C2001/1740, Transcript of Proceedings [2001] AIRCTrans 1825 (7 August 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 8512
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 a dispute re conditions of employment

MELBOURNE

10.30 AM, THURSDAY, 19 JULY 2001

Continued from 15.6.01

PN1021

THE SENIOR DEPUTY PRESIDENT: Who is going first?

PN1022

MR MILLAR: Well there is one - - -

PN1023

THE SENIOR DEPUTY PRESIDENT: Have we got any more evidence, or?

PN1024

MR MILLAR: Well there is just one issue I wanted to raise with you, your Honour. An issue emerged close to the end of the first hearing day about the existence of another company, SRG Datacell, and the suggestion seemed to have been made that this took the union by surprise. The company is troubled by that suggestion because the company has always been up front about the existence and the operations of that other company, and in fact specifically discussed that with the union. If your Honour is also left with any unresolved questions I could recall Ms McLeod simply to give evidence on that issue.

PN1025

THE SENIOR DEPUTY PRESIDENT: Is this the bit about this - some place two blocks away or something like that?

PN1026

MR MILLAR: Yes, yes, your Honour.

PN1027

THE SENIOR DEPUTY PRESIDENT: Is it a separate company?

PN1028

MR MILLAR: It is a separate company and its existence has always been disclosed. It is - - -

PN1029

THE SENIOR DEPUTY PRESIDENT: Well if it is a separate company is it covered by this matter?

PN1030

MR MILLAR: No, it is not. It is simple the suggestion that in some way that has been concealed from the union that I wish to address. The suggestion seemed to have been made that the existence of that company took the union by surprise and Ms McLeod could address that.

PN1031

MS PARKES: Your Honour, if I could perhaps make a statement there. That was not the suggestion that was made that - the query arose because the witness, Ms Eva Trainor, seemed to suggest that it was indeed the same company and that is what the union sought to clarify. And Ms Trainor indicated in her mind it was the same company, in my recollection, that Mr Millar in cross-examination put it to her then that perhaps it wasn't the same company - that there was a different corporate structure, so the union does not see how it could be suggesting that that took it by surprise. It was just clarifying whether it was or wasn't a separate company, given that the witness appeared to think it was the same company.

PN1032

THE SENIOR DEPUTY PRESIDENT: Mm.

PN1033

MS PARKES: That is all, your Honour.

PN1034

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1035

MR MILLAR: Well on that basis, your Honour, I don't think there is a need to call Ms McLeod because the issue is clearly not one of relevance before your Honour.

PN1036

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1037

MR MILLAR: Well, your Honour, as we have raised the objection I suppose it would be logical for me to proceed first.

PN1038

THE SENIOR DEPUTY PRESIDENT: Mm.

PN1039

MR MILLAR: In the written submissions the first point that is raised is non-compliance with the rules and the basis for that submission is that the affidavit of Mr Sword is deficient. Now, I won't spend a long time on this point, your Honour, but rule 16 of the rules of the Commission requires the service of a notice in accordance with Form R5 on each person alleged to be a party to the dispute. That rule is in mandatory terms. The notifier must serve a copy of the notice mentioned at sub rule one, which is the notice of hearing, and a notice in accordance with Form R5.

PN1040

There is no evidence of this requirement having been complied with. There is nothing in the affidavit from Mr Sword that mentions that. Now that could have been remedied in two ways. The first is either through a further affidavit by Mr Sword saying that this document had been in fact provided or indeed oral evidence from Mr Sword. The union has chosen not to provide such additional material and in fact the company representative, Ms McLeod, wasn't even cross-examined on whether such a notice had been received, despite the union being aware from our written submissions that this was a live issue.

PN1041

Alternatively, an application could have been made under rule six for relief from the rules and the union has had every opportunity to make that application and have not done so. They have done nothing to help themselves in remedying this defect and in light of non-compliance it is my submission that the matter shouldn't proceed further. It is not simply a technical point. The rules are there for a point and non-compliance may be excused - - -

PN1042

THE SENIOR DEPUTY PRESIDENT: They are there to make sure people are notified of hearing, aren't they?

PN1043

MR MILLAR: Well the - - -

PN1044

THE SENIOR DEPUTY PRESIDENT: You were clearly aware of the hearing.

PN1045

MR MILLAR: Well, there is no doubt about the notice of hearing but the notice Form R5, which provides information for those who are served with a log of claims.

PN1046

THE SENIOR DEPUTY PRESIDENT: What is the prejudice to you by the alleged non-compliance?

PN1047

MR MILLAR: Well it is simply that there has been non-compliance with the rules.

PN1048

THE SENIOR DEPUTY PRESIDENT: So it is a technical point?

