AG2007/534, Transcript of Proceedings [2007] AIRCTrans 108 (13 March 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16558-1

COMMISSIONER LEWIN

AG2007/534

APPLICATION BY LIQUOR, HOSPITALITY AND MISCELLANEOUS UNION
s.170MD(6) pre-reform Act - Variation of certified agreement to remove ambiguity
(AG2007/534)

MELBOURNE

10.07AM, WEDNESDAY, 28 FEBRUARY 2007

PN1

MR Y BAKRI: I appear for the LHMU.

PN2

THE COMMISSIONER: I understand, Mr Bakri, there's to be no appearance on behalf of the other party to the agreement, is that right?

PN3

MR BAKRI: Yes, that's my understanding.

PN4

THE COMMISSIONER: How do you know that?

PN5

MR BAKRI: I spoke with Kieran Renaro, I believe he's the State Operations Manager of S&K Parking. I spoke to him yesterday and he informed me that he doesn't intend to be attending today.

PN6

THE COMMISSIONER: Have you served the application on the other party?

PN7

MR BAKRI: Yes, I have.

PN8

THE COMMISSIONER: Are you able to establish to my satisfaction that you did so?

PN9

MR BAKRI: I don't have a copy of the fax confirmation here.

PN10

THE COMMISSIONER: All right. What I'm directing you to do is to file with the Commission an affidavit of service containing any necessary evidence to prove the service.

PN11

MR BAKRI: Yes.

PN12

THE COMMISSIONER: And a statement in that affidavit by the person who effected the service, and that should be filed with the Commission no later than close of business this Friday.

PN13

MR BAKRI: Thank you, Commissioner.

PN14

THE COMMISSIONER: Very well. Yes, you can speak to the application, please, Mr Bakri.

PN15

MR BAKRI: Commissioner, it's also my understanding that the company faxed a letter to the Commission expressing its support for the union's application.

PN16

THE COMMISSIONER: Yes, that's correct. Would you like me to enter that? I'll mark it as exhibit A1.

PN17

MR BAKRI: Yes, thank you.

EXHIBIT #A1 LETTER TO AUSTRALIAN INDUSTRIAL REGISTRY FROM MICHAEL A COOK, S&K CAR PARKING MANAGEMENT PTY LTD DATED 13/02/2007

PN18

THE COMMISSIONER: That is a letter dated 13 February addressed to the Australian Industrial Registry by Mr Michael A Cook, State Manager, Victoria for S&K Car Parking Management Pty Ltd. The contents of the letter are to the effect that the company supports the application to vary the agreement so as to remove ambiguity and uncertainty.

PN19

MR BAKRI: Yes, Commissioner, that's the letter I refer to.

PN20

THE COMMISSIONER: Yes, very well. Could you just explain the ambiguity and uncertainty? The Commission has to be satisfied that there is ambiguity or uncertainty in order for it to have jurisdiction and power to vary the agreement in the manner sought.

PN21

MR BAKRI: Yes, Commissioner. Early last year a dispute arose between the LHMU and S&K Parking regarding the S&K Parking Management Pty Ltd Enterprise Agreement 2005. The issue was with the interpretation of 12.2.2. Now, this is the clause that stipulates how the wage increase will occur. The company and the union had different interpretations of this clause and these differences in opinion were concerned with a definition of national CPI. Now - - -

PN22

THE COMMISSIONER: So the question is, the meaning of the words "national CPI"?

PN23

MR BAKRI: That's correct, yes. Following the initial dispute between the company and the union we had some resolution to this issue on the proviso that the agreement would be varied to remove the ambiguity or uncertainty.

PN24

THE COMMISSIONER: What was the nature of the different interpretations of the meaning of the words "national CPI"?

PN25

MR BAKRI: Yes, Commissioner, the union submits that national CPI can be interpreted in a number of ways, and there's an arguable case for each of these. The first one is that national CPI is to be calculated by determining the cumulative four quarters national average and - - -

PN26

THE COMMISSIONER: By reference to what?

PN27

MR BAKRI: By reference to the statistics handed down by the Australian Bureau of Statistics.

PN28

THE COMMISSIONER: You take the four quarters - the cumulative four quarter value - - -

PN29

MR BAKRI: That's correct.

PN30

THE COMMISSIONER: And apply that to the wage rates.

PN31

MR BAKRI: That's right.

PN32

THE COMMISSIONER: So use the ABS CPI complication for that purpose.

PN33

MR BAKRI: Yes, Commissioner, and the alternative interpretation is that the national CPI is to be calculated by determining the June to June weighted average of the eight capital cities, also based on statistics published by the Australian Bureau of Statistics and this, the second interpretation is - - -

PN34

THE COMMISSIONER: The third interpretation.

PN35

MR BAKRI: Yes, the third, that's the one that the union has supported from the beginning and the company has now accepted the union's interpretation. However, this is on the basis that the agreement's formally varied to remove this ambiguity.

PN36

THE COMMISSIONER: Very well. And what's that interpretation?

PN37

MR BAKRI: Sorry, Commissioner, that's unclear.

PN38

THE COMMISSIONER: What is that interpretation?

PN39

MR BAKRI: They're the two interpretations.

PN40

THE COMMISSIONER: All right. Well, there are two interpretations?

PN41

MR BAKRI: Yes.

PN42

THE COMMISSIONER: I thought you said there were a number. There are two?

PN43

MR BAKRI: Yes, there are two.

PN44

THE COMMISSIONER: And which is the interpretation that you contend for, number one or number two?

PN45

MR BAKRI: It's number two, Commissioner, and - - -

PN46

THE COMMISSIONER: The June to June, eight capital cities?

PN47

MR BAKRI: All groups.

PN48

THE COMMISSIONER: All groups?

PN49

MR BAKRI: Correct, Commissioner, and that's the interpretation that I've put in the draft order if it assists the Commission and that's the draft order that the company is happy to support.

PN50

THE COMMISSIONER: Yes, very well. In the circumstances I'm satisfied that this application is an application to remove ambiguity and uncertainty in clause 12.2.2 of the S&K Parking Management Pty Ltd Enterprise Agreement 2005. That agreement is a pre reform agreement. For the purposes of the relevant schedule to the Workplace Relations Act 1996 which preserves the operation of the powers of the Commission to vary a pre reform agreement, so as to remove ambiguity and uncertainty, the words "national consumer price index" stated in the relevant clause are capable of varying meanings, in particular by reference to different consumer price index measurements published from time to time by the Australian Bureau of Statistics.

PN51

It is therefore possible and appropriate to vary the agreement so as to provide certainty as to the meaning of the words "national consumer price index". The draft order submitted with the application achieves such certainty. Whilst I have given directions for the inclusive provision of proof of service, there is a letter from the file in the matter received from the other party to the agreement. That letter indicates that the draft order sought to remove the ambiguity and uncertainty in relation to the meaning of the words "national consumer price index" is supported by the other party to the agreement.

PN52

I am satisfied that all of the other statutory considerations relevant to a variation of this kind are met and accordingly there will be an order varying the agreement. The order will be in the terms of the draft order submitted with the application with the amendment towards "national consumer price index". As expressed in the draft order this shall be bracketed by inverted commas. The order will come into force from today's date and remain in force for the life of the agreement.

PN53

MR BAKRI: Thank you, Commissioner.

<ADJOURNED ACCORDINGLY [10.18AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER TO AUSTRALIAN INDUSTRIAL REGISTRY FROM MICHAEL A COOK, S&K CAR PARKING MANAGEMENT PTY LTD DATED 13/02/2007 PN17