C2001/1740, Transcript of Proceedings [2001] AIRCTrans 1002 (29 May 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 7297

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2001/1740

NATIONAL UNION OF WORKERS

and

SKILLED COMMUNICATIONS
PERSONNEL PTY LTD and OTHERS

Notification pursuant to section 99 of the
Act of an industrial dispute re log of claims
concerning conditions of employment

MELBOURNE

9:35 AM, WEDNESDAY, 9 MAY 2001

PN1

MS A. PARKES: I appear for the National Union of Workers.

PN2

MS K. IRWIN: I am from the Australian Industry Group appearing on behalf of BOC Gases, Australian Cables, Farm Pride Foods and Tyre Marketers.

PN3

MR R. MILLER: I seek leave to appear on behalf of Simon Richards Group Pty Ltd, a respondent in this matter.

PN4

THE SENIOR DEPUTY PRESIDENT: Are there any objections to the application for leave to appear?

PN5

MS PARKES: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Ms Parkes. I should indicate to you Ms Parkes, that I have received correspondence from Skilled Engineering Ltd, indicating that they have - that they are - signed by Mr Driscoll - he is authorised by Skilled Communications Personnel Pty Ltd in regard to the matter, and they indicate they have no objection to the finding of a dispute but reserve their position with respect to the making of any award.

PN7

MS IRWIN: Yes, your Honour, I have received a copy of such correspondence.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes, Ms Parkes.

PN9

MS PARKES: Your Honour, this matter is before you pursuant to a notification of an industrial dispute under section 99 of the Workplace Relations Act 1996, which has been lodged by the National Union of Workers. The union seeks two things today, your Honour: firstly, a finding of dispute, pursuant to section 101 of the Act and secondly, a direction from your Honour, that the parties to the dispute confer. Before I move to the main part of my submission, I would like to advise the Commission, that at this point in time, the union does not intend to pursue a dispute finding in respect of the following companies listed in the notification of the alleged industrial dispute.

PN10

There is four companies, your Honour, who see the Distribution Group Ltd, secondly Nestle Australia Ltd, thirdly George Weston Foods Ltd and fourthly Faulding Health Care Pty Ltd. In respect of Faulding Health Care Pty Ltd, your Honour, the union currently has in place a bargaining period, hence the matter cannot be arbitrated in respect of that, so the union reserves its right to pursue that particular matter at a later point in time.

PN11

In respect of the remaining companies, your Honour, Skilled Communications Personnel Pty Ltd, Skilled Engineering Ltd, Pacific Dunlop Ltd, API Victoria Pty Ltd, Tyre Marketers Australia Ltd, Australian Cables Pty Ltd, BOC Gases Australia Ltd, Simon Richards Group Pty Ltd and Farm Pride Foods Ltd, the union does seek a dispute finding. If I could take the Commission to the facts of the alleged dispute. The basis of the finding sought is to be found in a letter of demand and the log of claims, which was served by the union by the abovementioned companies on 2 April 2001, by pre-paid certified mail. A letter of demand and the log of claims gave the employers seven days to respond positively to the demands contained in the log of claims.

PN12

There has been no agreement to these claims - to these demands from the employers alleged to be a party to the dispute, either within the seven days stipulated or since that time frame. Accordingly, your Honour, the Commission was notified of the dispute pursuant to section 99 of the Act, on 10 April 2001, and attached to that notification was an affidavit of service of the letter of demand and log of claims, sworn by the general secretary of the union, Mr Greg Sword. This affidavit should be on the file before you, your Honour. And the affidavit of service attests as stated, to the service by certified mail of the letter of demand and log of claims.

PN13

Subsequent to the notification of dispute, the union received from the Commission by facsimile, notice of this hearing. Your Honour, is there a further affidavit on the file before you, also signed by Mr Greg Sword, attesting to the service of this notice of listing, and the information sheet, in accordance with R5.

PN14

THE SENIOR DEPUTY PRESIDENT: Yes, there is.

PN15

MS PARKES: There is, okay. And the service of these occurred on 2 May, 2001, your Honour. The union submits that there is a dispute between the union and Skilled Communications Personnel Pty Ltd, Skilled Engineering Ltd, Pacific Dunlop Ltd, API Victoria Pty Ltd, Tyre Marketers Australia Ltd, Australian Cables Pty Ltd, BOC Gases Australia Ltd, the Simon Richards Group Pty Ltd, and Farm Pride Foods Ltd. The union submits that the logged employers in this matter employed persons eligible to be members of the union.

PN16

The union further submits that the process followed has been legitimate, with valid service of the log of claims and letter of demand. Further, it is the union submission that the log of claims and its rejection or non-acceptance is prima facie evidence of an industrial dispute between the union and the employers. The union submits that the area of the dispute exists beyond the limits of any one state, with the employers having operations across a number of states, with the exceptions of the following three companies, which it is the union's understanding, just has operations in Victoria, and that is the Simon Richards Group, API Victoria Pty Ltd and Farm Pride Foods Ltd.

PN17

In conclusion, your Honour, the union does seek a finding of dispute, pursuant to section 101 of the Act, and a direction from the Commission that the parties to that dispute confer. I should advise the Commission that in relation to the Simon Richards Group Pty Ltd which Mr Millar, I believe, will certainly address you on, is that we have been advised at this point in time that that particular company does oppose a dispute finding and maybe I might address the Commission further on that, your Honour, after Mr Millar has made his submissions to you. Unless the Commission has any further questions, that concludes the union's submission.

PN18

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Irwin.

