AG2012/8561, Transcript of Proceedings [2013] FWCTrans 107 (21 February 2013)

TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 1035589-1

COMMISSIONER ASBURY

AG2012/8561

Sch. 3, Item 16 - Application to terminate collective agreement-based transitional instrument

Application by Paradise Palms NQ Pty Ltd
(AG2012/8561)





Brisbane

2.14PM, MONDAY, 11 FEBRUARY 2013

PN1

THE COMMISSIONER: Good afternoon. Could I take the appearances, please.

PN2

MS A. PATERSON: If it please the commission, Paterson, initial A. With me is MR S. McIVOR. We seek leave to appear on behalf of the applicant in this matter.

PN3

THE COMMISSIONER: Thank you. I think in the circumstances I will grant leave for the applicant to be legally represented. I’ve received some correspondence and a statutory declaration made by Mr Swan, the acting branch secretary of the Australian Workers’ Union. Have you seen that?

PN4

MS PATERSON: No, Commissioner, I haven’t.

PN5

THE COMMISSIONER: Perhaps I might stand the matter down for a minute and just let you have a look at that. Basically the union seems to be taking the view that it doesn’t object to or support the application that’s being made and it’s raising some questions about what the effect of the termination will be. So if I show you the correspondence and the affidavit and you have a look at that. What if I give you, say, 10 minutes to do that.

PN6

MS PATERSON: Thank you, Commissioner.

PN7

THE COMMISSIONER: All right. We’ll stand the matter down.

<SHORT ADJOURNMENT [2.15PM]
<RESUMED [2.25PM]

PN8

MS PATERSON: Thanks for that, Commissioner. Our instructions were only received in this matter on Friday afternoon.

PN9

THE COMMISSIONER: Yes.

PN10

MS PATERSON: My instructing officer had been away until late last week. I understood that the application had been served on the union. It was attached to their stat dec.

PN11

THE COMMISSIONER: Yes.

PN12

MS PATERSON: I also understand from the documents that there was no further supporting docs filed apart from the application.

PN13

THE COMMISSIONER: There’s no statutory declaration - - -

PN14

MS PATERSON: And an appendix to it. So in that respect I think that those issues out of the stat dec can be dealt with. I have no further instructions at this stage as to the status of a future agreement. It could be that the majority of employees are not in support of an enterprise agreement, given that they in support of terminating the current enterprise agreement and moving towards the modern award applying. I am aware of a dispute about which - - -

PN15

THE COMMISSIONER: Award applies.

PN16

MS PATERSON: Applies. Quite simply, the employer has received advice that the Amusement Award is the relevant underpinning modern award. The union has taken an approach that the Hospitality Industry Award applies.

PN17

THE COMMISSIONER: I see.

PN18

MS PATERSON: This is because the golf club which the matter relates to is on a site that contains a hotel which would fall under the Hospitality Industry Award, except the employees employed by the golf club are not employed by the same entity as the hotel. It’s a completely separate entity which is why the employer has taken the approach that the Amusement Award applies rather than the Hospitality, because they’re not operating accommodation on the site. That’s where I think the dispute is. I probably need some further instructions in regard to that but that’s my understanding.

PN19

THE COMMISSIONER: All right. Well, how long do you think you’d need to get some instructions?

PN20

MS PATERSON: In respect of – I’d have to make submissions on the different awards?

PN21

THE COMMISSIONER: I don’t know that I can make a finding about what award applies or not but I’m required to be satisfied what the effect will be if the agreement is terminated. So at least I’d want a statutory declaration from some person in authority from the employer that says, “This is what the effect will be. We say it will fall back to the modern award. The modern award that it will fall back to is X,” and that might be right, that might be wrong, but I guess if that’s wrong that’s a matter for another day. I just need to know what effect the employer says there will be if the agreement is terminated and what steps were taken – I accept the form is deficient. The application form is deficient because it doesn’t actually ask for a statutory declaration whereas the other provision, if the agreement is still within its term, does. The problem is I’m still required to be satisfied about those matters. So I’d like a statutory declaration that addresses the matters in section 223.

PN22

MS PATERSON: 223? I thought it was 226.

PN23

THE COMMISSIONER: Sorry, 226. I’m sorry, you’re quite right, yes. The matters in section 226, because notwithstanding that the form doesn’t ask for that statutory declaration to be provided, the Act still requires that I have to be satisfied about it. So if I could get a statutory declaration that addresses the matters in section 226 and also what the effect of the termination will be, which will require you, I guess, to address what award you say applies and why you say the other one doesn’t apply. At least I’ll know then what your client says the effect is. That’s the only way I think I can look at it.

PN24

MS PATERSON: Yes, Commissioner.

PN25

THE COMMISSIONER: So how long would you think you’d need to obtain that?

PN26

MS PATERSON: Probably a week to two weeks.

PN27

THE COMMISSIONER: All right. Well, what about if we relist the matter in two weeks if needs but, but if the statutory declaration addresses what I need it to address there may not be a need to relist the matter. If you could also provide that to the Australian Workers’ Union and then if it doesn’t respond to it I will assume it has no more to add than the statutory declaration of Mr Swan.

PN28

MS PATERSON: Thank you.

PN29

THE COMMISSIONER: All right. If you can provide that additional statutory declaration and also serve it on the Australian Workers’ Union, that would assist. If we need to relist the matter we will. Alternatively, I’ll just deal with it on the papers. Thank you. On that basis I’ll adjourn.

<ADJOURNED INDEFINITELY [2.30PM]