AM2012/273, Transcript of Proceedings [2012] FWATrans 1281 (19 December 2012)

TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 1035231-1

COMMISSIONER LEE

AM2012/273

Sch. 5, Item 6 - Review of all modern awards (other than modern enterprise and State PS awards) after first 2 years

Application by Textile, Clothing and Footwear Union of Australia
(AM2012/273)
Textile, Clothing, Footwear and Associated Industries Award 2010

(ODN AM2008/12)
[MA000017 Print PR985127]]




Melbourne

2.09PM, WEDNESDAY, 5 DECEMBER 2012

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

PN1

THE COMMISSIONER: Good afternoon, everyone, I’ll take the appearances, please.

PN2

MS V. WILES: If the tribunal pleases, I appear on behalf of the Textile, Clothing and Footwear Union of Australia, Wiles, initial V.

PN3

THE COMMISSIONER: Thanks, Ms Wiles, and in Sydney?

PN4

MR B. FERGUSON: If the tribunal pleases, Ferguson, initial B., for the Australian Industry Group.

PN5

MS Z. JENKINS: If the tribunal pleases, Jenkins, initial Z., on behalf of Australian Business Industrial.

PN6

MR R. KINGSTON: If the tribunal pleases, Kingston, initial R., on behalf of Australian Business Industrial.

PN7

THE COMMISSIONER: Okay, thank you. Well, we’re going to start off in hearing and then I propose to move into conference so the first thing I wanted to deal with was some correspondence from a party who is not here. I’ve received correspondence dated 4 December 2012 from the Council of Textile and Fashion Industries of Australia Ltd which made reference to a technical matter in the award and then referred to appendix schedule F, “Information to be given to outworkers,” and a claim was made about the Textile, Clothing and Footwear Council of Australia and, to our knowledge, no such body currently exists. I just thought I’d formally indicate that as that deals with schedule F. It’s probably that matter will be referred off to the full bench along with others but I just thought I would formally record that so everyone was aware that that’s how I propose to deal with that particular correspondence.

PN8

Now, as I understand it and you’ll appreciate there’s been a change of personnel in terms of dealing with this matter. Gay C was previously dealing with it but I don’t think he’d mind me saying that he’s had to go and have some running repairs done, as it were, and so he’s regrettably unable to be here and kindly left this file with me on his way out the door and of course I’m pleased to receive it. You will have received from me the suggested technical amendments and I’ve received extensive submissions from ABI and AI Group and the TCFUA on those matters. Then there is the other issue of what matters are still remaining that may or may not need to be further discussed and then ultimately arbitrated and I’m seeking to get some clarity on those.

PN9

So I think probably the way to proceed is I’ll leave it open to the parties to address me now on the record on anything they want to say about those matters. I should say that my understanding is, having reviewed all of this file and the conference that you’ve had before before Gay C, that essentially we are now in a position where, when I refer to the letter of the TCFUA to Gay C on 12 October, there were eight items listed on the first page of that letter under Single Industry Matters Non-Outwork and my understanding is that they are the only matters that are left - outside of the technical matters that I have raised that they are the only matters left before the tribunal as presently constituted for determination, but you might want to just tell me whether or not that is your combined view. Who would like to go first? Ms Wiles.

PN10

MS WILES: Commissioner, I might start us off. You are correct that the letter of 12 October 2012 which the TCFUA had provided to Gay C in our view does accurately set out the remaining non-outwork matters that are still to be reviewed by the tribunal. I should indicate that in that list the first item which is clause 11, Dispute Resolution Training Leave, which relates to subclause 11.9 of the Textile, Clothing, Footwear and Associated Industries Award, actually has been remedied by Fair Work Australia itself in one of the most recent variation to the award. So that matter in our view is now fixed.

PN11

THE COMMISSIONER: Right.

PN12

MS WILES: Which would leave the balance being the remaining seven items from item 2 to item 8.

PN13

THE COMMISSIONER: Yes, okay.

PN14

MS WILES: Just more generally, I should indicate to the tribunal that the TCFUA has had a preliminary telephone discussion with the Australian Industry Group a number of weeks ago after the mention and before Gay C and during that conference the TCFUA essentially just provided more details to the AI Group in relation to the rationale for the variations that exist. We were hoping to have some further discussions with the industrial parties prior to today. However, there have been some issues with the availability of key senior personnel of both organisations so unfortunately that hasn’t occurred to date but we would hope that those discussions would continue in parallel with any timetable that the tribunal may set down for the determination of remaining non-outwork matters.

PN15

THE COMMISSIONER: Yes, so is it the case that items 2 to 8 under that Single Industry Matters heading are still pressed by the TCFUA. Is that right?

PN16

MS WILES: That’s correct.

PN17

THE COMMISSIONER: Yes, in the same form as was outlined in the materials?

PN18

MS WILES: That’s correct.

PN19

THE COMMISSIONER: Right, okay, thanks, Ms Wiles. Who’s next?

PN20

MR FERGUSON: Yes, Commissioner, I’ll go next. I must confess I also knew this matter - and I don’t have any great familiarity to that correspondence of 12 October so I can’t - - -

PN21

THE COMMISSIONER: You don’t have that before you?

