AM2010/95, Transcript of Proceedings [2010] FWATrans 1290 (16 August 2010)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 26828-1

VICE PRESIDENT LAWLER

AM2010/95

s.158 - Application to vary or revoke a modern award

Application by Independent Education Union of Australia
(AM2010/95)
Educational Services (Teachers) Award 2010

(ODN AM2008/33)
[MA000077 Print PR988937]]




Sydney

10.09AM, MONDAY, 2 AUGUST 2010

PN1

THE VICE PRESIDENT: Good morning. Appearances, please.

PN2

MR ODGERS: If your Honour pleases, my name - - -

PN3

THE VICE PRESIDENT: Mr Odgers, how are you?

PN4

MR ODGERS: Good, thank you, your Honour. I appear together with MS C. MATTHEWS on behalf of the applicant, the IEUA.

PN5

THE VICE PRESIDENT: Thank you. Any other appearances?

PN6

MR L. MOLONEY: Yes, your Honour. Moloney, L.E., of Livingstones Australia. I seek permission to appear as agent on behalf of Australian Childcare Centres Association. Appearing with me today is MS A. YOUNG, the secretary of the association.

PN7

THE VICE PRESIDENT: Thank you very much, Mr Moloney. I take it there's no objection to permission being granted to Mr Moloney. Mr Odgers?

PN8

MR ODGERS: No objection.

PN9

THE VICE PRESIDENT: Yes, Mr Moloney, you have permission to appear.

PN10

MR MOLONEY: Thank you.

PN11

THE VICE PRESIDENT: Mr Odgers, I understand that you mention the matter on behalf of some other interested parties, as well?

PN12

MR ODGERS: Yes, your Honour. We received, as did the tribunal, correspondence from Mr Makins from the Australian Federation of Employers and Industries on Friday afternoon. He wrote to you requesting that these proceedings be adjourned and we spoke with him, both then and again this morning - agree to make an application to that effect.

PN13

THE VICE PRESIDENT: Yes.

PN14

MR ODGERS: I make that application, if it's convenient to your Honour, on this basis: As your Honour would be aware, we filed our written submissions in this matter some three days late and not in accordance with the directions your Honour had issued. Mr Makins, on behalf of the Australia Federation of Employers and Industries, has said in his letter to you that he's been inconvenienced as a result, but that, in any event, he seeks some additional two weeks in order to respond to the application. We have Mr Moloney here with us but I note that he also stated, in paragraph 4 of the submissions, that he had submitted that he had been disadvantaged, or the parties for whom he appears have been disadvantaged by the lateness of our application.

PN15

THE VICE PRESIDENT: Yes.

PN16

MR ODGERS: We request an adjournment consistent with that sought by the AFEI - - -

PN17

THE VICE PRESIDENT: Yes.

PN18

MR ODGERS: - - - fortnight. To the extent that it's necessary to recast the directions, we would propose that both Mr Moloney and Mr Makins be given, obviously, a further opportunity to make any submissions they see fit in writing.

PN19

THE VICE PRESIDENT: Yes.

PN20

MR ODGERS: If your Honour feels there would be advantage by hearing from us in reply, then we could make submissions in reply.

PN21

THE VICE PRESIDENT: Thank you, Mr Odgers. Mr Moloney, what's your position in relation to the adjournment application?

PN22

MR MOLONEY: Thank you, your Honour. In our submissions, we did make mention of timing of the submissions but, having said that, we did not seek an adjournment. I must confess, I was unaware of the correspondence from the AFEI. I did actually check the web site 20 minutes ago and the correspondence wasn't there.

PN23

THE VICE PRESIDENT: It wasn't received until late on Friday afternoon and I suspect it just hasn't made it to the web site because of just the practicalities of people doing what needs to be done to get it up.

