C2006/3996, Transcript of Proceedings [2007] AIRCTrans 58 (13 February 2007)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 16461-1

VICE PRESIDENT LAWLER

C2006/3996 C2006/4040 C2006/4041 C2006/4038 C2006/3997 C2006/3999 C2006/4042 C2006/4041 C2006/4000 C2006/4039 C2006/4001

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/3996)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/4040)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/4041)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/4038)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/3997)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/3999)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/4042)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/4041)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/4000)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
Clause 29 Schedule 6 - Variation of transitional awards - general
(C2006/4039)

APPLICATION BY AUSTRALASIAN MEAT INDUSTRY EMPLOYEES UNION, THE
s.553(1) - Appl’n for variation of award (maintain min. safety net entitlements)
(C2006/4001)

SYDNEY

10.37AM, WEDNESDAY, 31 JANUARY 2007

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

PN1

MR G JOHNSON: I appear in matter 4042 and 4001 which is the Processing Award, 3999, 4041, which is the Smallgoods Award, 4000, 4039, which is the Retail and Wholesale Meat Award and I haven't received any papers, but we have over the past decade appeared in 4037 which is the Butchers ACT Award, but I can deal with that when we get there.

PN2

THE VICE PRESIDENT: Fine. Mr Buckley.

PN3

MR C BUCKLEY: Yes, good morning, Vice President. I appear as the national industrial officer for Australasian Meat Industry Employees Union.

PN4

THE VICE PRESIDENT: Has Mr Norris moved on?

PN5

MR BUCKLEY: Indeed, he has, Vice President. He's now a senior industrial officer with the Queensland Council of Unions as of about a week and a half ago.

PN6

THE VICE PRESIDENT: Very good. Mr Haddad.

PN7

MR C HADDAD: I appear on behalf of the Australian Industry Group and its members in matters 4001 which is the Federal Meat Industry Processing Award and 4002 which is the Federal Meat Industry Processing Award, the transitional award.

PN8

THE VICE PRESIDENT: 4042?

PN9

MR HADDAD: 4042.

PN10

THE VICE PRESIDENT: Fine. Now, Mr Buckley, there were matters 4040 and 4037. I understand that you were going to seek an adjournment to those applications or at least a withdrawal of 4040 and adjournment of 4037.

PN11

MR BUCKLEY: That's so, Vice President.

PN12

THE VICE PRESIDENT: Fine. Well, I note that the application in 4040 is withdrawn and obviously it can be renewed if you have a change of heart there and in 4037, Mr Johnson, is there any objection to an adjournment of that application?

PN13

MR JOHNSON: No.

PN14

THE VICE PRESIDENT: Fine. I adjourn matter number C2006/4037 generally and, Mr Buckley, you can contact my associate and obviously Mr Johnson when you decide what it is you want to precisely do with that matter.

PN15

MR BUCKLEY: Thank you, your Honour.

PN16

THE VICE PRESIDENT: Could I just note at the outset that the question arose in my mind today which I hadn't thought about before as to whether or not there, (a) exists and, (b) whether it's appropriate to vary if they do exist transitional awards in the ACT, the Northern Territory and Victoria, without having gone and checked the provisions because there wasn't time between when the thought occurred to me and now. I just wonder whether there can be transitional awards that apply in the ACT, the Northern Territory and Victoria.

PN17

Certainly it would seem there are no respondent employers to any transitional awards that might exist in those places because the commonwealth has relied upon section 122 of the constitution which gives it plenary power in respect to industrial relations in the territories and it's relied upon the referral of powers in Victoria and I had understood that the effect of the legislation was that all employers are now caught by the federal system and the transitional awards only have a practical relevance in the other states insofar as employers not constitutional corporations, so there are two issues.

