TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 26188-1

VICE PRESIDENT WATSON

AM2010/54

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

Application by Liquor, Hospitality and Miscellaneous Union
(AM2010/54)
Registered and Licensed Clubs Award 2010

(ODN AM2008/40)
[MA000058 Print PR988702]]




Sydney

3.08PM, WEDNESDAY, 12 MAY 2010

PN1

THE VICE PRESIDENT: I've called all of these matters on together for mention and programming. Can I have the appearances, please? Mr Swancott?

PN2

MR N. SWANCOTT: Your Honour, I appear in all three matters for the Liquor, Hospitality and Miscellaneous Union. My name is Swancott.

PN3

THE VICE PRESIDENT: Thank you, Mr Swancott.

PN4

MR P. COOPER: Your Honour, my name is Cooper, initial P. I appear for the Club Managers Association.

PN5

THE VICE PRESIDENT: Mr Cooper.

PN6

MR D. STORY: Your Honour, my name is Story, initial D, for the Australian Federation of Employers and Industries.

PN7

THE VICE PRESIDENT: Mr Story.

PN8

MR J. CROSS: Your Honour, Cross, initial J. I appear for Clubs Victoria and Clubs Australia in all three matters.

PN9

THE VICE PRESIDENT: Mr Cross.

PN10

MR R. TAIT: Your Honour, Tait, initial R, on behalf of Clubs New South Wales in all three matters.

PN11

THE VICE PRESIDENT: Yes, Mr Tait. Have the parties had any discussions about how these matters might be programmed or otherwise have any ideas? Mr Swancott?

PN12

MR SWANCOTT: Perhaps under the second question, your Honour. The parties had a conference several weeks ago about various matters arising from award modernisation that were either matters of concern to them or matters of ambiguity or uncertainty. The aim of that conference was to try to reach a consensus where a joint application could be made. As you will have noticed, that was not successful and three separate applications are being made addressing the matters that are of particular interest to each of the three applicants.

PN13

The LHMU, as a party with a major interest in the award, supports the CMAA application, which is number 57, and obviously supports its own application, and we have views about the Clubs Australia application in due course.

PN14

Your Honour, it's my suggestion, given that you set this down for programming, firstly that the matter proceed by way of written submissions. Secondly, that your Honour have a program that extends about four weeks for the finalisation of written submissions, the purpose being to try to resolve these outstanding matters prior to 1 July, when major parts of the award will actually kick in.

PN15

THE DEPUTY PRESIDENT: No party would be seeking to lead evidence in relation to any aspect of their application?

PN16

MR SWANCOTT: Certainly I don't intend that, your Honour. I don't know about Clubs Australia.

PN17

THE DEPUTY PRESIDENT: Yes. As far as your application is concerned and your opposition to the others, it's more an interpretation-type issue - - -

PN18

MR SWANCOTT: Yes.

PN19

THE DEPUTY PRESIDENT: - - - or an issue of principle rather than something dependent on evidence.

PN20

MR SWANCOTT: Yes, your Honour. I'm not sure I used the word "opposition" to any of the other matters.

PN21

THE DEPUTY PRESIDENT: No.

PN22

MR SWANCOTT: We might have some views on them as opposed to - - -

PN23

THE DEPUTY PRESIDENT: Views, yes.

PN24

MR SWANCOTT: - - - opposition to them, or proposals to put.

PN25

THE DEPUTY PRESIDENT: Yes.

PN26

MR SWANCOTT: The third element of my proposal, your Honour, is that - and I'm speaking only for my union in this matter - we don't believe that the parties are all that far apart, and there may be some utility in Fair Work Australia making available a member of the tribunal as a conciliator in the intervening period, on the basis that, if conciliation failed, then the program would be adhered to and written submissions would be filed. That, of course, is subject to Clubs Australia's position in relation to witnesses and other evidence. They're my proposals, your Honour.

PN27

THE DEPUTY PRESIDENT: Yes, thank you, Mr Swancott. Mr Cooper?