PN1049

MR MILLAR: Well, it is - the point is that non-compliance can be excused where a party has the deficiency drawn to its attention and does something about it, but parties can't simply thumb their noses at the requirements of the rules and not take any action to remedy the deficiencies. I won't press the matter further but - - -

PN1050

THE SENIOR DEPUTY PRESIDENT: Is there any prejudice to you?

PN1051

MR MILLAR: Well there is no prejudice to this particular respondent.

PN1052

THE SENIOR DEPUTY PRESIDENT: Well you can only speak on behalf of your client.

PN1053

MR MILLAR: I can only speak on behalf of this respondent.

PN1054

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1055

MR MILLAR: And there is no prejudice suffered here, but the point remains that there has been non-compliance and there hasn't been any step taken to remedy it. I won't press that further, your Honour, but it is part of our submissions and is a point that we raise at the outset. The second point dealt with in the submissions is no community of interest between the respondents. That is dealt with in some detail in the submissions. The critical point is whether it can really be said that Simon Richards Group and the other respondents are in the same industrial dispute with the union.

PN1056

Is the position of the respondents so similar or is there such a community of interest that it can be said that there is one single dispute unifying them. And the principal authority on that is the Aberdeen Beef decision of the High Court which I can hand up to your Honour.

PN1057

THE SENIOR DEPUTY PRESIDENT: Simon Richards Group, insofar as the NUW is concerned, only operates in Victoria?

PN1058

MR MILLAR: Yes. Yes, that is right.

PN1059

THE SENIOR DEPUTY PRESIDENT: So I could find the dispute between just the NUW and Simon Richards Group?

PN1060

MR MILLAR: Well if that were found to be the case and - I mean that is not the nature of the dispute that is being notified - but if that were the case then it would be lacking interstateness.

PN1061

THE SENIOR DEPUTY PRESIDENT: Well, does it need interstateness?

PN1062

MR MILLAR: Well it hasn't been notified as a single dispute with the Simon Richards Group, it has been notified as a dispute with a range of others and if that dispute is not genuine or if the dispute is not made out with all of the respondents then the whole dispute must fail, in my submission.

PN1063

THE SENIOR DEPUTY PRESIDENT: Are you actually going to the - - -

PN1064

MR MILLAR: The issue was dealt with at page 39 by the decision of the majority. McHugh J delivered a separate decision and although it was separate there is little distinction in my submission in his reasoning from that of the majority. At page 39 the Court says this:

PN1065

It is not of great significance that there was no exact coincidence between the activities carried on in the respective states in respect of which demands were made. It is of greater significance that those upon whom or in respect of whom the demands were made at a community of interest. That factor may exist because of the employers or employees ...(reads)... A dispute involving parties having a community of interest is likely to be a single industrial dispute despite differences between the activities of those parties.

PN1066

And their Honours proceed to apply that here. McHugh Js decision, which as I say, does not depart in reasoning from that of the majority. It goes further in the analysis and I refer you to page 46. His Honour refers to a number of earlier decision of the High Court on the question of community of interest and the decision in particular of the R v Gough ex parte BP Refinery Westernport is considered and he - McHugh J quotes from the majority judgment in that case - and I will just quote the last sentence of that quote, which is about a third of the way down page 46:

PN1067

Their respective interests, industrial or otherwise were so disparate as to compel the conclusion that there was no common cause concerning which the union and the parties upon whom the log was served could be said to be in dispute.

PN1068

His Honour then goes on to consider further - a further decision of the High Court and then his Honour says this:

PN1069

That the foregoing account of the cases in this Court demonstrates that before disagreements between employers and employees extending beyond any one state can be characterised as giving rise to a single industrial dispute there must be a community of interest within the groups of employers and employees who are parties to the disagreements.

PN1070

And he then goes on over the next page to further consider that and then at the foot of page 47 he says this:

PN1071

Obviously a wide range of factors are or can be relevant in determining whether employers have such a community of interest in resisting the demands of their employees that they can be regarded as being engaged in a single industrial dispute. Relevant factors may include the presence or absence of a common industry or calling, the presence or absence of competition between the employers, the presence or absence of common demands and the presence or absence of an economic connection between the employment conditions of the employees. Similarity or dissimilarity of work is also a relevant factor as is similarity or dissimilarity of skill and the ease with which employees can be transferred from one class of work to another.

PN1072

The evidence of Ms McLeod went to the nature of the principal activities of the other respondents to this dispute. That evidence has not been counted in any way. In this case even her evidence on those issues was not disputed in cross-examination. There is no evidence before you, in my submission, your Honour, on a common industry. No evidence on even a community of interest. What we do have is an assertion from the union in their submissions that the other respondents employ telephone operators involved in the order, sale or promotion of goods, merchandise or services via telephone - that is in paragraph 13 of the submissions of the union.