PN18

Firstly, are there transitional awards in the ACT, the Northern Territory and Victoria and, secondly, if there are, is there any utility in varying awards, transitional awards in the ACT, the Northern Territory and Victoria? Can I say that what I propose to do to the extent that the applications relate to transitional awards in the ACT, Northern Territory and Victoria is to not make a decision today or an order today in relation to them, to think about that issue and give the parties an opportunity to make any further submissions.

PN19

My provisional disposition is that if transitional awards exist in those places and an applicant seeks to vary them, then it's appropriate to vary them, even if there are no respondent employers because who knows what might happen in the future. Is there anything you want to say about that, Mr Buckley?

PN20

MR BUCKLEY: No, your Honour. I must admit I hadn't turned my mind to that.

PN21

THE VICE PRESIDENT: That's fine. In any event, to the extent that this is a problem, I will come to a view on it promptly and let you know and certainly give you an opportunity to make any further submissions you would want to make.

PN22

MR BUCKLEY: Thank you, your Honour.

PN23

THE VICE PRESIDENT: Mr Johnson, do you have a view?

PN24

MR JOHNSON: Perhaps just for the record, seeing I was involved in most of the matters, I can say this. When the awards were simplified, the three awards I am talking about, smallgoods, retail and processing, the Federal Meat Industry Awards were simplified in 2000, the only respondents to those awards really were the union and the Australian Meat Industry Council, AMIC. There were some other respondents to the processing award, but they were the large processing companies. I think there were six in an appendix in the processing award, in appendix C in that award. Then what happened between 2000 and now is that there were common rule awards made in Victoria in exactly the same terms for the processing, retail and smallgoods awards, so they're either caught under the transitional or they're caught in the common rule, but certainly with those three common rule awards made down in Victoria and so far as the Northern Territory is concerned - - -

PN25

THE VICE PRESIDENT: Can I confess my ignorance here of the effect of the provisions, but do the common rule awards continue as common rule awards or do they - have they been converted to pre-reform awards? I thought that we only had for practical relevant purposes two types of awards now, transitional awards that cover non-constitutional employers and - - -

PN26

MR JOHNSON: We're a bit confused because the registry stamp in the copies we received are common rule at the top in relation to some of the matters, but I think there are only pre-reform and transitional and that's why we're a little bit confused.

PN27

THE VICE PRESIDENT: Right, okay.

PN28

MR JOHNSON: Just to finish that, the three main awards if I can term it as that, the retail, processing and smallgoods that I announced an appearance for, some go to the ACT and some go to the Northern Territory, but I think again it's the distinction between pre-reform and transitional.

PN29

THE VICE PRESIDENT: Yes. Fine. In any event, Mr Haddad, can I just deal with you? In relation to your matters, that's 4001 and 4042 which is the processing award, which Mr Johnson also has an interest in, can I confirm you don't have any objection to the draft order that Mr Buckley has most recently proposed?

PN30

MR HADDAD: I've got a copy of the original draft order. I've been told there's been an amended draft order.

PN31

THE VICE PRESIDENT: Yes. Correct me if I'm wrong, Mr Buckley. The amendment is only in the operative date and it's been changed from 31 January to the first pay period to commence on or after 31 January.

PN32

MR BUCKLEY: That is the only change to the draft order that I've provided to Mr Haddad.

PN33

THE VICE PRESIDENT: Fine.

PN34

MR HADDAD: Basically, then, we would consent to the variation being made in the terms of those draft orders, if that's the only amendment that's been made. We're fine with that.

PN35

THE VICE PRESIDENT: Is there anything further, then, that you needed to say.

PN36

MR HADDAD: I am sorry?

PN37

THE VICE PRESIDENT: Is there anything further you need to say?

PN38

MR HADDAD: No. That's it, your Honour.

PN39

THE VICE PRESIDENT: Thank you. Mr Johnson, in relation to 4001 and 4042.

PN40

MR JOHNSON: 4001 and 4042 - - -

PN41

THE VICE PRESIDENT: Yes, which is the processing award, the transitional and the pre-reform award are those two files.