PN28

MR COOPER: Your Honour, I'm quite happy with that arrangement as described by Mr Swancott. I think conciliation could also be helpful with our application. We're supporting our application, obviously, and we have full support of the LHMU's application in the terms they've submitted.

PN29

We do have opposition to Clubs Australia's application - certain parts of it, most certainly - so, yes, there are areas of grave concern as far as we're concerned. Maybe the best way to deal with it is to have some assistance with conciliation and then written submissions identifying quite clearly those areas that the parties are in disagreement on. Thank you.

PN30

THE DEPUTY PRESIDENT: Yes. Mr Story?

PN31

MR STORY: Thank you, your Honour. In relation to matters numbered 54 and 57, AFEI would have some level of opposition, and we'd be looking to support matter number 56, the application by Clubs Australia. The proposed time frame of four weeks for written submissions seems appropriate at this stage.

PN32

THE DEPUTY PRESIDENT: And you don't see any difficulty with the matter proceeding by way of written submissions? You don't propose to call any evidence in relation to - - -

PN33

MR STORY: That's correct, your Honour.

PN34

THE DEPUTY PRESIDENT: - - - any of the matters?

PN35

MR STORY: Thank you.

PN36

THE DEPUTY PRESIDENT: Thank you, Mr Story. Mr Cross?

PN37

MR CROSS: Thank you, your Honour. In relation to the proposal for written submissions, Clubs Australia would be happy with that arrangement. The issues aren't ones which we think would require evidence by witnesses for the bench to determine, so that would be appropriate.

PN38

In relation to the proposal for conciliation, our view is that that's unlikely to really assist in the resolution of the applications. We've previously met with the other parties and, given the time frame, we'd be disinclined to go down that path. There's a lot of common ground, especially between Clubs Australia and the LHMU, in regards to their applications. That might have been a matter which could have resolved on its own in conciliation.

The issues with Clubs Australia and the Club Managers Association - based on our previous discussions, that's unlikely to be assisted by conciliation. So in relation to at least those matters, it might be best to just proceed with the written submissions.

PN39

THE DEPUTY PRESIDENT: Yes, thank you. Mr Tait?

PN40

MR TAIT: Your Honour, Clubs New South Wales' view - and we are a member of Clubs Australia - we have a slightly different view in this regard. We'd support the proposal to move forward with written submissions. We would actually support an attempt at conciliation of the matter, but it could not delay the matter being determined. I think everyone is of the same view, proceeding in that regard. We have a very strong view that we wouldn't want to enter into conciliation if it slowed the process of the matter being determined.

PN41

THE DEPUTY PRESIDENT: Yes, thank you, Mr Tait. I do consider that, in the circumstances of the agreement of the parties that the matter proceed by way of written submissions, I should make directions for the filing of material. It's important in matters concerning modern awards that every employer and employee and representative have the opportunity to put submissions in relation to any proposals to vary the award, and a copy of these directions will be placed on the Fair Work Australia web site to enable any interested party to make submissions in relation to the matter.

PN42

I propose, in relation to each of the applications, that the applicants and any other party which supports the application file with the tribunal - and a copy will be placed on the web site - full written submissions - not simply an outline, full written submissions - by close of business on Wednesday, 26 May 2010. Any party opposed to the application may file full written submissions by close of business on Wednesday, 9 June 2010. The applicant in each case may file any submissions in reply by close of business on Wednesday, 16 June 2010.

PN43

I would propose to arrange for a conference of those interested parties interested in participating in these applications in an effort to narrow the areas of disagreement, clarify any interpretation issues and otherwise assist the parties in dealing with the applications that are being made.

PN44

I'll ask the parties here today to confer with my associate as to convenient dates for such a conference and whether it is desirable to have one conference or three conferences or divide up a period into three to deal with each of the sets of matters, or whether there's simply such overlap that it could be dealt with in one conference. If you have views on that, if you could let my associate know, together with convenient dates, and we'll endeavour to accommodate that within the timetable that is proposed for written submissions. In the absence of full agreement, the directions I will issue will be expected to be complied with.

Is there anything further anyone wishes to raise? These proceedings are now adjourned.

<ADJOURNED INDEFINITELY [3.20PM]