TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 LT5_TPO

VICE PRESIDENT LAWLER
SENIOR DEPUTY PRESIDENT KAUFMAN
COMMISSIONER BISSETT

AM2010/122 and others

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

Application by Victorian Employers' Chamber of Commerce and Industry
(AM2010/122)
Building and Construction General On-site Award 2010

(ODN AM2008/15)
[MA000020 Print PR986361]]




Melbourne

10.10AM FRIDAY, 10 DECEMBER 2010

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

PN1

THE VICE PRESIDENT: Mr Fetter, I note your continuing appearance for the ACTU. Mr McKenny for VECCI.

PN2

MR I MCKENNY: Yes, your Honour.

PN3

VICE PRESIDENT LAWLER: Are the other appearances the same or different? Any new appearances?

PN4

MR I MCDONALD: If your Honour pleases, I represent the Bus Industry Federation.

PN5

VICE PRESIDENT LAWLER: Thank you Mr McDonald.

PN6

MR S LYNCH: I represent the Bus and Coach association of New South Wales.

PN7

VICE PRESIDENT LAWLER: Thank you Mr Lynch.

PN8

MR M BURNS: Your Honour, I represent the TWU.

PN9

VICE PRESIDENT LAWLER: We have received correspondence from VECCI, dated 7 December and which I understand has been circulated to the other parties, indicating the withdrawal of applications to vary a large list of modern awards. I’ll just read out the AM2010 matter numbers, 138, 122, 145, 146, 149, 150, 155, 156, 158, 161, 163, 164, 167, 169, 170, 177, 180, 182, 189, 191, 193, 194, 195, 200, 202, 205, and 209.

PN10

That leaves five awards in respect of which applications are pressed, AM2010 matter numbers 137, 147, 162, 179 and 197. Mr Fetter, you’ve also notified the Tribunal informally, that the ACTU was not pressing its strikeout application, you are instead seeking directions for the full hearing of the matter and reserving your right to press the arguments that would have been advanced on the strikeout application at a later point in time. Is that still the situation?

PN11

MR J FETTER: Yes, your Honour. It’s a very different case now with five different awards on foot than the one we faced originally with 80 on the board, so I have had discussions with my learned friend about some possible dates and in a sense today becomes a directions hearing with the leave of the Tribunal.

PN12

VICE PRESIDENT LAWLER: Yes. Is there anybody who wants to speak against that proposition that today is just a directions hearing now? No? That’s fine. So what is the state of the discussions.

PN13

MR FETTER: I will perhaps ask Mr McKenny to go through the proposals which suit us as well, but you will want to hear from the other parties.

PN14

VICE PRESIDENT LAWLER: Yes Mr McKenny?

PN15

MR MCKENNY: If the Tribunal pleases, as my friend indicates we’ve had some discussions about some tentative dates. As the Bench is aware, or certainly you are aware Vice President that VECCI does seek further time to put in some further additional evidence, and we - - -

PN16

VICE PRESIDENT LAWLER: Mr McKenny, if I can express a preliminary view, I haven’t discussed it with the other members of the Bench, but given the emphasis that is being placed by single Members and the earlier Full Bench in retailing case on the need for substantial evidence, it seems to me that it’s entirely fair that you should have whatever time you need to get your evidence together.

PN17

Obviously the ACTU and the other parties will have an appropriate opportunity to put in their evidence as well, but from my perspective you have got the carriage of the application so there is no disadvantage if the timetable is - no disadvantage accruing to the unions if the timetable is longer rather than shorter, and therefore you should really take whatever time you need.

PN18

MR MCKENNY: Yes, your Honour, and if the Tribunal pleases, what - - -

PN19

VICE PRESIDENT LAWLER: The other Members of the Bench as it turns out are happy with that approach.

PN20

MR MCKENNY: What VECCI has in mind if the Tribunal pleases, is to provide further additional evidence by the end of March 2011, and the ACTU has indicated in discussions that they would seek a period of two months to put statements in response which would take the timetable to the end of May 2011.

PN21

VICE PRESIDENT LAWLER: Yes.

PN22

MR MCKENNY: We also had a discussion about submissions about the evidence and putting submissions in about the affect of the evidence. I’m not averse to that if the Tribunal pleases. That could be done close to the hearing dates as far as I’m concerned, and that we would be seeking hearing dates obviously at the convenience of the Full Bench.

