TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 25018-1

VICE PRESIDENT WATSON

AM2010/16
AM2010/17

s.158 - Application to vary or revoke a modern award

Application by National Retail Association Ltd
(AM2010/16)
General Retail Industry Award 2010

Application by Master Grocers Association Limited
(AM2010/17)
General Retail Industry Award 2010

(ODN AM2008/10)
[MA000004 Print PR985114]]




Sydney

10.12AM, THURSDAY, 25 FEBRUARY 2010

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA
VIDEO CONFERENCE AND RECORDED IN SYDNEY

PN1

THE VICE PRESIDENT: Can I have the appearances, please, commencing in Sydney.

PN2

MR N. TINDLEY: Your Honour, my name is Tindley, initial N, for the National Retail Association.

PN3

THE VICE PRESIDENT: Mr Tindley.

PN4

MS NGO: If it pleases the tribunal, Ngo, initial N, for the Australian Federation of Employers and Industries.

PN5

THE VICE PRESIDENT: Ms Ngo.

PN6

MS S. BURNLEY: If the tribunal pleases, my name is Burnley, initial S, and I appear on behalf of the Shop Distributive and Allied Employees Association.

PN7

THE VICE PRESIDENT: Ms Burnley.

PN8

MR P. SHIPSTONE: If the tribunal pleases, my name is Shipstone, initial P, appearing for the Australian Council of Trade Unions.

PN9

THE VICE PRESIDENT: Mr Shipstone. And in Melbourne?

PN10

MR C. ISER: My name is Iser, initial C, appearing on behalf of Master Grocers Australia.

PN11

THE VICE PRESIDENT: Mr Iser.

PN12

MR D. MAMMONE: If it please the tribunal, Mammone, initial D. Appearing with me is D. GREGORY, seeking leave to intervene in both matters for ACCI, if it please the tribunal.

PN13

THE VICE PRESIDENT: Yes, Mr Mammone. Any objection to the applications for leave to intervene? Leave is granted to all those who require it. I don't think it's pursuant to any formal provisions of the act but those parties that are not parties but seek involvement by intervention have that right to participate on the same basis as the parties to the proceedings. I have listed this matter for programming and mention just to ascertain who wishes to participate in the proceedings but also to get an understanding of the nature of the cases, the nature and extent of evidence and submissions that might be involved so that the matter can be programmed in a more considered way. Mr Tindley, is it appropriate that I call on you first?

PN14

MR TINDLEY: Yes, your Honour. In terms of - we have had some brief discussions yesterday and obviously there were other parties who needed to be involved.

PN15

THE VICE PRESIDENT: Yes.

PN16

MR TINDLEY: It's about the manner in which it may be programmed. We see it as a matter that should be dealt with as quickly as possible. It's an issue that's live of employers given that the issue itself is part of an award that's already commenced. In terms of - we don't see that the submissions will require a significant period of time but we're dealing with a fairly narrow issue but there will be at our end anyway some evidence that will be provided. I would also highlight for the tribunal that my understanding is that there will be other parties from other employer - parties who will be seeking to provide either submissions, evidence or a combination, but to the extent that it is possible we will try and coordinate that so we're not having too many stages in the program, your Honour.

PN17

THE VICE PRESIDENT: Yes, and evidence in the nature of witnesses.

PN18

MR TINDLEY: Correct.

PN19

THE VICE PRESIDENT: In terms of location, what is the appropriate location for the hearings?

PN20

MR TINDLEY: I think that the videoconferencing facility if we were to perhaps look at the hearing in either Sydney or Melbourne with the facility for people to attend via videoconferencing and that would be an appropriate outcome, from our end at least.

PN21

THE VICE PRESIDENT: Yes, Melbourne or Sydney, yes. If I were to make directions about filing an outline of submissions and witness statements how long would you need?

PN22

MR TINDLEY: We would need approximately three weeks, your Honour.

PN23

THE VICE PRESIDENT: Yes, thank you. Thank you, Mr Tindley. Mr Iser, you're the other applicant. What's your position on these matters?

PN24

MR ISER: We agree with the submissions not being a difficult factor. However, we would like time to prepare evidence. We would prefer for the - we do not have a problem with either Sydney being the host. However, a videoconference we would agree with.

PN25

THE VICE PRESIDENT: Is three weeks sufficient for you to file witness statements if I were to make directions along those lines?

PN26

MR ISER: About three to four weeks would probably be more preferable.

