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TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 65140-1
SENIOR DEPUTY PRESIDENT KAUFMAN
AM2011/52
s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error
Application by The Institute of Chartered Accountants Australia
(AM2011/52)
Clerks - Private Sector Award 2010
(ODN AM2008/7)
[MA000002 Print PR985112]]
Melbourne
11.33 AM, MONDAY, 12 DECEMBER 2011
PN1
THE SENIOR DEPUTY PRESIDENT: Good morning, Mr Diserio. You appear for the applicant?
PN2
MR M. DISERIO: Yes.
PN3
THE SENIOR DEPUTY PRESIDENT: Well, you seek permission to appear?
PN4
MR DISERIO: I do indeed.
PN5
THE SENIOR DEPUTY PRESIDENT: Permission is granted.
PN6
MR DISERIO: Thank you, your Honour.
PN7
THE SENIOR DEPUTY PRESIDENT: I have listed this for mention and directions.
PN8
MR DISERIO: That’s right.
PN9
THE SENIOR DEPUTY PRESIDENT: Perhaps you might just run me through it.
PN10
MR DISERIO: Yes, of course. This is an application, your Honour, by the Institute of Chartered Accountants of Australia to vary clause 24 of the Clerks - Private Sector Award 2010. Essentially it’s (indistinct) as one of the permissible default superannuation funds, Professional Associations Super, so that is the purpose of the application. The application was made by the Institute of Chartered Accounts of Australia which is an employer and the relevant employer of persons under relevant classifications of the Clerks - Private Sector Award. That is set out in both the terms of the application and in the supporting statement of Ms Marie Maky.
PN11
The history of the superannuation fund and history of the matters which are relevant to the fact that Professional Associations Super is indeed the successor at law of the original Accountants Superannuation Fund are set out in the statement of Mr Fisher.
PN12
THE SENIOR DEPUTY PRESIDENT: Yes. Can I just ask you to pause for a moment, please?
PN13
MR DISERIO: Yes.
PN14
THE SENIOR DEPUTY PRESIDENT: I just noticed that there are some people who have entered the court. I don’t know if they want to make submissions or not.
PN15
MR DISERIO: Yes. They’re with me, your Honour.
PN16
THE SENIOR DEPUTY PRESIDENT: Very well.
PN17
MR DISERIO: I didn’t realise they had come in.
PN18
THE SENIOR DEPUTY PRESIDENT: I just wasn’t sure whether somebody who wanted to be heard had come into the courtroom. Continue.
PN19
MR DISERIO: Your Honour, the application was lodged with Fair Work Australia on 11 October 2011 and was allocated to you and your Honour issued directions for today, being a mention and/or directions. I do note that in accordance with the tribunal’s usual practice notification of the institute’s application and supporting material was put on line. It was uploaded, according to my records, on 28 October and it was indicated that all subscribers to the modern award had been notified by email of this application.
PN20
THE SENIOR DEPUTY PRESIDENT: Yes, all 1399 of them.
PN21
MR DISERIO: I wasn’t aware of how many, your Honour. Certainly it’s a lot more efficient than the usual snail-mail. However, I realise that this has been listed for mention and/or directions but I should indicate to your Honour that we have had no communication from anyone in respect of the application that has been made. I’m not aware if anyone has separately communicated with the tribunal.
PN22
THE SENIOR DEPUTY PRESIDENT: No, they have not to my knowledge, Mr Diserio. It would appear that there’s no opposition to the application.
PN23
MR DISERIO: No. I was hoping that to the extent that your Honour may be able to deal with the application today, I would invite you to do so. If there’s some natural justice impediment to doing that, we understand that - - -
PN24
THE SENIOR DEPUTY PRESIDENT: I think not if you can persuade me that I should make the amendment when the parties, I assume - well, I would direct that any order I make be served on the subscribers in the same manner in which the notice of listing was served on them and I would add a rider to any order I make that anybody who has something to say about it would have seven days within which to do so. You’re making this application under section 160 which requires that there be an ambiguity or an uncertainty, and that ambiguity or uncertainty you describe how?
PN25
MR DISERIO: We describe it as - I should say I have relied on other precedents of the tribunal but the fact is that had the information been available to the Full Bench who was modernising the award as to the fact that the antecedents of Professional Associations Super had been recognised in at least two NAPSAs, there would have been some regard paid in relation to Professional Associations Super as being a default fund under the Clerks Award.
