AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 1919
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE GIUDICE
VICE PRESIDENT ROSS
VICE PRESIDENT McINTYRE
SENIOR DEPUTY PRESIDENT WATSON
SENIOR DEPUTY PRESIDENT HARRISON
COMMISSIONER LEWIN
COMMISSIONER HOFFMAN (in absentia)

C2001/4617, 5719, 5720,
5721, 5722, 5803, 5810, 5830,
5833, 5834, 5843-5847, 5849,
5929, 5933, 5934, 5935,
6086 and 6130

TIMBER AND ALLIED INDUSTRIES AWARD 1999

THE HOSPITALITY INDUSTRY - ACCOMMODATION,
HOTELS, RESORTS AND GAMING AWARD 1998

BUILDING SERVICES (VICTORIA) AWARD - 1994

LAUNDRY INDUSTRY (VICTORIA) AWARD 1998

CHILD CARE INDUSTRY (AUSTRALIAN CAPITAL
TERRITORY) AWARD 1989

THE VEHICLE INDUSTRY - REPAIR SERVICES
AND RETAIL - AWARD 1983

TRANSPORT WORKERS AWARD 1998

RETAIL AND WHOLESALE INDUSTRY - SHOP
EMPLOYEES - ACT - AWARD 2000

HORSE TRAINING INDUSTRY AWARD 1998

CLERICAL AND ADMINISTRATIVE EMPLOYEES
(VICTORIAN) AWARD 1995

VICTORIAN LOCAL AUTHORITIES AWARD 2001

STORAGE SERVICES - GENERAL - AWARD 1999

GROCERY PRODUCTS MANUFACTURE -
MANUFACTURING GROCERS AWARD 1996

COMMERCIAL SALES (VICTORIA) AWARD 19999

RUBBER, PLASTIC AND CABLE MAKING
INDUSTRY AWARD 1999

THE VEHICLE INDUSTRY AWARD 1992

CLOTHING TRADES AWARD 1999

GRAPHIC ARTS - GENERAL - AWARD 2000

METAL, ENGINEERING AND ASSOCIATED
INDUSTRIES AWARD, 1998 - PART 1

METAL, ENGINEERING AWARD AND ASSOCIATED
INDUSTRIES AWARD, 1998 - PART III

Application under section 113 of the Act
by the Forestry, Mining and Energy Union,
Building Products Manufacturing division
to vary re wages and allowances (s.108
References)

C2001/6086-6105

APPLICATIONS FOR MINIMUM WAGE ORDERS

Applications under section 501 of the Act
for adjustment of minimum wage order for
the Wholesale Trade Industry Sector, Retail
Trade Industry Sector, Accommodation, Cafes
and Restaurants Industry Sector, Finance and
Insurance Industry Sector, Property and
Business Services Industry Sector, the Cultural
and Recreational Services Industry Sector, the
Health and Community Services Industry Sector,
Construction Industry Sector, the Mining Industry
Sector, the Police Services Industry Sector, the
Personal and Other Services Industry Sector, the
Government Administration Industry Sector, the
Communications Services Industry Sector, the
Electricity, Gas and Water Supply Industry Sector,
The Manufacturing Industry Sector, the Transport
and Storage Industry Sector, the Education Services
Industry Sector, the Agriculture, Forestry and
Fishing Industry Sector - s.502 Reference to Full
Bench

MELBOURNE

10.46 AM, THURSDAY, 20 DECEMBER 2001

PN1

JUSTICE GIUDICE: I should indicate that Commissioner Hoffman is also a member of this bench he is unable to sit with us today. If there is any objection to the course of us continuing in his absence let us know. The appearances, please.

PN2

MR A. WATSON: In each of the section 113 applications I appear with MS M. GAYNOR and MR C. ROBINSON seeking leave to intervene on the part of the Australian Council of Trade Unions and I also appear on behalf of all applicant unions with those two persons and in addition, in matters 5719, 2021 and 2022 with MR VEENENDAAL from the LHMU, in 5810, 5929, 5934 and 5935 with MR SACHINIDIS from the AMWU, in 5845, 46, 47 and 49 with MR FREEBURN from the NUW and in 5843 and 44 with MR NUCIFORA from the ASU. In relation to each of the section 501 applications and 502 references I seek leave to intervene on the part of the ACTU and the applicant unions.

PN3

MR C. HARRIS: I would like to tender those who I appear on behalf of. I also appear in matter C number 5843 with MR M. WELDON of the Australian Retailer Association and C number 5719 with MS S ZEITZ of the Australian Hotels Association, in C number 5810 with MS L. YILMAZ of the VACC, C number 5830 with MR M. WELDON, Australian Retailers Association and also with Mr M. Weldon in C number 5845, 5847 also with Mr M. Weldon and with MR T. ABRAMS in C number 5934. I also seek leave to intervene on behalf of the Australian Chamber of Commerce and Industry in all matters.

PN4

MR M. MOIR: I appear for the Australian Industry Group and the Engineering Employers Association of South Australia and I appear with MR T. HALLS. For the record I appear in respect of matters C number 4617, 5810, 5834, 5844, 5845, 5846, 5847, 5849, 5929, 5933, 5934, 5935 and 6130 and we also seek leave to intervene in respect of the remaining matters and in reference, your Honours and Commissioner, to the section 501 applications we appear in respect of all of those matters.

PN5

MR E.R. COLE: I appear with MS L. LIP for the Minister for Employment and Workplace Relations on behalf of the Commonwealth intervening in all matters.

PN6

MS S. ZEITZ: I seek leave to appear for the Australian Hotels Associations and the Motor Inn, Motel and Accommodation Association in relation to matter C number 5719.

PN7

MR N. NIVEN: I seek leave to appear on behalf of the Victorian Trades Hall Council on behalf of a number of applicant unions, namely, the LHMWU, the ANF, the CFMEU, the CPSU, SPSF, the CEPU, the AMWU, the TWU, the IEUA, the UFU and the AWU in relation to all of the section 501 matters and 502 reference to the full bench and appearing with me is MR G. MORAN from the Victorian Trades Hall Council as well.

PN8

MR D. GREGORY: I appear on behalf of the Victorian Employers Chamber of Commerce and Industry in respect to the reference of the section 501 matters.

PN9

MR R. CALVER: I appear on behalf of the National Farmers Federation and with me is MS P. MURDOCH. In respect of the 113 applications we seek leave to intervene and in respect of the Victorian minimum wage orders we appear in all matters.

PN10

MR B. CORNEY: In respect of the section 113 matters I appear on behalf of the Joint Labor State Governments Victoria, New South Wales, Queensland, Western Australia, Tasmania and the Northern Territory and seek leave to intervene in the section 113 matters. In respect of the section 501 Victorian minimum wages orders matters I appear on behalf of the Victorian Government in that matter.

PN11

MR T. ABRAMS: I appear on behalf of the Printing Industry Association of Australia in matters 5929/2001, 5934/2001, 5843/2001 and in relation to the section 501 matters as well.

PN12

MS L. YILMAZ: I appear for VACC in the section 501 applications with regards to application of 5810, 5843 and 5929 and I also put in appearance for the Motor Traders Association of South Australia with respect to matter 5810 and 5929.

PN13

MR R. GRACE: I appear for the Motor Traders Association of New South Wales. I seek leave to appear in matters C5810 and 5929.

PN14

MR P. RYAN: I seek leave to appear on behalf of the Australian Road Transport Industrial Organisation in matter number C5803, that affecting the Transport Workers Award and also seek leave to appear in the section 501 applications.

PN15

MR C. HARNATH: I appear for the Master Plumbers and Mechanical Services Association of Australia. I appear in matter C2001/6093 and I seek leave to intervene in all other matters.

PN16

MR T. KLEMIS: I seek leave to appear on behalf of the Bread Manufacturers Industrial Association of Australia and also on behalf of the Baking Industry Association Victoria in the section 501 in regards to 6066, 6087, 6088 and 6099.

PN17

MR P.G. RYAN: I seek leave to appear in C number 4617 of 2001 on behalf of the Victorian Association of Forest Industries and also on behalf of the Timber Trade Industrial Association.

PN18

MR M. WELDON: I appear on behalf of the Australian Retailers Association in respect to the 501 referral matters.