PN27

THE VICE PRESIDENT: Yes. What do the other parties say? Perhaps others that might support the application first.

PN28

MR MAMMONE: Your Honour, we're largely in your hands as to the programming type and we have no objections to time sought by either applicants. In terms of city we're in your hands, your Honour.

PN29

THE VICE PRESIDENT: Yes, thank you, Mr Mammone.

PN30

MR MAMMONE: If it please the tribunal.

PN31

THE VICE PRESIDENT: Ms Ngo?

PN32

MS NGO: Thank you, your Honour. We would also be in your hands in relation to the timetabling.

PN33

THE VICE PRESIDENT: Yes. Ms Burnley or Mr Shipstone?

PN34

MR SHIPSTONE: Yes, thank you, your Honour. In this matter the ACTU would like to flag that we would like to make submissions on what we see as a threshold issue as to whether the tribunal should in fact proceed to hear this matter at all. The central issue we would like to address in submissions goes to what sort of a hurdle there should be for provisions in modern awards such as this to be remitigated effectively when they have already been dealt with and determined through the award modernisation process. So therefore we would like to seek that in any directions issue today that the time be set aside for the threshold issue.

PN35

THE VICE PRESIDENT: Why is that a threshold issue rather than a merit consideration?

PN36

MR SHIPSTONE: It may not be a threshold issue as such but we do though think it is an issue that it should be dealt with first, and an extensive award modernisation process was undertaken by the commission and the matters were dealt with and determined and there is now a four-yearly award review cycle in place provided for under the act. We do therefore seek to make submissions at the outset as to whether there is a case for the tribunal to hear this matter. We would seek to be able to make submissions on that matter before we proceed.

PN37

THE VICE PRESIDENT: Yes. Why is that more appropriate or convenient compared to the alternative? I acknowledge that that issue is a significant one and if the test for varying award under the Fair Work Act has particular requirements and I think this is probably the first application where those requirements would be considered in a contested and possibly detailed manner so they are important questions, but why is it more convenient to consider those in the absence of the overall cases of the parties rather than in conjunction with it?

PN38

MR SHIPSTONE: Yes, thank you, your Honour. We don't necessarily think we need to argue the case in the context of the particular provision being argued here but we think there is a more general issue as to whether provisions in modern awards should be varied in this way given, as I said, that they have been dealt with and determined through the award modernisation process so we think that there is a case to make submissions on the general issue that's there.

PN39

THE VICE PRESIDENT: What's the statutory provision you would be arguing is not satisfied or the circumstances not present?

PN40

MR SHIPSTONE: We're not in a position, I guess, to make, you know, full submission on the issue at the moment, your Honour, but certainly we would say that the act, from section 158, I believe it is - from 157, it sets out various circumstances in which awards can be varied outside the four-yearly award review cycle, and we believe there are limitations on the extent to which awards should be varied during that four-yearly cycle and we believe there is a public interest in having this issue determined before the substantive issues in this matter are heard.

PN41

THE VICE PRESIDENT: Section 157, the power seems to be qualified by the tribunal being satisfied that a variation is necessary to achieve the modern award's objective. It seems to be that, at least the main or one of the main points you would be relying on to progress that argument on what you're seeking to be addressed is a threshold issue.

PN42

MR SHIPSTONE: Certainly, your Honour. Our position would be that the modern award as it stands meets the modern award objective - - -

PN43

THE VICE PRESIDENT: Yes.

PN44

MR SHIPSTONE: In that case there's no case for variation.

PN45

THE VICE PRESIDENT: Yes. Perhaps I should - well, I'll hear from the remaining party as to the general programming issues but I'll give all other parties an opportunity to address the particular programming proposition put by the ACTU. Ms Burnley?

PN46

MS BURNLEY: Yes, thank you, your Honour. We would support what the ACTU has said about determining the threshold issue regarding whether the tribunal should hear this award to vary the Modern General Retail Award seeing it is an award which has had extensive and comprehensive examination of every issue and has been subject to review at every stage of the proceedings including a vast number of variations made since June last year so it's not an award where something has slipped in or slipped out, I would say. So we would support the ACTU's application for a threshold issue to be determined. As to the actual application we would agree with the timetabling that the NRA has said, and I think the NGA, have also indicated they need three to four weeks. We would then require a similar time to file our reply submission, and as to whether the matter is heard in Melbourne or Sydney there is videoconferencing available.