PN42

MR JOHNSON: I do need to say something. Perhaps I can hand to your Honour a fax I sent to Mr Buckley yesterday through your Honour. Mr Buckley, this is the fax I sent yesterday and we received the applications last week, but we received the draft orders this week, I think it was Monday and yesterday I spoke to Mr Buckley and after I spoke to him, I sent this facsimile, if I can just go through it if that's convenient, your Honour.

PN43

THE VICE PRESIDENT: Yes. You agree that the maths is correct?

PN44

MR JOHNSON: The maths is correct.

PN45

THE VICE PRESIDENT: You've asked for the changes to the operative date which Mr Buckley has done.

PN46

MR JOHNSON: Yes, and under the heading B on the bottom of page 1, we state we agree with the draft supported wage system clause being inserted except for one matter and the matter is where it is in the award because at the top of page 2 we state that where it was in the draft orders that we received the day before yesterday, it was in the leave sections of the award which is I think in processing is section 6. It should be, the supported wage system should be there, which is referred to there in 14.5 which is the wages section of the award. I've got one copy of the award.

PN47

THE VICE PRESIDENT: I am sure that Mr Buckley has done it the way that he's done it just because it's much easier when it comes to renumbering the award to tack it on at the end.

PN48

MR JOHNSON: Yes, but it appears in the leave sections and it should go in the wages section and Mr Buckley agreed with that and has prepared new draft orders.

PN49

THE VICE PRESIDENT: You're happy with that, Mr Buckley?

PN50

MR BUCKLEY: Your Honour, I might say that when it came to doing the draft orders and I didn't want to mess with the numbering too much, so I simply tacked everything on at the end, but I actually agree with Mr Johnson's submissions and, indeed, I agree essentially with the entirety of his faxed comments. In fact, there would be very little renumbering required simply because it's going to be inserting subclauses rather than entire new clauses.

PN51

THE VICE PRESIDENT: Fine. Yes.

PN52

MR BUCKLEY: I have prepared some draft orders. I haven't forwarded them to the Commission as yet, but I believe they accommodate all of the proposed - - -

PN53

THE VICE PRESIDENT: So you're happy to forward fresh draft orders which incorporate the numbering suggested by Mr Johnson?

PN54

MR BUCKLEY: Yes.

PN55

THE VICE PRESIDENT: And, Mr Haddad, I take it you've got no objection to those numberings?

PN56

MR HADDAD: No.

PN57

THE VICE PRESIDENT: Fine. School based apprenticeships.

PN58

MR JOHNSON: In this particular matter, again there's the renumbering which is referred to there as to where it should fit, because it should fit in the sections of the processing award where trainees and apprentices are dealt with which is - - -

PN59

THE VICE PRESIDENT: Fine. Well, Mr Buckley agrees with you on that.

PN60

MR JOHNSON: He does, then there's one other point which is in - well, no, let me start again. In paragraph 7 on page 2 and I'll read it out:

PN61

There is a problem including the draft clause for school based apprentices in the processing award because there are no apprenticeship wage rates. The reason there are no rates is because there are no apprenticeships offered at the moment in any of the states. We think this should be taken care of at some future date.

PN62

In other words, in the other two awards that the Commission will be dealing with, smallgoods and retail and wholesale award, there are apprenticeship rates of pay by way of percentages of the adult rates in those awards. When this award was simplified in 2000, there were no apprenticeship percentages appearing in the award, because there's no apprenticeships which are offered around in any of the states. Therefore, if this clause went in, it wouldn't make sense.

PN63

THE VICE PRESIDENT: Yes.

PN64

MR JOHNSON: There are trainees in the industry and there are trainee provisions under this award, but there's no apprenticeship - there should not be the school based apprenticeship - - -

PN65

THE VICE PRESIDENT: Is there any reason why this problem can't be overcome, this may be a matter where you need to take some instructions, but by substituting the trainee rates for the apprentice rates in the school based apprenticeship clauses?