PN19

MS W. JONES: I appear on behalf of the Restaurant and Catering Association of Victoria in relation to the section 501 matters in relation to 6088.

PN20

MS K. KNOPP: I seek leave to appear on behalf of the employers and the Association of Independent Schools of Victoria in respect of the section 501 application and in particular 6101.

PN21

MS L. O'BRIEN: I appear on behalf of the Australian Mines and Metals Association and I seek leave to intervene with respect to the section 501 applications pertaining to 6094.

PN22

MS V. ILIAS: I appear on behalf of the Victorian Branch of the ALHMWU.

PN23

MR G. TODD: I appear on behalf of the SDA.

PN24

MR J. NUCIFORA: I appear for the Australian Services Union with respect to the 113 applications in 5843 and 5844.

PN25

JUSTICE GIUDICE: Any objection to any of the applications? Well, they are all granted. We will deal first with the matters relevant to the applications to vary pursuant to section 113. Mr Watson.

PN26

MR WATSON: Your Honour, can I hand to the members of the bench a document entitled Proposed Living Wage Case Directions.

PN27

JUSTICE GIUDICE: I think we might mark that Mr Watson.

EXHIBIT #ACTU1 PROPOSED LIVING WAGE CASE DIRECTIONS

PN28

JUSTICE GIUDICE: And just while I have interrupted you. Mr Harris, we will mark the list of parties and interveners for whom you have entered an appearance.

EXHIBIT #ACCI1 LIST OF PARTIES AND INTERVENERS

PN29

JUSTICE GIUDICE: Yes, thanks, Mr Watson.

PN30

MR WATSON: Your Honour, can I at the outset indicate that in respect of a number of the parties these proposed directions are, if I can describe them this way, largely agreed and if I can then perhaps take the bench through them and indicate to you the area of disagreement which exists. Your Honours and Commissioner, the proposed directions follow a timetable that is a little different those which was proposed in previous years. The first part of the timetable is not dissimilar.

PN31

It has us filing our written submissions and evidence by 8 February. That is in fact a week later, or actually six days later than last year, and then has the Joint Labor States filing and serving written submissions on 15 February. That is a week later than us. That is the area of disagreement and I will come back to that and address the bench in relation to that. The submissions and evidence of other parties that are to be filed by 1 March on this timetable, the next two steps are somewhat different. There is provision for a written reply and also for written material in response to a reply.

PN32

Can I say frankly that that would not be my preferred course but it is a recognition of the reality of how the paper flow in these cases seems to proceed. Then, if the bench pleases, rather than as in previous years spacing the hearing of the matter out over a period of weeks it is proposed to hear the matter in one period of consecutive hearing dates, although those do spread over two separate weeks. In step number 7 the bench will see provision for the cross-examination of witnesses, if any, to occur on 3 April and otherwise the ACTU would commence its submissions on that day and it is the proposal that in making oral submissions parties would refer to all written material which had been filed to date.

PN33

In paragraphs 9 and 10 there is an endeavour to ensure that the paper war comes to an end and the mechanism by which that occurs is that unless the material which someone seeks to adduce can properly be described as new or in some other respect there are special circumstances they would require leave to file further material - sorry, they would require leave and that leave would not be granted unless the material was new or there were special circumstances.

PN34

Can I indicate the state of agreement in relation to that. As I understand it, and others will obviously speak for themselves, but as I understand it the AIG consent to those directions. As I understand it the ACCI do so with a reservation of concern about the time that they have to respond to the Joint Labor States, but nonetheless as I apprehend it, they agree and as I understand it the Joint Labor States agree with the directions as proposed. The Commonwealth does not agree but only insofar as the question of the Joint Labor States filing a week later than ourselves is concerned.

PN35

Can I then perhaps just briefly address that matter. Last year the Joint Labor States did file a week later than ourselves. They filed on 9 February, we filed on the 2nd, and other parties were required to file their submissions and evidence by the 19th. So other parties only had 10 days under those directions to respond to the Joint Labor States. Under these directions they have 14 days, so in fact under these directions they do in fact have four extra days in which to respond to the Joint Labor States.

PN36

It is true that they do have the three weeks which they have to respond to us but in our submission we should not have thought any great disadvantage would flow from the shorter period in relation to the Joint Labor States. In any event, perhaps that is a matter more for the Commonwealth and the Joint Labor States to agitate. Other than those brief submissions can I simply commend those directions to the Commission, subject of course to the convenience of the Commission in relation to the hearing dates proposed. If the Commission pleases.

PN37

VICE PRESIDENT ROSS: Mr Watson, could I just ask for some clarification about point 7?

PN38

MR WATSON: Yes.

PN39

VICE PRESIDENT ROSS: It is cross-examination of witnesses, if any, to occur on 3 April. Is that all witnesses, not just the ACTUs?

PN40

MR WATSON: It is drafted in that way, yes.

PN41

VICE PRESIDENT ROSS: And that is the intention?

PN42

MR WATSON: That was the intention. I think that is the way in which it has been expressed in previous years. I think the truth of it is very little other witness evidence is adduced.

PN43

VICE PRESIDENT ROSS: No, no, that is - yes.

PN44

MR WATSON: But that is the intention, your Honour.

PN45

VICE PRESIDENT ROSS: Okay.

PN46

JUSTICE GIUDICE: Mr Watson, just before you conclude, I might raise a matter with you that we have given some thought to. You may be aware that in a number of cases the Commission is trying to develop the use of the internet for the purpose of filing and other purposes and last year I think we asked the parties where practicable to provide submissions in electronic form and witness statements and other documents as well. This year what we intend to do as part of the directions, and perhaps it is an addendum rather than a formal direction, is to request that materials be provided in electronic form wherever possible.

PN47

We intend if it is technically feasible and I am sure that it is, to establish a web site to which access can be gained to look at all of the materials which are made available in that way. That has a number of advantages. One I mention is that we do quite often get submissions from perhaps smaller organisations or associations which are simply sent to my office or perhaps filed with the Registrar and access to those can sometimes be problematic. So, for example, such submissions could then be made available on a public web and anybody who wanted to look at all of the submissions could do so and obviously only download what they need. I just mention that for the attention of everybody really.

PN48

MR WATSON: Yes.

PN49

JUSTICE GIUDICE: If there are any suggestions about that they can be taken up today or subsequently with my associate.

PN50

MR WATSON: Yes. Your Honour, I don't think there, for our part, would be any difficulty with that. We did provide as much as we could last year in electronic form, albeit I think there was a hiccup with type faces being different and pagination of submissions being different but I think we have endeavoured to rectify that for this year. So certainly for our part we have no concern with the course which your Honour has indicated.

PN51

JUSTICE GIUDICE: I think one of the reasons why it is important to bear it in mind now is that sometimes there are alternatives as to how material is produced. For example, if particular articles are to be relied on, instead of being supplied in photocopied form it is sometimes possible to get the original source document electronically which makes its dissemination far easier under this sort of system.

PN52

MR WATSON: Yes.

PN53

JUSTICE GIUDICE: But for the moment we will not be dispensing with the formal requirements of filing in the traditional way. This is an additional optional extra which in due course might become popular.

PN54

MR WATSON: Indeed, your Honour. Those are my submissions.

PN55

JUSTICE GIUDICE: Yes, thanks, Mr Watson. Mr Harris.

PN56

MR HARRIS: Thank you, your Honour. Your Honour, I believe I can be brief since Mr Watson has detailed the agreement that has been reached on procedure between the parties. We did meet with the ACTU and other parties on 5 December. Consequently to that meeting we have been informed that the date of 8 February is unacceptable to the Labor States in terms of when they file their submissions and evidence. We are loath to break a procedure that we have agreed to with the other parties and we don't seek to do so but we do wish to flag our concern with this later date for the Labor States for the filing of their submissions and material.

PN57

It is our understanding that the normal practice in these cases is for a three week gap between when the submissions in support of a claim are submitted and when the submissions opposing the claim have to be submitted. This would not give us that three weeks, although it would give us a greater period of time than last year. So we simply flag that as an issue. They are substantial submissions. I believe that last year the Labor States submission was 79 pages and I do think it is in the public interest that all parties are given adequate time to respond to the issues put in those submissions.