PN22

MR FERGUSON: I don’t have that before me.

PN23

THE COMMISSIONER: No.

PN24

MR FERGUSON: I assume that relates to matters raised by the TCFUA application though.

PN25

THE COMMISSIONER: Yes, it does so. It’s pretty straightforward and I’ll explain it to you and since we’re both new to this matter, essentially what the letter does is it lists out quite helpfully all of the various applications that have been made and essentially bundles them up so these were the applications that were made by Arc Clothing Co., the AIG, the Council of Textile and Fashion Industries and an application by Business South Australia and, in one way or another, it simply indicates that they’ve either gone off to the full bench because they were outwork related or, in the case of the Business SA, has been withdrawn.

PN26

Then there’s a list of so-called single industry matters. As you heard, clause 11, the first item is now no longer pressed because it’s been dealt with in another manner and then there are, I guess, seven remaining and they deal with clauses - and I’ll just read out clause numbers - clause 20, clause 38 in two separate respects so that’s two items separately if you like, clause 39, clause 40, then clause 40 in three separate respects so that’s three separate items.

PN27

MR FERGUSON: Yes.

PN28

THE COMMISSIONER: So if you like, it’s the list at the bottom of the first page of the letter of 12 October so, once you get a handle on that particular bit of correspondence, that’s what I’m referring to and, having looked at the totality of the material, that seemed to be the clearest list aside from the technical amendments of what is still before us to determine one way or another.

PN29

MR FERGUSON: Yes.

PN30

THE COMMISSIONER: Okay, so go on, Mr Ferguson.

PN31

MR FERGUSON: Aside from that we’ve had, as my friend put, had some discussions with the TCFUA and I understand my office is open to further discussions in relation to proceeding. Aside from that I think we’ve had some brief discussions with the union about the possible timetable about the progress of this matter.

PN32

THE COMMISSIONER: Yes.

PN33

MR FERGUSON: And we can discuss that if you like. What we have talked about perhaps was, given the time of the year, setting a timetable whereby material was put on by the applicants by 18 January.

PN34

THE COMMISSIONER: Yes.

PN35

MR FERGUSON: By way of statements, any submissions or evidence they propose to lead. That the respondents put on their submissions and evidence by 8 February and then the opportunity for the applicant to put material in reply by 14 February.

PN36

THE COMMISSIONER: Yes.

PN37

MR FERGUSON: With a possible hearing to be conducted in the week of 18 February or as soon as after then as the commission can accommodate.

PN38

THE COMMISSIONER: Yes, that week is sounding good at this stage. It’s always good to make early - - -

PN39

MR FERGUSON: It sounds reasonable?

PN40

THE COMMISSIONER: Always good to make early bookings.

PN41

MR FERGUSON: Yes, what we’d also talked about, and I’m interested to see what the parties might say, is that in relation to technical issues perhaps if there’s some error and the parties have an opportunity to review the various submissions that have been put and respond to within that time frame, so perhaps by 8 February at that point put on any responses in relation to the technical issues.

PN42

THE COMMISSIONER: Look, my only proviso, and that would be I would want to see them rolled up together as it were. I mean, in terms of the technical issues it looks like there’s only a few matters that are potentially controversial and may be heavily contested and so, if that occurred, it would be sensible to include them in the entire program so in that sense the applicant would file material on those by 18 January and we’d run with that - - -

PN43

MR FERGUSON: Well, it’s probably - yes, that might be a more sensible way to proceed.

PN44

THE COMMISSIONER: Yes, okay. All right, anything else from you at the moment, Mr Ferguson?

PN45

MR FERGUSON: No, thanks, Commissioner.

PN46

THE COMMISSIONER: All right, Ms Jenkins?

PN47

MS JENKINS: Thank you, Commissioner. Yes, if the tribunal pleases, the Australian Business Industrial as an interested party in this matter although we’re not an applicant we have complied with your directions to put in submissions on the technical and drafting issues that were identified. We would agree that the letter from the TCFUA does correctly set out the remaining issues to be resolved and we’d also agree with the proposed timetable as set out by the AI Group.

PN48

THE COMMISSIONER: Okay.

PN49

MS JENKINS: Thank you.

PN50

THE COMMISSIONER: All right, thanks for that. Ms Wiles, while we’re still on the record just in terms of the timetable, any views on that? Does that accord with your earlier discussions and does that present you with any difficulties?

PN51

MS WILES: It does, Commissioner. We are comfortable with that timetable as proposed together with the amendment that you’re suggesting in terms of the technical amendments being - - -

PN52

THE COMMISSIONER: Dealt with.

PN53

MS WILES: The submissions deal with that at the same time.

PN54

THE COMMISSIONER: At the same time, yes, all right. Look, we might just go off the record at this point just to have a further discussion so we’re off the record.