PN1073

It is submitted there that there is a community of interest linking the respondents in this matter with the companies in question all employing employees that share a common vocation or calling. Now that is a bald assertion that has been made effectively from the Bar table. There is no evidence before you on what the other companies do. No evidence to support the suggestion that there is a community of interest. There is nothing on what the other companies do or in fact whether they employ people in that capacity.

PN1074

Now one could speculate that the employees of those other companies are very different from the employees of Simon Richards Group. That is any telephone operators at the other companies would be engaged in selling or promoting their companies own goods and perhaps that makes them closer to the concept of commercial travellers. Simon Richards Group acts for clients, not promoting or selling anything of its own, but engaging in activities on behalf of its clients. That is the nature of the role of the other companies and the role of their employees may well be very different from the role of Simon Richards Group and its employees.

PN1075

Now I prefaced all of that by saying that is by way of speculation, because the unions offered no evidence on what the alleged community of interest is. It has done nothing to prove that there is a community of interest. The only evidence before the Commission is to the contrary. That evidence is from Ms McLeod and on the basis of her evidence - the only evidence before you - it is submitted that there is no community of interest. Now this question of course, with evidence having been given by one party and not the other, gives rise to a question of onus. Where does the onus lie? Must we prove that there is no community of interest, or must the union show that there is?

PN1076

And there is, of course, some case law on this which I will hand up. The first one is a decision of a Full Bench of the Commission in Rescrete Industries. That is the decision of Munro J, Senior Deputy President Marsh and Commissioner Larkin from 1997. And on page five of this print the Full Bench considers the question of onus. This was on the issue of whether proper authorisation for the service of the log of claims had been given. And they quote from a decision at the top of the page re: local government administration contract labour dispute and say:

PN1077

In the Commission the onus of establishing authority to serve a log of claims rests with the union asserting the existence of an industrial dispute by reasons of the employers non-compliance with the log.

PN1078

But then after the quote they go on to say:

PN1079

Some qualifications must always attach to the use of the notion of onus of proof in Commission proceedings. The basis for the Commission's exercise of power is that it be satisfied as to the existence of particular facts or situation ...(reads)... fact or state of affairs on which the Commission must be satisfied if it is to exercise jurisdiction.

PN1080

The issue involved there, your Honour, also received consideration in a further decision of Commission Larkin, which I will hand up, which is re: Australian Public Service General Employment Conditions Award 1995 decision dating from 2 September 1997. And at page seven the Commissioner says this in the third paragraph:

PN1081

In regard to the question of onus I would make the following comment. It has been held on numerous occasions that the question of onus is not necessarily conducive to the overall role and responsibility of the Commission when regard is had to the objects of the Act ...(reads)... There exists a general view that the person best placed to adduce the evidence in support of the application is the person bearing an onus, if indeed the question of onus is appropriate to proceedings.

PN1082

And then they go on to - or he goes on to refer to a decision - Full Bench decision in Coal and Allied and that quote is to the following effect:

PN1083

It is doubtful how far the notion of onus of proof is relevant at all to Commission proceedings. There is a respectable basis for the view that where there is a statutory requirement for the Commission to be satisfied about exercising a discretion. The notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decisional process.

PN1084

It then goes on to say:

PN1085

Perhaps no party can be said to bear an onus in a quasi judicial proceeding that is freed of legal technicality and is directed at the determination of a statutory discretion. Even if that view be accepted there are ingredients of the principles associated ...(reads)... The applicant may thus be said to bear an onus of satisfying the Commission that an order should be made.

PN1086

Now on that basis, your Honour, it is submitted that there is simply no material on which it could be said that the union had discharged the onus that it has satisfied you that there is the requisite community of interest. There is one further decision - Full Bench decision on this question of onus which I will hand up. It is of particular help as it considers what has been said by the High Court on the matter. This is a decision of Amdale Australia Pty Ltd - Full Bench of Boulton J, Senior Deputy President Harrison and Commissioner Cribb, from 23 June 1998.

PN1087

And the Full Bench begins considering questions of onus of proof in Commission proceedings at page 17 and they refer to the decision of the High Court and Attorney General for Queensland v Reardon. Now there is some difference in the approach of the members of the High Court in that case which is evident in this decision. Kirby J says this - and it is quoted towards the end of the first paragraph on page 18:

PN1088

The requirement to establish the existence of an industrial dispute is always the obligation of the notifier. On the other hand, if the formalities of a paper dispute are properly established it will ordinarily be the case that the evidentiary burden of demonstrating that the suggested dispute is a sham, pretended demand or a mere device will rest upon the objector.

