C2006/173, Transcript of Proceedings [2007] AIRCTrans 256 (23 May 2007)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 16877-1

JUSTICE GIUDICE, PRESIDENT
VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT MARSH
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER SIMMONDS

C2006/173 C2006/3355 C2006/237 C2006/243 C2006/3541 C2006/3543 C2006/3565 C2006/3581 C2006/3631 C2006/3739 C2006/3885 C2006/373 C2006/3914 C2006/404

s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
Application by Construction, Forestry, Mining and Energy Union
(C2006/173)

s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
Clause 29 Schedule 6 - Variation of transitional awards - general
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
Clause 29 Schedule 6 - Variation of transitional awards - general
Clause 29 Schedule 6 - Variation of transitional awards - general
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
Clause 29 Schedule 6 - Variation of transitional awards - general
Clause 29 Schedule 6 - Variation of transitional awards - general
Application by Liquor, Hospitality and Miscellaneous Union
(C2006/237)

Application by Liquor, Hospitality and Miscellaneous Union
(C2006/243)

Application by Australian Municipal, Administrative, Clerical and Services Union
(C2006/3541)

Application by Australian Municipal, Administrative, Clerical and Services Union
(C2006/3543)

Application by Australian Municipal, Administrative, Clerical and Services Union
(C2006/3581)

Application by Australian Municipal, Administrative, Clerical and Services Union
(C2006/3631)

Application by CPSU, the Community and Public Sector Union
(C2006/3885)

Application by Australian Municipal, Administrative, Clerical and Services Union
(C2006/3914)

Application by Media, Entertainment and Arts Alliance
(C2006/404)

MELBOURNE

10.02AM, WEDNESDAY, 09 MAY 2007

PN1

MS H LEWIS: I appear on behalf of the Finance Sector Union in matter 2006/3355

PN2

MR J NUCIFORA: I appear for the Australian Services Union. Your Honours, I appear in C2006/3541, 3543, 3565, 3581, 3631 and 3914.

PN3

MR S MAXWELL: I appear on behalf of the Construction, Forestry, Mining and Energy Union in C2006/173.

PN4

MR P FELTHAM: I appear for the Community and Public Sector Union, the CPSU in regard to matter C2006/3885.

PN5

JUSTICE GIUDICE: That's the television?

PN6

MR FELTHAM: Correct, your Honour.

PN7

JUSTICE GIUDICE: Yes, very well. I should say that all these matters have been called on together and there's quite a deal of correspondence on the various files from the parties and we've also heard from various parties on the telephone saying that they rely on their written submissions, they have nothing to add, and we've also received an indication from the Commonwealth Minister that he doesn't intend to be represented on any of these issues as they - perhaps it might be appropriate to make that letter available so that you're aware of the precise terms of it. I'll get my associate to do that, or I can read it onto transcript, it's quite sure. The letter says in substance:

PN8

This is to advise the Minister for Employment and Workplace Relations does not propose to make submissions in relation to the outstanding matters listed for hearing on 9 May 2007, noting that they relate to specific issues in particular awards.

PN9

Well, I might start with 173, the National Building and Construction Award,
Mr Maxwell.

PN10

MR MAXWELL: Thank you, your Honour. My understanding is that there were three issues identified between the parties that arose from the draft orders issued by the Commission. The first dealt with the issue of the calculation of the hourly rate for leading hand allowances. It is my understanding that to some extent that issue is tied with an issue in regard to the transitional version of the award in C2006/174 on which the parties have already made submissions to the Commission and we awaiting a decision.

PN11

JUSTICE GIUDICE: Yes.

PN12

MR MAXWELL: It is my understanding that the parties have agreed that whatever is determined in regards to the transitional award in regard to the issue surrounding for the job loading that they would then apply to the pre-reform version of the award. So in regards to the leading hand allowance that matter will be resolved one way or the other by the decision of the Full Bench that hopefully will be forthcoming in the not too distant future.

PN13

JUSTICE GIUDICE: Yes.

PN14

MR MAXWELL: The second group of issues was a correction to a number of allowances and this was in regard to the new rate for clause 25.1.25 and a new rate for clause 1.4 of appendix A. Through correspondence between the parties we have agreed on what those new rates will be, that being I think $3.72 for clause 25.1.25 and $4.07 for clause 1.4 of appendix A. The issue that remain between the parties was how we deal with the issue of the industry allowance in the trainee rates of pay. Your Honour, I just seek to hand up a copy of the existing clauses from the award.

PN15

JUSTICE GIUDICE: Yes, that would be helpful, thank you.