OFF THE RECORD [2.23PM]
ON THE RECORD [3.00PM]

PN55

THE COMMISSIONER: Well, we’ve had the opportunity to have some discussions in conference about how to sensibly progress this matter being the review of the Textile, Clothing, Footwear and Associated Industries Award. The situation is as follows, that Fair Work Australia has circulated a list of proposed technical amendments and submissions on those proposed amendments have been received from AIG, ABI and the TCFUA. It’s clear that there is considerable agreement on a large number of those suggested amendments. However, there is some disagreement on others, that is as to whether or not they should occur at all, and there is a third list of in-principle agreement on the technical amendments but differences between the parties as to the appropriate way to remedy the technicality and the parties will have further discussions in an endeavour to resolve if possible most if not all of those matters.

PN56

It has also been confirmed by the ABI and the TCFUA that the list of proposed variations to the award as listed in the letter of the TCFUA to Gay C on 12 October under the heading Single Industry Matters which listed eight items are the only variations remaining to be dealt with by Fair Work Australia as presently constituted. All other variations sought have been either referred to the full bench as they deal with outworkers or have been withdrawn or dealt with in some other manner. There is an exception to that list and that is item 1 TCFUA have indicated today that that item which dealt with clause 11, Dispute Resolution Training Leave, has been resolved to their satisfaction in another forum and is no longer pressed.

PN57

The Australian Industry Group are not in a position to confirm that is the list of outstanding and the total list of outstanding variations that the tribunal as presently constituted needs to deal with but they will provide confirmation in writing of their view on that matter to my chambers and copies to other parties by Friday of this week. Now, the parties have agreed to hold further discussions and will attempt at least to have two further discussions prior to Christmas with a view to resolving by agreement all matters, those being the technical amendments that are not agreed and the seven items remaining under the single industry matters list to which I’ve referred.

PN58

Further, the parties have been advised of my availability to chair discussions in the week of 7 to 11 January 2013 in an endeavour to resolve any outstanding issues at that time. Further, it’s been agreed that the following timetable will be set down to allow for arbitration of any matters that are not able to be resolved by agreement between the parties and the timetable will be that the applicant will file an outline of submissions and witness statements and any other material upon which they seek to rely by 18 January, that the respondents will file the same in terms of witness statements, outline of submissions, materials on which they will rely by 8 February, any submissions in reply from the applicant would be filed on 14 February and the tribunal would look to list the matter for hearing, obviously having some idea at that stage for the number of days that will be required, for the week commencing 18 February.

PN59

Now, that timetable for arbitration, it’s agreed, will include all matters outstanding that require arbitration, that is it will include anything that’s outstanding from the technical amendment list as well as the list of seven variations sought by the TCFUA as already outlined. One final matter is that the TCFUA has offered and it’s been accepted that they will draft a proposed agreed technical variation document for the consideration of the other parties. That will form the basis for discussion between the parties with a view to providing a final agreed document as to which technical variations are supported by all three parties and the objective will be that the final agreed document will be filed on 18 January along with the materials by the applicant at the commencement of that arbitration process.

PN60

Of course we live in hope that there will be agreement on all matters and so there will be just one document filed which will be the agreed variations document but, should that not occur, then we’ll be looking at dealing with the arbitration as necessary. Any problems with anything that I’ve just outline there from any party and anything else that anyone wants to say at this point? Ms Wiles.

PN61

MS WILES: Commissioner, we are comfortable with everything you’ve put on the record.

PN62

THE COMMISSIONER: All right, thanks, Ms Wiles. Anything from ABI or AI Group?

PN63

MR FERGUSON: Just one point of clarification, Commissioner. The material in reply from the applicant on the 14^th, is that to include any evidence material they intend to rely on in reply as well or just submissions?

PN64

THE COMMISSIONER: I would have thought it’s just submissions but evidence you’d be glad - there would be a response and generally it’s a matter of submissions in reply. Have you got any views on that, Ms Wiles? You wouldn’t be rolling up any new evidence otherwise we’ll go round and round?

PN65

MR FERGUSON: I thought by way of evidence in reply, Commissioner.

PN66

THE COMMISSIONER: Yes.

PN67

MS WILES: Commisioner, I guess that's in the prerogative of the Australian Industry Group, if they seek to file material, evidentiary material in reply. That may also mean then that we may need the opportunity to reply - to file a reply, you know, evidentiary material.

PN68

THE COMMISSIONER: So you want to reserve your right to reply with evidentiary material.

PN69

MS WILES: We would, Commissioner, yes.

PN70
PN1THE COMMISSIONER: Yes, all right. There's your answer, Mr Ferguson. It will include evidence.
PN71

MR FERGUSON: Yes, on the 14th - - -

PN72

THE COMMISSIONER: Okay. Anything else from anyone? No. Everyone supports the timetable.

PN73

MR FERGUSON: Yes, Commissioner.

PN74

MS WILES: Yes, Commissioner.

PN75

THE COMMISSIONER: Yes. Good. If there's nothing further then we'll adjourn today's proceedings. I wish the parties well with their discussions and I hope that you're able to reach agreement on all matters if possible and, if not, to leave only a very few outstanding. The tribunal is adjourned.

<ADJOURNED INDEFINITELY [3.08PM]