PN66

MR JOHNSON: I am not with you.

PN67

THE VICE PRESIDENT: I am sorry. You said the processing award does not have apprentice rates and therefore there's a problem in incorporating the standard school based apprenticeships clause because it picks up by reference apprentice rates and if there can't be apprentice rates, then that's a meaningless reference, but it does contain trainee rates.

PN68

MR JOHNSON: It does.

PN69

THE VICE PRESIDENT: Is there any reason why we can't have the school based apprenticeship standard clause, but have it referring to trainee rates, rather than to apprenticeship rates?

PN70

MR JOHNSON: That would be inconsistent with the other two awards and there is a common parallel history. The only way to do that - - -

PN71

THE VICE PRESIDENT: You see, the problem, Mr Johnson, is that I don't think there's any power left in the Commission at all, even if it's done by consent, to vary these awards to create a new classification of apprentice.

PN72

MR JOHNSON: Yes. I don't think it's possible, but the only way to do that, again I say probably not possible, is to insert the percentage rates from the retail and wholesale into the processing, but I don't think that can be done.

PN73

THE VICE PRESIDENT: I would need to go back and check it, but my recollection of the way the structure works is that we simply have no power in respect of classifications or wages full stop.

PN74

MR JOHNSON: And we have another problem and the problem is what the trainee provisions - - -

PN75

THE VICE PRESIDENT: I am sorry, I withdraw that. In respect of the transitional award, we do, but in respect of the pre-reform award, we don't.

PN76

MR JOHNSON: Yes. The one other major problem, it may not be a problem, is that when you look at all three awards including the processing for trainee rates, it says for the trainee rates, not in these words, but I am paraphrasing it, please refer to the National Training Wage Award.

PN77

THE VICE PRESIDENT: Yes.

PN78

MR JOHNSON: Which has got the school based trainee provisions in it, so that's what it does. It doesn't just - if you go back to a clause in this award and then you've got to go to another award - - -

PN79

THE VICE PRESIDENT: In that case, there's no need for school based apprenticeships clauses because it picks up by reference the National Training Wage Award.

PN80

MR JOHNSON: The only problem is in terminology, because it doesn't refer to school based apprentices in the trainee provisions. It simply says trainees and they're not apprentices. In other words, if I look at the processing award, for example, subclause 8.11.1 - - -

PN81

THE VICE PRESIDENT: I am just wondering whether we can just overcome this problem by - it's in the draft order that I have in front of me at the moment for the processing award - I'll deal with 4041 which is the pre-reform processing award - no, sorry, it doesn't have any school based apprenticeship provisions at all, sorry.

PN82

MR JOHNSON: And I think - - -

PN83

THE VICE PRESIDENT: Mr Buckley, is that a oversight? I thought the changes to both the transitional and the pre-reform awards would be identical. Have I missed something? Is that just an oversight that the draft order does not include - - -

PN84

MR BUCKLEY: No, I don't believe so. My understanding was that those provisions were only applicable or appropriate to the adjustment of the transitional awards.

PN85

THE VICE PRESIDENT: No. Just bear with me for a moment.

PN86

MR BUCKLEY: I may be wrong, but that is - - -

PN87

THE VICE PRESIDENT: Just bear with me. Sorry, I've just had a note passed up. I am looking at the moment at file number - at two files, 4001 and 4042 which are Mr Haddad's two files and 4001 relates to the Federal Meat Industry (Processing) Award 2000. That is the pre-reform award and 4042 relates to the Federal Meat Industry (Processing) Award 2000 which is the transitional award. The draft order for the transitional award is a document of some six pages which substitutes a wage table obviously, because the Commission, the AIRC, not the AFPC, is looking after wages so far as he transitional award is concerned, then clause 2 of the order substitutes new amounts for allowances, as does clauses 3, 4 and 5, then clause 6 inserts the supported wage system and clause 7 of the draft order purports to insert school based apprenticeships. In 4041, which is the pre-reform award, processing award, the draft order has nine clauses which deal only with allowances and there's no supported wage system and no school based apprenticeship built into the draft order.