PN16

MR MAXWELL: Your Honour, this is an extract from the pre-reform version of the award taken from the Commission's website and it's clauses 39 - sorry, clause 39 from the National Building and Construction Industry Award. Your Honour, if I can take you to the third page of this document, the top of the page is the wage rates and this is for the civil operations traineeships and you will see that the table sets out a base rate, a supplementary payment, a total of the - sorry, the arbitrated safety net and then an industry allowance and special allowance. Now, the parties recognise that the wage rate part, i.e. the base rate, supplementary payment and arbitrated safety net are matters for the Fair Pay Commission.

PN17

However, the industry allowance is an allowance which is not a matter for the Fair Pay Commission, it's a matter for the Australian Industrial Relations Commission and that is the allowance that we seek to vary. Also further down the page in 39.3.3 you will see that again there is a mention of an industry allowance of $21.70. When the union submitted its original draft order we had sought to vary those amounts, that's the amount of $21.70. However, when the Commission then issued a new version of the draft order they deleted those variations and our concern was to ensure that these trainees were not disadvantaged by not getting the increase in the allowance.

PN18

Originally we suggested to the employer organisations that we vary clause 24.1 of the award which dealt with the industry allowance in general for the award. However, it was our understanding that the NBA opposed such a move because they saw that as being a new variation to the award. So on that basis we now seek to revert back to our original position which is to vary that amount identified in 39.2.4(e) and in 39.3.3.

PN19

JUSTICE GIUDICE: Yes.

PN20

MR MAXWELL: Now, whilst we recognise that it's perhaps not the ideal approach we believe it is the only way we can ensure that these workers are not disadvantaged and hopefully whenever we get to the stage of award simplification and award rationalisation we will be able to tidy up with the way the clauses are presented, however that may be further down the track. Accordingly, your Honour, the union has prepared a revised draft order which I would seek to hand up which reflects what we are now seeking. Your Honour, just to identify those amounts, if you look at item 53 at the bottom of page 3 of the draft order you will see that we are seeking to delete the amount of 21.70 in subparagraph 39.2.4(e) and insert the amount of 22.70 and over the page, item 54, again by deleting the amount of 21.70 in subparagraph 39.3.3 and inserting the amount of 22.70.

PN21

As we say, your Honour, whilst we recognise it's not an ideal way of dealing with this, I think we're somewhat hampered by the whole approach to the way awards have been split into two different versions and hopefully at some stage when the awards are simplified and rationalised then there won't be as much confusion between the parties.

PN22

JUSTICE GIUDICE: Yes.

PN23

MR MAXWELL: Your Honour, I should indicate that I did indicate by way of email to both the NBA and the AIG yesterday that this was the union's intention of what we're seeking to do today. Since I sent this email around 10 o'clock yesterday morning I haven't had any response from the employer organisations so I can't presume that perhaps may consent to this variation, but at this stage that's all I have to say, your Honour.

PN24

JUSTICE GIUDICE: Yes, thanks, Mr Maxwell. Mr Feltham, perhaps the Television Industry Award next.

PN25

MR FELTHAM: Thank you, your Honour. I rang your associate a couple of weeks ago to confirm that there was correspondence on the file which includes conveniently I guess in the absence of the employer representative Mr Colin Graham's objections to our draft order.

PN26

JUSTICE GIUDICE: Yes.

PN27

MR FELTHAM: There are from Mr Graham's correspondence two items that his objections are based on. The first of those is the adjustment of a particular allowance and the second matter is the date of effect of the adjustment of the allowance.

PN28

JUSTICE GIUDICE: Sorry to interrupt. I actually have two allowances notices.

PN29

MR FELTHAM: Correct, correct, that's right, yes. The TBOCP and the BOCP, they are identical allowances for most purposes. They're just related the allowances slightly different.

PN30

JUSTICE GIUDICE: I see, I see.

PN31

MR FELTHAM: Mr Graham's objections, if I can describe them in his absence, is an objection that he believes that both these allowances are wage related allowances and therefore in accordance with his submission they come under the auspices of the Fair Pay Commission and therefore he does not believe that the Australian Industrial Relations Commission has the power to vary those two allowances. That I think appears in his submission in paragraph 1(a) and I guess in his absence I will approach it for him. Within the award BOCP and TBOCP allowances are each described as -

PN32

Where applicable part of the employee's rate of pay and is paid for all purposes of the award. See clauses 25.9.2 and 25.10.2 of the award. The TBOCP and BOCP ...(reads)... dated 8 December 2006, the AIRC decision, see paragraph 7.

