C2005/6037, Transcript of Proceedings [2006] AIRCTrans 70 (18 January 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 13958-1

VICE PRESIDENT LAWLER

C2005/6037

APPLICATION BY LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
s.113 - Application to vary an Award
(C2005/6037)

SYDNEY

9.55AM, FRIDAY, 23 DECEMBER 2005

Continued from 15/12/2005

Hearing continuing

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

PN1

THE VICE PRESIDENT: This is matter number C2005/6037 a section 113 application to vary an award application by the Liquor, Hospitality and Miscellaneous Union Children's Services Victoria Award 1998. Telephone hearing which is being recorded by Legal Transcripts, on the line should be
Ms Bennett from the LHMU, are you there Ms Bennett, are you there? That's fine let me just put you back on speaker so that Legal Transcripts can record it, sorry can you hear me Ms Bennett?

PN2

MS S BENNETT: Yes I can.

PN3

THE VICE PRESIDENT: That's fine. Mr Moloney and Ms Rawlings?

PN4

MR L MOLONEY: Yes in Brisbane.

PN5

THE VICE PRESIDENT: That's fine. Ms Lauren McCarty from VECCI, her number has been going through to voicemail for the last little period and it has just done that now, so she's not present. Yes Ms Bennett?

PN6

MS BENNETT: As I understood – I've had some correspondence with
Mr Moloney in relation to the draft order. I think there's some areas in relation to the draft order that we may be able to settle, there's about 8 points or so that he has raised and I believe the majority of them can be settled. I suppose the two areas that are unlikely to be settled just by correspondence between the two parties and I'm - I suppose, unfortunately I don't know what Mr Moloney is going to say, but they are in relation to the return of part-time work and also in relation to the taking of annual leave and when annual leave is taken.

PN7

Our position on those two areas would be that they are part of the test case standard and if Mr Moloney wants to depart from that, that he needs to make a 107 application to the Full Bench to vary from that safety net. I'm not sure how we are going to program the matter given that, but that would be our view on the face of it. As I said I think the other issues can be worked through fairly quickly if he has the time in the next three or four weeks to do that.

PN8

THE VICE PRESIDENT: Fine. Mr Moloney does that fairly summarise your position?

PN9

MR MOLONEY: Yes it does your Honour. We wrote to Ms Bennett a couple of days after the last video conference and we've had a response from Ms Bennett for which I thank her. I think that's probably right it's the - the major area of concern I think is the return to part-time work and the issue about the employer reasonably or unreasonably refusing such a request. I'm not sure the actual taking of annual leave is quite as significant an issue but it probably will be on the list of matters that we may not be able to reach agreement on.

PN10

THE VICE PRESIDENT: Okay.

PN11

MR MOLONEY: I'm not sure about whether it requires a 107 application though, because - - -

PN12

THE VICE PRESIDENT: You say, I think, that the test case itself authorises departure from the standards if particular circumstances can be demonstrated.

PN13

MR MOLONEY: Yes and we referenced that at the last conference.

PN14

THE VICE PRESIDENT: Yes.

PN15

MR MOLONEY: It was paragraph 394 of the decision and also appendix 2 clause 3.

PN16

THE VICE PRESIDENT: Can I suggest that the safer course is to refer the matter to the President. I'm confident that he'll simply refer it back to me but then that will remove any scope for argument in due course.

PN17

MR MOLONEY: Yes look I'm more than comfortable with that your Honour.

PN18

THE VICE PRESIDENT: Fine, okay. Well make the assumption that I will do that unless you - you don't have any objection to that course Ms Bennett?

PN19

MR BENNETT: No I don't.

PN20

THE VICE PRESIDENT: Fine. Well I'll refer the matter to the President noting your submission Mr Moloney that it's unnecessary and the President will take a view one way or the other and either way we'll have a degree of certainty about what's occurring. In that case it's probably desirable to program the hearing date, so that any matters that can't be resolved can be determined. Does either party have an objection to that course?