PN88

MR BUCKLEY: That's so, your Honour. That was my understanding. Firstly in respect of the supported wage system, my understanding of the National Wage decision was that those supported wages systems formed part of the AFPC scales and therefore it was not necessary or possible to - - -

PN89

THE VICE PRESIDENT: You are quite right, Mr Buckley. Yes. Thank you. You're quite right, my mistake.

PN90

MR BUCKLEY: And my understanding in relation to the principles is that the principles relating to the insertion of provisions about school based apprenticeships, traineeships and essentially also related to transitional awards only. I might be mistaken about that, but that was my understanding of the National Wage decision.

PN91

THE VICE PRESIDENT: Yes, I think you're right about that as well. Sorry, my mistake. Mr Johnson, you agree with that?

PN92

MR JOHNSON: I do.

PN93

THE VICE PRESIDENT: Yes, go on. Thank you. So we're back to the issue of the transitional award only and whether or not the school based apprenticeship clauses should be included and you've identified that there's a problem with including it because of the absence of rates for apprentices. That's something you think ought be addressed and you would no doubt say that these clauses can be added when the apprenticeship rates are addressed.

PN94

MR JOHNSON: What the heading for trainees says in the processing award is states other than Queensland, in the state of Queensland trainees will be employed in accordance with the terms and conditions of the federal award known as the National Training Wage Award. Now, even if the National Training Wage Award was varied or has been varied for school based apprentices as was indicated in a Full Bench decision, this award simply refers to trainees, so it can't mean apprentices and that's where there's a problem.

PN95

THE VICE PRESIDENT: Yes, Mr Buckley.

PN96

MR BUCKLEY: I was simply going to add I believe Mr Johnson is right and I'm just referring to the National Wage decision. It refers to - it states:

PN97

As a general rule, the model clause relating to school based apprenticeships should be included in any transitional award where an apprenticeship can potentially be undertaken.

PN98

I believe that Mr Johnson's point is - - -

PN99

THE VICE PRESIDENT: It can't, so therefore it's not appropriate - - -

PN100

MR BUCKLEY: It's not appropriate because there aren't - - -

PN101

THE VICE PRESIDENT: Are you happy for the draft order to be amended to exclude the existing clause 7 of the draft order?

PN102

MR BUCKLEY: Yes, I agree with that course.

PN103

THE VICE PRESIDENT: You're happy with that, Mr Johnson?

PN104

MR JOHNSON: Yes, that's fine.

PN105

THE VICE PRESIDENT: Mr Haddad, you've got no problems with that?

PN106

MR HADDAD: Yes, no problems.

PN107

MR JOHNSON: There's only one other matter which is the rates of pay and allowances in the relevant number as agreed will be from the first pay period on or after today. With the other clause to be inserted in this and the other awards, of course, it can be from today's date rather than the first pay period on or after in the course of normal - that's how normal practice goes.

PN108

THE VICE PRESIDENT: No, I think it's important to specify the first pay period on or after because if you just simply say today, then the employer has an obligation to pay even if the pay period doesn't commence for another week, say.

PN109

MR JOHNSON: Yes. I was thinking about the support wage system, but it's got to be first pay period on or after, yes.

PN110

THE VICE PRESIDENT: That deals with 4041 and 4042, so, Mr Haddad, if you want to leave, please feel free.

PN111

MR HADDAD: Thank you, your Honour.

PN112

THE VICE PRESIDENT: Sorry, 4001 and 4042, that deals with those two. We'll move to 4041 and 3999 which are the pre-reform and transitional awards for the old Federal Meat Industry Smallgoods Award 2000. Is it the same position?