PN1089

Now that was dealing with the question of genuineness in that case, as I understand it. But Toohey J goes on to consider what he had to say, particularly in relation to genuineness in re: SPSF. And Toohey J - and this is again quoted on page 18 - says:

PN1090

In re: State Public Services Federation I discussed the role that onus has to play when the existence of an industrial dispute is asserted. Onus may not be the happiest of terms to use in relation to proceeding before the Commission since the Commission is not bound by any rules of evidence. It may inform itself on any matter in such manner as it considers just. Nevertheless I adhere to what I said in that case...

PN1091

And he quotes:

PN1092

It is for the applicant who has invoked the jurisdiction of the Commission to make good the proposition that jurisdiction exists, but in doing so the applicant will be assisted by the evidentiary weight to be attached to the service of a log of claims and a failure to exceed to the demands contained in the log.

PN1093

Toohey J then goes on to say, towards the foot of the page:

PN1094

It follows that however the standard of proof is expressed there must be material before the Commission from which it can legitimately conclude that an industrial dispute as defined exists.

PN1095

Now on the following page the Full Bench goes on to consider an earlier Full Bench decision in re: Australian Municipal Administrative Clerical and Services Union. I won't read it in full but the first paragraph speaks of the Commission being reluctant to accept notions of evidential burdens and onus of proof. I will, however, quote from it:

PN1096

However, there are aspects of these concepts which may be accepted as so elementary in the achievement of fair and consistent principles by this Tribunal, that they may be applied by analogy as guiding principles, stripped of the rigor which is associated with application of them in adversarial proceedings before judicial bodies ...(reads)... legal burden of proof and a tactical burden of abducing evidence affords a useful parallel by reference to which the responsibilities of the respective parties in presenting their cases in this matter may be understood.

PN1097

They then go on to say:

PN1098

The ASU...

PN1099

This is in the next paragraph:

PN1100

...was the party notifying the alleged dispute and seeking a finding of its existence as a jurisdictional fact and as a condition precedent to the exercise of powers by the Commission. There was therefore an onus ...(reads)... However, upon such issue being adequately raised it is the notifier, and in this case the ASU, which has the ultimate burden of satisfying the Commission that the alleged dispute is real.

PN1101

Now, your Honour, that passage is quoted with approval by the Full Bench in the Amdale case. And the approach is similar to that taken by the Full Bench in the earlier case I referred to and by Commissioner Larkin in the other case. Once an issue is seriously challenged it is submitted the onus lies upon the union to show the existence of the dispute. To show that the necessary community of interest exists in order to uphold a finding of a single industrial dispute.

[10.55am]

PN1102

Now, this is not a case of an ambush where we get to the end of the case, and raise an element of an industrial dispute, which the union has not made out. Notice has been provided of this argument. It was contained within the submissions. The fact that Simon Richards Group contends there is no community of interest with the other respondents, was maintained from the beginning. The community of interest was seriously questioned. The witness statement of Ms McLeod went to the issue, as did her evidence in the witness box. The union has chosen to give no evidence, to present no material on the community of interest.

PN1103

There can be no basis, in my submission, for a finding that there is such a community of interest. The only material before you, is to the contrary. Now, the failure to produce evidence necessary to prove their case, on High Court authority and in Jones v Dunkeld, can justify the inference that such evidence would not help their case.

PN1104

THE SENIOR DEPUTY PRESIDENT: Who was the witness who had the internet report?

PN1105

MR MILLAR: Ms McLeod, who spoke of obtaining the information about the other respondents from the internet. Yes. I can hand up Jones v Dunkeld should you wish, your Honour.

PN1106

THE SENIOR DEPUTY PRESIDENT: You don't need to hand up Jones v Dunkeld.

PN1107

MR MILLAR: No. I only have the one copy, but the relevant principle, which is at page 313 of Volume - the volume number is obscure - 1958 any way the CLR is, that:

PN1108

A failure to give evidence could be used to assist the Jury in deciding which of the inferences open to them, they should draw.

PN1109

And at page 321:

PN1110

If the opposite party has it in his power to rebut it by evidence, and yet offers none...

PN1111

They go on to say:

PN1112

Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case.

PN1113

And that is the inference that I invite the Commission to make in this matter. That the absence of evidence from the union on community of interest, should lead the Commission to make inferences against the submission that there is a community of interest.

PN1114

THE SENIOR DEPUTY PRESIDENT: Mr Millar.

PN1115

MR MILLAR: Yes.

PN1116

THE SENIOR DEPUTY PRESIDENT: Your client has received the letter of demand and log of claims?

PN1117

MR MILLAR: Yes, your Honour.