PN58

But we don't wish to unduly delay the case and we are recognising that the case is already going into April this year. So I think that is all we would say on that subject, your Honour. If the Commission pleases.

PN59

JUSTICE GIUDICE: Yes, thanks, Mr Harris.

PN60

MR MOIR: Your Honour and Commissioners, I confirm our agreement with the terms of ACTU1. There obviously has been some accommodation reached between the parties given that many of the major parties are involved in the cognate matter concerning hours of work and overtime which is currently before another full bench. Your Honours and Commissioner will note that the time line is somewhat later than it has been in previous years and that may of course result in the final decision and any resultant variations taking place later than in previous years.

PN61

Can I just indicate our view for the record that this would not alter any of the normal conditions which are attached to safety net wage adjustments including of course the 12 month rule and prospective dates of operation. With that, we endorse terms of ACTU1.

[11.08am]

PN62

JUSTICE GIUDICE: Yes. Are there any parties who have substantial objection to the proposed directions other than I will leave out of that consideration the issue about the Joint Labor States filing date? Ms Zeitz.

PN63

MS ZEITZ: Your Honour, I wouldn't say substantial objection. I would simply note that the industries I represent, the Hotels Association and Motel and Accommodation Association, are currently facing economic circumstances that they haven't previously faced because of unforeseen circumstances of September of this year. We will endeavour to comply with that timetabling and at that level we have no objection, but much of the material that will be gathered about what is occurring in the industry may in fact be being gathered as those deadlines are either approaching or passing.

PN64

To that extent I would simply suggest, and I haven't had a chance to talk about this with my friend, but that my clients be given liberty to apply perhaps to a nominated member of the full bench if there is a difficulty in meeting those timetables with a view to a variation of those. That is the only reservation I raise in relation to that. If the Commission pleases.

PN65

JUSTICE GIUDICE: Yes, thank you. Well, perhaps it would be appropriate to call on you, Mr Corney. I am sorry, Mr Cole, is there anything else you want to say about the directions?

PN66

MR COLE: Well, we do wish to make submissions about the appropriateness or otherwise of the Labor States filing only on 15 February but it may be more appropriate, your Honour, if the bench heard first from the Labor States as to what they wish to support of adoption of that date and I can reply to that.

PN67

JUSTICE GIUDICE: Yes, thank you. Mr Corney.

PN68

MR CORNEY: Thank you, your Honour. Your Honour, the issues relating to the one week application are reasonably limited. We would put it on these bases. First of all of course the substance of the matters before the Commission and that the Commonwealth and later employer groups will be considering is of course the ACTU applications and matters relating to that and the proposed timetable that is being led by the ACTU this morning of course have no effect on the lodgment of the papers and the documents by the ACTU and accordingly is consistent and provides suitable period for those parties to examine those matters.

PN69

In respect of the one week application for an extension I look to the submissions that were led by the Joint Labor States last year and the Joint Labour States were not of the same extent as they are this year. In that regard the submissions that were led by the Joint Labor States did not of themselves introduce any significant new material and so to that extent the potential for disadvantage in respect of the additional week is limited going on that experience. Secondly, that the employers of course, as I indicated, still have the three weeks to prepare submissions in respect of the ACTU submissions.

PN70

In respect of the sheer practicalities of Cabinet Government, this year the Joint Labor States represents some six Governments. The practicalities of Cabinet endorsement processes that may well be known to the Commission are such that to ensure that there is sign off by that range of States the extra week's application would enable that to be done, requiring lodgment on the 8th as initially proposed would cause some practical difficulty.

PN71

So the application would be that we stand by the proposed direction that we have a one week extension to the 15th and that that would ensure the adequate production of documents to the Commission without, in our view, any particular prejudice being drawn to the other parties.

PN72

JUSTICE GIUDICE: Yes. What is the difficulty with complying with the same date as the ACTU?

PN73

MR CORNEY: Well, I think it is simply the practicalities of sign off in that these matters are simply not required to be signed obviously at a departmental level but invariably Cabinet endorsement is required in most if not all of the States. With the January period many of the Cabinets are not sitting and then with the normal lags involved in getting matters before Cabinet I think it is fair to say that there would be significant practical difficulties in lodging on that date in having sign off by the Cabinets of all those State Governments.

PN74

MR COLE: If the Commission pleases, the Commonwealth considers that it is most regrettable that the States are saying that they are not able to fit in with a program that otherwise appeared to be fully acceptable to other major parties. We note that last year, essentially for the same reason as has just been given as I recollect, the States were nevertheless directed to file and serve and did do so, I believe, on 9 February. So the first point we make is it appears distinctly unconvincing that a Cabinet approval process, if that is what is involved, that was able to be completed by 9 February last year cannot be completed by approximately the same date this year.

PN75

The States and other parties have had knowledge for several weeks of the ACTU claim and we would have hoped that they would have been better able to get their act together earlier. The second point we make is that whilst reference is made to the Joint Labor States not having introduced, I think Mr Corney's words, any significant new material that is additional to the ACTU last year, I don't understand him to be putting it that that will necessarily also be the case this year.

PN76

We simply do not know what the nature of any supporting material will be. The Commission will be aware that it has happened in the past that Labor States have adduced consultants reports modelling material and so on and the Commonwealth considers it prudent that parties who are not supporting the ACTU application should have ample time to be able to examine and deal with in their submissions any such material.

PN77

Now, as a consequence we find ourselves having to, with respect, put to the Commission that the Commission should consider some adjustment to the dates that are in the program ACTU1 and with some reluctance but for the reasons I have given, it does seem to us that the dates after 15 February in equity should be extended by at least a week and in respect of 28 March, which is the Thursday before the Easter period, that would necessarily involve something beyond simply seven calendar days as four days of that possible extension could be the Easter period itself.

PN78

If that proposal in view of what other parties may say does not ultimately commend itself to the bench but we nevertheless strongly urge that on the Commission, then we say that it should not be parties responding to the ACTU and potentially the Labor States who are putting the squeeze as a consequence of the Labor States application in equity as a minimum the due to respond to the Labor States material bar the parties, and I am referring to the first round of written submissions only, should itself be extended by seven days.

PN79

Now, the consequence of that, if the Commission pleases, is that the Labor States would have a shorter period of time under the underpinning procedure to this timetable to put in their rejoinder so to speak. That seems only fair and equitable because that would be solely as a consequence of their own inability to initially file submissions by 8 February. So that seems to have some greater equity to it and a possible - - - 

PN80

JUSTICE GIUDICE: Mr Cole, that proposal is that the direction 3 in the proposed directions would permit the submissions and evidence of the parties, insofar as they related to the submissions of the Labor States, to be filed and served on 8 March.

PN81

MR COLE: Yes, that - - - 

PN82

JUSTICE GIUDICE: Yes. So in other words, to split the cases as between the ACTU and the Labor States.

PN83

MR COLE: Yes, under that proposal, your Honour. This is the final comment I wish to make, another option and an option that overcomes the possible inefficiencies in a split response is that consideration could be given to the Commonwealth and other parties responding to the ACTU and the Labor States doing so in a single response so to speak, possibly by a few days after that, some time in the week commencing the 4th, perhaps Tuesday, 5 March.

PN84

There would, as we see it, be some advantage in being able to deal with, in the parties who are not supporting the ACTU, having the benefit of being able to put in a single integrated response. But if that for some reason did not commend itself to the bench by a date such as 5 March, well then, we would urge the other option of the one week delay simply to respond to the Labor States. That is in the context that of course our preferred position is that the overall timetable itself be adjusted throughout by a minimum of a week, allowing for that issue that I have raised about the intervention of the Easter period.

PN85

JUSTICE GIUDICE: Mr Cole, how long under the directions that were issued earlier this year was available to the other parties to consider the Joint Labor State submissions?

PN86

MR COLE: I believe it was a period of 10 days, your Honour.

PN87

JUSTICE GIUDICE: Yes.

PN88

MR COLE: That I think may ultimately - this is testing my recollection, but I think that may have been some sort of compromise between what the parties such as the Commonwealth were contending should be the consequence and what the Labor States - or putting it - there was some sort of compromise I believe between the positions of the respective parties involved in a period as short as 10 days being adopted.

PN89

JUSTICE GIUDICE: Yes, yes.