PN33

So that's the first basis of Mr Graham's objections. In correspondence back to
Mr Graham the CPSU did not agree with that view and we in fact indicated that in accordance with section 178 of the Workplace Relations Act that those allowances in fact fell within the power of the Australian Industrial Relations Commission because they were determined to be monetary allowances and it is our therefore, your Honour, that Mr Graham's submission fails in regard to who has jurisdiction over this allowance. The second matter - sorry, the objection, sorry, to the payment of the TBO and BOCP allowances under the power of the Commission, I'll read on in 1(b) of Mr Graham's submission:

PN34

The BOCP and TBOCP allowances have been part of the wage rates for technicians who qualify for the allowance since its inception and ...(reads)... they do not lose their wage related character.

PN35

Again, your Honour, the CPSU would dispute that submission. The TBO and BOCP allowances are in fact a skill based allowance. They are paid on the basis of employees acquiring a particular skill. It's our view that if employers have effectively absorbed them into the wage rates of technicians that is not consistent with the provision of the award. The award keeps those rates as discrete and the CPSU would maintain its view that those allowances are paid only on the basis of an employee demonstrating the relevant skills to be paid those allowances. I was anticipating Mr Graham to be here in fact, your Honour, so I'm a bit - I will need a moment.

PN36

JUSTICE GIUDICE: Yes. We do have his letter. That's his letter of 12 February, is that the one?

PN37

MR FELTHAM: That's correct, yes, that's the one I'm quoting from,
your Honour.

PN38

JUSTICE GIUDICE: Yes.

PN39

MR FELTHAM: Okay, I won't bother any further. The other point that the CPSU would raise in regard in to section 513(h)(ii) of the Act and again we dispute Mr Graham's view. It's the CPSU submission that section 513(h)(2) in fact accepts the TBOCP and the BOCP as allowances and that the Commission has the power again to vary those allowances. I would also refer the Commission to the Commonwealth's submission to the 2006 wage and allowance review and I have a document just to hand up in regard to that, your Honour.

PN40

JUSTICE GIUDICE: Thank you. Just before looking at that and looking at 513(h)(ii), you say the allowances are for responsibilities or skills not taken into account in the rates of pay?

PN41

MR FELTHAM: That's correct, your Honour, that's correct.

PN42

JUSTICE GIUDICE: What are they actually for?

PN43

MR FELTHAM: They are a proficiency allowance. The TBO and BOCP certificates were in fact discontinued by an organisation now called the Australian Communication Management Authority in 1994, but if you read the clauses within the awards it's for the TBOCP or BOCP certificates or an equivalent qualification and TV and radio stations continue to utilise that allowance which is defined as a TBO or BOCP allowance and paid on the rate of an equivalent qualification which can be a TAFE certificate and an electronic and communication certificate course which is identified in those two clauses specifically as an equivalent qualification.

PN44

So although the allowance itself has ceased there are equivalent allowances that are available which provide the payment of that allowance to those relevant employees.

PN45

JUSTICE GIUDICE: So the qualification has ceased, or the formal qualification has ceased?

PN46

MR FELTHAM: The formal qualification through the Australian Communication Management Authority which issued the certificate of proficiency, yes. That's ceased but equivalent qualifications have been accepted.

PN47

JUSTICE GIUDICE: I see.

PN48

MR FELTHAM: If I can just refer you to the document I've just tabled - sorry, presented, your Honour. In paragraph 5.3 of the Commonwealth's submission it quotes at the end of that first paragraph of 5.3:

PN49

Paragraph 513(1)(h) makes allowable in awards monetary allowances provided that -
(ii), responsibilities or skills that are not taken into account in the rates of pay for ...(reads)... or for holding a particular qualification.

PN50

The CPSU would submit, your Honour, that a particular qualification is in fact the TBOCP or an equivalent qualification. Thirdly, your Honour, the CPSU rejects Mr Graham's claims that clauses 25.9.2 and 25.10.2 prevent the Commission varying these allowances. These subclauses identifies that employees are paid a discrete allowance under the award. This discrete allowance is identified in addition to the wages specified in the award and that they are not absorbed. If the employees, as I indicated earlier, have absorbed this wage that is of their own initiative - sorry, this allowance, that is of their own initiative.

PN51

As the payment of the allowances are discretionary the CPSU rejects any claim that it could be absorbed into pay rates generally and the CPSU understands that in clause 25.9.2 and 25.10.2 in fact recognises the allowances could be included as part of the determination of employees salaries for other purposes, for example, annual leave loading or superannuation. So it's our view that Mr Graham has misread what the intention of that clause in fact is. Lastly in regard to the first objection of Mr Graham's, the CPSU notes that the Australian Industry Group has in fact consented to this variation and agreed with the adjustments rate and I understand correspondence was sent to the award 2006 website by the AIG on 9 February 2007 to confirm that.

