TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
JUSTICE ROSS, PRESIDENT
s.285 - Annual wage review
Annual wage review
RE: Annual Wage Review – copied State awards
1.00 PM, TUESDAY, 17 MAY 2022
JUSTICE ROSS: The appearances that I have are the AMWU, ASU and RTBU, Ms Clarke; the transit systems, Mr Moir; for Transdev, Ms Beaman; for Keolis Downer, Mr Price; for Busways North West, Mr Izzo; and also Ms Lawrence for ABI. Have I missed anyone? No, all right. It has been listed for mention at the request of the unions, Ms Clarke, asking for some clarity about - well, basically what do we intend to do with this.
Look, the short version to that is this: we are proposing to publish a background paper early next week which will set out the submissions of the parties, any questions that we have that arise from the matter. We will try and identify the extent of any agreement between the parties at least in respect of perhaps the secondary position in regards to some of the employer interests, then I am in your hands really.
There are two options. We can provide for a process of short written submissions in response to the background paper and then a short oral hearing. That might be preferable rather than drowning each other in paper and then everyone wants a reply to everyone else's submission. If we adopt that course it will probably be before a single member of the Full Bench who will then provide the transcript to the seven‑member Bench.
The practical difficulty I have is that three of the seven members are part‑time members and getting time commitments from them is not the world's easiest exercise, so unless you want to have the hearing at 8 o'clock at night when we can all get together, it's likely if it's during the day it will before one of the full‑time members. Then a report simply attaching the transcript of what you have argued would be provided to the rest of the panel and the panel would make its decision based on the written material before it.
I wasn't sure how else to deal with this. I understand it's important for each of your clients, but, you know, I suppose the bulk of the case is about the minimum wages of two million people so I've got to try and balance out the time and resources in relation to this issue. I am all ears; I'm open to any other suggestions you might have, but that is at least the proposition that I want you to respond to for the moment.
We'll put out a background paper next week, we will ask you some questions. For example, I want to know a bit more about the increases that have already flowed to these state‑copied awards. I want some clarity around, well, what would the topping up look like, to what extent is that agreed. I understand that's not the primary position of a number of the employer interests, but we're seeking, you know, to see if there is a measure of agreement between you about those issues. I would also have a question about our power to retrospectively adjust an annual wage review decision and I would ask the party advocating for that to draw our attention to the source of that power.
That will be the sort of things in the background paper and then there would be a short opportunity to respond to those questions, perhaps three or four days, and then an oral hearing before a member of the Bench so that you have each got a full opportunity to respond to what everyone else has said. That is the proposition. If not that, then what, I suppose. Ms Clarke, do you want to go first?
MS CLARKE: Thank you, President. That sounds suitable to us. We definitely see the utility in a short oral hearing and the opportunity to make further submissions.
JUSTICE ROSS: Yes. Look, I think the nature of this is there are likely to be questions or issues that one of you will raise that the other one wants to respond to. Rather to put you to the trouble of endless written submissions - look, we also have a practical time constraint. We have to finish and publish by 30 June, so, you know, there is sort of an outer limit on the exercise of our powers. Mr Izzo?
MR IZZO: We would be comfortable with that approach, your Honour. We have already put on relatively comprehensive submissions so we would be interested in responding to the questions from the other parties. That process seems quite reasonable to us.
JUSTICE ROSS: Okay. In no particular order, Ms Beaman?
MS BEAMAN: We agree that that's a sensible course and we're content with that. Thank you.
JUSTICE ROSS: Thank you, Ms Beaman. Mr Price?
MR PRICE: Your Honour, we're also content with that approach. Thank you.
JUSTICE ROSS: Okay. Mr Moir?
MR MOIR: Thank you, your Honour. That approach you've outlined sounds suitable to us. I note that my client is the party that is raising the issue about retrospective adjustment of the previous AWR increases.
JUSTICE ROSS: Yes.
MR MOIR: There is a jurisdictional point between ourselves and the unions on that matter. However, I note your Honour has foreshadowed that the background paper will identify the issue of the power to retrospectively adjust and the parties will have an opportunity to respond to that issue in light of the background paper. I also note the parties have already put on fairly extensive submissions about that.
JUSTICE ROSS: Yes.
MR MOIR: It may just be from my client's perspective responding to some of the points raised by the unions in their most recent submissions and of course any specific issues that are raised by the panel in the background paper. We would certainly appreciate that opportunity to have a short oral hearing and we appreciate the practical time constraints, your Honour.
JUSTICE ROSS: All right. Thank you. That's the course we will adopt. Can I just touch on something Mr Moir mentioned. In responding to the background paper, I don't want to constrain you to responding to just the questions that are put. If there is something in another party's submission that you haven't had the opportunity to respond to, then you should feel free to do so, but what I don't want you to do is repeat what you have already said. Try to focus any additional submissions as being responsive to something that has been put by another party.
We will endeavour to summarise your submissions in the background paper. We will ask you whether that's an accurate or fair summary. You have the opportunity to comment on that, so when you get to the oral hearing resist the temptation to put us to your submissions again because I can assure you we will have read them a number of times by then. I don't want to constrain you when you respond to the background paper. I want to ensure that each of you has a fair opportunity to put what you want to put and to put an argument against those who are raising a point against you. I just want to try and avoid repetition if I can.
Look, there will be liberty to apply. If at any stage any part of this process is causing you heartburn, then get in touch with my chambers and we'll have another mention. I appreciate the time constraints are a bit tight and everyone gets under a bit of pressure at this time of the year, but, if you have a problem, get in touch with my chambers and we'll call the matter back on. All right. Thanks very much for - - -
MR IZZO: Your Honour, one question if I might.
JUSTICE ROSS: Yes.
MR IZZO: Just purely out of self‑interest, can I assume then that there would be no need nor benefit for us to attend the public consultation tomorrow then?
JUSTICE ROSS: Yes.
MR IZZO: For instance, we had indicated we would attend, but my client is not particularly interested in commenting on the economics positions about what the annual wage figure should be.
JUSTICE ROSS: Yes. Look, I think we'll run it as sort of a side process, if you like, and a separate one, because it does raise, you know, a discrete, important issue. It rather highlights the complexity around the transitional instruments. That's something that no doubt some of you have heard me harp on about before, so I won't bore you with it now. No, I don't think there's any need to attend, Mr Izzo. You will have the opportunity in the short oral hearing. All right?
MR IZZO: Thank you
JUSTICE ROSS: Okay. Thanks very much. I'll adjourn.
ADJOURNED UNTIL WEDNESDAY, 18 MAY 2022 [1.10 PM]