PN1118

THE SENIOR DEPUTY PRESIDENT: Do they accede to the terms of the letter of demand and log of claims?

PN1119

MR MILLAR: No, they did not.

PN1120

THE SENIOR DEPUTY PRESIDENT: And they don't?

PN1121

MR MILLAR: Sorry.

PN1122

THE SENIOR DEPUTY PRESIDENT: They did not and they don't?

PN1123

MR MILLAR: They did not and they do not.

PN1124

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1125

MR MILLAR: In summary on that point, your Honour, we have seriously questioned the community of interest. It is the union's case to show a dispute, and they have done nothing to do so on that point. The Commission should draw the adverse inference from the failure to produce evidence, that such evidence would not help them. But even if you don't go that far as to apply the Jones v Dunkeld approach, the union has not produced the evidence that you need in order to prove the dispute as notified.

PN1126

THE SENIOR DEPUTY PRESIDENT: Well, you say the dispute is notified, but the reality is, isn't it, Mr Millar, that the union has served the company with a letter of demand and a log of claims. The company does not accede to it. That is an industrial dispute. Interstateness doesn't matter in this instance.

PN1127

MR MILLAR: Well, it is a single dispute that has been notified in relation to all of these respondents.

PN1128

THE SENIOR DEPUTY PRESIDENT: That might go to the technical paperwork, but can I ignore the reality, that the information I have is that a letter of demand and a log of claims has been served and received, and the company does not accede to it. There is a dispute.

PN1129

MR MILLAR: Well, your Honour, it is the union's contention. The union has notified a dispute amongst the, I think, it is 14 respondents. And we say that there is no community of interest between those respondents, in order to say that we are all in the same dispute. Perhaps if the union had gone about it in another way, they might have been able to create a dispute. But that is not what they have done.

PN1130

THE SENIOR DEPUTY PRESIDENT: Well, can I ignore the material that I have before me? That in respect of this company, it is a fact that a letter of demand and log of claims were served by the union on the company, and has not been acceded to. Can I ignore that evidence and find, well, because they technically served it with another 13 other companies, there is no industrial dispute between the union and this company, in respect of a letter of demand and log of claims?

PN1131

MR MILLAR: Well, it is not submitted that it involves ignoring the evidence before you. It is simply examining the union's application. The union is seeking a finding of a dispute between these parties, to find that there is not enough between the parties. There is not enough community of interest between the respondents, to justify the finding of a dispute. If they had run it differently, the considerations may be otherwise but you have a single dispute, a contended single dispute, before you. And it is submitted on the basis of the material before you. The union has not made out a contention that there is a single industrial dispute.

PN1132

There is simply insufficient evidence of a community of interest. That issue having been enlivened in the submissions, enlivened at a very early stage.

PN1133

THE SENIOR DEPUTY PRESIDENT: Why - there is, within the provisions of the Act - cannot the Commission itself come to the view that there is an industrial dispute between the parties, no matter how notified?

PN1134

MR MILLAR: Well, the Commission can come to that view, but that is not the matter that you have before you. It is not simply an application against Simon Richards Group alone. It is an application alleging that it is part of a wider industrial dispute with others having a community of interest.

PN1135

THE SENIOR DEPUTY PRESIDENT: But doesn't the issue of a wider industrial dispute only arise because of a requirement for interstateness?

PN1136

MR MILLAR: Well, it - no, well it doesn't. I mean, the wider industrial dispute isn't made up of a series of single disputes. It is a single - an amorphous mass - a single industrial dispute, as between the employers and the union.

PN1137

THE SENIOR DEPUTY PRESIDENT: Why is it a single industrial dispute? It has to be because of the provisions of the Constitution requiring there be interstateness. But under the Act as it currently stands, we don't need that in respect of employees in Victoria.

PN1138

MR MILLAR: Yes, but it may well be that, as I say, the considerations would be different if the union were only proceeding against Simon Richards Group. But they are not. You don't have a single application for a dispute involving the union and Simon Richards Group.

PN1139

THE SENIOR DEPUTY PRESIDENT: But what I have before me, is an application alleging an industrial dispute with Simon Richards Group. True it is, there is an allegation of an industrial dispute with other employers as well. But what I am considering is whether there is an industrial dispute with the Simon Richards Group.

PN1140

MR MILLAR: Well, with respect, your Honour, it is an industrial dispute with all of the respondents, that includes the Simon Richards Group. Now, the other respondents have chosen to accede to the dispute finding, but that doesn't relieve the union of the responsibility of showing that Simon Richards Group is in the same dispute as the rest of them. Your Honour, the next point I wish to go to, was the union rules issue, which is also dealt with in the submission. Your Honour will be familiar with the relevant rules of the union. At the outset, it must be said that there must be some doubt as to whether the employees of Simon Richards Group, are employed:

PN1141

In or for the purpose of soliciting orders or promoting business of whatsoever kind.