PN52

JUSTICE GIUDICE: Yes, thanks.

PN53

MR FELTHAM: The second objection of Mr Graham is in regard to the date of effect. If the Commission believed that these allowance fall within the authority of the Commission to vary Mr Graham has challenged that the allowances - or questioned whether in fact the allowances should be paid from the first pay day on or after 1 December. The CPSU concedes, your Honour, that we failed to inform Mr Graham of this variation at the time we served it on the AIG. We have in fact apologised to Mr Graham on two occasions for that mistake and that administrative error. Mr Graham's view is still that because, as I understand, he wasn't informed of that prior to 1 December that the Commission should exercise some discretion in regard to whether it continues to accept that if the application was not before Mr Graham that the first pay day on or after 1 December should continue to remain as the date of effect of the adjustments allowance.

PN54

It's the CPSU response that we, as I said, apologise to Mr Graham but we would still maintain a view that the allowance should be varied from the first pay day on or after 1 December 2006. I note the commentary in the Full Bench decision, the wages and allowance review decision 2006, in paragraph 41 of the decision specifically where it was established that the first pay period on or after
1 December would be the date of effect for the adjustment of allowances and the Commission's view and the Bench's view at that point that it recognised that there were significant costs and conveniences in supporting a common operative date of that. The CPSU submits that it complied with the first requirement, that is, the application was before the Commission by 1 December and was provided to the AIG in advance.

PN55

As stated previously, our failure to provide that to Mr Graham was an administrative error, but the CPSU would submit, your Honour, that the date of effect of the first pay day on or after 1 December should continue to be the date that the Commission supports.

PN56

JUSTICE GIUDICE: Now, which day was - when were Mr Graham's clients - perhaps I'll go back a step. Mr Graham acts for a number of named respondents. Are we to assume that they are not members of AIG?

PN57

MR FELTHAM: That's correct, your Honour, yes. There are two employer respondents. The major television stations or most of the major television stations are represented by the AIG. The smaller television stations are represented by
Mr Graham.

PN58

JUSTICE GIUDICE: I see. And do we know what date Mr Graham and/or his clients became aware of the - - -

PN59

MR FELTHAM: The first contact we had with Mr Graham, I'm just checking my file here now, your Honour. The first correspondence we had from Mr Graham was in fact on 20 December.

PN60

JUSTICE GIUDICE: The 20th.

PN61

MR FELTHAM: Back to us indicating and reminding us of the fact that he acts for employers who - or some of the respondents to this award, so some date before 20 December Mr Graham must have been aware of our application.

PN62

JUSTICE GIUDICE: Well, he says in his letter that on 4 December he sent a fax to me indicating service hadn't been affected.

PN63

MR FELTHAM: Our file does not indicate we received a copy of that, your Honour, the file I have here.

PN64

JUSTICE GIUDICE: Yes, very well. Thank you. Thanks, Mr Feltham.
Ms Lewis, for the Agribusiness Award, is that right?

PN65

MS LEWIS: Yes.

PN66

JUSTICE GIUDICE: Now, are there any outstanding matters in relation to that award?

PN67

MS LEWIS: Not now, your Honour.

PN68

JUSTICE GIUDICE: Thank you very much for coming.

PN69

MS LEWIS: As far back as 7 March we had the - or non opposition if you like to our revised draft order but they had some jurisdictional arguments.

PN70

JUSTICE GIUDICE: Yes.

PN71

MS LEWIS: I entered into further correspondence with them last week and copied the Registrar into each of the emails and they've subsequently withdrawn their arguments and have now consented to the terms of our revised order. I understand that Ms Dolan, the executive officer of the AEF, wrote to the Commission on Monday informing the Commission that they have no objection to the recently amended draft orders and that all outstanding matters between the union and the federation have been resolved.

PN72

JUSTICE GIUDICE: Yes. Well, we'll issue those orders fairly promptly in accordance with the draft.

PN73

MS LEWIS: Thank you. May I be excused?

PN74

JUSTICE GIUDICE: Yes, certainly. Thank you. Mr Nucifora, you're the - - -

PN75

MR NUCIFORA: Last one standing, your Honour.

PN76

JUSTICE GIUDICE: Yes, the last. There are a number of issues here.

PN77

MR NUCIFORA: Yes, your Honour.

PN78

JUSTICE GIUDICE: Perhaps you better go through them in the order - - -

PN79

MR NUCIFORA: I have grouped them together.

PN80

JUSTICE GIUDICE: Yes.

