TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1050683-1
JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by Australian Trainers' Association
Horse and Greyhound Training Award 2010
[MA000008 Print PR985118]]
4.43PM, THURSDAY, 25 SEPTEMBER 2014
JUSTICE BOULTON: Please be seated in Melbourne. Perhaps I should start by apologising for the late start of the proceedings this afternoon, and also apologise that it would seem that the video conference facilities are not working so well. I can see you in Melbourne and I understand you can hear me in Melbourne and you can hear the other parties here, but you cannot see us. I think it is easier for us to try to proceed even though it is under difficult circumstances. We proceed under these circumstances rather than trying to find another room with appropriate facilities that might enable us to get the visual side of the video conference facility going. Now, let me start by asking for the appearances in this matter and I think I should take the appearances in Melbourne first, thank you.
MR W. LEE: Wong Lee, if it pleases the Commission, on behalf of the Australian Trainers Association.
MR J. BLANTHORN: I appear for the Australian Workers Union.
MS J. GHERJESTANI: I appear for the Australian Workers Union.
MS B. HARDING: I am a solicitor and I seek leave to appear on behalf of Racing New South Wales. And I also mention the matter on behalf of Racing Queensland, Thoroughbred Racing South Australia, and Racing and Wagering in WA.
JUSTICE BOULTON: Yes, thank you. I think for the purposes of the mention and the proceedings this afternoon, I am not aware there is any objection to your appearance, Ms Harding, so I will grant permission so far as these proceedings are concerned for your appearance. Now, who wants to start? Do you want to start, Mr Lee?
MR LEE: Yes.
JUSTICE BOULTON: Maybe I should start and simply say that there have been a number of conferences before Commissioner Roe and various statements and a report has been produced from those. The Full Bench, the apprentices Full Bench, has issued certain directions in these matters. Those directions required the filing of submissions and all that seems to now have been completed. The purpose of the proceedings today really is to determine what are the next steps that should be taken in relation to determining the application which has been made by the Australian Trainers Association. It would seem to me that there might be some value in there being a further conference of the parties before Commissioner Roe to see if it is possible, having regard to the submissions which have been put in, if it is going to be possible to achieve any more agreement in terms of this matter.
Then there would be, if assuming that a hearing of the Full Bench is necessary, to determine any unresolved matters and it would be a question of setting an appropriate hearing date for that, issuing some further directions, in particular if any party wants to lead any evidence for witness statements to be filed, et cetera. The parties have already put in submissions, written outlines of submissions, so there might not be any further need for submissions unless you tell me now that there might be such a need, and then for the Full Bench to set a date for a hearing. Obviously if there is a number of contested matters with evidence, that hearing might need to be a bit longer than if most of the matters are agreed.
So, the purpose of the mention and programming proceedings this afternoon is simply for me to get some idea as to what the parties are proposing in terms of the next steps in the determination of the application that your association, Mr Lee, has put in. So, perhaps now, Mr Lee, I should ask you as to what your views are as to what are the next steps that should be taken in relation to this matter?
MR LEE: Yes, thank you. As the association, and I will not go over why our application was lodged other than to say that I believe the matter should be dealt with as soon as possible. It has been dragging on for quite a while. It was really just a simply a case to include junior rates in the award for apprentices. And so as soon as it is dealt with the better, as we believe that employees may be subject to a claim against underpayment of wages. So, if it could be dealt with as soon as possible, that would be what we are seeking. Thank you.
JUSTICE BOULTON: Do you think there is some value, Mr Lee, in having a further conference before Commissioner Roe, or should we simply program the matter for hearing?
MR LEE: I believe we should simply program it for hearing. That is my view.
JUSTICE BOULTON: Good. Now, who is going to speak on behalf of the AWU?
MS GHERJESTANI: I will speak, your Honour.
JUSTICE BOULTON: Good, thank you.
MS GHERJESTANI: Your Honour, there are still some issues outstanding that the AWU would like further opportunity to discuss with the involved parties. So, we propose some time before the hearing is scheduled or set for a date, that we have some time with the parties to discuss these issues to come to some sort of an agreement.
