AG2008/1257, Transcript of Proceedings [2008] AIRCTrans 614 (8 October 2008)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 19076-1

COMMISSIONER THATCHER

AG2008/1257

cl.16A(1)(a) Sch. 8 - Appl'n for ext. of pres. collect. State agt by person bound - Application by Tooheys Pty Limited - Re: Application for extension of the Tooheys (Auburn Site) Enterprise Award 2004

SYDNEY

11.00AM, MONDAY, 22 SEPTEMBER 2008

PN1

MR A GRAY: I seek leave to appear on behalf of Tooheys Pty Limited. I also have with me MR L SAWYER who is the operations director of the company.

PN2

THE COMMISSIONER: Thank you, Mr Gray.

PN3

MR C ACEV: From the LHMU.

PN4

THE COMMISSIONER: No objection to leave?

PN5

MR ACEV: No objection.

PN6

THE COMMISSIONER: Yes, leave is granted, Mr Gray.

PN7

MR GRAY: Thank you, Commissioner.

PN8

THE COMMISSIONER: Yes, Mr Gray.

PN9

MR GRAY: Commissioner, the application has been filed with the Commission and this morning I also provided by email to your associate a draft form of orders which I understand in the form that the Commissioner has in previous matters and also a soft copy of the varied agreement in final form and also just for the convenience of the Commission and the parties a marked up document which shows the variations to the 2004 enterprise award.

PN10

THE COMMISSIONER: Yes.

PN11

MR GRAY: I should note that I've only provided those documents to Mr Acev quite late. He has indicated to me that he would like to have some time to look at the final form of the orders and perhaps if we could proceed with the substantive part of the application today but if Mr Acev could be provided the opportunity to review those orders in their final form and perhaps either indicate to the Commission that the variations are in terms acceptable to him or the matter comes back before the Commission later in the week.

PN12

THE COMMISSIONER: Okay then. Right. What do you have to say about the provisions of 16(A)?

PN13

MR GRAY: Well, in terms of those, Commissioner, with the original documents filed with the Commission we rely on that information to say that the requirements of clause 16A (1)(c) and (b) of schedule 8 have been satisfied. The first threshold issue, Commissioner, which is probably a little bit unusual in this matter compared to some of the matters is that we're actually varying an enterprise award of New South Wales Industrial Relations Commission.

PN14

THE COMMISSIONER: This was under the deeming provisions?

PN15

MR GRAY: Correct. Correct. I think it's actually the first of it's kind without trying to make it sound too special at the end of the day.

PN16

THE COMMISSIONER: Did one at 10 o'clock.

PN17

MR GRAY: Very well. Now it's the second. I've been beaten. But, Commissioner, the documents filed initially with the application set out the provisions of the State Industrial Relations Act. They're relied on for that to say we're within that deeming provision. I can take the Commissioner to that if you like?

PN18

THE COMMISSIONER: I just want to make sure I've got the correct name of the state award.

PN19

MR GRAY: It was a Tooheys - - -

PN20

THE COMMISSIONER: Was that's Tooheys (Auburn Site) Enterprise Award 2004, wasn't it?

PN21

MR GRAY: Not quite, Commissioner.

PN22

THE COMMISSIONER: No.

PN23

MR GRAY: It was the Tooheys Pty Limited (Auburn Brewery).

PN24

THE COMMISSIONER: Just a second. Pty Limited (Auburn Brewery)

PN25

MR GRAY: Yes.

PN26

THE COMMISSIONER: Yes.

PN27

MR GRAY: Enterprise Award 2004 and I should also point out to the Commission that that award, enterprise award, was subsequently varied to take account of the family provisions test case decision of the New South Wales Industrial Relations Commission on 19 December 2005.

PN28

THE COMMISSIONER: Right. Okay.

PN29

MR GRAY: And those provisions have been incorporated into the final form of the document that has been lodged with the Commission this morning.

PN30

THE COMMISSIONER: I didn't actually check on - because I knew the state registry had issued or published a list on their website of those awards caught by the deeming provisions. So is this one under that do you know?

PN31

MR GRAY: I don't know if it's on the list, Commissioner.

PN32

THE COMMISSIONER: Okay.

PN33

MR GRAY: But we'd certainly submit that it meets the requirements of that deeming provision so consent based enterprise award.

PN34

THE COMMISSIONER: Yes.

PN35

MR GRAY: The parties are Tooheys, the CFMEU and the LHMU.

PN36

THE COMMISSIONER: Yes.

PN37

MR GRAY: The award was made by consent and the actual transcript of the hearing before Haylen J of the State Industrial Relations Commission is included in the materials which shows it was made by consent.

