull, we did take the opportunity to meet with Mr Cody who I think was in the position, but he can speak for himself, of representing Harmers at that meeting and we did at least attempt to flesh out the concerns that his organisation might have and consider those without having responded to them in any way at the moment.

PN120

I think we also invited Mr Eberhard to the meeting that we held but he was unable to attend that meeting. But on the understanding that in any case we were not able to reach agreement with EMA Legal and their clients, their position has been in the absence of any agreement that would obviously oppose the making of the draft declaration and raise a number of points that they have already alluded to and if that course of action is going to proceed then we couldn't see any point reaching agreement with anybody else if there is going to be a fundamental sort of root and branch challenge to the making of this application.

PN121

So we haven't sought to finalise the discussions with Mr Cody or Harmers at this stage, believing that it would not be a useful course of action. So the position briefly put today, your Honour, is that there is no agreement between the union and any of the interested parties from the employer side, so the consequence of that, as was flagged on the last occasion, that if agreement couldn't be reached then the next step would be to issue some directions with regard to the hearing of the matter this year and the ASU has prepared some - - -

PN122

THE SENIOR DEPUTY PRESIDENT: This year?

PN123

MR HARVEY: Sorry?

PN124

THE SENIOR DEPUTY PRESIDENT: Did you say this year?

PN125

MR HARVEY: Well, there is all of next week, your Honour. Sorry, next year, your Honour, and hopefully finalised before Christmas next year. The ASU has prepared some draft directions which I have handed to my friends at the bar table today and I am prepared to tender now, unless you want to hear from them prior to that.

PN126

THE SENIOR DEPUTY PRESIDENT: Well, perhaps you tender them and if anyone has any observations in respect of it they can make them.

PN127

MR HARVEY: Thank you. That is all the submissions from the union, your Honour.

PN128

THE SENIOR DEPUTY PRESIDENT: Thank you for that, Mr Harvey.

EXHIBIT #ASU1 DRAFT DIRECTIONS

PN129

THE SENIOR DEPUTY PRESIDENT: Just bear with me one moment. Yes, very well. Who would like to lead off from the employer side? We don't have santa but we might have the elves.

PN130

MS OBERDAN: I just have a couple of observations to make. Firstly, just continuing on with your Honour's comments about the appearances that have recently been filed.

PN131

THE SENIOR DEPUTY PRESIDENT: Yes.

PN132

MS OBERDAN: We would also be seeking to amend our notice of appearance which I understand the ASU has consented to previously to include four firms which are Herbert Geer and Rundle, Madgwicks, Hall and Wilcox and Russell Kennedy. We will be able to do that this afternoon, your Honour, as well.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes.

PN134

MS OBERDAN: And otherwise we do not have any concerns with the draft directions that have been provided, however I just want to make the observation that the hearing that is actually proposed to be commenced the week commencing 21 March that actually be a jurisdictional hearing first prior to any merit arguments being determined.

PN135

THE SENIOR DEPUTY PRESIDENT: Why could the matters not be dealt with together?

PN136

MS OBERDAN: I would understand that would be just a two staged approach in case - - -

PN137

THE SENIOR DEPUTY PRESIDENT: Yes, I understand what you are saying with the jurisdiction and if there is jurisdiction the substantive argument, but is there any reason all matters could not be dealt with within a single hearing? Obviously jurisdiction would need to be determined first.

PN138

MS OBERDAN: Yes. So would that be then, just to clarify that point, would that be that all the material that is presented also be based on - - -

PN139

THE SENIOR DEPUTY PRESIDENT: Yes. Well, I presume the ASU in its initial materials would be addressing, if you like, the non jurisdictional matters and there will be an opportunity for the other parties to address those together with raising jurisdictional matters which I understand would be raised?

PN140

MS OBERDAN: Yes, that would probably be appropriate.

PN141

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that, Ms Oberdan. Mr Harvey, can I ask you in respect to the additional appearances what the position of the ASU is in respect to that?

PN142

MR HARVEY: I don't think it is fair to say that we have consented to that formally.

PN143

THE SENIOR DEPUTY PRESIDENT: Yes.

PN144

MR HARVEY: And I don't want to sort of to go into sort of without prejudice discussions that we have had with EMA Legal, so it is probably better just to say that we would oppose the additional notices of appearance on the basis that we don't have any copies of such notices of appearance at this stage and would oppose the amended notice of appearance as it has been stated today.