PN81

MR NUCIFORA: And your Honour, the six applications that are before you that are outstanding can be group into really two groups. One relate to a couple of Western Australian awards with what I would call non substantive outstanding issues in relation to calculating allowances and the second group relate to the Northern Territory transitional awards where there are at least three applications.

PN82

JUSTICE GIUDICE: Yes.

PN83

MR NUCIFORA: What I have done, your Honour, is just prepared an outline of submission in relation to both of those. If I could hand those up to the members of the Bench and take you through that?

PN84

JUSTICE GIUDICE: Thank you.

PN85

MR NUCIFORA: I won't seek to have them tendered as an exhibit yet,
your Honour, but for the purposes of going through the outline of submissions. Your Honour, we'd say that in both matters they relate to the position of the employers in Western Australia and the position of the employers in the Northern Territory. It's probably against the current what the majority of employers would say on these matters and of course they're not represented here today, but what I would say, your Honour, is in relation to at least one of the West Australian matters, and I've covered these in paragraph 1 and in particular to C2006/3565, that's in relation to the electricity industry Western Powercorp. The outstanding issue there was the operative date and that has since been resolved.

PN86

Your Honour, I believe that you do have a copy of correspondence from our West Australian branch and also the employer.

PN87

JUSTICE GIUDICE: We do. We do and the note I have is that that order can now be issued and that will take care of 3565, is that - - -

PN88

MR NUCIFORA: Yes, your Honour. Yes, that's the position as I am instructed by our West Australian branch.

PN89

JUSTICE GIUDICE: Yes.

PN90

MR NUCIFORA: In relation to 3541 and 3543 I have draft orders in attachments A1 and A2 and attached to it the draft orders are the method of calculation. Now, what's outstanding here, your Honour, is in relation to the calculation of increases to the expense related allowances. It's my understanding, your Honour, and we've set out the orders that are there in attachment A1 in relation to the Local Government Offices West Australian Award have what we believe to be the correct calculation and we rely on the CPI indices. For example, the meal allowance we'd rely on the meals and take away indices.

PN91

That is the traditional method of calculation for both that award and the other award and the second page to both attachments go through those calculations. Now, work related allowances are also included there but specifically the issue at stake here is in relation to the various expense related allowances such as meal and motor vehicle. In attachment A2 we do have tracked changes on that particular draft order that I was provided with and what we have in there is of course you can see the difference there in relation to subclause 19.7.1 is the employer is saying it should be $8.03, we're saying it should be $8.07. It's not a lot that differs, it's really the method of calculation that we have a concern with and that method of calculation has gone on in the greater majority if not all ASU federal awards and most federal awards that we're aware of based on the CPI increases and in particular the history of this award.

PN92

JUSTICE GIUDICE: Yes.

PN93

MR NUCIFORA: And we refer to of course principle 5(a) of the national wage principles and it's my understanding most employers and employer associations across the country have accepted that method of calculation. That really is the outstanding issue in terms of the two awards, the two local government awards and I think it's the local government employer association that's - I'm not aware of any further position from the employers there.

PN94

JUSTICE GIUDICE: Yes.

PN95

MR NUCIFORA: There may be correspondence to the Commission but I'm not aware. My understanding is they are sticking to that line and, your Honour, we would say that of course that there is the weight of history and the weight of variations to most other awards that would apply here, if we are talking indeed about expense related allowances and not work related allowances. So we rely on the draft orders that are there, the calculations that are there. My understanding too, your Honour, and I haven't been able to find this, but there may have been orders issued and we would say that there may be need to be - if we're correct and the Bench finds in our favour, there may need to be an amendment. But I haven't seen those orders, your Honour, but it is a question that we would seek to clarify if indeed our submissions are found to be correct, your Honour.

PN96

Your Honour, in relation to those awards that have grouped in category B - sorry, your Honour, before I go onto those I just wanted to request if there are any further questions in relation to - - -

PN97

JUSTICE GIUDICE: Well, I suppose if we want to be in a position to finalise these orders, now, if we accept your method of calculation being as I understand it the accepted method that's been used in the past.

PN98

MR NUCIFORA: Yes.

PN99

JUSTICE GIUDICE: Can we adopt the rates in your draft or do they need
further - - -

PN100

MR NUCIFORA: Your Honour, I would - I've only just received these late yesterday but I think we ought double check them. It's really the principle that we're seeking to have confirmed here today determined.

PN101

JUSTICE GIUDICE: Yes.

PN102

MR NUCIFORA: We would then send an electronic form. Now, we've already sent that through to the registry but we would seek to ensure that the figures are correct. I have checked them myself but just to ensure that we are dealing with the correct figures in the first place.

