C2006/2576, Transcript of Proceedings [2006] AIRCTrans 803 (6 June 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 15106-1

COMMISSIONER GRAINGER

C2006/2576

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/2576)

MELBOURNE

10.04AM, THURSDAY, 25 MAY 2006

PN1

MR L NORRIS: I appear on behalf of the Australasian Meat Industry Employees' Union and whilst I'm on my feet without being pre-emptive there's no opposition to leave being granted Commissioner.

PN2

MR T LANGE: Seek leave to appear on behalf of the respondent company.

PN3

THE COMMISSIONER: Yes fine. Without hearing further from you I am happy to grant you leave. Thank you very much.

PN4

MR LANGE: Thank you Commissioner. Commissioner, I've had a short discussion with Mr Norris. We've agreed that it's appropriate if I stand and address the Commission first.

PN5

THE COMMISSIONER: Yes all right. Mr Norris, you're happy with that?

PN6

MR NORRIS: Yes that's fine.

PN7

THE COMMISSIONER: Yes thank you. Yes?

PN8

MR LANGE: Yes. Commissioner, I should indicate that, something of the history of this matter. In the interests of dealing with it I can advise the Commission the company intends to put a proposal for settlement of the matter to the union.

PN9

THE COMMISSIONER: Yes.

PN10

MR LANGE: In the next few days.

PN11

THE COMMISSIONER: Yes.

PN12

MR LANGE: That proposal would involve the relevant employees being transferred to daily hire status.

PN13

THE COMMISSIONER: Yes.

PN14

MR LANGE: Of the Federal Meat Industry Processing Award.

PN15

THE COMMISSIONER: Yes.

PN16

MR LANGE: I have provided a copy of the correspondence to Mr Norris this morning and we, that I understand is going to be considered by the union and we will receive a written response in due course. Mr Norris has indicated and I have got no objection to this, that he would be seeing as appropriate an order for report back sometime between seven and 14 days from now to allow those discussions to conclude.

PN17

THE COMMISSIONER: Yes.

PN18

MR LANGE: I indicate that in the event that proposal is not accepted and the matter can't be settled in that manner, that there would more than likely be an application which we would hope that directions could be issued to deal with under section 111(1)(e) to dismiss the matter on the basis that the settlement offer which, should it come to this, we are happy to make in open, on transcript ought to sufficiently resolve the matter so that there is no need - - -

PN19

THE COMMISSIONER: Well would it be part of your submission if we come to that, I mean I note that you're foreshadowing that today, you're not making that application today.

PN20

MR LANGE: That's correct Commissioner.

PN21

THE COMMISSIONER: You're foreshadowing it. I presume that if you made such an application that part of your argument would be that the prerequisites are not met for the Commission to issue the order sought in accordance with the terms of section 553(1).

PN22

MR LANGE: That's certainly one of the arguments that we would put in relation to the, I think it's still a 111(1) application but it's no longer 111(1)(g).

PN23

THE COMMISSIONER: Yes.

PN24

MR LANGE: We also indicate that I expect there would be some argument between the parties about the issue of what steps the Commission ought to take in order to inform interested parties, the parties who may be interested, pursuant to section 553(4) I believe it is.

PN25

THE COMMISSIONER: Yes.

PN26

MR LANGE: I merely indicate that for the record. I would hope and expect that the matter can be settled without further need to trouble the Commission.

PN27

THE COMMISSIONER: Yes well I mean I might say it just wouldn't surprise me. I know that the Minister has a right to intervene in these matters and it just wouldn't surprise me if the matter wouldn't get to that point if the parties are not able to resolve it.

PN28

MR LANGE: Indeed. I suspect that the Minister is one of the persons who would be interested in the outcome.

PN29

THE COMMISSIONER: Yes. All right. Okay. Fine.

PN30

MR LANGE: Thank you Commissioner.

PN31

THE COMMISSIONER: Thank you.

PN32

MR LANGE: If it please the Commission.

PN33

THE COMMISSIONER: Yes Mr Norris.

PN34

MR NORRIS: Thank you Commissioner.

PN35

THE COMMISSIONER: It sounds a whole bundle of trouble. I hope the parties are able to resolve it over the next few days - - -

PN36

MR NORRIS: It does but what doesn't kill you makes you stronger, Commissioner, and we've faced a few titanic tales in this - - -

PN37

THE COMMISSIONER: Indeed.