PN145

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Harvey. Well, I will amend the notice of appearance subject to appropriate notices being filed prior to Christmas of this year and I wonder, Ms Oberdan, if you could also provide me at the same time with, if you like, a consolidated list of clients that EMA is representing in this matter?

PN146

MS OBERDAN: Yes.

PN147

THE SENIOR DEPUTY PRESIDENT: And perhaps if you could circulate that to the other parties as well. Who is next? Mr Molnar.

PN148

MR MOLNAR: Mr Molnar, thank you. We have no difficulties with the proposed directions. The only thing that I wish to put in perhaps is some consideration needs to be given for possible conciliation before the hearing.

PN149

THE SENIOR DEPUTY PRESIDENT: Yes.

PN150

MR MOLNAR: Whilst there have been discussions between the ASU and separate parties, there has never been the opportunity for all the parties really to come together and have a full conciliation through the processes of the Commission and that might be appropriate, sir, once the written material is before you, once the issues have been clarified and it may certainly be useful in that conciliation if some of the issues could be perhaps narrowed or taken out before we proceed into a formal hearing.

PN151

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Thank you for that, Mr Molnar. Mr Cody.

PN152

MR CODY: I simply reiterate Mr Molnar's remarks and believe it would be a good process to have an all party conciliation prior to the formal hearing.

PN153

THE SENIOR DEPUTY PRESIDENT: Yes.

PN154

MR CODY: Insofar as clarification of discussions, if it is necessary, I have consulted with Mr Molnar prior to discussions with the ASU and so their views were represented in those discussions as well.

PN155

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Eberhard.

PN156

MR EBERHARD: Your Honour, I don't think I have anything to add today.

PN157

THE SENIOR DEPUTY PRESIDENT: Yes, very well. Can I ask you, Mr harvey, how long you think might be required for an arbitration? It may be a question that is more appropriately to Ms Oberdan and will be shortly.

PN158

MR HARVEY: Yes, your Honour. Given the unlimited legal resources at the disposal of our opponents in this matter, we expect it to be a short hearing of five or six months. No, honestly, your Honour, we have no idea really until we see the sort of colour of the arguments if you like that might be mounted against us and I am not sure whether, you know, the extent to which witness evidence might be required. But I would be sort of hopeful that we would be talking about a day or two rather anything, you know, longer than that, but I am almost guessing at this point, your Honour.

PN159

THE SENIOR DEPUTY PRESIDENT: Ms Oberdan, can you enlighten me any further?

PN160

MS OBERDAN: Your Honour, I would have thought two days.

PN161

THE SENIOR DEPUTY PRESIDENT: Yes. Does anyone have a contrary view to that? Very well. Just one moment. Very well. Thank you for that. I will issue the directions contained within the draft directions in ASU1, save that, it is not really a direction but rather a listing issue, point 4, the dates shall be 22 and 23 March 2005. I would also indicate that the day of Thursday, 10 March will be set aside for the purpose of conciliation.

PN162

Finally, I would encourage the parties to engage in further discussions both before and after materials are filed to explore prior to the conciliation whether there is any further possibility of the matter being resolved. To the extent that one issue which I am aware has arisen is a concern about, in some firms at least, payment of salaries well in excess of a minimum but concerns about some associated payments, penalties and overtime, understanding that is not the only issue contention, but to the extent that it is whether the parties could give some consideration at least to whether provisions such as that in clause 22 of the Hospitality Industry Accommodation Hotel Resorts and Gaming Award which provide an option for an annualised salary might provide some mechanism for addressing that issue at least and there is some consideration of the appropriate provisions in the Full Bench decision in Clerks Breweries Consolidated Award 1985 in print S6443, that being a decision of Vice President Ross, myself and Commissioner Gay.

PN163

So I specifically direct the parties attention to that decision and that possible approach but more generally encourage the parties, whilst understanding there have been considerable discussions and genuine attempts to resolve matters to date, to engage in any further attempts to resolve the matters. Obviously if they are not resolved conciliation would occur on 10 March and if some or all matters remain unresolved then the matter will proceed to arbitration on the 22nd and 23 March.

PN164

So I will wish the parties a happy festive and I think, Mr Harvey, looking at the papers today, Ipods rather than common rule awards are the most sought after gift in the stocking. I will adjourn the proceedings formally until 10 March and if necessary, 22, 23 March.

ADJOURNED ACCORDINGLY [9.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 DRAFT DIRECTIONS PN129