PN103

JUSTICE GIUDICE: Yes. Well, we'll rely on you to do that in a fairly short period of time.

PN104

MR NUCIFORA: Yes, your Honour. Yes, your Honour. Thank you, your Honour. In relation to the second group I've grouped together as group B, there is a substantive question here and it really is only the substantive question that we need to deal with. It's relation to in C numbers 2006/3581, the Social and Community and Services Industry, Community Services Workers Northern Territory Award 2002, C2006/3661, the Clerical and Administrative Employees Northern Territory Award 2000 and C2006/3914, the Clerical Officers Northern Territory Totalisator Administration Board Award 2002. Now, each of those have been categorised as transitional awards, as have all federal awards.

PN105

Your Honour, in addition to that the first two awards, what we refer to the SACS Industry Award and the Clerical Administrative Employees Award are common rule awards in the Northern Territory. Your Honour, we say that the draft order in question are attached as attachment B1, B2 and B3. They're the three awards in numerical order that are before you. Your Honour, we say, as I mentioned earlier, that all awards have for administrative purposes have been categorised by the Commission as pre-reform and transitional and they have included the territory awards and we refer of course in attachment D1 and D2 the Commission's website refers to the separation of the two awards as pre-reform and transitional.

PN106

Now, of course the ASU supports the decision, administrative decision made by the Commission in a non discriminatory and non prejudicial way in relation to particularly awards that apply in the territories and as we look at the definition of transitional awards in both fact sheets provided on federal and state awards in attachment D1 and the fact sheet in relation to the proceeding before us now in these proceedings and we see that the definition of transitional awards includes federal awards created before the WorkChoices Legislation came into operation covering employers that are not a constitutional corporation.

PN107

Your Honour, in relation to that administrative decision I mentioned earlier and I've set down in our written submissions we say that that decision has worked well for the greater majority of awards. We are aware of course the registry has issued a number of awards in the Australian Capital Territory and we say, your Honour, that - sorry, I did miss that in item 8 of our outline of submissions. We did send a letter to your Honour dated 2 April and I've included that as attachment C. Attachment C is a letter to your Honour dated 2 April in relation to the two common rule awards in the Northern Territory and of course the position of the Chamber of Commerce that is opposed to those awards being recognised as transitional awards and of course opposed to the applications before you.

PN108

Now, within that we include the grounds for why we believe the award should be varied and we include a list of orders that have already been issued in relation to ASU awards in item 5 of that letter in the Northern Territory as well as the Australian Capital Territory although one of those, an order hasn't been issued, but we're not aware that there is any opposition or either consent or non opposition from the employees in relation to that so those orders have been issued. There are a number of other orders that have been issued in relation to other unions including one of the unions that are before the table today.

PN109

We're aware that, your Honour, Vice President Lawler, sought to address this when various - AMIEU, the Australian Meat Industry Employees Union, had applications to vary their territory awards before his Honour on 31 January 2007. The position wasn't determined there because I think there was agreement. But the position that your Honour is put, and I refer to paragraph 19, is the position of the ASU and as I understand it most unions with awards in the territory have taken ever since we've had the Full Bench decision handed down and I refer you to paragraph 19 where his Honour in relation to this question of awards in the territories indicates:

PN110

My provisional disposition is that if transitional awards exist in those places and an applicant seeks to vary them then it is appropriate to vary them even if there are no respondent employers because who knows what might happen in the future.

PN111

And that sums it up from our union's point of view. We've sought to vary all of our territory awards as they have been classified administratively as transitional awards. In terms of to date we are aware that employers have raised technical issues that may relate to of course statutory interpretation and the whole question of whether transitional awards either exist or can operate in the territories. Your Honour, we say in our submissions that I don't know what their position of that is now. I don't know if there has been any further correspondence to the Commission.

PN112

If the Bench - if you feel, your Honour, that that question has to be dealt with, we would seek to make further submissions and to be fair on the other parties, other unions, other employers that have consented, other employees in the territories that have relied on that transitional orders being varied, that they should have an opportunity to make further submissions. But we believe, your Honour, as your Honour, Vice President Lawler, had indication in the first instance that that shouldn't be necessary.

PN113

VICE PRESIDENT LAWLER: It was a very provisional view, Mr Nucifora.

PN114

MR NUCIFORA: Sorry, your Honour.

PN115

VICE PRESIDENT LAWLER: It was a very provisions view.