PN1142

The evidence suggests that little, if any, of such activities is done. The bulk of the evidence says the employees are engaged in carrying out administrative functions outsourced by clients. Receiving calls about increased credit limits and passing it onto the client. Taking orders from a clothes merchandise catalogue and passing that onto the client. Collecting donations from a charity. And that activity would certainly not be covered by the rule. There is very limited evidence of any soliciting of orders or promoting business before you, in my submission, your Honour.

PN1143

What the employees here do, is very largely limited to administrative or clerical duties on behalf of clients. Evidence of what some of the employees, and certainly a minority of the workforce, do in relation to the major food manufacturer and wholesaler, perhaps comes closest to fulfilling the phrase, because they are involved in the taking of orders. But that is a minority of the workforce, on the evidence before you. Primarily the employees in that capacity are simply taking orders from existing customers. It is an administrative or clerical function, rather than being a sales and marketing function.

PN1144

The evidence before you is that that company, the food manufacturer, has its own sales representatives, its own commercial travellers who will visit the customers to tell them about products, and to solicit orders and promote business. It is not that function that the Simon Richards Group fulfils. The Simon Richards Group fulfils the administrative function effectively, clerical function, of taking orders. That clerical part of the operations of the food manufacturer's business, the taking of daily orders, is outsourced. Now, it is submitted that very little of the work which is carried out here, falls within this concept of promoting - of soliciting orders or promoting business.

PN1145

Now, there was evidence given on a customer survey which was done some time ago, again for the major food manufacturer. It was some time ago. It was a one off matter. It was essentially ascertaining why people hadn't - why customers hadn't placed orders. The fact that it was some time ago, is of relevance. It doesn't form part of their daily duties, to undertake this sort of customer survey. Now, the question then arises as to how much of the time of the employees, needs to be spent on soliciting orders or promoting business, in order for them to fall within the eligibility rule here. One must remember that the eligibility rule was expressed to cover persons employed:

PN1146

In or for the purpose of soliciting orders or promoting business.

PN1147

Not for purposes that include that, but must be employed:

PN1148

In or for the purpose of soliciting orders or promoting business.

PN1149

That must be their job. That must be what they are there to do. And these people, it is my submission, are not there to solicit orders or to promote business. That is not what their job is all about. Now, there is no basis for construing that the predominant work carried out by them, is within the terms of that part of the eligibility rule. It is much more a clerical or administrative function than the soliciting of orders or promoting business. Your Honour, there is some case law in the context, particularly of the Waterside Workers Federation, on the need for the person to be engaged predominantly in the activities covered by the rule, which I can hand up for assistance, because it is my submission that a similar approach should be taken here.

PN1150

I will hand up two authorities to your Honour. The first is a decision of the Full Court of the Federal Court, in Federated Clerks Union v Waterside Workers Federation, to say the union rules case - and the union rule in that case is extracted on page 26 of the fourth volume of the industrial reports, half way down. The rule says:

PN1151

Any person who intends to follow the occupation of a waterside worker...

PN1152

And goes on to further qualify it. But the relevant concept is a person who intends to follow the occupation of a waterside worker. Now, on page 27, their Honour's quote from an earlier decision on the same rule. This is perhaps three quarters down:

PN1153

In our view, the words "occupation of a waterside worker", as used in Rule 6 of the Federation's rules, should be construed as encompassing the occupation of any worker, whose predominant working activities are based on, or in the vicinity of wharves and constitute part of the overall stevedoring operations of loading and unloading ships.

PN1154

And similarly, on page 31, half way down, the Court says:

PN1155

In our view, the words "occupation of a waterside worker", as used in Rule 6 of the Federation's rules, should be construed as encompassing the occupation of a tallyclerk, whose predominant working activities are based on a ship, on a wharf, or in the vicinity of a wharf, and which constitute part of the overall stevedoring operations of loading and unloading ships.

PN1156

Now, that test was later paraphrased by Deputy President Watson in the second decision that I have handed up to you, which is MUA v Gambier Earthmovers & Ors. In that case, at page 7, His Honour considers the tests involved and says that one of the parties, Soresdale Pty Ltd:

PN1157

...submitted that on all of the tests disclosed by the decisions relied on, the concentration has been on identifying the predominant activity, identifying the occupation, and/or identifying the calling, and it does not change because of an occasional transient or incidental performance of particular functions, which the MUA might like to think is the province of employees of stevedoring companies.

PN1158

His Honour goes on, on pages 8 and 9, to further consider that, and says on page 9, two thirds down, in the second last paragraph:

PN1159

However, in my view, the principle stated there...

