C2001/1414, Transcript of Proceedings [2001] AIRCTrans 1407 (6 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 7914

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2001/1414

NATIONAL UNION OF WORKERS

and

ZERELLA HOLDINGS PTY LTD AND OTHERS

Notification pursuant to section 99 of the
Act of a dispute re concerning wages and
working conditions

MELBOURNE

11.32 AM, THURSDAY, 14 JUNE 2001

Continued from 24.5.01

PN46

THE SENIOR DEPUTY PRESIDENT: Is there any change in appearances?

PN47

MR HEALY: No, your Honour.

PN48

MR FREEBURN: No, your Honour.

PN49

THE SENIOR DEPUTY PRESIDENT: Mr Freeburn?

PN50

MR FREEBURN: Your Honour, the last time this matter was listed I advised your Honour that I had meetings with representatives of the employer respondents, that is at least most of the employers, and I was awaiting a response from them to some compromised proposals that union had put forward in terms of an award that might flow from these proceedings. That response, despite some chasing up that I did over the course of time which has occurred since the last hearing, wasn't forthcoming until yesterday afternoon.

PN51

And I was advised by the companies that they have rejected the proposals that we put and had put a position that the union considers it unacceptable. So we are in that stage. I have given some brief thought as to how we should proceed in terms of dealing with the matter. I think it is probably - I would like to ask the Commission to set a program of dates for the hearing in the - of an arbitration for an award in this matter but I am probably not at the stage where I can do that because I am still - I am unclear about the nature of the opposition that will be put in terms of the award that we would propose.

PN52

And to be fair to the employers they haven't yet formally now been served since the negotiations have broken down - have been served with the form of award that we will be seeking from the proceedings. So that what I would seek to do from today is serve the employers formally with the award that we would seek from the Commission in these proceedings. They would then have some short time to consider that proposal because they have - wouldn't need too long and then the Commission could set a date for programming for a hearing.

PN53

I am not sure whether inspections will be necessary or sought by either party and I seek to have some discussions with the employers about whether that sort of thing would be necessary. And also in terms of discussions with the employers, the nature of their opposition and the nature of the case that they would seek to be running, so we can give the Commission some sort of understanding about the time that would be necessary for a hearing. That is the stage we are at. I hope to be able to serve the employers with an award that we would be seeking next week, your Honour, and perhaps we could have a hearing some time, perhaps, seven days after that. So, in two weeks time. If the Commission pleases.

PN54

THE SENIOR DEPUTY PRESIDENT: Mr Healy?

PN55

MR HEALY: Your Honour, as you will be aware from the first report back hearing some time ago, we also represent Comet Farms in a similar matter. At the moment I appear on behalf Mondello - Zerella's. Comet Farms, if I could refer the Commission to C number 32370 of 1999, we requested our clients, being Mondello Farms/Zerella Holdings be joined with Comet Farms to enable an arbitration as to the most appropriate award. It would appear there has been no resolution in this matter to date and we would submit that it actually proceeds to arbitration.

PN56

All of these three parties have a common interest and it is our understanding that all three parties have actually been negotiating a separate award with the NUW. Obviously, we want all three parties heard as one and this will obviously cut down the Commission's time and facilities and expedite the arbitration of the matter. In relation to Mr Freeburn's submissions, we don't see it as appropriate that your Honour program any times at this point. In relation to orders, etcetera, I will be making submissions later. But we request that it actually proceed straight to arbitration.

PN57

We would also request that your Honour - we request a directions hearing be listed in South Australia. The reason for that being is that all three parties, Mondello's, Zerella's and Comet are all based in South Australia. Both senior and junior counsel will have to be co-ordinated from South Australia. The NUW have a presence in South Australia, we believe. As a result of that we obviously see it as more appropriate that this matter be heard in Adelaide. I would just, your Honour, if I could go on. I am mindful of the fact that there may well be other parties that may wish to intervene in this matter.

PN58

However, I might point out that this award that we are talking about, the separate award that is currently being negotiated with the NUW applies to only these three clients that I represent, being, Comet's, Mondello's and Zarella's. We are not looking to develop an industry award. Now we realise that whilst there might be some sort of flow on from developing that award in a de facto status and other parties in the industry may well wish to be roped-in to that award at a later stage, that is certainly not a concern for our clients at this point.