PN116

MR NUCIFORA: Yes, I understand that, your Honour. I didn't want to overstate that position but it clearly does sum up the position that the unions have had when we've tried to deal with question at least the ASU, in our case. Your Honour, we would think that - - -

PN117

JUSTICE GIUDICE: Sorry, Mr Nucifora.

PN118

MR NUCIFORA: Your Honour, the fact that there have been - I'm not sure if it is the majority of territory awards already varied, hasn't, we don't believe, prejudiced any party in terms of whether the employers status is - whether they are a constitutional corporation or not. What has happened though, your Honour, and we refer to it in our submissions, is that we have, and if I can refer you to attachment E, the Northern Territory Chamber of Commerce have advised certainly their not for profit organisations, not to pass on the increase until they are aware of whether government funding is secured.

PN119

Now, we are aware that in fact government funding has been secured in the Northern Territory and in fact $40 million shared by the federal and territory government and that still, as I understand it, as I've been informed, has not flowed on to employees of not for profit organisations and in particular you would have received correspondence, your Honour, from our ever vigilant Northern Territory organiser, Mr Matarazzo, raising the concern indirectly albeit - - -

PN120

JUSTICE GIUDICE: Yes, he is a regular correspondent, Mr Matarazzo.

PN121

MR NUCIFORA: Yes, your Honour. And in that we have at least as an attachment 1, one of those letters, and of course it raises an indirect concern that we have with employees of the Darwin Aboriginal and Island Women's Shelter.

PN122

JUSTICE GIUDICE: But, Mr Nucifora, just to go back to the problem, if it is a problem. As I understand it, the pre-reform award created by the WorkChoices legislation applies generally in the territories. It doesn't - it's not confined to corporations because the Commonwealth has, as it were, plenary legislative powers in the territories.

PN123

MR NUCIFORA: Yes.

PN124

JUSTICE GIUDICE: I must say, my provisional view, which is not really provisional because it is a matter now that has come up a number of times and I have given quite a bit of consideration to it, is that although the schedule 6 says there will be that the award will continue in force, it says that it will continue in force in accordance with the clause, which then goes to say who the award will be binding on. It is fairly clear or it seems clear that it is not going to be binding on anybody. Now, I'm just having difficulty. I understand the argument of caution, that you don't want to cause a problem that might rebound on people at some in the future, but I am just having difficulty at the moment seeing what the problem could be.

PN125

MR NUCIFORA: I think, equally, your Honour, we don't see that there is a problem in varying the awards until someone goes to enforce those - - -

PN126

JUSTICE GIUDICE: Well, the only problem is that we are going to have a whole lot of awards that don't apply to anybody which seems to be the reverse of the legislative thrust which is to rationalise and reduce.

PN127

MR NUCIFORA: Until they are rationalised, your Honour, what we would say is that if we were going through this transitional phase and there is a lot of uncertainty about what awards still apply to a number of employees across the industry.

PN128

JUSTICE GIUDICE: Yes.

PN129

MR NUCIFORA: The certainty that we have and this is why we refer to of course, we are concerned about the public interest argument and of course the decision, the Commission being in a position to exercise its discretion and I guess the discretion is one so far that has been administrative because all of awards have been categorised in the two groups and we say that's the fairest way to deal with and to date up until a couple of awards here we're aware that employers have either not either consented to that position or are not opposed up until our friends in the Northern Territory.

PN130

JUSTICE GIUDICE: Yes.

PN131

MR NUCIFORA: Now, they are not here to put that position. We say that on balance that the Act and including the amendments of the Act doesn't preclude the Full Bench or the Commission to vary these awards as transitional awards.

PN132

JUSTICE GIUDICE: Yes. Well, we would like to decide this issue.

PN133

MR NUCIFORA: Yes.

PN134

JUSTICE GIUDICE: So, if there is anything else that you want to put now or in the next few days we'd appreciate having your submissions I think.

PN135

MR NUCIFORA: Your Honour, what we would say is that for today is the question of whether the Commission has the power to allow the registry to continue varying these orders and if not, if the bigger, the substantive question needs to be dealt with on statutory interpretation, as you've indicated, then we ought to have some more time to allow all the parties that have a stake in this to put further submissions. I'm not - - -

PN136

JUSTICE GIUDICE: Well, this was the opportunity.

PN137

MR NUCIFORA: Well, your Honour, I mean the employers have not turned up and we'd normally set a date if they are aware of applications being before the Commission and as we have, have been on the other side, if they don't turn up then we take that as being, once they are given another opportunity for seven days, we take that as being non opposition to the variation. Unless, I mean, your Honour, I'm not aware of the Northern Territory Chamber of Commerce having put a further position.

PN138

JUSTICE GIUDICE: Yes.

