C2008/3001, Transcript of Proceedings [2008] AIRCTrans 670 (27 October 2008)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 19189-2

COMMISSIONER LAWSON

C2008/3001

cl.29 Sch. 6 - Variation of transitional awards - general

Application by The Australian Workers' Union
(C2008/3001)
Dredging Industry (AWU) Award 1998 [Transitional]

(ODN C04877/86)
[AT778702 Print ]]




Sydney

10.39AM, TUESDAY, 23 SEPTEMBER 2008

PN1

MR J ELLIS: I appear on behalf of the AWU.

PN2

MR M WARING: I appear on behalf of McCarthy AusGroup in the Dredging Industry matters 2987 and 3001.

PN3

THE COMMISSIONER: Now, in respect of matter 2008/2987 and 3001, the Dredging Industry AWU Award 1998 and the Dredging Industry AWU Transitional Award 1998. These are applications to vary the awards to give effect to the Full Bench wages and allowances review 2008 decision, and the Australian Fair Pay Commission of this year. An application was made by the applicant for orders for sub service together with authorities to act by the national secretary of the AWU. Orders for substituted service and the notice of listing were issued on 12 September.

PN4

I note that the application to vary the pre reform award, the non transitional award, is incorrect, in that the grounds in support of that application relate to and duplicate the grounds referred to in the application to vary the transitional awards. It simply duplicated the grounds in support, Mr Ellis; I think it's incorrect. If the applicant's intention is to give effect to the Full Bench's decision then I can waiver any fault in the application and I can regard the application as consistent with those others initiated by the AWU today. That's something you need to give a moment's thought to and check the two files. Check your applications side by side. One is wrong.

PN5

I further note that in respect of 2987, McCarthy AusGroup Pty Ltd is the representative of two of the companies served with the order for substituted service, sought further time to consider the application to vary and sought to amend the respondency list. That is something that I need a response from the AWU. And it follows that if the AWU consents to that variation or that deletion from the respondency list, should the transitional award variation, the draft order, then contain the wage rates that specifically refer to West Ham Dredging. I have no idea. I'm sure that's a matter that Mr Waring might be able to help you with, Mr Ellis.

PN6

It seems to me if you're going to delete the name from the list of respondents, to leave the name of specific wage rates that relate to that company in the award, seems to be a misnomer. Whether it's meant to be there, whether it should be re-titled is something that perhaps you need to give some thought to. So, gentlemen, what I might do is I'll adjourn for 10 minutes, give you a chance to deal with those three issues. If I can add any clarity to it perhaps just give me a call and we could perhaps do it off the record in my office, so that when we go back on the record the two applications are correct and they can be dealt with appropriately. I'll adjourn now for 10 minutes.

<SHORT ADJOURNMENT [10.42AM]
<RESUMED [11.06AM]

PN7

THE COMMISSIONER: Mr Ellis, you've had an opportunity to confer with Mr Waring. What's the state of play now?

PN8

MR ELLIS: Yes, Commissioner. I've had an opportunity to confer with Mr Waring, and he's brought to my attention matters that need to be dealt with in the transitional application, and therefore the AWU would seek an adjournment so that those matters can be worked through, of that matter to a date to be fixed. There were some issues to do with mistakes in relation to respondency and also a particular formula that was used, and we've discovered those errors, and it will take a little while for us to fix them up. We seek that we submit a revised order in due course.

PN9

THE COMMISSIONER: All right. Mr Waring, do you have anything to comment on this?

PN10

MR WARING: Yes, Commissioner. In regards to respondency, the issue being that West Ham Dredging Company were removed as a respondent in January this year, however, on top of the vessel aggregate wage rates it still appears as though the vessel still belongs to that company. We'd just like to clarify the arrangements there. In relation to the formula, the error is that a formula for propelled vessel has been used as opposed to a formula for non propelled vessels, and the AWU award only covers non propelled vessels.

PN11

THE COMMISSIONER: It sounds very technical.

PN12

MR WARING: It is.

PN13

THE COMMISSIONER: So you acknowledge that there needs to be some amendment to the actual calculations?

PN14

MR WARING: Yes. We have the correct formula, it's just a matter of changing one of the, I guess, modification figures in those formulas.

PN15

THE COMMISSIONER: All right. Well, in light of those submissions, in respect of matter C2008/3001 I'll adjourn the hearing of that application and invite the parties to deal with the respective matters that they've referred to, and through direct negotiation work towards an agreed outcome. Mr Ellis, if that is achievable you can provide me with a revised draft order, and on receipt of that draft order and on receipt of Mr Waring's consent to that draft order I'll then consider that in light of the other applications made today and this application specifically, and I will deal with any order that will ensue on the papers.

PN16

It won't be necessary for the parties to re-appear and to hear the matter further unless it is your application for the matter to be re-opened for some reason.

PN17

MR ELLIS: Thank you, Commissioner.

PN18

THE COMMISSIONER: Now, Mr Ellis, in respect of the pre reform award?

PN19

MR ELLIS: In respect of the Dredging Industry AWU Award 1998 pre reform, the parties were served with a the application, draft order and notice of listing. But it's been brought to my attention that there was in fact a mistake in the application in the pre reform award, in the application to vary the pre reform award. The terms on which the application was sought were incorrect, and the AWU seeks that those terms be varied and regarded as consistent with the other pre reform applications that we have lodged.

PN20

THE COMMISSIONER: I am prepared to accept that amendment, Mr Ellis.

PN21

MR ELLIS: Thank you, Commissioner. If the Commission pleases, I could hand up a statement as to service, and also the amended draft order which is different to the one originally supplied by email that was agreed late last night between myself and Mr Waring.

PN22

THE COMMISSIONER: Which now requires further amendment. No, that doesn't require any further amendment; you're correct.

PN23

MR ELLIS: I hand up a document.

PN24

THE COMMISSIONER: You hand up those two documents, I'll mark them accordingly.

EXHIBIT #E9 STATEMENT OF SERVICE RE PRE REFORM AWARD
EXHIBIT #E10 AMENDED DRAFT ORDER

PN25

MR ELLIS: The approach to the variation of these awards was consistent with past approaches. The work related allowances were varied by a figure of 3.5 per cent, which was the percentage of the wage increase in relation to the trade rate. The expense related allowances were varied by the relevant CPI figure. The AWU submits that an order be made in the terms of that draft order.

PN26

THE COMMISSIONER: Mr Waring?

PN27

MR WARING: Commissioner, we consent to the amended draft orders marked E10.

PN28

THE COMMISSIONER: Thank you, Mr Waring. In relation to the Dredging Industry AWU Award 1998, that is the pre reform award, it is the Commission's decision that that award will be varied as sought by the AWU as set out in the amended draft order today marked as exhibit E10 in these proceedings. An order to that effect will issue, and that order will vary the award from the beginning of the first pay period to commence on or after 1 October 2008. That concludes that matter.

<ADJOURNED INDEFINITELY [11.13AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #E9 STATEMENT OF SERVICE RE PRE REFORM AWARD PN24
EXHIBIT #E10 AMENDED DRAFT ORDER PN24