PN59

I believe with other parties intervening in any potential arbitration, in deeming what is to be the most appropriate award, there may certainly well be some confusion as to the positions of those parties, etcetera, etcetera and it may well lead to a more drawn out arbitration in the matter. Obviously the award we are seeking and currently negotiating with the NUW is one that has been obviously developed by our clients and obviously - it is obviously up to the Commission to determine what is the most appropriate award. We obviously, from the outset, have said that the award proposed by the union is totally inappropriate for this industry and certainly for our clients.

PN60

Having said that, your Honour, we will be seeking a range of orders in relation to any future arbitration on this matter. However, we would submit that it may be more appropriate for that to be left to the member of the Commission hearing the matters. However, should your Honour be minded to make orders at this point, then I certainly have some further submissions to make.

PN61

THE SENIOR DEPUTY PRESIDENT: What is the nature of the orders that you say the Commission should make?

PN62

MR HEALY: Well, the nature of the orders just relate to the timeframe, really, in the sense that we would be seeking an order that the NUW file witness evidence and supporting documents. In addition we would be seeking that an outline of contentions of facts and law should also be filed. That these should be done at least 28 days - this should be at least 28 days before this is required. From that point on we would be seeking an order that respondents file witness evidence and supporting documents in response in a further 28 days. In addition an outline of contentions of fact and law should also be filed.

PN63

We would be seeking that an order - that the NUW file any further witness evidence and supporting documents in response to our material. And that the matter be listed for five days, not less than 14 days after the last filing date. All parties to be restricted to their witness statements in respect of evidence-in-chief unless there is any order of the Commission to the contrary.

PN64

THE SENIOR DEPUTY PRESIDENT: Mr Healy, what is the current file matter that you seek be joined with this?

PN65

MR HEALY: The C number, is that what you are after?

PN66

THE SENIOR DEPUTY PRESIDENT: Yes.

PN67

MR HEALY: The C number is, your Honour 32370 of 1999.

PN68

THE SENIOR DEPUTY PRESIDENT: 32370, thank you.

PN69

MR HEALY: As I said - as I have already stated, your Honour, all three parties have a common interest.

PN70

THE SENIOR DEPUTY PRESIDENT: And - I am a bit unclear from what you said. Is it the position of those you represent that they want the one award for them?

PN71

MR HEALY: They are negotiating at the moment an award - a separate award, not the award that has been proposed by the union - - -

PN72

THE SENIOR DEPUTY PRESIDENT: Yes.

PN73

MR HEALY: - - - but a separate award with the NUW that will be - where they will be at this point to their own three respondents to that award. And we are not seeking an industry award here. We are talking about an award that will be specifically developed for those three.

PN74

THE SENIOR DEPUTY PRESIDENT: Okay. But do they want - do those three want the same terms and conditions or is it three separate awards - - -

PN75

MR HEALY: Oh, no, absolutely not. It is one award.

PN76

THE SENIOR DEPUTY PRESIDENT: One award - - -

PN77

MR HEALY: One award, yes.

PN78

THE SENIOR DEPUTY PRESIDENT: - - - covering the three?

PN79

MR HEALY: Absolutely.

PN80

THE SENIOR DEPUTY PRESIDENT: So the issue is not award coverage, the issue is the content of the award?

PN81

MR HEALY: That is correct, yes.

PN82

THE SENIOR DEPUTY PRESIDENT: And presumably there would be some things which are agreed as content. Let me take one which might normally be considered would form part of an award - parental leave.

PN83

MR HEALY: Your Honour, I haven't been party to those negotiations so I could not advise there, either way.

PN84

MR FREEBURN: If I could assist your Honour there. The two issues - the two substantial issues which are - remained unresolved from the negotiations were hours of work provisions and the wages.

PN85

THE SENIOR DEPUTY PRESIDENT: Right.

PN86

MR HEALY: I guess what we are seeking, your Honour, is for the Commission to arbitrate on what is the most appropriate award. I mean, the union have sought to - in their log of claims, have sought to rope in our clients to these - I don't actually have a note of the award but it is the Storage Services - - -

PN87

MR FREEBURN: We haven't proposed any award at this stage, your Honour.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN89

MR HEALY: In any case, your Honour, as I said, we seek arbitration as to the most appropriate award regardless of any award that has been put forward in the past.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes, okay.

PN91

MR HEALY: If the Commission pleases.

PN92

THE SENIOR DEPUTY PRESIDENT: Ms Murdock?

