TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009
DEPUTY PRESIDENT KOVACIC
s.156 - 4 yearly review of modern awards
Four yearly review of modern awards – Transitional Provisions – District Allowances
1.32 PM, MONDAY, 3 JULY 2017
THE DEPUTY PRESIDENT: Good afternoon, everyone. Can those of you who are interstate hear me clearly?
MR BAUMGARTNER: Yes.
MR FERGUSON: Yes, your Honour.
THE DEPUTY PRESIDENT: All right. We'll start off by taking appearances. Perhaps if I can start in Sydney, thank you.
MR A BAUMGARTNER: Yes, if the Commission pleases, Baumgartner, initial A, for the Motor Traders' Association of New South Wales.
THE DEPUTY PRESIDENT: Welcome, Mr Baumgartner.
MR B FERGUSON: If the Commission pleases, Ferguson, initial B, for the Australian Industry Group.
THE DEPUTY PRESIDENT: Welcome, Mr Ferguson.
MS S WISH: If the Commission pleases, Wish, initial S, for Australian Business Industrial and the New South Wales Business Chamber.
THE DEPUTY PRESIDENT: Welcome, Ms Wish. Can I now go to Perth?
MR D SCAIF: If it pleases the Commissioner, Scaif, initial D, for the SDA.
THE DEPUTY PRESIDENT: Welcome, Mr Scaif. Melbourne?
MS J KNIGHT: If it pleases the Commission, Knight, initial J, for the ASU, appearing with Nucifora, J, for the ASU.
THE DEPUTY PRESIDENT: Welcome Ms Knight and I'm assuming Ms Nucifora as well.
MS KNIGHT: Mister.
THE DEPUTY PRESIDENT: Anyone else in Melbourne?
MR N TINDLEY: Yes. If it please the Commission, Tindley, initial N of FCB. I seek permission to appear on behalf of the Australian Retailers' Association.
THE DEPUTY PRESIDENT: Welcome, Mr Tindley. We'll come back to the issue of permission to represent in a moment. Here in Canberra?
MR S HARRIS: Thank you, your Honour. Harris, S, from the Pharmacy Guild and with me Mason, L.
THE DEPUTY PRESIDENT: Welcome, Mr Harris and Ms Mason. Probably easier if you just remain seated, so no need to stand.
MR HARRIS: Thank you, your Honour.
THE DEPUTY PRESIDENT: That obviously applies to everyone else as well. Is there any objection to the Australian Retailers' Association being represented in these proceedings? Okay. We'll proceed on the basis that you're granted permission, Mr Tindley.
MR SCAIF: Thank you, Deputy President, Mr Scaif in Perth also seeking permission to represent the SDA.
THE DEPUTY PRESIDENT: Sorry, I didn't hear that, Mr Scaif.
MR SCAIF: Sorry, I am also seeking permission to represent the SDA.
THE DEPUTY PRESIDENT: I apologise. I didn't pick that up. Similarly, any objections in terms of Mr Scaif representing the SDA? Okay. All right. Permission is granted to both of you in accordance with 596(2)(a), and the Commission exercising its discretion.
The background to this afternoon's directions hearing really stems from the statement by the president on 29 May which really dealt with those Full Bench matters that were affected by the retirement early this year of Watson VP, as he was then. In respect of district allowance the statement foreshadowed that the Commission would convene a directions conference to deal with the further progress of the matter, the statement also noted the views of the SDA in respect of foreshadowing a request for the proceedings to be adjourned pending determination of two matters; AM2014/305, which related to penalty rates; and also AG2016/3797, which relates to the application by Ms Vickers to terminate the Coles 2011 agreement.
I understand that the ASU also has foreshadowed its intention to pursue its application in respect of 11 modern awards, and that in correspondence with the president it also supported, I think, the SDA's application for an adjournment, so it might be that there's a useful starting point in terms of perhaps first throwing to you, Mr Scaif, in terms of whether the SDA's position is still that it seeks to have an adjournment of these proceedings pending determination of those two matters that I alluded to and which were referred to in the president's statement.
MR SCAIF: Yes. Thank you, Deputy President. I confirm that the SDA is still pressing that application for the adjournment, and I should clarify ‑ ‑ ‑
THE DEPUTY PRESIDENT: Can I just ask that you might pull that – Mr Scaif, sorry to interrupt, can I just ask that you might pull that microphone a little bit closer, thank you.
MR SCAIF: Is that better, Deputy President?
THE DEPUTY PRESIDENT: Yes. That's much better. Thank you very much.
MR SCAIF: Yes, I can confirm, Deputy President, that the SDA is still pressing the application for the adjournment. I should note that I think the matter number that the SDA intended to refer to in relation to the penalty rates decision was the Federal Court matter, VID684/17, which is the appeal to the Full Court in respect of the penalty rates decision.
THE DEPUTY PRESIDENT: Okay. I've seen some recent correspondence. That matter is at its preliminary stages. Do you have a sense of ‑ ‑ ‑
MR SCAIF: It is. That's ‑ ‑ ‑
THE DEPUTY PRESIDENT: I understand that this is proverbially asking the question about how long is a piece of string as to what the timeframe might be for progression of those Federal Court proceedings?
MR SCAIF: Yes, Deputy President. My instructions are that the matter is listed for case management hearing in two days' time on 5 July, and while, as you say, Deputy President, it's difficult to predict these things, the court has indicated that the latter half of September is likely for the hearing of that matter.
THE DEPUTY PRESIDENT: All right.