PN24

MR MOLONEY: Sure, yes. Your Honour, we're in the hands of the tribunal in terms of an adjournment. We put our submissions in. I don't believe that we would need to add much more to them, if at all. But, if the application by the applicant is for an adjournment, we've got no objection to that.

PN25

THE VICE PRESIDENT: Fine. Okay, Mr Moloney, thank you. Well, I'm satisfied, given the consent of the applicant to the desire for an adjournment by AFEI and the fairly minor lateness of the applicant's submissions, that it is appropriate to adjourn the matter, there being no opposition to that adjournment application, and I will adjourn it as sought. If you just bear with me for a moment, Mr Odgers, while my associate brings back the calendar or the diary. How much more time - do you know - does the AFEI need for their submissions?

PN26

MR ODGERS: I suggest, from their correspondence, two weeks, your Honour.

PN27

THE VICE PRESIDENT: Yes.

PN28

MR ODGERS: Take us through, I think, to - - -

PN29

THE VICE PRESIDENT: The 16th?

PN30

MR ODGERS: - - - the 16th, yes.

PN31

THE VICE PRESIDENT: You don't need any more time for submissions, Mr Moloney?

PN32

MR MOLONEY: It's tempting to say "yes", but no, your Honour, we don't.

PN33

THE VICE PRESIDENT: Okay, fine. Mr Moloney, if you want to participate by telephone on the next occasion - well, it's a matter for you whether you participate on the next occasion but, if you do want to participate and want to do it by telephone, if you could let my associate know, given - which would - let me start that again. I'm conscious that there's an inconvenience in you being dragged back here a second time, given that you've complied with directions and, accordingly, if you want, for reasons of convenience, to participate on the next occasion by telephone, just let my associate know.

PN34

MR MOLONEY: Your Honour, we might actually take it one step further and see whether or not the video conferencing facilities are available.

PN35

THE VICE PRESIDENT: Certainly, I'll make sure that they're booked.

PN36

MR MOLONEY: That would be - - -

PN37

THE VICE PRESIDENT: Yes. Unfortunately, it was - ordinarily, in an inter-parties matter, on receipt of an email of the sort we received late on Friday, one would endeavour to see if the adjournment could be sorted out to save people the inconvenience of attending today. But, because this is not strictly an inter-parties matter and the world at large has got an interest and the public has a general entitlement to appear in relation to modern award applications where the relevant member of the public is affected by the modern award. It's not appropriate to vacate a listing of this sort, it seems to me, on the basis of private emails. That said, the 16th for the submissions for AFEI, and what about Friday, 20 August for the adjourn date. Does that suit you, Mr Odgers?

PN38

MR ODGERS: It does, your Honour.

PN39

THE VICE PRESIDENT: I don't suppose you've got any information about Mr Makins, Mr Odgers?

PN40

MR ODGERS: He's given us some liberty to act on his behalf - - -

PN41

THE VICE PRESIDENT: But you're not equipped with his available dates?

PN42

MR ODGERS: No, I'm not. I'm - - -

PN43

THE VICE PRESIDENT: Okay. Well, we'll just take a punt on the 20th, then. Mr Moloney, does that suit you?

PN44

MR MOLONEY: Yes, it does, your Honour. Thank you.

PN45

THE VICE PRESIDENT: Fine. Well, I'll adjourn the matter to 20 August 2010 at 10 am.

PN46

MR MOLONEY: Thank you very much.

PN47

THE VICE PRESIDENT: Thank you very much indeed, and that will be in Sydney. Anything further from you, Mr Odgers?

PN48

MR ODGERS: Nothing further, your Honour.

PN49

THE VICE PRESIDENT: Anything further from your, Mr Moloney?

PN50

MR MOLONEY: No, thank you, your Honour.

PN51

THE VICE PRESIDENT: Fine. Then the application is adjourned until 20 August 2010 at 10 am, in Sydney. Tribunal is adjourned.

<ADJOURNED UNTIL FRIDAY, 20 AUGUST 2010 [10.17AM]