PN26
THE SENIOR DEPUTY PRESIDENT: Yes, and in other instances, funds that have been recognised in NAPSAs have been included in the modern award.
PN27
MR DISERIO: Yes, your Honour. I haven’t brought any precedents with me but I can assure your Honour that having prepared this application, we did look at a number, and there seems to be no impediment to the tribunal varying the award under section 160 in relation to this sort of application. I was heartened by the fact that there didn’t appear to be any opposition or any correspondence generated. As your Honour is probably well aware, these types of application from time to time have generated some opposition but I didn’t expect there really on the face of it to be any because of the - if I could it the non-controversial nature of the application, but that’s not to say that - people don’t always share that view.
PN28
In terms of the matters that you need to be persuaded of, I indicate to your Honour that the application is properly made by an applicant entitled to make an application to vary. That has been an area where there have been some problems from time to time in applications. The applicant, as I indicated from the statement of Marie Maky, indicates an employer under this award employing persons within the classifications so we would say the application in that respect is validly made.
PN29
In respect of the matters that we believe your Honour would need to be persuaded of in relation to the superannuation fund itself, that is set out in the statement of Mr Fisher, which is dated 30 September. It indicates that the fund was - this is paragraph 6 - established in July of 1992 by what has now become the ACSA, in short. It became a public offer fund. It transferred into PASF in June 2006. In Mr Fisher’s statement, he indicates also that the fund meets the requirements of a superannuation fund in respect of being able to be a complying superannuation fund. Mr Fisher does go on to make a number of other favourable comments about the fund and they’re set out in paragraph 12 and following.
PN30
Importantly, your Honour, Mr Fisher, as does Ms Maky, at paragraph 11 indicates that the Clerks’ (Accountants’ Employees) Award 1984 of Western Australia and the Clerks (South Australia) Award have named the Accountants Superannuation Fund in the relevant clauses of each award. That supports the ground that, in accordance with the relevant principles, we say it is open to the tribunal to vary the award in accordance with the application if it is so minded.
PN31
Your Honour, the application has with it a draft order which I should indicate was drafted without the knowledge of where the application would ultimately be directed so I do apologise for the draft in its current form, but if I could indicate that apart from the obvious changes that are required, your Honour, the draft order simply indicates the amendments that are required to give effect to adding Professional Associations Super to the list to be found in clause 24.4 of the award.
PN32
I should indicate that apart from the mutatis mutandis changes, the order is very much like that last order that was made by the tribunal, I think, which added “whichever the fund” immediately above the - so we haven’t reinvented the wheel, as they say, your Honour.
PN33
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Diserio.
PN34
MR DISERIO: Yes. That’s probably all that can be said and hopefully will be said in respect of the application.
PN35
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you. For the reasons given by Mr Diserio as well as the reasons stated in the application, and having regard to the statement of Ross Fisher and Marie Maky, M-a-k-y, I am satisfied that the necessary prerequisites for the making of the order sought exist. It’s apparent to me that had the bench that made the modern award been aware of the matters to which Mr Diserio has referred, the fund would have been a named fund and it was an error not to have so included it. Accordingly, under section 160, I will vary the modern award to correct that error.
PN36
An order in the terms of the draft that accompanies the application will be made. It will operate 14 days from today’s date and I direct that the subscribers to the modern award, all 1399 of them, be notified and served with a copy of the order that I make today, and they will be notified that should any of them wish to be heard in respect of the making of the order, they have seven days from the date of service upon them to notify Fair Work Australia that they wish to be heard on the matter and the reason for which they wish to be heard. Will that cause you any undue difficulties, Mr Diserio?
PN37
MR DISERIO: No, your Honour. I just wanted to clarify - the actual mechanics of that, is that something that will be carried out by the registry and through the - - -
PN38
THE SENIOR DEPUTY PRESIDENT: Yes. We will word the appropriate email - - -
PN39
MR DISERIO: I just wanted to allay any fears that the people at the back of the courtroom might have had when they heard 1399.
PN40
THE SENIOR DEPUTY PRESIDENT: No. The service will be effected by Fair Work Australia in the same manner that it was effected in relation to notifying them of his hearing; that is, by email.
PN41
MR DISERIO: Thank you, your Honour.
PN42
THE SENIOR DEPUTY PRESIDENT: Yes. Thank you, Mr Diserio. We will now adjourn.
<ADJOURNED INDEFINITELY [11.48AM]