PN38

MR NORRIS: I'm sure the Commission's aware that simplification originally took five years within this Commission.

PN39

THE COMMISSIONER: Yes. I'm only too well aware of it. I was here for a large part of it.

PN40

MR NORRIS: I think it's a record but anyhow we'll move on from there. Commissioner, I agree and adopt my learned friend's sentiments about adjourning the matter essentially.

PN41

THE COMMISSIONER: Yes.

PN42

MR NORRIS: To allow discussions to continue.

PN43

THE COMMISSIONER: Yes.

PN44

MR NORRIS: It's always the Commission's almost given practice to avoid any costly and timely hearings - - -

PN45

THE COMMISSIONER: And I'm happy to if the parties both consent to that, I'm happy to do so and I look to you to indicate whether you would rather a week or say Friday of next week or whatever suits you.

PN46

MR NORRIS: Well can I suggest, Commissioner, that the matter simply be adjourned to a date to be fixed.

PN47

THE COMMISSIONER: Yes.

PN48

MR NORRIS: To allow the discussions and the AMIEU undertakes that it will not notify the Commission of the requirement for a further listing any earlier than seven days.

PN49

THE COMMISSIONER: Yes all right.

PN50

MR NORRIS: Might be the more – rather than setting dates which hopefully have to be cancelled in the future.

PN51

THE COMMISSIONER: No. All right. That's fine. I'm very agreeable to that.

PN52

MR NORRIS: Yes and can I just make some preliminary comments.

PN53

THE COMMISSIONER: You can indeed.

PN54

MR NORRIS: Very briefly, just in the event that we do have to unfortunately proceed. In my submission it must be borne very steadfastly in mind that this is an inter-partes roping-in award, binding only on the two parties of the award as with any standard roping-in award. It simply says the terms and conditions of the industry award apply as though G&K O'Connor are a respondent, which doesn't make them a respondent.

PN55

THE COMMISSIONER: Yes.

PN56

MR NORRIS: But nonetheless binds them to apply those terms and conditions. There's a number of preserved conditions within the award. It has its own, it's sui generis effectively. It arises from a background that the Commission may possibly be aware of if it's had a - if the Commission has had a skim read through the material thus far and the final point I wish to make, there is undoubtedly some jurisdictional prerequisites which must be met.

PN57

THE COMMISSIONER: That's right.

PN58

MR NORRIS: In order to obtain an order under section 553.

PN59

THE COMMISSIONER: Yes.

PN60

MR NORRIS: But in my submission these are not matters that the Commission can actually rule upon until the evidence is heard.

PN61

THE COMMISSIONER: I'm sure that's right.

PN62

MR NORRIS: Yes.

PN63

THE COMMISSIONER: I'm only flagging that when I look at that section there are – and I look at the application I can see that, I'm trying to see where the bridge is between what it is you're seeking and what it is that section 553 actually says.

PN64

MR NORRIS: Yes.

PN65

THE COMMISSIONER: I haven't got any concluded view on it by any means at all. I'm looking to the submissions of the parties.

PN66

MR NORRIS: Yes.

PN67

THE COMMISSIONER: Yes.

PN68

MR NORRIS: Thank you Commissioner and my learned friend's certainly entitled to raise on behalf of his client what we used to call an old 111 public interest argument and the normal procedure was to have that heard and determined first.

PN69

THE COMMISSIONER: Yes. Good. Thank you very much, Mr Norris.

PN70

MR NORRIS: Thank you very much, Commissioner.

PN71

THE COMMISSIONER: Yes. You're happy with that as the basis on which the matter is adjourned today, Mr Lange?

PN72

MR LANGE: Yes Commissioner, thank you.

PN73

THE COMMISSIONER: Yes. All right. Fine. Well look I wish the parties well in their ongoing negotiations. I will wait to hear from either party with regard to the relisting of the matter. I will seek to relist it when it is sought to be relisted at the earliest possible date thereafter and I wouldn't expect any ..... significant delay. Good. Thank you very much. We'll now adjourn.

<ADJOURNED INDEFINITELY [10.11AM]