MR TINDLEY: Deputy President, Tindley here. If I can assist I can probably go slightly further than that given we're a party to those proceedings, and advise that it's likely that the matter will be set down for a three day hearing in the second half of September.
THE DEPUTY PRESIDENT: Three day hearing. I didn't quite catch the tail end of that, Mr Tindley.
MR TINDLEY: In the second half of September, your Honour.
THE DEPUTY PRESIDENT: In the second half of September. Okay. Ms Knight, in term of the ASU's position I think I - having read the correspondence that was sent to the President at the time, it seemed to suggest that the ASU was supportive of the SDA's request for an adjournment. Is that an accurate interpretation of the correspondence?
MS KNIGHT: That is accurate, your Honour.
THE DEPUTY PRESIDENT: Sorry, could I ask you to pull that microphone a little bit closer, please?
MS KNIGHT: Apologies. That is accurate.
THE DEPUTY PRESIDENT: Thank you.
MS KNIGHT: That is an accurate interpretation.
THE DEPUTY PRESIDENT: Thank you, Ms Knight. Do any of the employer representatives have anything – do any have a view to the application for an adjournment? Do any oppose or ‑ ‑ ‑
MR FERGUSON: The Ai Group is not opposed.
MR BAUMGARTNER: We do not oppose either.
MS WISH: Your Honour, this is Wish for Australian Business Industrial and the New South Wales Business Chamber. We're not opposed to the adjournment, but we do seek to keep things moving and conscious that reply submissions have already been put on for the matter.
THE DEPUTY PRESIDENT: Okay.
MR TINDLEY: Your Honour, Tindley on behalf of the ARA. We similarly are not opposed to the proposed adjournment as it relates to the Federal Court proceedings in the penalty rates case. We are kind of less certain of the relevance of the Coles agreement termination application, and we would also raise that we are still somewhat uncertain as to what is being sought, so whilst submissions have been filed and reply submissions are filed, I don't think any of us are any the wiser as to what exactly the application is, and so perhaps if we're going to progress anything it would be narrowing exactly what it is that the SDA is seeking.
THE DEPUTY PRESIDENT: Yes. Mr Scaif, is there anything you want to do to try and clarify issues for Mr Tindley?
MR SCAIF: Deputy President, in relation to the Coles enterprise agreement termination application obviously from the SDA's perspective the outcome of that decision would potentially have the effect of many workers who may be covered by district allowances which are currently included in that enterprise agreement being pushed on to the award, and that would therefore have a bearing on the submissions that the SDA would want to make about the safety net as it relates to its members and workers in regional areas, and it also goes to the achievement of the modern awards objective. So that is relevance of that decision from our perspective, and while we are mindful of the procedural history of this matter the problem in part has been that there has been some uncertainty in this area around the way in which district allowances may be included in modern awards, and so we recognise that it is important to the parties to try to narrow the applications now that there have been those decisions, for example, from the Full Court. And that is certainly productive work that I think that we could do, but it won't change the difficulty for the SDA, being that we wouldn't want to be in a position where we had to reconstitute our submissions and our evidence yet again further down the track or apply for liberty to do so, because of the outcome of the penalty rates decision or the Vickers matter.
THE DEPUTY PRESIDENT: Okay. Mr Harris, at this end, do the Guild ‑ ‑ ‑
MR HARRIS: The Guild has no objection to the adjournment, your Honour, but we would like it to be progressed as quick as we possibly can. It's been over 12 months since the last lot of submissions on it.
THE DEPUTY PRESIDENT: Sure. I suppose a practical difficulty from a progressing it - and I understand the desire of, I think, the parties to have the matters at hand decided one way or the other as soon as possible, goes to what Mr Scaif was saying a moment ago, is the extent to which those other decisions may or may not impact on the case which the SDA seeks to run in respect of the awards that it has an interest in.
I know that the application made by Ms Vickers is listed for hearing by the relevant Full Bench of the Commission in early October which suggests that – well, it's possible that there may be a decision this side of Christmas depending on a range of factors, but, you know, perhaps later this year might be the time. Similarly, the sort of suggestions are that the Federal Court is likely to hear the penalty rates issue in late September which might suggest that there may also be a decision this year.
I just wonder whether, in the circumstances, it might be appropriate to grant the adjournment request with a view to perhaps convening a further directions mentions hearing with a view to perhaps listing some dates for hearing subject to the discussion at that further directions hearing in the first quarter of next year. Do any parties have any views on that? I'll take silence as no violent objections.
Mr Scaif, is that ‑ ‑ ‑
MR SCAIF: Yes, that would be acceptable to the SDA, Deputy President.
THE DEPUTY PRESIDENT: Okay. All right. I think in the circumstances we'll proceed on that basis. I'll look to get perhaps a notice of listing out to lock in a date in early December or some time this week and then, of course, depending on where things are at, at particular circumstances, closer to the date its open to any party to either seek a push back of that date or if we get decisions before then then to bring it on a little bit earlier to lock in the dates to schedule the hearing dates for want of a better description. So unless there's anything else I would just suggest that we might leave it there this afternoon. Does that ‑ ‑ ‑
MR FERGUSON: Yes. Sorry, Deputy President, Mr Ferguson here. Just one minor issue, I just noted that there is a significant award review matter on in early December or from the 11th to the 15th which our representative is involved in. If we could avoid those dates?
THE DEPUTY PRESIDENT: Okay. Will do, Mr Ferguson. Thank you for that. All right. Thank you again everyone for coming along this afternoon, and if I don't see you beforehand, I'll see you in early December.
ADJOURNED TO A DATE TO BE FIXED [1.47 PM]