PN90

MR COLE: We were not particularly happy, I must say, with that outcome and we think that the types of alternatives I have mentioned in my submissions would be more equitable, are all in the context, without going over it, that it does seem somewhat remarkable that a date that was achievable by Labor States last year is not achievable or said not to be achievable this year. Your Honour, while I am on my feed could I briefly respond to remarks your Honour made about parties making material available electronically?

PN91

JUSTICE GIUDICE: Yes, thank you.

PN92

MR COLE: We would simply like to commend the Commission for putting that suggestion forward. The Commonwealth is totally supportive of that suggestion. We will do anything we can to facilitate the process. We believe that there will be considerable benefits from what your Honour has outlined for all parties in the proceedings in terms of accessing and researching material, so it will be desirable if possible that the data base is established in a way that maximises the capacity, for example, for word searching on the materials.

PN93

I think, your Honour, that may just be one small issue that is nevertheless worthy of mention and that is that the convention in the proceedings as to when parties written submissions has been made public has been that that is either at the initiative of the particular party or when the material is marked as exhibit material in the proceedings.

PN94

JUSTICE GIUDICE: Some parties prefer to announce their submissions in the media before announcing them to us.

PN95

MR COLE: Parties at time do communicate more broadly what their overall position is. It is fairly typically how these cases start of course. The ACTU is normally communicating its proposals ahead of making its applications. So what we would simply say, your Honour, in that regard is that it may be that for an initial period a data base might appropriately be password protected so that all the parties in the proceedings who are in receipt of the material that has been filed and served have access to the data base and then as material becomes more publicly available, either at the initiative of the party by releasing their own material publicly or at the latest when it is marked in the Commission, then the material could become more publicly accessible, that is, to the broader public through the data base.

PN96

We think that with that small qualification, which would simply in deference to a fairly well established convention in the Commission, that the process that your Honour has suggested is to be totally applauded. It may be in future that something more can be done by actual formal lodgment, but that is a matter for the future. If the Commission pleases.

PN97

JUSTICE GIUDICE: That is a matter on which there will be some news shortly, if I can put it that way. But it is a matter that is under active consideration.

PN98

MR COLE: Thank you, your Honour. We will keep an eye on the newspaper.

PN99

JUSTICE GIUDICE: As you speak, Mr Cole, it occurs to me there might be some benefit in at least the major parties meeting with some of the registry offices, perhaps my associate, to discuss exactly how such a web site might operate and that the issue you have raised of the publication as it were of documents could be part of such a discussion.

PN100

MR COLE: Yes, very well, your Honour. We are certainly prepared to participate in and assist that process.

PN101

JUSTICE GIUDICE: All right. Well, I think we will in due course do something about that and anybody here today who would be interested in such a meeting might let my associate know. Yes. Are there any other submissions about the issue that Mr Corney is concerned with? Mr Harris. Well, we will consider that and we will publish our directions in due course. They will not, I can indicate, depart substantially from the program which has been proposed but we will need to consider the question of the filing date for the Joint Labor States and any consequent amendments. Is there anything else, Mr Watson, in relation to your main applications, if I can put it that way?

PN102

MR WATSON: No, your Honour.

PN103

JUSTICE GIUDICE: Yes, thank you. Well, we might turn now to the question of the applications to vary the minimum wage orders in Victoria which have been listed today primarily for the purpose of permitting submissions to be made about how they should be dealt with, in particular whether they should be dealt with in conjunction with the ACTU applications. Can we hear your submissions on that issue?

PN104

MR NIVEN: Thank you, Mr President. I am not sure before today how we were quite going to deal with this matter today and I have prepared a brief argument in relation to the issues in relation the matters of joinder. I am in your hands as to whether I put the submission to you today or whether we fall in line with those proposed dates that we have just heard about and we file written submissions in relation to that given the other parties to respond.

PN105

JUSTICE GIUDICE: The question, Mr Niven, is whether or not the proceedings should be dealt with together or joined, so that is the issue that we want to decide today. If we decide that the matters should all be dealt with together then you will be required to confirm to a timetable for the filing of submissions and so will the other parties will have to address that in due course. But if we decide that they should not be dealt with together then your applications will be dealt with at some other time. So whatever you have to put to us about the matters being dealt with together you should put now.

PN106

MR NIVEN: Okay, all right.

PN107

JUSTICE GIUDICE: Just before you do, Mr Niven. Is there any opposition to the matters being dealt with together?

PN108

MR CALVER: Yes, your Honour.

PN109

JUSTICE GIUDICE: Mr Calver.

PN110

MR CALVER: Yes, your Honour, we have got an alternative proposal to put as well.

PN111

JUSTICE GIUDICE: Yes, all right.

PN112

MR GREGORY: And we have also.

PN113

JUSTICE GIUDICE: Well, that was the category of a good try. All right, Mr Niven.

PN114

MR NIVEN: Yes, consent would have been much easier. Thank you, President. Applications to vary the Victorian industry sectors minimum wage orders were lodged originally with the Australian Industrial Relations Commission on 29 November 2001 in accordance with section 501 of the Workplace Relations Act 1996. On the same day I wrote to the President of the Commission seeking that the section 501 applications be considered as part of the living wage case 2001. I have copies of that letter for anyone who doesn't have one.

PN115

On Wednesday, 12 December 2001 a hearing was held before Vice President Ross where on behalf of applicant unions I made formal application for the section 501 matters to be referred to a full bench under section 502(1) as the subject matter was considered important in the public interest. The section 501 applications seek to adjust the minimum wage orders by $25. The same monetary claim is made by the ACTU on behalf of federally registered unions.

PN116

President, the genesis for our approach to this round of wage adjustments emanates from the decision of 12 June 2001 regarding the 2001 section 501 applications, print number PR907793. I have copies of that decision to hand up.

PN117

JUSTICE GIUDICE: Thank you.

[11.35am]

PN118

President, that decision at paragraph 44 states:

PN119

In the event that the applicants wish to pursue the VTHCs proposal it would be open to them to make ...(reads)... the needs of workers and their families.

PN120

We submit that the most appropriate method to do that is via one close examination of all the factors at a national level. We further submit that it is not in the interest of workers, their families and the national economy to have competing systems of safety net wage determinations which could result in different outcomes across the country which in our view is not in the public interest.

PN121

President, the Victorian Trades Hall Council submits that these matters are significant for Victoria. The report of the Industrial Relations Taskforce, and I have some copies of part 2 of that with the statistical research on the Victorian labour market. The report of the Industrial Relations Taskforce details that - - - 

PN122

JUSTICE GIUDICE: Yes, we will mark this.

EXHIBIT #VTHC1 REPORT OF THE INDUSTRIAL RELATIONS TASKFORCE

PN123

MR NIVEN: I didn't quite know how many other applicants would be here today to receive a copy of that so I have made sure I have enough copies for the bench and I am more than happy to take a list of names and we can distribute those after this hearing. The report of the Industrial Relations Taskforce, Mr President, details that 67 per cent of Victorian employees have federal award coverage and the remaining 33 per cent come under schedule 1A.

PN124

With respect to the needs of Victorian workers and their families we have a clear picture of the number of workers whose wages are determined by the various Victorian industry sector orders. The report of the Industrial Relations Taskforce 2000 detail that 561,000 Victorian employees or 33 per cent of the State's labour force are industrially regulated under schedule 1A of the Act. 356,000 Victorians, or 23 per cent of the State's employee labour force, rely almost entirely on the five minimums of schedule 1A for their employment conditions.

PN125

The taskforce also found that 42 per cent of all schedule 1A employees or 235,000 persons are in receipt of minimum rates of pay that are contained in the various Victorian industry sector wage orders. Further research for the taskforce showed that schedule 1A employees have limited access to benefits that are standard amongst federal award employees. With respect to earnings the taskforce reported that schedule 1A employees are over represented among low wage earners without about 36,000 employees in receipt of minimum rates of pay.

PN126

Although schedule 1A employees compromise of 44 per cent of all minimum rates employee they also make up 52 per cent of all employees in this low wage situation. Only around 11 per cent of federal award employees are in the same low wage situation. Mr President, the joining of these matters is therefore of great importance to Victorian low paid employees. The safety net decisions are simply flowed on to the Victorian industry sector minimum wage orders but a critical part of the decision is the quantum.