PN47

THE VICE PRESIDENT: Do you have any idea at this stage as to numbers of witnesses and how much time might be required for the hearing of the matter?

PN48

MS BURNLEY: At this stage, no. A lot of it depends upon what is put in the written outline of submissions because at the moment the application has, I think, only got four points of which only two actually go to the issue so it's a bit difficult to determine how much of a defence we'll need to put into place.

PN49

THE VICE PRESIDENT: It's sounding like one day might not be a safe estimate. I'm just wondering whether two days is safe or whether even more time should be set down.

PN50

MS BURNLEY: Mr Tindley might have a - - -

PN51

THE VICE PRESIDENT: Yes.

PN52

MR TINDLEY: Your Honour, I would suggest that if we programmed it for two days that would certainly represent the outer limits. I don't see that we would have - we won't be bringing huge numbers of employees or employers - - -

PN53

THE VICE PRESIDENT: You don't anticipate extensive cross-examination of your witnesses. That's likely to be the time-consuming aspect, I guess, of cross-examination of various witnesses.

PN54

MR TINDLEY: Yes.

PN55

THE VICE PRESIDENT: Yes, all right, Mr Tindley. Had you finished, Ms Burnley?

PN56

MS BURNLEY: Yes, I had, your Honour.

PN57

THE VICE PRESIDENT: Yes, thank you. What do you say about the submissions of the ACTU and the SDA about a threshold issue, Mr Tindley?

PN58

MR TINDLEY: Your Honour, I don't see a way or I don't see the necessity of separating the issues in order for us to establish or convince the tribunal about the merits of the application. We have to deal with the issue of whether the application itself or the amendment is necessary to achieve the modern awards object so I would suggest that that would be best dealt with within the time frames that have already been proposed in that we provide our submissions and our evidence and that effectively determines our position as to whether the amendment or the variation is necessary.

PN59

THE VICE PRESIDENT: Mr Iser?

PN60

MR ISER: Yes, your Honour. We do not feel that is necessary to hear the matters separately, held in conjunction at the time. I think that it's in the public interest for the commission to vary this award based on 157 of the act.

PN61

THE VICE PRESIDENT: Yes. Does any other party have anything further - thank you, Mr Iser - they wish to say about these matters?

PN62

MR MAMMONE: Your Honour - - -

PN63

THE VICE PRESIDENT: Yes, Mr Mammone.

PN64

MR MAMMONE: - - - our submission in response to the ACTU's submission this morning on the jurisdiction threshold issue, we would simply say this. Section 157(1) of the act enables the tribunal to deal with a competent application that is made under section 158. We don't see that there's a threshold test to be met under section 158 or 157. The tribunal is empowered once it has an application in front of it to deal with the matter and the only consideration goes to the merits of whether the tribunal is satisfied that making the application outside of - before we hear the review is necessary to achieve a modern awards objective and that's what all the parties will be addressing by their submissions, your Honour, so we oppose the ACTU's application on those grounds. If it please the tribunal.

PN65

THE VICE PRESIDENT: Are there any merit considerations beyond that question? By the way you expressed that it seemed like you were suggesting that that's really the only consideration.

PN66

MR MAMMONE: Your Honour, all we are saying is that there is no threshold issue that needs to be determined before the merits of the application to vary is determined. We just don't see how they can be construed by the interpretation of the act, your Honour.

PN67

THE VICE PRESIDENT: Yes, thank you.

PN68

MR MAMMONE: If it please the tribunal.

PN69

THE VICE PRESIDENT: In the circumstances where the applicants are seeking a prompt hearing and determination of this matter, and the anticipated nature of the case which is expected to be for the maximum of two days, and in the light of the nature of the arguments foreshadowed by the ACTU and the SDA, I am of the view that it's more convenient that the entire matter be programmed and heard in a single proceeding rather than be split into separate cases and matters identified to be determined on a threshold basis. I would therefore propose to issue directions that those supporting the applications file an outline of submissions and witness statements for many witnesses they propose to call in the matter on or before four weeks from today.

PN70

I will make directions for any party wishing to oppose the application to file similar material four weeks after that. I will then set the matter down for two days of hearing at the expiry of that period within a week or two of that final material being received so that can be appropriately digested and dealt with in the oral submissions which will occur. I will not determine the actual hearing dates at this stage but if any party has any particular difficulty of dates within that approximate time frame if you could let my associate know, otherwise we will pick two days and list the matter for hearing at that time. I thank the parties for their assistance today. These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [10.31AM]