PN23

VICE PRESIDENT LAWLER: It’s a bit hard to work out how much time is going to be needed without seeing all of the evidence, but do you have a sense, Mr McKenny, of the sort of block of time that would need to be reserved?

PN24

MR MCKENNY: Being on the pessimistic side I think it might be required to at least have a period of two weeks or thereabouts, depending on the volume of the evidence and the submissions that are made.

PN25

VICE PRESIDENT LAWLER: Mr Fetter, do you have any different view about the appropriate reservation of time?

PN26

MR FETTER: Yes, I think it’s impossible to say without having a sense of the evidence that will be put, but it would probably be prudent to set aside two weeks as a minimum time.

PN27

VICE PRESIDENT LAWLER: Do you want provision for reply evidence?

PN28

MR MCKENNY: I think that would be a good idea in terms of focussing any issues.

PN29

VICE PRESIDENT LAWLER: Three weeks for reply evidence?

PN30

MR MCKENNY: Three weeks would be - - -

PN31

VICE PRESIDENT LAWLER: If you need to, if in light of the material that’s filed by the ACTU and anybody whose joining with the ACTU, do you think that three weeks is inappropriate then we could arrange to have the matter re-listed and there can be an adjustment to the timetable, but it would be I suppose desirable to try and reserve some time for hearing that’s not at risk of being shifted because as those dates approach the Members of the Bench will be allocated other matters for hearing around those weeks that have been blocked out.

PN32

MR MCKENNY: Yes, I’m conscious of that and I would certainly endeavour to make sure that those hearing dates are preserved given the fact that it affects three Members of the Tribunal and their timetable.

PN33

VICE PRESIDENT LAWLER: Yes. Okay, so submissions? Mr Fetter, do you share a view that there may be some utility in a submission?

PN34

MR FETTER: Yes, your Honour. We think it’s appropriate that the unions in particular have the opportunity to make the sorts of arguments about the evidence, some of which may have been made today, but also to have an opportunity to put in writing the union’s view about the case as a whole, so we support the proposal that there be a round of submissions in writing in advance of the hearing.

PN35

VICE PRESIDENT LAWLER: Do we want to have a date when submissions will be exchanged or do you want a staggered set of dates for submissions from the applicant, and then a reply submission?

PN36

MR FETTER: Yes, I think to have them staggered is probably the best, your Honour.

PN37

VICE PRESIDENT LAWLER: Okay. Well, Mr McKenny, could you put your submissions in at the reply evidence?

PN38

MR MCKENNY: Yes, your Honour.

PN39

VICE PRESIDENT LAWLER: Two weeks for your submissions after the reply evidence Mr Fetter?

PN40

MR FETTER: Yes, your Honour, that would be plenty.

PN41

MR MCKENNY: Can I just indicate to the Tribunal one thing that the applicant is conscious of is that it’s pursuing its application in relation to the General Retail Industry Award 2010, and I’m advised that Vice President Watson is hearing an application in June next year in relation to that award.

PN42

VICE PRESIDENT LAWLER: Well, it would make sense, wouldn’t it, for some consideration be given to joining these applications together I would have though.

PN43

MR MCKENNY: I’ll just get some instructions.

PN44

VICE PRESIDENT LAWLER: When I say joining them - obviously the Retail Association are the applicants in that matter I think.

PN45

MR MCKENNY: They are, that is so your Honour.

PN46

VICE PRESIDENT LAWLER: Obviously they would need to be heard as would- are you the only respondent, well, opponent to the application in that matter? When I say “you”, is VECCI the only opponent? I’d imagine there are others - sorry, are you the only, sorry. Are there any other parties that share your interest who are involved in that application?

PN47

MR MCKENNY: Before Vice President Watson?

PN48

VICE PRESIDENT LAWLER: Yes. I apologise for mangling that - - -

PN49

MR MCKENNY: As I understand it, it’s an application by the National Retail Association - if I could just have a moment. As I understand it, it’s the Australian Retailers Association, the ARA, and the National Retail Association have joined in that application.

PN50

VICE PRESIDENT LAWLER: Yes. I take it the ACTU is involved in that Mr Fetter?