PN127

Given the number of low paid workers in Victoria it is in their interest to contribute to the argument that ultimately determines their wage adjustment. Arguments concerning not just the quantum but also the form of any adjustment, for example, percentage versus flat dollar amounts, are crucial to the outcomes for Victorian low paid workers. Mr President, it has been established that there are legislative differences between minimum rates adjustments in the award system under part VI of the Act and minimum rates adjustments for the various Victorian industry sectors under section 501.

PN128

In the December 1997 Victorian decision, print number P7364, I have some copies of those. At the page marked 9 of 11 the Commission stated the following, "As has been pointed out earlier in this decision - - - 

PN129

JUSTICE GIUDICE: Just wait for a moment, please, Mr Niven.

PN130

MR NIVEN: Sorry.

PN131

JUSTICE GIUDICE: Yes, I am sorry. Which page was it?

PN132

MR NIVEN: 9 of 11.

PN133

JUSTICE GIUDICE: Thank you.

PN134

MR NIVEN: It is in the last paragraph at the bottom of the page -

PN135

As has been pointed out earlier in this decision, especially by the Victorian and Commonwealth Governments ...(reads)... the needs of workers and their families.

PN136

President, the Victorian Trades Hall Council submits that the needs of the low paid are of such importance to both the safety net review and the Victorian minimum wage order that joining the matters would be of great benefit to Victorian low paid workers. While minimum rates adjustments in the award system under part VI and for the various Victorian industry sectors under section 501 are different, the Commission has established the decisions regarding the adjustment of award minimum rates are relevant to section 501 proceedings.

PN137

In the 1997 decision at page 9 of 11 the Commission stated:

PN138

We do not think it necessary at this time to adopt any statement of principles in relation to the treatment of ...(reads)... to adjust the minimum wage in any sector.

PN139

President, the applicants are aware that should this application be successful and the matters are joined then the principles will be more than relevant, they will form part of the same decision. President, the operation of section 501 hearings is for the unions to apply for the safety net quantum and then seek to rely on economic data that demonstrates that the Victorian economy is not inferior to the national economy.

PN140

Arguments are advanced regularly about operative dates but the quantum of the unions claims in the section 501 hearings is not debated. The Australian Industrial Relations Commission has not failed to pass on a safety net adjustment to the Victorian industry sectors and the former Employee Relations Commission of Victoria did not fail to pass on in relation to industry sectors previous safety net adjustments.

PN141

President, there has been good reason for the adoption of this practice as the safety net review decisions normally contain a detailed review of the performance of the Australian economy, making specific reference on a national basis to economic factors such as those expressed in section 501(4). The nature of the applications, the evidence produced and the consideration of the economic factors is effectively done for us at the safety net review hearings.

PN142

The Victorian industry sectors could just as easily form part of the safety net review and once the decision is announced draft orders for Victorian industry sectors could be dealt with in the same manner as draft orders to vary the awards. The critical factor in these proceedings is the quantum. While consent exists for the outcomes of SNRs the Victorian section 501 hearings could be expected to continue to flow on those SNR quantitative outcomes, but it remains open to the applicants to submit a claim for adjustment and it would not be unreasonable to expect that at some future point consent may not exist or the applicants may seek a higher quantitative outcome than the SNR decision.

PN143

The time difference between SNR claims and section 501 applications is currently about six months. Such as gap of this length of time would mean that any detailed examination of the state of the economy would be based on a different set of economic data and that data may give reason for a different outcome. Should this occur then the nature of the Victorian industry sectors section 501 hearings would alter significantly. President, the Victorian Trades Hall Council submits that it makes logical economic sense for these matters to be joined and that any safety net or minimum wage adjustment be based on the same economic data.

PN144

In its 1998 decision regarding these matters, at print Q5101, which I will hand up - in the 1998 decision the Commission was concerned about the lag between the operation of the federal and State decisions. At page 5 of 9 of that decision the Commission stated:

PN145

In our view acceptance of a 12 month delay between safety net increases applied to the Victorian minimum ...(reads)... a fair minimum wage level.

PN146

Further the Commission states on page 7:

PN147

Our aim is to bring the adjustment of Victorian minimum wage orders into line with the general operation of safety net applications as applied in the Federal Commission.

PN148

President, we submit that the Commission has in previously considering operative dates and the general lag issue that recognition has been given to the desirability of narrowing the gap between federal and Victorian decisions. President, in summary, nothing in the Workplace Relations 1996 prevents the joinder of these matters. The aim of safety net reviews and section 501 applications is to evaluate the economy and adjust wages for the low paid.

PN149

The criteria for evaluation of the economy are similar. Both sets of criteria identify the needs of the low paid. Victoria is over represented among low wage earners. The principles established at the safety net review are relevant to section 501 applications. The Industrial Relations Commission and the Employee Relations Commission of Victoria have always flowed on the safety net quantum decisions. Victorian industry sector minimum wage orders could be handled in the same manner as federal draft orders presently are.

PN150

President, having the matters joined and receiving an earlier decision does not automatically affect the operative date of the Victorian industry sectors minimum wage orders. That issue will still need to be argued before this full bench. Receiving the decision early gives the parties in Victoria some lead time should an earlier operative date be awarded. If the Commission pleases.

PN151

JUSTICE GIUDICE: Thanks, Mr Niven. Are there any supporters of the application? Mr Corney.

PN152

MR CORNEY: Just extremely briefly, your Honour. We support the application made by the Victorian Trades Hall Council and we support the reasons led in the submission by the Trades Hall Council. If the matter were to be joined with the other substantial matter we would propose to put substantial submissions to the Commission, but at this stage we support for those reasons.

PN153

JUSTICE GIUDICE: Yes, thank you. Mr Watson.

PN154

MR WATSON: If the full bench pleases. We also support the application of the Victorian Trades Hall in this respect, can I indicate Mr Niven used the expression joinder; we understand him to mean either joinder or concurrent hearings and we don't think that the matter should be, if you like, hung up on the distinction between those two concepts. Can I further submit just briefly that we think given the commonality of claim and the obvious overlap of issues it is desirable in the expeditious disposition of both sets of matters that there be a joint hearing.

PN155

Industrial tribunals throughout the country have long recognised the desirability of a commonality of outcome in relation to these sorts of wage claims but a joint hearing doesn't necessarily involve any pre-judgment of that issue in any event but it does allow for the consideration of both matters on a common platform of evidence.

PN156

So far as section 501(4) requires the consideration of matters which are specific to Victoria, in our submission that doesn't create any significant impediment to joint or concurrent hearings. It is common for there to be industry specific consideration in these proceedings. It is also common for there to be separate consideration of factors related to State economies, particularly in the material which is submitted by State Governments. Often that material draws attention to the specific performance of the State economy.

PN157

So in those circumstances we don't see it likely that the Commission will be burdened with an excessively additional amount of material to that which is already before the Commission and so in all of the circumstances it would be our submission that joinder or concurrent hearings is an appropriate course. If the Commission pleases.

PN158

JUSTICE GIUDICE: Yes, thank you, Mr Watson.

PN159

MS ILIAS: The Victorian branch of the ALHMWU supports the submissions made by the Victorian Trades Hall Council, if it pleases the Commission.

PN160

JUSTICE GIUDICE: Yes, thank you, Ms Ilias. Yes, Mr Gregory.

PN161

MR GREGORY: If the Commission pleases. I indicate at the outset that VECCI is opposed to the application by Trades Hall, either for the matters to be joined or to be heard concurrently. However, as I have indicated, we do have an alternate position to put that we submit is a sensible and straight forward response to what Trades Hall are now proposing. It is a position that was canvassed earlier this month with other employer groups and was agreed upon. It was also a position that was put to Trades Hall and to the Victorian Government but unfortunately not agreed.

PN162

Nevertheless, we still believe that it is an appropriate way to deal with the current matter. We understand that Trades Hall's concern is all about seeking to avoid the delay that might occur between the handing down of the safety net review decision and any subsequent determination of the section 501 applications. Can I just indicate at the outset that in terms of that Trades Hall this around have got their applications in in sufficient time to avoid that occurring. I think we would argue that perhaps they have got them in ahead of time, but in the past some of the delays that have occurred have been due to the fact that applications have simply not been lodged immediately following the safety net adjustment outcome, so there has been an in-built delay as a result of that.

