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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 39577-1
COMMISSIONER HAMPTON
AM2010/260 AM2010/261 AM2010/262 AM2010/263 AM2010/264
s.158 - Application to vary or revoke a modern award
Application by Shop, Distributive and Allied Employees Association
(AM2010/264)
Pharmacy Industry Award 2010
(ODN AM2008/10)
[MA000012 Print PR985122]]
Adelaide
11.53 AM, TUESDAY, 8 FEBRUARY 2011
PN1
THE COMMISSIONER: Yes, please be seated. I'll take the appearances.
PN2
MR D BLAIRS: Sir, if it pleases the Commission, Blairs, initial D, appearing on behalf of the SDA Union. With me is SARAH McMILLAN.
PN3
THE COMMISSIONER: Thank you, Mr Blairs. Mr Blairs, perhaps, before we proceed I should put a couple of matters on the record. Firstly, orders and directions were issued in this matter and part of those orders was to ensure that the parties to each of the modern awards that are raised in respect of the five applications were advised generally of the applications and, indeed, of the listings through the modern award website and, in particular, through the subscription service.
PN4
Secondly, video links were made available this morning through to both Melbourne and Sydney and that no party has sought to appear at either of those locations. Further, that no organisational person has lodged a submission in accordance with the direction seeking to be heard in relation to the matter.
PN5
Secondly, I should put on the record that immediately prior to proceeding this morning I have raised with you the nature of your application and sought some clarification. In particular, confirmation that what is being sought by each of the applications is an order or orders as contemplated by item 30 of schedule 3A of the Transitional Act rather than a variation to the modern awards.
PN6
Mr Blairs, I understand that you've confirmed that that is the case and in that light I have provided a draft order with you for your consideration in advance of formally proceeding today. So Mr Blairs, perhaps, you might just confirm your position and make any submissions you wish to in that context?
PN7
MR BLAIRS: Thank you, Commissioner, you are correct in all that you said and that it is the intention of the SDA to seek an order rather than a variation. The incorrect form or that the form we chose to use was apparently not the correct form and we are seeking - we seek leave to amend our application to be an application for an order rather than an application to vary, and the application is made as you correctly pointed out under item 30 of schedule 3A of the transitional award as opposed to under section 157 and 160 of the - or the Fair Work Act or the substantive award.
PN8
THE COMMISSIONER: Very well. Look, in those circumstances, particularly given that I issued a statement last week which again was made publically available indicating that that was to be the likely course of action. Subject to confirmation of your position I propose to grant leave to amend each of the applications accordingly.
PN9
MR BLAIRS: Okay. Thank you. Now, if the Commission pleases, it's the intention of the applications to simply maintain the entitlements that would apply to - would have applied to employees who were employed pursuant to the section - sorry, division 2B State awards, which are identical to the provisions as they would have applied in the NAPSA, so it is merely seeking parity between those people who have rolled into the modern award from the NAPSA and those people who have recently rolled into the modern award from the division 2B State awards.
PN10
THE COMMISSIONER: Look, just in that respect I think technically there are some differences in that the NAPSA which, of course, is frozen in time in 2006, whilst it had the same - well, had the same basic entitlements as now appears in division 2B award. I think there were some subsequent variations to the division 2B award when it became the consent award of 2008. But the thrust of what you say is absolutely correct, that is the basic additional entitlement provided by the award is the same under the NAPSA as it is for the division 2B award.
PN11
MR BLAIRS: Yes, that's correct. And by way of history the - a case was run in New South Wales regarding the actual wording of that clause. The wording that - the actual meaning of that clause was determined and the wording was tweaked for want of a better phrase to reflect the position that was agreed by the parties and approved or was determined by the New South Wales Industrial Relations Commission. So you're correct in saying that the two entitlements are the same. The wording was just, perhaps, amended to a minor degree for the sake of clarity but - - -
PN12
THE COMMISSIONER: I see.
PN13
MR BLAIRS: - - - the intention is still 100 per cent there.
PN14
THE COMMISSIONER: Yes. And that's what appears in the 2008 version of the award?
PN15
MR BLAIRS: That's correct, yes. If there's nothing else, your Honour, I don't propose to take up much more of the Commission's time.
PN16
THE COMMISSIONER: Look, Mr Blairs, you filed a written outline which I think adequately explains the nature of the application sought. One issue that does arise from the timing of the application is the capacity of Fair Work Australia to grant the applications on - particularly, make the orders in February 2011 as against during the period which is directly contemplated in schedule 3A, item 30. So if there's anything you wish to say about that?
PN17
MR BLAIRS: Your Honour, in relation to that there are a number of ways that this could be viewed. We say that the application is valid regardless of which way it is viewed. Firstly, a decision was handed down by Fair Work Australia, a Full Bench decision of which, I believe you were a member of, which was 2010 FWA FB 8558. And, essentially, what this application is seeking is orders which flow from the matters determined in that decision. And so we would assert that on that basis that the application is, essentially, valid.
PN18
We would say that in addition to that the application was made prior to the expiry of the period listed in section 30 - sorry, item 30 of schedule 3A. The matters were listed - the applications were made prior to Christmas and given the intervening Christmas period and, perhaps, time constraints to allow all parties to be advised and to be given an opportunity to make submissions the matter has been listed in - well, today. But we say that given that the application was made - the application was made in time that the application would still be valid.
PN19
THE COMMISSIONER: Very well. Thank you. Sorry, Mr Blairs, just in terms of that draft order, do you have any comments on that?
PN20
MR BLAIRS: Look, I've - I've preliminarily looked at it and it looks to be in order. It looks to be - - -
PN21
THE COMMISSIONER: Are you seeking further time to do - to consider that, otherwise I'll deal with it now?
PN22
MR BLAIRS: I would think from my initial views, and I've also had Sarah have a look at it. It seems fine, so we'd be happy - we'd be disposed for you to - - -
PN23
THE COMMISSIONER: All right. Well, bearing in mind that it's - the draft is based almost completely on the draft which was developed by the Full Bench. I think the only point of discussion is the scope and my understanding is that the - it's agreed that the focus of your applications is, indeed, that division 2B award, but the sub set of that - those former parties by reference to each of the five modern awards, which is then captured in that order. All right.
PN24
Very well. Well, look, I'll deal with the application now. Firstly, leave has been granted to amend each of the applications to confirm that what is being sought is an order in relation to the division 2B Broken Hill award, as contemplated by item 30 of schedule 3A of the Transitional Act. I confirm that I propose to grant each of the applications on a joint basis and to issue an order as sought.
PN25
Mr Blairs, I'll also raise with the president, who has administrative responsibility for these matters, the publication of the order in connection with each of the modern awards. Because it seems to me one issue that does arise, given that the modern award itself has not been varied, is how a party is able to become aware that the order has been made. And it seems to me that the website provides an avenue to provide a direct link through the modern award to the existence of the orders.
PN26
Secondly, I also propose to raise with the President the fact that the division 2B awards can either be made available on the website for the whole period of the transitional arrangements just as a public service so that the order, again, makes sense. So I propose to do that. I also propose to issue Reason for Decision given that this is the first such matter that's been dealt with by Fair Work Australia.
PN27
So unless there's anything further - - -
PN28
MR BLAIRS: No. Thank you.
PN29
THE COMMISSIONER: - - - the Tribunal will be adjourned.
<ADJOURNED INDEFINITELY [12.02PM]