PN19

MS IRWIN: Your Honour, the Australian Industry Group, on behalf of BOC Gases, Australian Cables, Farm Pride Foods and Tyre Marketers, do not - has not agreed to the claims made in the log, and therefore does not oppose the finding of dispute. However, we reserve the right to argue against the making of any award in this matter, if the Commission pleases.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Millar.

PN21

MR MILLAR: If the Commission pleases, the Simon Richards Group Pty Ltd opposes the finding of a dispute in this matter, and seeks to be heard on that issue at an appropriate time, presumably following an adjournment to allow preparation of material for submission to the Commission on that point.

PN22

THE SENIOR DEPUTY PRESIDENT: What is the basis of the objection?

PN23

MR MILLAR: The basis of the objection, without limiting the possibility of other grounds as well, is doubt over the ability of the union to cover employees within the employment of the company, an eligibility rule issue, as to the capacity of the union to cover employees of the company.

PN24

THE SENIOR DEPUTY PRESIDENT: What does the Simon Richards Group do?

PN25

MR MILLAR: It is a call centre company essentially, employing a largely casual workforce, although with some permanent employees as well, engaged in telemarketing and similar activities, on behalf of a very limited number of companies. And there is a genuine view that those activities may fall outside the eligibility rules of the union. It is an issue which has in a slightly different context, been before another member of the Commission on a previous occasion, and I understand there is a decision there.

PN26

THE SENIOR DEPUTY PRESIDENT: When was that?

PN27

MR MILLAR: I understand that Commission Whelan, on 29 November 1999, made a decision in relation to Franklin Mint Pty Ltd, on the capacity of the NUW to cover employees in call centres, and it may be that that decision falls for reconsideration in this matter.

PN28

THE SENIOR DEPUTY PRESIDENT: What is the print number on that?

PN29

MR MILLAR: The print number is S1377.

PN30

THE SENIOR DEPUTY PRESIDENT: S1377, and that decision was not subject to appeal?

PN31

MR MILLAR: Not that I am aware of, no.

PN32

THE SENIOR DEPUTY PRESIDENT: Thank you.

PN33

MR MILLAR: If the Commission pleases.

PN34

THE SENIOR DEPUTY PRESIDENT: Thank you. Ms Parkes.

PN35

MS PARKES: Your Honour, if the Commission pleases, indeed my colleague is correct. There has been the decision of Commissioner Whelan. There have also been a range of other decisions prior to that, if I could just draw your Honour's attention to those. Firstly, the decision of Commissioner Lawson in the National Union of Workers and Elder Research and others, and I apologise, your Honour, I don't have the date, but I do have the print number for you. Print L9750.

PN36

THE SENIOR DEPUTY PRESIDENT: L9750, yes.

PN37

MS PARKES: There was a further decision by Commissioner Foggo, in the National Union of Workers and Bendigo Advertiser and Independent Pty Ltd. And once again, your Honour, I don't have the day, because I didn't come down here prepared with the authorities, but I can have a print number for you - - -

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MS PARKES: - - - it is print M9365, and, thirdly, as my colleague has identified, the recent decision of Commissioner Whelan in Franklin Mint Pty Ltd and NUW, which is - the print number is there S0959 and S1377. The union would submit, your Honour, that indeed the NUW is eligible to cover telemarketers and telesales operators and employees performing similar and related sales functions, through - we would obviously seek to rely on those decisions and also upon the rules of the National Union of Workers.

PN40

What the National Union of Workers proposes is that perhaps there is - we would propose, your Honour, that there be a direction from the Commission that the parties file an outline - that the company files an outline of its submissions, and that the union obviously get an opportunity to respond to that, and that further to that obviously there would be a hearing before your Honour, in relation to this matter.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes.

PN42

MS PARKES: Thank you, if the Commission pleases.

PN43

THE SENIOR DEPUTY PRESIDENT: Well, having regard to the material contained on the file in this matter, and also the submissions that have been put to me, I am satisfied there is an industrial dispute within the meaning of the Act, between the National Union of Workers on the one part, and the following employers on the other part: Skilled Communications Personnel Pty Ltd, Skilled Engineering Ltd, Pacific Dunlop Ltd, API Victoria Pty Ltd, Tyre Marketers Australia Ltd, Australian Cables Pty Ltd, BOC Gases Australia Ltd and Farm Pride Foods Ltd.

PN44

The matters in dispute are set out in the letter of demand and log of claims of the union, dated 29 March 2001 and served on those employers, and the dispute extends beyond the limits of any one state. I will make a formal record of that finding. With respect to Simon Richards Group Pty Ltd, I will issue directions for the hearing of a dispute finding in regard to that employer, and I will go off the record to discuss appropriate timing in that regard.

OFF THE RECORD

PN45

THE SENIOR DEPUTY PRESIDENT: The purpose of hearing matters in respect of the dispute finding for Simon Richards Group Ltd, I issue the following directions: Simon Richards Group Ltd is to file in the registry, and serve on the NUW by close of business on 25 May 2001, a written outline of their submissions in this matter and any witness statements and other evidence on which they intend to rely. The NUW is to file in the registry and serve on Simon Richards Group Ltd, by close of business on 8 June 2001, a written outline of their submissions in reply, and any witness statements and other evidence on which they intend to rely.

PN46

And I will list the matter for hearing at 9.30 am on 15 June 2001, here in Melbourne. I will now adjourn until that date.

ADJOURNED UNTIL FRIDAY, 15 JUNE 2001 [9.30am]