PN163

But look, we think that there are other considerations which lead to a conclusion that despite issues about operative date it is not necessary to have the matters joined or to have them heard concurrently. We say it is not appropriate or necessary. In terms of not being appropriate, we are talking about applications that deal with different aspects of the Commission's powers under the Act and I don't wish to labour that point. A number of members of the bench have been directly involved in applications pursuant to section 501 over recent years.

PN164

If I could go briefly to the decision that Mr Niven handed up at the outset, the decision handed down on 16 August earlier this year contained in print P0907793. I didn't get a copy from Mr Niven of the version handed up to the bench but in my copy I am referring in particular to paragraph 8 in that decision contained on page 8 and the Commission simply referred to principles, if I might call them that, that have been determined in previous applications pursuant to section 501 and indicated in that decision that they adopt these observations and have applied them to the matters before us and I am referring particularly to statements contained in that decision:

PN165

In performing its functions under section 501 the Commission is exercising the powers conferred by that section and ....(reads)... or Australian Workplace Agreement.

PN166

It then goes on to talk about the particular considerations that the Commission must have regard to in section 501(4) and it also says in that decision confirming principles determined in earlier decisions that safety net review decisions are a relevant consideration for the Commission in determining section 501 applications. The decision goes on further to talk about the reasons why that is the case.

[11.56am]

PN167

So we make the point at the outset without labouring the point that we are talking about different aspects of the powers conferred upon the Commission, on the one hand powers contained in part XV of the Act, on the other hand, in terms of safety net adjustment applications powers contained in section 6 of the Workplace Relations Act. So we say they are different applications dealing with different aspects of the Commission's powers. It is not appropriate in that context to embroil, to link the two matters together in a single set of proceedings.

PN168

We also say that it is not necessary in terms of dealing with what we understand are the concerns that Trades Hall has, those concerns about any time lags that might exist between the safety net review outcome and any increases being passed on to the Victorian industry sector rates and we propose that the following course of action be adopted instead and we say that it is an appropriate one and one that can be followed without prejudicing the concerns the Trades Hall might have.

PN169

We simply say that the matter should be listed as soon as practicable after the safety net review adjustment decision has been handed down. As I have indicated, the safety net review decision itself, as the Commission has indicated, is a relevant consideration to the determination of matters pursuant to section 501 so it is a logical sequence to have those matters determined after that point. We suggest that they be listed on the following basis, that all parties would be on notice that they would be required to put full submissions at that point.

PN170

We also submit that Trades Hall and any other parties at that point could put the Commission on notice if it was believed that there were matters that might perhaps be necessary to be dealt with by a full bench and the Commission in my respectful submission could be constituted appropriately if that was necessary. So our simple objective is to set up a process that enables the applications to be dealt with a timely fashion once the outcome of the safety net adjustment review decision is known.

PN171

I just would also mention though that that process that we propose would not preclude any party from putting any particular submissions that it chose at that time. Obviously the operative date may well be a significant issue. We have, both in terms of safety net review outcomes and indeed outcomes pursuant to section 501, been operating in recent times on the basis of a 12 month gap between dates of adjustment and there may well be particular submissions to be put perhaps by ourselves and indeed others in terms of the operative date.

PN172

So I am simply saying that in proposing that procedure we would not be suggesting that the parties would be limited in terms of the submissions that they might wish to make. A final point in conclusion, there has been a comment made this morning about the fact that common outcomes in terms of decisions at the federal award in terms of safety net review adjustment and outcomes at a State level that there is some commonality, that there are common outcomes in terms of the nature of those sorts of decisions.

PN173

I must say that that is not my experience. My experience would suggest that it is more common for decisions at the federal level to be handed down and for decisions at State tribunals to then follow some period of time after that and indeed we only need go to the circumstances that prevailed this year. The safety net review decision was handed down on 2 May. It of course itself doesn't provide a common outcome. Whilst there is a common quantum that is delivered that amount flows to individual awards when those awards are varied upon application.

PN174

But we also this year in New South Wales the State wage case decision was handed down on 31 May. I understand also the increases to awards flowed upon application, so again there wasn't either a common outcome with the federal decision in terms of operative date and neither were there common outcomes in terms of the dates upon which increases flowed to State awards in New South Wales. In Queensland the increases flowed from 1 September. In Western Australia and Tasmania from 1 August and in South Australia from 18 June.

PN175

Victoria fell somewhere in the middle. The industry sector outcome was application from 18 August. So I would suggest that common outcomes are not necessarily a feature of the system, the framework of regulation that we have in this country in terms of operative date. It is in fact more common for federal and State decisions to follow in a logical sequence with different operative dates being applicable.

PN176

If the Commission pleases, we submit that our proposal is a sensible, and as I have said, straight forward one that will avoid unnecessary delays and will, as I have indicated, put the matters in what we believe to be an appropriate sequence given the principles that the Commission has determined in recent decisions. If the Commission pleases.

PN177

JUSTICE GIUDICE: Mr Calver.

PN178

MR CALVER: If the Commission pleases. The National Farmers Federation and the Victorian Farmers Federation seek for the application be dismissed. In the alternative we seek for the VECCI proposal to be adopted. Why do we seek for the application to be dismissed? The application is fundamentally flawed. Why is it fundamentally flawed? Because collocates the date from which the Trades Hall seek to apply the safety net review with the matter of joinder.

PN179

Now, I note from the letter which was handed to the bench by Trades Hall dated 29 November 2001 was not marked and I will to refer to it in any event because I do believe despite that it is before the Commission.

PN180

JUSTICE GIUDICE: You are referring to the letter which was sent to me?

PN181

MR CALVER: The letter, yes. I don't believe that my friend sought to have it marked.

PN182

JUSTICE GIUDICE: Do you want it marked?

PN183

MR CALVER: Well, as I am referring to it, President, yes, if it please the Commission.

PN184

JUSTICE GIUDICE: That is the letter addressed to me of 29 November?

PN185

MR CALVER: Yes, sir.

EXHIBIT #NFF1 LETTER ADDRESSED TO JUSTICE GIUDICE, DATED 29/11/01

PN186

MR CALVER: Thank you, your Honour. I refer to paragraph 5 of NFF1. The ground of the application and a necessary consequence of the application in the mind of the applicant, uncontradicted by any submissions that were made, is to reduce or eliminate the lag currently experienced by Victorian low paid workers compared to federal award employees. Now, that is not the purpose of joinder or of concurrent hearings.

PN187

The purpose of joinder or concurrent hearings is to reduce some disadvantage or to enable proceedings to operate more smoothly than they otherwise might. In support of that proposition and the collocation of the two concepts in the mind of the applicant I refer to the submissions of my friend from Victorian Trades Hall where he referred to paragraph 44 of PR907793 and as Shakespeare said, all that is past is prologue, this is the past in relation to this application.

PN188

The matter was put to this full bench as progressing the application that was then before that full bench. That is, a time frame for the progressive alignment of the operative dates of section 501 adjustments with the date on which safety net reviews are usually handed down. That is the purpose of this application, ergo it is fundamentally flawed because the two are not consonant.

PN189

In relation to that same issue there are three grounds of substance that we wish to address. The first round of substance has been put by friend, Mr Gregory from VECCI, and that is the two sections that govern the powers of a relevant full bench in this matter or the various provisions of the Act are different, sections 88B(2) and 88B(3) and the section 501(4) contain markedly different criteria and I will not, because Mr Gregory has traversed that ground, I won't go to it.

PN190

A second but more important point and one that relates to the issue of the confusion in the mind of the applicant about what it is seeking to do is that there has been no evidence put to this full bench by Trades Hall that is disadvantaged by the present system. There is not one shred of evidence before this Commission as to disadvantage. The only element of disadvantage which has been addressed has been considered by the full bench this year in the print to which I referred earlier, print PR907793. That is, the disadvantage recognised by the full bench from the findings of the taskforce where it was persuaded that a special case existed enabling the full bench in that matter to depart from principle 8B of the statement of principles.