PN51

MR FETTER: We were involved in the earlier cases and may have been involved in this one but - - -

PN52

VICE PRESIDENT LAWLER: But the SDA will be the lead opponent?

PN53

MR FETTER: That’s right your Honour, yes.

PN54

VICE PRESIDENT LAWLER: Well, obviously they should be heard as well, but I think the best thing to say about that at the moment is that we’ll raise that with the President as to whether or not that should occur and whether or not consideration should be given to it occurring, and at some point, to the extent that the parties need to be heard, they’ll be contacted.

PN55

MR FETTER: If the Tribunal pleases.

PN56

VICE PRESIDENT LAWLER: Just because it might save time, do you have any objection to that course if there was to be a joinder Mr Fetter?

PN57

MR FETTER: No, your Honour, but I’m just conscious that the SDA is not separately represented here today.

PN58

VICE PRESIDENT LAWLER: No, obviously nothing can occur today in the absence of having heard from the parties in that matter.

PN59

MR FETTER: It would be acceptable to us.

PN60

VICE PRESIDENT LAWLER: I shouldn’t say that because I think the President probably - I should pre-empt that. The President may have an entitlement to act without hearing from the parties in terms of the joinder. The procedural fairness considerations are not clear cut.

PN61

MR FETTER: As a matter of practicality I would think that it would make it easier for the SDA to deal with the cases if they were joined, but that’s just my guess about it and they may have a different view, but it would make sense in terms of preparing to defend two cases that are very similar in nature, that they be heard together.

PN62

VICE PRESIDENT LAWLER: The only contrary consideration would be that if the parties in that matter were to be able to persuasively mount a case that prejudiced them in terms of additional resources, participating in a hearing that is going to go for weeks and covering a number of awards may be a factor against it, but presumably we could manage the hearing in such a way that the material that dealt with the retail award was dealt with discretely and those parties just participated at that time.

PN63

MR FETTER: Yes, well, your Honour, there is a question of prejudice to the unions in defending those applications and that was one of the grounds in a sense of the so-called strikeout applications, so I just indicate that on our view it is open to the SDA, for example, in dealing with the matter as it proceeds from here on, to make a submission however it may be made, that the applications made by VECCI are vexatious in these circumstances, that they come very close to matters that have already been traversed a number of times, but that’s now a matter of the SDA to make and I just indicate it on the record.

PN64

VICE PRESIDENT LAWLER: All right. Do you have a view about - are you in a position Mr McKenny to adopt a view about whether there is utility in that joinder?

PN65

MR MCKENNY: There’s just two matters if I could raise them.

PN66

VICE PRESIDENT LAWLER: Yes.

PN67

MR MCKENNY: The question of the NRA and ARA, they’re obviously not here so I don’t know what their views are on that. Their application is quite different to the application made by VECCI in terms of the grounds and the scope of it. As I understand it the NRA application deals with school age employees. Subject to what the Tribunals processes are, perhaps what could be done is for the ARA and NRA to be consulted in some fashion about whether they have a view about that. I’m not standing her opposing the possibility but I think that they would need to be consulted, but they are different types of applications.

PN68

VICE PRESIDENT LAWLER: So VECCI doesn’t want to adopt a position of either supporting a proposal for a joinder or opposing it?

PN69

MR MCKENNY: Well, probably because the applications are different the position, or my instructions are we would oppose joinder. That’s what is being indicated to me.

PN70

VICE PRESIDENT LAWLER: Okay.

PN71

MR MCKENNY: Because the scope is quite different and the grounds are different, so it’s a different type of case.

PN72

VICE PRESIDENT LAWLER: Yes. In any event we’ll raise the issue with the President and he can take the course that he thinks is appropriate. Fine. Is there anything else that we need to talk about by way of programming? Are there any dates in that period that is indicated by the timetable that has been outlined thus far? We’re talking about the hearing in July I think.

PN73

MR MCKENNY: Subject to the convenience of the Full Bench, but that would certainly suit.

PN74

VICE PRESIDENT LAWLER: We’ve got the end of March for your additional evidence.

PN75

MR MCKENNY: Yes.