PN113

MR JOHNSON: Exactly the same position apart from two matters. There is obviously an agreement that the school based apprenticeship provisions do apply to this award and if you refer to paragraph 10 of the previous fax that I handed up, the words contained in the draft clauses that your Honour has in the words in brackets junior and adult should come out of the second subclause there because there's no adult apprentices, there is only apprentices, apprenticeship rates.

PN114

THE VICE PRESIDENT: Mr Buckley, I take it you're happy with that?

PN115

MR BUCKLEY: Yes, your Honour.

PN116

THE VICE PRESIDENT: Just bear with me a moment.

PN117

MR JOHNSON: Have I been clear enough, your Honour?

PN118

THE VICE PRESIDENT: You've been excellently clear, Mr Johnson. I will just turn up the particular page of the draft order.

PN119

MR JOHNSON: It's in paragraph 35.2, the words in the first line:

PN120

Junior and adult.

PN121

It should simply say the hourly rates for full-time apprentices.

PN122

THE VICE PRESIDENT: You're happy with that variation, Mr Buckley?

PN123

MR BUCKLEY: Yes, your Honour.

PN124

THE VICE PRESIDENT: Fine, so in relation to 3999 and 4041, there are no changes required for 3999. There are changes required for 4041 being the change that's just identified to the proposed clause 35.2, but then there's the renumbering that you've indicated, Mr Johnson and, Mr Buckley, which you've agreed with.

PN125

MR BUCKLEY: Yes, your Honour.

PN126

THE VICE PRESIDENT: Fine. Thank you. Now, moving on to 4000 and 4039 which are respectively the pre-reform and transitional award that are derived from the Federal Meat Industry Retail and Wholesale Award 2000. The same position again, Mr Johnson?

PN127

MR JOHNSON: Exactly the same as per the facts and exactly the same as per the smallgoods situation that your Honour just dealt with.

PN128

THE VICE PRESIDENT: Okay, so junior and adult comes out in the proposed 35.2 of the school based apprenticeship clauses in the draft order and there's the renumbering as well. That then leaves us with three files. Can we just deal firstly with C2006/3996 which is the Food Partners AMIEU Award 2003? This is a pre-reform award. Do you appear in that one, Mr Johnson?

PN129

MR JOHNSON: No, your Honour.

PN130

THE VICE PRESIDENT: Mr Buckley, do we have a consent from the employer in that matter?

PN131

MR BUCKLEY: No, I don't, unfortunately, your Honour. I haven't had the opportunity to speak to the employer about that one. They were served, but - - -

PN132

THE VICE PRESIDENT: Can you just give me some evidence. I put that word in inverted commas by way of submission from the bar table, that is submissions I can act upon in accordance with the principle laid down by Barwick CJ in Melbourne and Metropolitan Tramways that indicates he Commission can act upon uncontested submissions from the bar table. You caused this application to be served on the employer?

PN133

MR BUCKLEY: I did, your Honour.

PN134

THE VICE PRESIDENT: How was it served?

PN135

MR BUCKLEY: It was served by facsimile and I have a facsimile transmission record.

PN136

THE VICE PRESIDENT: Which indicates that the transmission was successfully completed?

PN137

MR BUCKLEY: Yes, that's so, your Honour.

PN138

THE VICE PRESIDENT: Fine.

PN139

MR BUCKLEY: The application relates solely to allowances that are
contained - - -

PN140

THE VICE PRESIDENT: Yes, I see, and I see that you've provided a calculation sheet that demonstrates quite explicitly the correctness of the calculations.

PN141

MR BUCKLEY: Yes.

PN142

THE VICE PRESIDENT: I am satisfied that the order ought be made.

PN143

MR BUCKLEY: Sorry, your Honour, could I just check the draft order that you have and the calculation sheet you have? There was an amendment to the original - to three of the amounts in the original application. They were small decreases compared to what had been applied for.

PN144

THE VICE PRESIDENT: Yes.

PN145

MR BUCKLEY: In respect of clause 10.10 in the award, there's an amount of 21.95. The original application sought to be increased to $23, but the correct amount should be $22.98.