PN191

To the extent that this application is founded on the same basis, that is, they are seeking this full bench to eliminate the operation of principle 8B, it is fundamentally flawed and there has not been one shred of evidence about disadvantage put to this full bench to take the matter further, to take it beyond paragraph 44 of the prior full bench decision. Even though the full bench, and this is our third ground, in paragraph 44 of that decision said that it was open for the VTHC to make application at the same time as any future safety net adjustment, they are indeed going far beyond that.

PN192

We submit that a joinder may affect the ability of employers to be treated fairly and would be a breach of 8B which has not in any substantive sense been addressed by Trades Hall. PR907793 addressed the issue of the disadvantage that would flow to employers and in that sense Trades Hall have not sought to traverse that ground again. Accordingly the National Farmers Federation and Victorian Farmers Federation say the application is fundamentally flawed, should be rejected, and secondly, if our primary submission is rejected we support the submissions of VECCI. If it please the Commission.

PN193

JUSTICE GIUDICE: Mr Moir.

PN194

MR MOIR: Your Honour, I will be very brief. Apart from the arguments which have already been raised there is only one other argument which I would seek to put in opposition to the application for joining the various matters. It is essentially a due process argument and it is this, that if the Victorian matters were to be joined with the safety net review applications then as a matter of law the Commission would be required to consider Victorian practice and conditions and that may in turn have an impact upon whatever outcome is determined.

PN195

We would simply say that the introduction of factors relating particularly to Victoria may distort the analysis and the decision making which is to be undertaken in the national safety net review proceedings. Essentially if the matters were joined the Commission would be required to give particular focus on one part of the country perhaps over the rest and that is the risk which is run by the unions proposal. The converse risk is of course that the elements of Victorian practice and conditions which are required to be considered, they are simply deluged or outweighed by all of the national factors and so the requirement under section 501 is then not met.

PN196

I suppose this comes back to the distinction which my friend, Mr Gregory, referred to earlier, the distinction between the Commission's award making powers and those under section 501. The powers under section 501 clearly have what you might call a provincial focus. They require Victorian factors to be taken into account. My friend, Mr Niven, has already referred to the situation of Victorian employers and employees. I think he has tendered the report of the Victorian Industrial Relations Taskforce which makes certain findings about those employers and employees which fall under schedule 1A of the Act and, for example, it is clearly a preponderance of small business employers that fall within that jurisdiction if you like.

PN197

Those types of unique factors may have some bearing upon any outcome which is reached and we would simply submit that it is therefore not only convenient but fair and reasonable for the national proceedings to be conducted separately from any proceedings going to conditions for schedule 1A employees. I just finally note of course that that is the practice essentially adopted in respect of all other State jurisdictions.

PN198

The practice as I understand it in those other jurisdictions is that as soon as the national decision is handed down the various State parties are then required to show cause as to why the national decision should not be adopted in that jurisdiction and that is the procedure which we believe should be adopted in respect of the various 501 applications. As soon as the national decision is handed down then it is within the unions hands to re-ignite their applications and to prosecute them.

PN199

I note that under section 501 and the related provisions the Commission, as I understand it, does not have the power to initiate the process of its own motion which is perhaps unfortunate, but nevertheless the unions no doubt will take it into their hands to initiate it and prosecute it as soon as possible. So I guess - - - 

PN200

VICE PRESIDENT ROSS: Haven't they already done that, Mr Moir? They have already filed an application. It is just a question of calling it on.

PN201

MR MOIR: Yes, that is right.

PN202

VICE PRESIDENT ROSS: That is as I understood what Mr Gregory's proposition was.

PN203

MR MOIR: That is right.

PN204

VICE PRESIDENT ROSS: That shortly after a safety net review decision came down the 501 applications could be listed for hearing.

PN205

MR MOIR: Yes, could be renewed at that point and so we would endorse the proposal which has been put forward. If the Commission pleases.

PN206

JUSTICE GIUDICE: Mr Cole.

PN207

MR COLE: If the Commission pleases. In the Commonwealth's view the application made by the Trades Hall Council for joinder or a concurrent hearing is devoid of merit. It probably deserves the fate that the NFF, my friend, Mr Calver, has contended for. However, what has been put by my friend, Mr Gregory, is also not without certain attraction from a common sense point of view and I will make some further brief remarks about that in a moment.

PN208

We say that it is important that the Trades Hall Council has made it clear that it is not seeking a different or better outcome in respect of the adjustment of the minimum wage orders as to quantum. However, in that context where they are not seeking a better or different outcome that actually does in the Commonwealth's view make it abundantly clear that the appropriate course is to deal with the safety net review first and then consider the application for the adjustment of the minimum wage orders.

PN209

Now, we say that any other course would be inappropriate, unnecessary and unwieldy and briefly as to why it would be inappropriate there are three points. The first is that it would involve the Commission dealing simultaneously with two sets of applications but where the relevant powers being exercised are not the same and the criteria which the Commission is enjoined to take into account are different. We believe that that is not an appropriate course to adopt and nor has that type of proposition found favour with the Commission, for example, with your Honour the President in dealing with matters C number 75985 of 1998 and C number 75986 of 1998.

PN210

That involved a proposal by the Trades Hall for the concurrent of applications to vary two Victorian minimum wage orders, the orders effecting the metal industry and the liquor and accommodation industry and the matter was heard on 17 December 1998. Your Honour's decision is at page 44 and your Honour's decision clearly supports the proposition that we are putting and others have made, that it is not appropriate that different powers be exercised concurrently in the manner proposed.

PN211

That is the first reason that it is inappropriate. The second reason is that the procedure suggested would pay no regard at all to the history of the updating of the minimum wage orders and what is now, we would say in the light of the history well established both at the level of principle and practice, that the safety net review decision is a relevant consideration, it is relevant but not determinative, and that is obviously because the relevant provisions of the legislation are not identical.

PN212

So the adjustment of the minimum wage orders should be in that respect, in light of history and that well established principle and practice to which I refer, dealt with in a manner where parties can address the Commission however constituted on the relevance and the implications of the safety net review decision for the adjustment of the minimum wage orders. To depart from that is in fact to break with the well established process that has evolved over a number of years.

PN213

The third reason it is in appropriate is that it would sit particularly uncomfortably in our submission with emphasis in the Act on cooperative workplace relations, refer to the principle object and clearly in previous years parties have been able to reach a significant measure of agreement as to the appropriate quantum, in particular of adjustment of the minimum wage orders, when the issue has been able to be considered in the light of the outcome of the safety net review decision.

PN214

If the bench were to proceed with concurrent or joint hearing the bench effectively would preclude that opportunity for parties to seek to reach agreement and we say that is not consistent with the principle object of the Act. Now, as to why it is unnecessary, two matters have been raised. There is the question of the lag and the other matter raised my friend from the Trades Hall Council really went to the ability of the Trades Hall, the Victorian unions to put argument in the safety net review in support of the best possible outcome as to the quantum of the adjustment.

PN215

Now, if I could just pick up on that point. Anything that could be agitated with respect to the state of the Victorian economy which is relevant to the adjustment of the minimum wages orders in my submission could not possibly move the bench beyond what it considers appropriate as an outcome to the safety net review in light of the state of the national economy. So that is not to say that there is not a place in safety net review proceedings for States or other parties to put material in respect of how they perceive the status of constituent parts of the national economy and indeed there is nothing to preclude the Trades Hall seeking to intervene in the proceedings to put whatever material it wishes to put in respect of the Victorian economy.

PN216

But that is a different proposition from asking the full bench to deal concurrently with the actual matter of adjustment of the minimum wage orders themselves. So there is no disadvantage to the Trades Hall in that context and on that test it is unnecessary. Now, as to the lag, of course the time to debate the merit of that issue is not now but it is not contended by my friend from the Trades Hall that the applicable should be the date of the safety net review decision. He has not put that. That would be untenable, not least in light of the phased flow through of the safety net review decision to the Commission's awards.

PN217

I remind the Commission that the flow through is not predominantly in the month of the decision. The greater bunching of the flow through to awards is in the second month and in due course if the issue of the lag is pursued by the Trades Hall consideration will have to be given, firstly, as to whether it is a relevant issue, and secondly, as to how it is be measured and when it is to be measured from. But those are not issues for today.

PN218

The point we wish to make today is that there is no suggestion that the applicable date would be the date of the safety net review decision and the proposal that my friend, Mr Gregory, has put should be seen and its merits viewed in that light.

