TRANSCRIPT OF PROCEEDINGS

---

Fair Work Act 2009 28297-1

VICE PRESIDENT WATSON

AM2010/216

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(AM2010/216)
Wine Industry Award 2010

(ODN AM2008/39)
[MA000090 Print PR988988]




Melbourne

3.04PM, TUESDAY, 5 OCTOBER 2010

PN1

THE VICE PRESIDENT: Can I have the appearances.

PN2

MR A. SACHINIDIS: Yes, sir. If it pleases your Honour, I appear for the applicant union and I'm back again.

PN3

THE VICE PRESIDENT: You're back again and looking very lonely at the bar table, Mr Sachinidis.

PN4

MR SACHINIDIS: Yes, I am.

PN5

THE VICE PRESIDENT: Yes, Mr Sachinidis.

PN6

MR SACHINIDIS: Your Honour, the application of course is a section 160 application to vary the Wine Industry Award to include the MTAA superannuation fund as a listed nominated fund in clause 26.4 of the modern award. I would like to take the opportunity now maybe just to appraise you of some recent discussions I had with Mr Michael Asmar from the South Australian Wine Industry. I also of course note that a submission has been made by that organisation.

PN7

THE VICE PRESIDENT: Yes, I've seen that submission.

PN8

MR SACHINIDIS: I just want to, for the record, indicate that in my discussions with Michael Asmar today I was able to at least answer some of specific questions that he made reference to in his correspondence of 30 September in relation to the application and so at least some of the questions that he made reference to that weren't answered, I can say now that they have been answered. Consistent with the terms of the correspondence, it is clear - and from my discussions - that the South Australian Wine Industry Association do not oppose the application to include the MTAA superannuation fund as a listed default fund in the award. Apart from that, I think that's the main point raised in the correspondence, and of course the main issue of course being that you, your Honour, being satisfied that the requisite tests associated with the inclusion of the MTAA fund in the award has been met.

PN9

Now, on that front, we rely on the grounds contained in the application that was filed and they are specifically set out in point 4, points 1 through to 10 inclusive. We rely on the fact that a relevant instrument being the General Stores, Warehousing and Distribution Award, a state award, 2002, is the relevant instrument upon which we rely.

PN10

THE VICE PRESIDENT: Is that relevant award for the Wine Industry Award?

PN11

MR SACHINIDIS: In terms of the coverage of the modern Wine Industry Award, it is relevant, yes.

PN12

THE VICE PRESIDENT: So the Wine Industry Award covers storage and warehousing facilities in the wine industry - - -

PN13

MR SACHINIDIS: That's correct.

PN14

THE VICE PRESIDENT: - - - that were previously covered by the South Australia NAPSA.

PN15

MR SACHINIDIS: That's right.

PN16

THE VICE PRESIDENT: The 2002 NAPSA.

PN17

MR SACHINIDIS: That's correct. In addition, your Honour, I have provided further evidentiary material which just demonstrates some of the companies in the wine industry that have been making contributions to the fund from 12 September 2008. They're set out in correspondence which I forwarded to your Honour yesterday, and also it's been uploaded on the web site as well. In my discussions with Mr Michael Asmar, I referred to those and he's also familiar with that and you can see there, in terms of those particular companies, they're not sort of specifically domiciled in one particular state. They range from New South Wales, Western Australia, South Australia and also Queensland.

PN18

So bearing those points in mind, we rely on those facts upon which the application is made and we accordingly, subject to any questions you may specifically have, your Honour, we rely on that and we respectfully request that the tribunal vary the award in the terms sought.

PN19

THE VICE PRESIDENT: How do you say that there is a basis for doing so under section 160?

PN20

MR SACHINIDIS: It's to deal with any uncertainty or ambiguity in relation to the capacity for employers in this industry to default employees into the fund.

PN21

THE VICE PRESIDENT: The award is not ambiguous. It doesn't mention this fund as a default fund.

PN22

MR SACHINIDIS: No. We rely - - -

PN23

THE VICE PRESIDENT: (indistinct)

PN24

MR SACHINIDIS: Yes, I understand that. However, in view of the full bench decision which stated that the relevant test being that a fund was nominated in a relevant transitional instrument, we say that that fact now needs to be remedied.

PN25

THE VICE PRESIDENT: That might be more in the nature of an error, rather than an ambiguity.

PN26

MR SACHINIDIS: Yes, but as I understand the error side of it also is encapsulated in or is comprehended in the 160 application. So, yes, it is an error in that regard, which we seek to be remedied by the application being made.

PN27

THE VICE PRESIDENT: Yes.

PN28

MR SACHINIDIS: Which is a point that I've set out in point 8 of the application, where we say that it is submitted therefore that if this fact had been raised before the award modernisation full bench, the fund would have been listed as a default fund in the modern award. It's not too similar, your Honour, to the basis upon which previous applications that you have also dealt with have been addressed.

PN29

THE VICE PRESIDENT: Yes. It then gives rise to the question: whose error was it?

PN30

MR SACHINIDIS: Yes, it was an error in the sense that at the time it could have been dealt with and was probably more of an oversight, but as I indicated before, at that point in time there were a lot of things happening and the issue in terms of coverage of a lot of modern awards were a key consideration. One of the positions that our organisation adopted was that it would have been prudent to settle the coverage clauses or the position in terms of the modern awards and then in terms of superannuation, revisit that issue in terms of the ability for the fund to be named in modern awards based on being included in a range of transitional instruments relevant to the modern award.

PN31

THE VICE PRESIDENT: What operative date do you seek for - - -

PN32

MR SACHINIDIS: Your Honour, I'm in your hands. I'm happy for the operative date to be today's date but I'm also conscious of the fact that an error has been made and it could be remedied by adopting an earlier date; that being, for argument's sake, 1 January of this year. So I'm really in your hands on that one.

PN33

THE VICE PRESIDENT: Yes, thank you, Mr Sachinidis.

PN34

MR SACHINIDIS: If it pleases the tribunal.

PN35

THE VICE PRESIDENT: I consider that the grounds for the variation have been made out by the applicant union in this matter. In particular, it is clear to me that one of the instruments replaced by the modern industry award did provide for the MTAA superannuation fund to be a default fund for the purposes of superannuation contributions. That circumstance was not brought to the attention of the award modernisation full bench and hence that fund is not mentioned as one of the default funds in the Wine Industry Award 2010. If that circumstance had been brought to the bench's attention, it is highly likely that the fund would have included the list of default funds.

PN36

In my view, the grounds have been made out for the correction of an error by adding the MTAA superannuation fund in the list of default funds. I will make a determination to vary the award in that respect and provide that the determination comes into effect on the same date as the modern award, being 1 January 2010. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [3.16PM]