PN21

MR MOLONEY: No I don't have an objection. I just have a reservation that - you would probably have some knowledge that we've got a significant number of matters either before the AIRC and/or before state tribunals dealing with this industry and they've all been fairly much accelerated for fairly obvious reasons. So as it were, we've got a fairly full dance card at the moment, I know that's not
a matter for this Commission's matter.

PN22

THE VICE PRESIDENT: Mr Moloney this matter is going to be resolved before 1 March.

PN23

MR MOLONEY: Yes and Vice President our latest information seems to be that Work Choices will become operative probably around the middle of March, I know some speculations says the beginning of March, the good money seems to be it's probably going to be mid March, because I gather they're still trying to write the regs.

PN24

THE VICE PRESIDENT: Well I don't know what your sources of information are, but the best information that's available to me is that 1March is still the target date. In any event be that as it may, I'm not going to permit a variation to include a test case standard to be something that simply lapses because we take a punt on the middle of March and it turns our to be the beginning of March. Is there any reason why we can't deal with this, given that I imagine the argument is going to be reasonably short encompasses isn't it.

PN25

MR MOLONEY: Short encompass, it probably may require - - -

PN26

THE VICE PRESIDENT: Some evidence I understand that.

PN27

MR MOLONEY: That's right. I would suspect, because of - it's just the particular nature of the issues we've raised. I'm not - from a cursory reading of the decision of 8 August, I'm not sure that those sort of particular issues were canvassed before the Full Bench.

PN28

THE VICE PRESIDENT: Have you proposed an alternative form of words that is acceptable to you to Ms Bennett?

PN29

MR MOLONEY: Not at this stage your Honour, we suggested that we would do that and we're in the process of trying to just consult with various members to come up with an alternate form of words.

PN30

THE VICE PRESIDENT: Okay. Well I think that what ought to occur is that we ought to list a date say in the first week of February and have - with directions for you to provide an alternative draft form of words on the issues that remain outstanding by the end of the last week in January. That ought to be more than sufficient time to do that and at the same time - well hang on a minute, what sort of evidence do you anticipate you may need to call?

PN31

MR MOLONEY: I think it will be in the nature of operational personnel who should be able to advise the Commission about what that they perceive as being the operational issues that would arise from adopting the modelled clause versus adopting a different form. That obviously would be put into evidence in support of whatever alternate wording that we put in.

PN32

THE VICE PRESIDENT: Yes.

PN33

MR MOLONEY: I know that's a bit vague.

PN34

THE VICE PRESIDENT: No, no that's fine. Ms Bennett I take it you'd want to reserve the opportunity to put some evidence on in reply.

PN35

MS BENNETT: Yes Vice President, but if I can make the point at paragraph 399 of the Full Bench decision, there is room for parties to come back to the Commission if the provision that they have decided on doesn't work for both the employees and employers. But if I can make the point at paragraph 399 it clearly makes - - -

PN36

THE VICE PRESIDENT: Ms Bennett there may be a real problem with that, as I read the new legislation, the discretion for the Commission to vary awards is very limited indeed and it may not extend to that. We'd need to look at that rather carefully.

PN37

MS BENNETT: It may be so, it's just that it does actually say that the actual order will be given some time to take effect and that after that effect is measured and it's actually had some time to work through in the industry, then the parties may on application, come back and review the operation of the provision.

PN38

THE VICE PRESIDENT: Unfortunately the - - -

PN39

MR MOLONEY: Legislation doesn't allow that to happen.

PN40

THE VICE PRESIDENT: Yes, the decision was handed down before the legislation had been made available and the legislation on one view may prevent that occurring. That's a matter that we'll just have to have a look at I suspect. Put it this way, that response does not, it seems to me, comprehensively dispose of
Mr Moloney's concerns.

PN41

MS BENNETT: Yes I understand the practical difficulties. I've got no problem with the programming of the matter, I only ask that it be done very expeditiously because - - -

PN42

THE VICE PRESIDENT: How much time - is a week sufficient for you to get evidence in reply done?

PN43

MS BENNETT: Absolutely.