PN93

MS MURDOCK: Potato Masters Pty Ltd was not included in those discussions or negotiations with the NUW that Mr Freeburn mentioned earlier. So, we can't comment on the negotiations or the outcome of that - of those negotiations between those particular parties. And I think we are just at a little bit of a disadvantage where we haven't been virtually included in most of the negotiations. And Ms Corkhill wrote a letter to Mr Freeburn indicating that. I will just hand that up.

EXHIBIT #SAFF1 LETTER FROM SAFF TO MR FREEBURN OF THE NUW DATED 12/6/01

PN94

THE SENIOR DEPUTY PRESIDENT: Could I indicate to the parties that it is all a bit quick for me and I say that for this reason. That it seems to me the appropriate course is for the NUW to serve the award that they seek, including its terms and conditions, on the relevant parties who they seek to be bound by it. And for there to be discussions about which clauses are agreed and which clauses are not agreed so that we know the scope of the disagreement between the parties. Because whilst the parties might get agitated about being roped-in to a particular award or whether there should be some other award, at the end of the day, the award is about terms and

PN95

conditions.

PN96

And the roping-in award, in my view is a complete award writ small and is actual terms and conditions which account in the matter. If it is down to a few matters of difference then it is a simple matter of looking at the arguments in respect of those matters. And so I am inclined to suggest the NUW serve the award they want on the employers, have discussions, come back to me and report on the areas of difference, so I can know the scope of any proceedings that might be necessary.

PN97

MR FREEBURN: Indeed, your Honour, that was the course that I suggested. That we actually serve - formulate and serve on the employers the form of the award that we were going to seek for them to have time to consider that and then we could have a - it would then be appropriate to have a hearing to determine the course of the arbitration.

PN98

THE SENIOR DEPUTY PRESIDENT: What do you say in respect of the issue of joinder of C number 32370 of '99 with this matter?

PN99

MR FREEBURN: I wouldn't like to express a concluded view about that at this stage. I can foreshadow a likely position and that is that we wouldn't object to that and that perhaps that could also be done. I was going to suggest that could also be done the next time the matter is brought forward and then both matters can formally be listed and the Commission could then joint the matters. As for the location of a hearing, well, we are open to further discuss the appropriate location for that and that might depend upon, of course, the nature of the issues that the Commission will be called upon to determine.

PN100

As for any potential interveners or flow on, I think we would have to deal with those issues as and when they arise, or if they arise. I should just make some comments in respect of Potato Masters and the exhibit SAFF1. I have had a conversation with Ms Corkhill of the South Australian Farmers Federation after receiving that correspondence. There was a confusion between us about the process - or about the form of - the way things would occur and I had a different view to that which is put forward in the exhibit. And I think I am pretty sure that I undertook at the last time this matter was before the Commission - undertook on transcript to provide the South Australian Farmers Federation with a copy of any documentation which arose out of the negotiations with the other employers.

PN101

Obviously no document has arisen because those negotiations have been unsuccessful and therefore we haven't served the South Australian Farmers Federation with any documentation. And that is all we would seek to say, your Honour. We are content with the course that your Honour proposes and we would be, hopefully, in a position to serve the respondent employers with a copy of the form of the award that we would seek next week.

PN102

THE SENIOR DEPUTY PRESIDENT: Is there anything you want to add, Mr Healy?

PN103

MR HEALY: Yes, your Honour, in relation to what your Honour is proposing, obviously we do seek, as stated before, that it proceed straight to arbitration. My understanding is that negotiations are at a point where a resolution is not likely to be reached. My understanding is that both parties have put their views across and it is at a sticking point now that we believe needs to be arbitrated by the Commission and have the Commission decide what is the most appropriate award in relation to these parties. We don't see the point in delaying the process.

PN104

THE SENIOR DEPUTY PRESIDENT: For the purpose of the future progress of this matter I issue the following directions. The NUW is to serve on the relevant employers a copy of the award that they seek to have made by the Commission in this matter and if they would seek Comet Farm to be bound by the matter, also, on Comet Farm. That they should do that within the next week. And, secondly, there should be discussions with the employers about the terms of the award and the extent of disagreement over the terms of the award.

PN105

And the parties are to report back to me at 11 am on 4 July 2001 here in Melbourne about the outcome of those discussions. I will now adjourn.

ADJOURNED UNTIL WEDNESDAY, 4 JULY 2001 [11.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SAFF1 LETTER FROM SAFF TO MR FREEBURN OF THE NUW DATED 12/6/01 PN94