PN146

THE VICE PRESIDENT: Yes, I have that.

PN147

MR BUCKLEY: That's the draft order, an amount of 17.50, the original application said $18.34, but the correct amount should be $18.32.

PN148

THE VICE PRESIDENT: Yes.

PN149

MR BUCKLEY: And again the last amount, the original application says $1.22.

PN150

THE VICE PRESIDENT: And it should be $1.21.

PN151

MR BUCKLEY: Yes.

PN152

THE VICE PRESIDENT: Fine, I have those.

PN153

MR BUCKLEY: I just wanted to be sure your Honour had the correct version of the draft order, simply because there had been some changes from the original application.

PN154

THE VICE PRESIDENT: Consistent with the decision of the Full Bench in the wages and allowances decision, PR002006, I am satisfied that this application is in order and that an order in the form - I am satisfied that the application has been served, I am satisfied that the order to vary the allowances sought by the union as indicated now by Mr Buckley ought be made and I will make an order to that effect in matter number C2006/3996. Mr Johnson, you don't have any interest in 3997?

PN155

MR JOHNSON: I do not.

PN156

THE VICE PRESIDENT: You do have an interest in 4038? No, you don't.

PN157

MR JOHNSON: No.

PN158

THE VICE PRESIDENT: It looks like we've finished all your matters.

PN159

MR JOHNSON: I am finished.

PN160

THE VICE PRESIDENT: Thank you. Please feel free to go.

PN161

MR JOHNSON: Thank you, your Honour.

PN162

THE VICE PRESIDENT: Now, Mr Buckley, matter number C2006/3997.

PN163

MR BUCKLEY: It's the FJ Walker Foods AMIEU Blacktown.

PN164

THE VICE PRESIDENT: Yes. There have been some communications between my associate and Mr Kerry Bourke of OSI which is one of the successor employers to FJ Walker Foods. As I understand it, FJ Walker Foods, the business was sold and there are now two successor companies.

PN165

MR BUCKLEY: That is so, one of which is OSI International and the other is I believe McKee Distributions.

PN166

THE VICE PRESIDENT: Yes, and McKee Distributions have communicated to the Commission that they do not object to the variation and that they'll not be appearing in the Commission today.

PN167

MR BUCKLEY: Yes, I have received a copy of that correspondence, your Honour.

PN168

THE VICE PRESIDENT: Mr Bourke indicated that he believed the union's application was misconceived on the basis that the company to which the award relates no longer exists. The company has since been taken over by two separate companies, one of which is OSI. Mr Bourke foreshadowed that detailed submissions and legal arguments would need to be raised in relation to this matter and requested an adjournment. My associate left a voice message to the effect that the matter was listed for tomorrow and that if Mr Bourke objects to the variation being made, that he or some other representative should appear and make an application for an adjournment given the lateness of it and the failure to contact you to seek a consent to the adjournment. There's an issue, Mr Buckley, from your perspective as to whether there's any utility in amending this award if there has been - if there are now new employers. Do you press for the application to continue today?

PN169

MR BUCKLEY: I press for it to continue. It doesn't necessarily have to proceed today, your Honour. I've got no objection to that matter being clarified.

PN170

THE VICE PRESIDENT: So you don't have any objection to this matter being adjourned for a short time to allow Mr Bourke to put forward his argument and no doubt he will contact you in that regard?

PN171

MR BUCKLEY: No, I don't have any objection to that course, your Honour. I am not really sure what the argument could be, but I am happy to give Mr Bourke the opportunity.

PN172

THE VICE PRESIDENT: You might like to look at - I think there's power in this Commission to vary pre-reform awards as to the list of respondents and there's an issue as to whether or not that's something that ought to be occurring as well, given that these two businesses are successors to FJ Walker Foods.

PN173

MR BUCKLEY: My understanding is that that occurred some time ago and, indeed, I believe they were the two parties that would have been served in respect of the 2005 safety net adjustments.