PN44

THE VICE PRESIDENT: Okay. Well Mr Moloney what I propose to direct is 27 January for your evidence and an alternative form of words in relation to the issues in dispute in relation to the aspects of the order that would be in dispute. Ms Bennett, your evidence in reply by 3 February and I'll list the matter on
7 February for argument. That will not prevent you Mr Moloney from calling evidence in reply if you want to, but we'll just deal with that in the ordinary course.

PN45

MR MOLONEY: Where would that hearing be held, Sydney?

PN46

THE VICE PRESIDENT: Is there a particular reason why it should be held somewhere else.

PN47

MR MOLONEY: No sorry I was just asking the question.

PN48

THE VICE PRESIDENT: No, well it was filed in Sydney and ordinarily a matter filed in Sydney would be heard in Sydney but the Commission is more than happy to sit somewhere else if there is some good reason for doing so. You're in Brisbane is that right?

PN49

MR MOLONEY: Yes from time to time.

PN50

THE VICE PRESIDENT: Yes, sorry, well whereabouts are you based?

PN51

MR MOLONEY: Based in Brisbane.

PN52

THE VICE PRESIDENT: Yes. Do you want - I mean you can participate by video conference if you want.

PN53

MR MOLONEY: Yes, I think if we're going to call evidence your Honour - - -

PN54

THE VICE PRESIDENT: It will be necessary to come, yes.

PN55

MR MOLONEY: We'll need to do that face to face don't we.

PN56

THE VICE PRESIDENT: Yes.

PN57

MS BENNETT: And obviously the witness may in fact be from Victoria given that it's a Victorian award. If that's the case we might have to sit in - - -

PN58

THE VICE PRESIDENT: Well I'm more than happy to sit in Victoria if that's where the witnesses are.

PN59

MR MOLONEY: Your Honour could I simply say this, that depending on what evidence we are able to call in this matter, if we - - -

PN60

THE VICE PRESIDENT: Look just make the assumption that if there's a good reason in a practical sense to sit in Victoria because we've got a whole lot of Victorian witnesses then that's where it will be held.

PN61

MR MOLONEY: All right then we'll ask for that to happen.

PN62

THE VICE PRESIDENT: That's fine, okay. Now we'll also send - obviously include VECCI in those directions and send a copy of those directions to
Ms McCarty.

PN63

MR MOLONEY: Okay thank you.

PN64

THE VICE PRESIDENT: Is there anything further you'd like to say
Mr Moloney?

PN65

MR MOLONEY: Nothing at this stage your Honour.

PN66

THE VICE PRESIDENT: Fine. Ms Bennett, are you happy that those directions deal with the matter adequately?

PN67

MS BENNETT: Yes I am. I'm also confident that we can work through the other less major issues very quickly. I've had - I've already had a chance to look at Mr Moloney's points and there are a number of points that he makes that I think I can dispose of pretty quickly, ie. I am happy to go to his point of view more quickly, so - - -

PN68

THE VICE PRESIDENT: Okay fine.

PN69

MS BENNETT: - - - yes I think we'll be quite far along the process by the time it actually comes to hearing.

PN70

THE VICE PRESIDENT: And it may be possible in any event that - I mean the parties sort of continue having discussions about those two substantive issues that are in dispute because it may be possible to come to some accommodation in any event. I mean obviously I think from the union's perspective it doesn't want to be unreasonable in terms of the imposition of obligations on employers and equally from the employers perspective, they would no doubt not want to be unreasonable in terms of excluding completely access to those aspects of the test case decision and it's really just a question of coming up with an appropriate form of words that gives proper protection to the legitimate interests of both parties, I would have thought.

PN71

MR MOLONEY: Yes.

PN72

THE VICE PRESIDENT: Okay. Well I'll adjourn the matter to
7 February 2006 and directions as I've indicated will issue formally later today.

PN73

MR MOLONEY: Okay thank you very much.

PN74

THE VICE PRESIDENT: Thank you.

PN75

MS BENNETT: Thank you your Honour.

<ADJOURNED UNTIL TUESDAY 7 FEBRUARY 2006 [10.08AM]