PN76

VICE PRESIDENT LAWLER: April, May, end of May for the union’s evidence, and then into the first week of July for the other two steps in the timetable we’ve contemplated thus far. So we’re looking at mid-July. Is anyone troubled by any dates then?

PN77

MR MCKENNA: No.

PN78

MR FETTER: Not from this side of the bar table.

PN79

VICE PRESIDENT LAWLER: Fine. Well, we’ll issue some directions which reflect the timetable that has been discussed and block out two weeks in mid-July. Anything that needs to said by anyone in Sydney?

PN80

MR BURNS: No, your Honour. The TWU is not available for all of March and actually for most of April, so if there is to be any creep in the timetable towards April we would rather it crept towards the end of May your Honour, rather than the beginning of

PN81

MR MCDONALD: Your Honour, sorry to interrupt.

PN82

VICE PRESIDENT LAWLER: Yes?

PN83

MR MCDONALD: Your Honour, from the Bus Industry Confederation’s point of view, I think our position would be similar to the VECCI position in relation to joinder of the ARA and the NRA cases, but of course we are in the hands of the Bench and the President, but I think we would support VECCI in relation to that joinder issue.

PN84

VICE PRESIDENT LAWLER: Yes. You don’t have any interest in the retail award I take it?

PN85

MR MCDONALD: No, we don’t.

PN86

VICE PRESIDENT LAWLER: So your opposition - - -

PN87

MR MCDONALD: Our interest is one award which the Passenger Vehicle Transportation Award, and that’s our only interest in any proceedings.

PN88

VICE PRESIDENT LAWLER: Okay, thank you Mr McDonald for that. Anything that anyone needs to say here in Melbourne?

PN89

MR FETTER: Your Honour, just in relation to the issue of whether the proceedings should be joined, we would just like to reserve the position, particularly on behalf of the SDA. My learned friend suggested that the cases were substantially different, but just perusing their application again there is reference to the position of school students in paragraph 9, and youth employment in paragraph 6.

PN90

In our view there is actually substantial overlap here which is a matter the President will have to consider in due course. We would submit that there should be some process by which interested parties can at least make some representations to the President.

PN91

VICE PRESIDENT LAWLER: Look, I think we’ll do nothing more than simply alert the President to the issue and he can initiate whatever consultations are appropriate, if he considers it appropriate to do so. In other words, it’s not going to be a decision that we make.

PN92

MR FETTER: Very well your Honour.

PN93

MR MCKENNY: Just one piece of information if I can advise the Tribunal, my understanding from what I’ve just been told is that in relation to the matter before Vice President Watson, the submissions have been put in by the NRA, the ARA, so obviously that’s in a certain context. I hear what Mr Fetter says, the scope of our application is different.

PN94

VICE PRESIDENT LAWLER: Yes. Look, Mr McKenny, the position is only this I think, that there is potentially, in a practical sense, a significant degree of overlap, and there are resourcing issues and whether or not it’s potentially an unfortunate waste of time to have a single Member dealing with an application of that sort when the decision of this Full Bench is going to have obviously a profound impact on, or could have a profound impact on the outcome of that single Member case.

PN95

There are practical considerations that might make it seem appropriate to the President to explore further whether this should occur, but obviously it can’t occur unless there has been some consideration given to the view of the parties in that other matter.

PN96

MR MCKENNY: Yes, your Honour. Obviously I accept what the Tribunal says about the practicalities of these things. I was just wanting to point out to some degree that case is advanced in a different way.

PN97

VICE PRESIDENT LAWLER: That’s true, but if they’ve got a hearing date in June of next year and we’ve got a hearing date in July and there’s not a huge difference between them, and there are all sorts of potential practical problems depending on how Vice President Watson decided that case if he were to proceed to hear it on his own, and then there was an appeal in circumstances where this Bench will be making a decision at around the same time, one can see the potential for an awful lot of waste occurring.

PN98

MR MCKENNY: Yes.

PN99

VICE PRESIDENT LAWLER: In any event, it’s really not a matter for us and there’s probably no point in discussing that matter further.

PN100

MR MCKENNY: If your Honour pleases.

PN101

VICE PRESIDENT LAWLER: Fine, in those circumstances the Tribunal is adjourned and some relevant directions will issue.

ADJOURNED INDEFINITELY [10.30AM]