PN1160

That is in the Cooperative Bulk Handling case:

PN1161

...goes only part of the way in the context of the current case, and the predominance test used in the ETU and FCU cases, are appropriate for application in the current matter, together with the positions cited in the Cooperative Bulk Handling case.

PN1162

He then goes on to say - towards the - in the final paragraph, half way through:

PN1163

It is necessary to consider the occupation of the relevant employees as a whole.

PN1164

Now, in my submission, your Honour, that is the relevant test. To look at whether these employees, when you take their job as a whole, when you look at what their predominant activity is, are they engaged:

PN1165

In or for the purpose of soliciting orders or promoting business of whatsoever kind.

PN1166

It is my submission, that there is simply insufficient evidence before you, to warrant a finding that these people are engaged predominantly in that sort of activity. Their job is simply not for the purpose of soliciting orders or promoting business. Their job is to undertake the administrative and clerical duties, that clients of their employer has outsourced. Now, the second point on the union rules is put even more stridently, and that is that the other part is not satisfied. That the employees must be employed substantially away from the employer's place of business. Now, that is a very fundamental and simple point. The employees in this case do not work outside the employer's place of business.

PN1167

It is so fundamental that, with respect, it is hard to see how a contrary view could be maintained. These employees are all engaged within the office of Simon Richards Group, within the Simon Richards Group building. One issue on which every witness who passed through the witness box in this matter gave evidence to the same effect, is that they work there and only there. They don't leave the building. They far from being employees who are engaged substantially away from their employer's place of business, are completely bound to their seats. They never leave the employer's premises. Now, the various cases on union rules that have been referred to in the submissions by both parties, stand for the proposition that union rules interpretation is a matter of applying ordinary, every day words, in their ordinary every day commonsense meanings.

PN1168

[11.20am]

PN1169

Now, on that basis, your Honour, the ordinary person in the street is simply not going to accept that these employees, who you have heard from, work away from the employer's place of business. It is clearly a nonsense, in my submission, to suggest otherwise. Their evidence has been to the same effect, their evidence has been that they worked in the employer's place of business. Now, it is true, and my learned friend will no doubt refer to this, that union rules, eligibility rules can evolve over time. They can change and adapt to new technologies and new ways of doing things. And that is what the Federal Court was dealing with in the Cooperative Bulk Handling case. Now, that case again dealt with the meaning of waterside worker, and that case found that there was some evolution in the term over time in the way in which the job was done.

PN1170

But one thing must be borne in mind, your Honour, in looking at this case. That it was dealing with the construction of the term "waterside worker". It was looking at a job title. It was not looking at the construction that a sentence or a phrase should be given, but looking at a particular job, what was involved in doing the job. So in this case, in the present case before you, your Honour, we are looking not at the meaning of a noun, not at the meaning of a particular title, but we are looking at a sentence, looking at what the meaning of "employed substantially away from the employer's place of business" is. But what the Full Court of the Federal Court said in this case is of direct relevance to the present case. On page 549 their Honours say this:

PN1171

If there is, as appears clearly inevitable, a continuing change in the manner in which work is done we see no reason why the new forms of work should not come within words used in a conditions of eligibility rule if those words are capable of bearing the appropriate current meaning.

PN1172

That caveat at the end is of critical importance here, your Honour. "If those words are capable of bearing the appropriate current meaning." So it is possible for a particular role, such as that of a waterside worker to evolve over time and to encompass different duties and different functions. It is quite possible for that concept of a waterside worker to evolve to encompass activities which might not have originally been contemplated.

PN1173

But in this case the words "engaged substantially away from the employer's place of business" are not words capable of evolving. There are no words in that phrase that have such an ambiguity or such development over time that they can mean something else now to what they originally meant when they were inserted in the rules. They are simple words, not a vague concept like "waterside worker", but very simple words, "employed substantially away from the employer's place of business."

PN1174

Now, it is common in proceedings on meanings of words to hand up dictionary definitions and to explore possible meanings that might be given to those words. But this is not that sort of case. Oxford Dictionary definitions are going to be of no assistance here, because there is no word in the expression "substantially away from the employer's place of business" that is in any way ambiguous. It is a perfectly straightforward phrase that is to be interpreted in a commonsense way in accordance with the authorities.

PN1175

The union's approach to this, with respect, would deprive the whole concept of a traveller of any meaning. It essentially would become somebody engaged in commercial activities. Anyone who was promoting goods or services other than by retail activities would be within the concept. The whole approach which has been given to the concept of commercial traveller by the union in its submission strips the definition of commercial traveller of a very important part of its meaning.