PN174

THE VICE PRESIDENT: So you say they're actually named as respondents already?

PN175

MR BUCKLEY: They're not named as respondents in the award, but I believe that by virtue - section 139 of the old Act, the pre-reform Act, they would have been bound by the award, yes, by virtue of the transmission of the business. I suppose I'm really only saying, your Honour, that I don't think the point was taken in the 2005 safety net adjustments when my best recollection is that they were the two companies involved then.

PN176

THE VICE PRESIDENT: In any event, you're content to have this matter adjourned. What is a time that is convenient to you in the next little while?

PN177

MR BUCKLEY: I don't really have any specific court dates until mid-March. I am really in the Commission's hands there.

PN178

THE VICE PRESIDENT: Mr Buckley, I am not inclined to trouble you with - inconvenience you by dragging you back to the Commission given that Mr Bourke or the company has not bothered to make an appearance today, when it was indicated that they needed to, that an adjournment wouldn't be granted simply on that informal basis without them having done the courtesy of contacting you to seek your position on it, so what I might do is simply adjourn this matter generally. I will give Mr Bourke an opportunity to make some written submissions if he would like to and I will deal with it in chambers and if it's necessary to hear further from you, I'll have my associate contact you.

PN179

MR BUCKLEY: Yes. Thank you.

PN180

THE VICE PRESIDENT: So in other words, within about a week the order will be made or you'll be contacted if there's a need to hear from you further.

PN181

MR BUCKLEY: Thank you, your Honour.

PN182

THE VICE PRESIDENT: Fine, so that's matter C2006/3997. Matter C2006/4038, this is the Master Grocers Association of Victoria Ltd and the Australasian Meat Industry Employees Union Award 2003, the transitional award, the common rule award in Victoria. What is the position in terms of the common rule parties responding to this, Mr Buckley? Have you heard boo from them?

PN183

MR BUCKLEY: No, your Honour. The only thing that concerns me here, your Honour, is the application was served on the Master Grocers Association and I've spoken with Ms Walsh of the Master Grocers Association and indicated I've forwarded a draft order which I did only - I was only able to do that yesterday morning and I haven't yet had a response from her and I expected one.

PN184

THE VICE PRESIDENT: Isn't perhaps the better course again to also adjourn this matter generally on the same basis as the last matter?

PN185

MR BUCKLEY: I am happy to do that until I have had a chance to speak with Ms Walsh.

PN186

THE VICE PRESIDENT: If you could get back to my associate after you've had an opportunity to speak to Ms Walsh and if you're unsuccessful in contacting her, you can have it re-listed in any event or alternatively simply indicate that you'd like me to proceed because she's not bothering to respond to your communications.

PN187

MR BUCKLEY: Yes, very well, your Honour. I would expect a response. It's an organisation that ordinarily we would receive a response from. In respect of the earlier matters, the transitional awards - - -

PN188

THE VICE PRESIDENT: So formally, Mr Buckley, matter number C2006/4038 is adjourned generally and we will wait to hear further from you before anything is done in this matter. Hopefully you will hear back from the Master Grocers consenting to the draft order and in which case, if that occurs, you can simply notify my associate and the order then can be made in chambers without a need for you to attend further.

PN189

MR BUCKLEY: Yes, thank you, your Honour. I will attempt to contact Ms Walsh today. I will be able to provide amended draft orders in respect of the three transitional awards later on today to your associate.

PN190

THE VICE PRESIDENT: Fine. When those orders are received, the orders will be made in both the transitional awards and the pre-reform awards in respect of those three groups of two matters relating to the Federal Meat Industry Smallgoods, Retail, Wholesale and Processing Awards, transitional and pre-reform. Thank you, Mr Buckley. I think that does it.

PN191

MR BUCKLEY: Thank you, your Honour.

PN192

THE VICE PRESIDENT: The Commission is adjourned.

<ADJOURNED ACCORDINGLY [11.21AM]