[12.22pm]

PN219

In short, it is open obviously to the Trades Hall to ask the bench to resume consideration of the matters affecting the minimum wage orders expeditiously soon after the safety net review decision itself is handed down and that course can involve no disadvantage to the Trades Hall.

PN220

Finally as to the unwieldiness of a joint or concurrent hearing, we say it is obvious that a joint or concurrent process that would mean the parties would have to focus on the different criteria and the different provisions in making their submissions on the two sets of applications would be potentially confusing and unwieldy. We say it is ultimately likely to be counterproductive not least to the interest of the Trades Hall applicants themselves.

PN221

It cannot be denied that there are differences in the criteria. They have been recognised by the Commission including in the decision to which I referred. The fact that the different criteria have not precluded findings by the Commission in the past that the outcomes of particular safety net reviews are not incompatible with the part XV criteria is not really the point.

PN222

The point is that in a concurrent hearing the different criteria would have to be specifically directly addressed by the parties and the Commission would expect no less and what that would mean would be, in my submission, far more extensive canvassing of matters than might historically have been necessary where the issue has been essentially a different issues and that is whether the safety net review outcome, if that is what the Trades Hall has sought, can be determined by the Commission to be not incompatible. The tests are different, what would be involved in terms of the logistics of the submissions and the length of the case would be different.

PN223

If the Commission pleases, we do not support the application for joinder or concurrent hearings. We ask the Commission in light of the submissions that have been made to give consideration to the proposal that Mr Gregory has put notwithstanding that Mr Calver has also made out a strong case as to how the Trades Hall proposition is just devoid of merit. I have not addressed the Victorian Taskforce matters. In due course we would have something to say about that.

PN224

We do not regard the submissions that have been made with respect to those matters as having any relevant bearing on the matter presently for determination by the Commission. If the Commission pleases.

PN225

JUSTICE GIUDICE: Thanks, Mr Cole. Mr Niven. Any other submissions? Mr Klemis.

PN226

MR KLEMIS: If your Honour pleases. May we commend to the Commission Mr Gregory's submission. We do so on the basis that the submission is based on a keep it simple system. It is in keeping with the intent of the Act and in our view and lastly but most importantly, it does not disadvantage the Victorian workers. If the Commission pleases.

PN227

JUSTICE GIUDICE: Thank you, Mr Klemis. Mr Harnath.

PN228

MR HARNATH: Thank you, your Honour. The VECCI proposition is a sensible and practical proposal and it is one that the Association does support. There is two sides to the low pay argument. It also reflects the employers circumstances that small businesses have in that employment relationship. Essentially the argument that is of major concern to the Victorian based sectors is the one connected to operative date. Mr Gregory's proposal would allow that to be appropriately considered in that context.

PN229

As Mr Cole said, the Trades Hall is not precluded in any way from making submissions about the economy or the low pay in the context of the living wage case that we all sit here today with. Therefore we would say it is the practical way to handle the matter and we would support that situation. If the Commission pleases.

PN230

JUSTICE GIUDICE: Thank you, Mr Harnath. Are there any other submissions against the proposal, or the application I should say? Yes, Mr Niven.

PN231

MR NIVEN: Thank you, President. Could I turn to the VECCI proposal. I must say that it is not an original proposal. That is a proposal that has been around in fact since the taskforce set down its recommendations last year and in fact the taskforce went further by suggesting that the Commission adopt the safety net review unless it could be proved otherwise that the outcome of the safety net review wasn't appropriate for Victoria. So the VECCI proposition has been around before. It has been a live proposal before and has not found any great favour I believe through the Government's policies and indeed with the position of the trade unions, so we don't see that as quite the alternative that VECCI are proposing.

PN232

One of the issues that small business have raised is the issue of the confusion that surrounds the two decisions and the announcements of that. If we take the VECCI alternative position we are still going to end up with two dates and two decisions and we are not going to eliminate confusion that does exist with small business in relation to the two decisions. The suggestions that the VFF and NFF were suggesting makes me think that they have caught up a bit too much on the operative date issue.

PN233

As I said in my submission, just because we may receive an earlier decision does not affect the operative dates. The operative dates for the federal awards are different throughout the awards and there is no reason why my suggestion as to how those could be handled wouldn't deliver the same dates. To get an earlier date we would have to run a special argument. That was done last year so any argument would have to be similar and I think in the decision of last year, in the full bench decision at PR907793, I think that decision does indicate how principle 8B can be dealt with and indeed the decision last year - sorry, the decision this year, we are not quite at 2002 yet, the decision this year did bring back the operative date by three weeks.

PN234

So ways were found how to deal with principle 8B last year and there is no reason as to why similar arguments couldn't be put forward this year in an attempt to achieve a similar outcome. If I turn briefly to the suggestions that my friend from the AIG was making in relation to distortion and that by bringing in the Victorian data and arguments that it may distort the national outcome, I accept that view simply because as part of my original submission I was suggesting that competing sets of wage determinations is not good in my view in the national public interest and that it may be true at the moment that Victoria may appear to perhaps have the strongest economy, however I don't think that is going to distort from a national view and in fact it tends to lend weight to the suggestion that perhaps higher outcomes or different outcomes could be achieved in Victoria through separate applications.

PN235

My friend from the Commonwealth, he made the point about history and the relevance of the SNR decisions. I certainly am aware of some of the history of these past section 501 applications and I am aware that the same arguments repeat each year and again that major argument is the operative date. As I said in my submission, at no time during those previous hearings has there been a debate in relation to quantum or outcome. The only debate has been in relation to the operative date. So I think that historically the set of cases that we have had actually would lend more weight to my suggestion to join or have concurrent hearings.

PN236

Just in relation to the cooperative workplace relations, I think that joining the two cases or having the concurrent cases actually assists that objective as then there is no confusion in Victoria between wage increases. The number of persons who are subject to schedule 1A wage rises is significant. It affects a large number of employers and eliminating that lag will eliminate confusion and as it has been pointed out in the past, in relation to issues of the lag where a lag exists that advantages some and disadvantages others.

PN237

What I am proposing and what we are attempting to achieve is the best outcome on behalf of low paid workers and their families and we are of the view that joining of these matters gives the Commission the best opportunity in relation to those objects and to section 88B(2) and section 504 gives the Commission the best opportunity to deliver an outcome which will benefit those low paid workers. If the Commission pleases.

PN238

JUSTICE GIUDICE: Yes, thank you, Mr Niven. We will adjourn for a short time to consider the submissions on this issue. We would ask the parties to wait.

SHORT ADJOURNMENT [12.35pm]

RESUMED [12.41pm]

PN239

JUSTICE GIUDICE: We have given consideration to the submissions concerning the application by the Victorian Trades Hall Council that the applications it has filed to vary the Victorian minimum wage orders pursuant to section 501 of the Act should be joined with or heard at the same time as the section 113 applications for review of the safety net. We have decided that it would be more convenient if that application were not granted and we will make provision for a speedy re-listing of those applications once a decision in the section 113 applications is published in the way suggested by VECCI and supported by a number of other parties.

PN240

We can also indicate that we have given consideration to the submission that the directions should provide for the joint Labor States submissions and evidence to be filed and served on 15 February 2002 rather than on 8 February 2002. We have decided that the directions should provide for the Joint Labor States to file and serve their written submissions and evidence on 8 February 2002, the same date as the ACTU and any other supporting party. We will publish the directions in due course. If there are no other matters we will now adjourn until 3 April 2002. Ms Zeitz, yes.

PN241

MS ZEITZ: Sorry. I did raise the issue of liberty in relation to apply to my clients. Do I understand from the full bench that that will be included in the directions?

PN242

JUSTICE GIUDICE: No. We will publish the directions in due course.

ADJOURNED UNTIL WEDNESDAY, 3 APRIL 2002 [12.44pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ACTU1 PROPOSED LIVING WAGE CASE DIRECTIONS PN28
EXHIBIT #ACCI1 LIST OF PARTIES AND INTERVENERS PN29
EXHIBIT #VTHC1 REPORT OF THE INDUSTRIAL RELATIONS TASKFORCE PN123
EXHIBIT #NFF1 LETTER ADDRESSED TO JUSTICE GIUDICE, DATED 29/11/01 PN186