PN139

MR NUCIFORA: I rely on Mr Matarazzo and my understanding is that they have stuck at least off the record, stuck to the same position they've put formally today but I am not aware of what their position is now.

PN140

VICE PRESIDENT LAWLER: It doesn't to have much foundation, that position.

PN141

MR NUCIFORA: The employers?

PN142

VICE PRESIDENT LAWLER: Yes. I mean, I draw on what the President had to say. It seems to me the Act is fairly clear in invoking section 122 of the constitution where it says the operation of WorkChoices to all employers in the territories.

PN143

MR NUCIFORA: Yes, your Honour. And I think - - -

PN144

VICE PRESIDENT LAWLER: And that therefore, there is not warrant for the advice that you say has been given by the Northern Territory Chamber to its members or certain of its members.

PN145

MR NUCIFORA: Yes, your Honour. I know that the federal government representative had a position on this earlier, I think, when the matter was before in February.

PN146

JUSTICE GIUDICE: Yes.

PN147

MR NUCIFORA: But we are not aware whether they have any further position on that given the correspondence you referred to earlier.

PN148

JUSTICE GIUDICE: No. But I suppose there is two questions, one is a legal question about whether there is anything to vary.

PN149

MR NUCIFORA: Yes.

PN150

JUSTICE GIUDICE: The other is if there is something to vary, whether as a matter of discretion the Commission ought to do it any way. Now, my view at this stage is that they are substantial questions.

PN151

MR NUCIFORA: Yes.

PN152

JUSTICE GIUDICE: The operation of the legislation now seems to be comprehensive in relation to the territories and there is just no room for the transitional awards to apply in the territories.

PN153

MR NUCIFORA: Unless there has been agreement between the parties to date.

PN154

JUSTICE GIUDICE: Well, there may be documents that have been issued as orders, but whether in the ultimate they have actually got any legal effect is a different question.

PN155

MR NUCIFORA: Yes, I understand it, your Honour, and we would say the same with these.

PN156

JUSTICE GIUDICE: And for one, I don't want to have instruments signed by members of the Commission that don't have any legal effect. I think it's undesirable. It's going to cause work for people and it's going to mislead people. They are my concerns about it and I would appreciate you giving us any additional submissions you've got about this point because we are disposed to determine it and not to leave it lying for some future argument. I mean, it has come up now on a number of occasions and a number of people have expressed views about it, perhaps not comprehensive submissions.

PN157

MR NUCIFORA: Your Honour, what we would say is that we have alerted the ACTU of course who ran the original case.

PN158

JUSTICE GIUDICE: Yes.

PN159

MR NUCIFORA: And we have alerted, including my friend Mr Maxwell today, those unions that have territory orders that have been issued including our own, we would seek to ensure that they have an opportunity to make submissions in relation to the legal question because we haven't really dealt with that yet.

PN160

JUSTICE GIUDICE: Well, I think the parties who appeared at the review, at least the main parties, were aware that this issue was on the agenda today and therefore aware that the Commission would be determining it. Well, potentially determining it so they have not attended at their own risk. The question simply is what additional indulgence you seek to put further submissions.

PN161

MR NUCIFORA: Your Honour, I think I've got some support from my friend, Mr Maxwell, that seven days ought to be enough time for the parties to deal with that question.

PN162

JUSTICE GIUDICE: Yes, very well.

PN163

MR NUCIFORA: I don't think that in terms of any of the submissions that I've put in writing or verbally to you to put these awards or these applications in any different status to any of the other ones where there was consent and indeed there may be, there may be consent by the employers in the meantime given that they haven't appeared here today and that does raise that question about whether then these applications will be treated the same as the others if there is consent within the - so we're looking for seven days to submit written submissions on that question.

PN164

JUSTICE GIUDICE: Yes. Well, I think those submissions ought to include submissions about the operation of item 4 of schedule 6 and any other relevant provisions in that schedule.

PN165

MR NUCIFORA: Yes.

PN166

JUSTICE GIUDICE: Yes.

PN167

MR NUCIFORA: Your Honour, if the employers' consent to the application in that time does the question need to be dealt with?

PN168

JUSTICE GIUDICE: Yes, I think it does, yes.

PN169

MR NUCIFORA: If your Honour pleases.

PN170

JUSTICE GIUDICE: Yes. Are there any other matters? Well, thank you gentlemen, for your assistance and we shall deal with these matters as quickly as we can and we shall also deal with the other matter on the written submissions, Mr Maxwell, that's C2006/174, and we hope to get a decision out on that shortly. All right. We will now adjourn.

<ADJOURNED INDEFINITELY [10.52AM]