PN38

THE COMMISSIONER: And there has been - employees have genuinely agreed have they?

PN39

MR GRAY: Yes, Commissioner. I can hand up a further statutory declaration of Mr Acev as well who gives some details as to the vote and the number of people in attendance. Mr Sawyers' statutory declaration also addresses the process that was followed by the company in terms of consultation with employees and refers to a number of meetings between the union and employees.

PN40

THE COMMISSIONER: Sorry, that's attached to your letter?

PN41

MR GRAY: The original documents filed with the Commission.

PN42

THE COMMISSIONER: Yes.

PN43

MR GRAY: It's Mr Sawyers' statutory declaration.

PN44

THE COMMISSIONER: Yes.

PN45

MR GRAY: And then Mr Acev's declaration today really just provides some further details of the numbers of employees in attendance at that vote and the majority it was passed by.

PN46

THE COMMISSIONER: Yes, I notice here to there's a letter from the CFMEU which states that the union agrees to the extension of variation and that the union's members had not organised or engaged in for any or threatened any industrial action and also there's also a letter from the liquor and hospitality division of the Miscellaneous Workers Union to similar effect. Okay. That's about it?

PN47

MR GRAY: I think that's about it other than obviously, Commissioner, the extension date is within the three year time period. It's only extended until 31 August.

PN48

THE COMMISSIONER: August 2010.

PN49

MR GRAY: 2010. We'd also say there's no reduction in the overall terms and conditions. Mr Sawyer deposes to that in his statutory declaration but just by looking at the variations the majority of them are wage increases. I think there's some references changing to federal legislation rather than state throughout it and some general tidy ups that we'd say that the requirements of the Act for the extension and variation are met, Commissioner.

PN50

THE COMMISSIONER: Okay. Well, thank you, Mr Gray. Mr Acev?

PN51

MR ACEV: Commissioner, if I may just take care of a housekeeping matter. I also received an authority from Mr Kesby of the CFMEU asking that if I could formally put in an appearance on their behalf. It was a very brief handwritten fax. Here is my other file copy, if I could make it available to the Commission. It just very briefly asks for - - -

PN52

THE COMMISSIONER: We'll take a copy of it.

PN53

MR ACEV: Thank you.

PN54

THE COMMISSIONER: We'll mark it.

EXHIBIT #MFI1 FAX FROM THE CFMEU DATED 5 SEPTEMBER 08

PN55

MR ACEV: Commissioner, basically the union is in accord with the comments by Mr Gray in relation to the status of the agreement and the transitional movement between it and the variation extension. Apart from seeking an opportunity to examine the documentation that was given to me this morning to satisfy myself as an officer representative of the employees I'd be seeking similarly either a nominal report back dated later in the week.

PN56

I'd be seeking in fact Thursday morning if that's convenient to the Commission or in the alternative if the Commissioner's happy to take some kind of written confirmation to him to the same effect and therefore dispense with the need for a formal report back. I am in the Commission's hands. But that's the only qualification we are seeking to - - -

PN57

THE COMMISSIONER: You'll be able to get back by you say no later than Thursday?

PN58

MR ACEV: Certainly. As Mr Gray has said a lot of the changes really are don't substantively alter the original carcass if you like. It was used as part of the exercise.

PN59

THE COMMISSIONER: Yes.

PN60

MR ACEV: The increases certainly have been the subject of extensive discussion between the employees and management and there are some arbitral changes in relation to the federal legislation which really say, as I said, apart from a quite laborious one for one checking and going cross eyed in the process it shouldn't be difficult to confirm.

PN61

THE COMMISSIONER: Well, look I think I can say - thank you, Mr Acev. I think I can say that I am satisfied as to the Act as I sit here this morning of the provisions of 16A of schedule 8 be satisfied and I will indicate that I propose to extend and vary the deemed preserved state collective agreement to the extent of the intention of the parties and I'll do so with an order that will come into force today and remain in force until 31 August 2010. But I'll leave it open for the parties to get back to my associate if there's any alterations to the draft which I have before me at the moment but if that could happen no later than Thursday because I'd like to get the thing out.

PN62

MR ACEV: Thank you.

PN63

MR GRAY: Thank you, Commissioner.

PN64

THE COMMISSIONER: To confirm this decision. Okay. We'll leave it on that basis then. Thank you very much. This matter is adjourned.

PN65

MR ACEV: Thank you.

<ADJOURNED ACCORDINGLY [11.10AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #MFI1 FAX FROM THE CFMEU DATED 5 SEPTEMBER08 PN54