JUSTICE BOULTON: Do you want a further conference in the Commission, or you are just going to have discussions amongst the parties?
MS GHERJESTANI: We propose that we could have the discussion and after the discussions, we could perhaps contact the Commission and schedule for a conference once that has been done.
JUSTICE BOULTON: Yes. So, what are you anticipating you have these discussions? I am just taking from Mr Lee that the matter basically has been around for quite some time now.
MS GHERJESTANI: As soon as the parties are available.
JUSTICE BOULTON: So, your idea is you have some further discussions with the parties and then you will advise us if it is suggested that there be a further conference before Commissioner Roe, or if we should simply now program the matter for hearing?
MS GHERJESTANI: We propose that we should have these discussions before the hearing date is set.
JUSTICE BOULTON: Yes. We can do that, but of course you are going to have these discussions in the very near future, aren't you?
MS GHERJESTANI: To set the conference date?
JUSTICE BOULTON: No, to have the discussions between the parties hopefully to narrow the differences between you. You are going to have those discussions. You want to have the discussions amongst the parties in the very near future.
MS GHERJESTANI: In the very near future, as soon as possible.
JUSTICE BOULTON: Yes. Good, thank you. Ms Harding.
MS HARDING: Your Honour, the various racing organisations that I am in the matter on behalf of today support the AWU's request for a further conference or discussions. We certainly believe the assistance of the Commission in those discussions could be very useful. I know that there have been two earlier conferences before Commissioner Roe, but from the racing organisations' part we came to this application a little late and only became aware of it shortly before the second conference. So, at that stage the very preliminary views. Since we have been through the process of the ATA preparing the revised application, the submissions, and the racing organisations having an opportunity to consult and clarify a lot of the issues, I think we have narrowed the issues that are in dispute, but I think that further discussions between the parties, now having been through that process and having minds focused on those issues, would be useful.
I appreciate what Mr Lee has said about the matter needing to be dealt with. Commissioner Roe also made statements that the matter needed to be resolved as soon as possible and there is a potential retrospectivity issue. So, we would be prepared to make ourselves available and seek just a short period for those discussions or conference to occur.
JUSTICE BOULTON: So, again, you are saying that the parties should themselves meet, or are you saying that there should be a conference convened by the Commission?
MS HARDING: Your Honour, my primary submission would be a conference convened by the Commission. But if you believe that it should be discussions between the parties, we would be happy to engage in those as well.
JUSTICE BOULTON: Yes, thank you. Mr Lee, is there anything you wanted to say further having heard what the others have said now?
MR LEE: No.
JUSTICE BOULTON: Yes. I think the process should go forward in this way. The parties should have their discussions as soon as possible. Secondly, I will speak with Commissioner Roe and ask him to convene a further conference of the parties in relation to this matter and I would hope that that conference could be convened within two weeks of today. If the parties make such progress, perhaps lack of progress in their discussions that they feel that there would be no useful purpose served by the conference before Commissioner Roe, you can advise the Commissioner of that and he can make his decision as to whether or not to go ahead with the conference. The third point is that I will consult with my colleagues on the Full Bench.
You have not told me whether it is anticipated that there is going to be evidence relied upon by any of the parties in any proceedings before the Full Bench. To some extent, it might be difficult to identify that because until we have, as it were, the finalisation of the discussions and negotiations between the parties, we won't know what are the outstanding issues. But that is a matter which I think you could be dealt with in the context of the conference before Commissioner Roe. If a conference is not going to be convened, then what you will find is that the Full Bench will be issuing directions associated with a hearing date and those directions will be for the parties to file any witness statements in relation to any evidence that is going to be led in the proceedings.
I am not sure there is anything more we can do this afternoon in these proceedings. I think that, at least, sets a path forward in terms of this matter. I would say that we would anticipate looking at hearing this matter within a relatively short time, hopefully by the end of October. But that will depend on the commitments of the other members of the Bench and just how long we might need to set aside for the hearing. That is a matter which hopefully can be clarified in the conference before Commissioner Roe. Thank you. Apologies again these proceedings have perhaps taken a bit longer than might have been expected because of the delays and the problems with the video conferencing facilities. That concludes the proceedings today. Thank you.
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