PN1176

Now, the words, in my submission, cannot be read in the way that the union contends. The union, in its submissions, goes to the approach which is to be taken to the interpretation of eligibility rules in paragraph 21 of their submissions. And we would endorse wholeheartedly what the union says. It says that:

PN1177

The Commission should not focus on errors in drafting or conformity with legal convention in eligibility rules as the practical affairs of industry may have been predominant in the minds of authors who are more likely to have been union officials more familiar with the practical affairs of industry than with the niceties or subtle nuances of language.

PN1178

That is a quote of Barwick J and then the submissions go on to say that:

PN1179

Expressions in eligibility rules should be applied in accordance with its ordinary and popular denotation rather than some narrow or formal construction.

PN1180

Now, the union goes on to say it is inconsistent with these principles for the Simon Richards Group to apply a narrow meaning to the words "employed substantially away from the employer's place of business." In my submission that is simply not open. We are not attempting to give any narrow meaning, narrow reading, to that phrase. We are simply attempting to apply the phrase in the way it is expressed.

PN1181

Every time in one of the cases the Courts say that it is the commonsense approach that must be taken it further damages their case. Their approaches has nothing to do with the commonsense interpretation of those words. Has everything to do with convoluted legal reasoning based upon development of case law. In my submission, that reading is simply not open on the words used.

PN1182

Now, then you get to the decided decision that have been taken on this question of the interpretation of this rule. And the primary decision that I wish to refer to is the decision of Commissioner Whelan in re Franklin Mint.

PN1183

THE SENIOR DEPUTY PRESIDENT: Do you say the words "employed substantially away from the employer's place of business" refer to where the person is located or how much time?

PN1184

MR MILLAR: Well "substantially" would go to how much time they spent. The words "place of business" in my submission in this context is utterly clear. It refers to the premises, the business premises of the company. "Employed substantially away from" would involve somebody who is frequently - I leave open the question of whether "substantially" means more than 50 per cent or not - but whether that person is involved on a regular basis in working at some other place to the employer's place of business. Or working away from some other place or places.

PN1185

Anyway you look at it, in my submission, it is simply not made out on the facts here. Does that answer your Honour's question? Substantially - your query was what "substantially" relates to?

PN1186

THE SENIOR DEPUTY PRESIDENT: Mm.

PN1187

MR MILLAR: Well, in my submission it would relate to the - well, effectively the time that they spend away from the employer's place of business. Somebody who leaves the office occasionally is not employed substantially away from the employer's place of business. In my submission, and it is not necessary to determine that in this case, but "substantially" would infer a majority of the time that the employee, or if not a majority then certainly a significant component, of the time of the employee.

PN1188

An employee spending a day a week working somewhere else, in my submission, would not be employed "employed substantially away from the employer's place of business". An employee working three days a week outside would be. So I think "substantially" would go to time that you actually spent out of the office. But it is worth examining the decision of Commissioner Whelan in Franklin Mint on that point. Just bear with me a moment, your Honour, I have the earlier decision of the Commissioner but not the subsequent one.

PN1189

Sorry, your Honour, the confusion is there were, of course, two decisions of the Commissioner and it is the second one that I am relying upon. I do have it but I only have one copy. Does your Honour have a copy of that decision?

PN1190

THE SENIOR DEPUTY PRESIDENT: What date is it?

PN1191

MR MILLAR: It is 29 November 1999.

PN1192

THE SENIOR DEPUTY PRESIDENT: Yes, I have got that one.

PN1193

MR MILLAR: Now, Commissioner Whelan in that case attached some importance to where the place of business should be seen to be. And in paragraph 18, which on my print is at the top of page 9, it is paragraph 18, about halfway through where the Commissioner says:

PN1194

You have to ask the question, "Where is the business being transacted? Why is the location of the employee, the employer's place of business." Really the business transaction that occurs takes place in the electronic ether. The place of ...(reads)... the point being made by -

PN1195

and it goes on to say which was upheld by the Full Bench:

PN1196

Simply because the employer has its office at a particular place that the employer owns or leases premises does not make the place itself the place of business for the purpose of the rules.

PN1197

The Commissioner then goes on in paragraph 35 to further expand upon the place of business. Towards the end of that paragraph:

PN1198

How then do you define the place of business. An order is placed from a person's home or perhaps their own place of work, the order is received by a telesales person who may potentially be located ...(reads)... in yet another location.

PN1199

THE SENIOR DEPUTY PRESIDENT: Which paragraph are you in?

PN1200

MR MILLAR: I am sorry, that is 35.

PN1201

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1202

MR MILLAR: Towards the end of 35, "how then do you define the place of business".

PN1203

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1204

MR MILLAR: And the Commissioner there discusses a number of option for where the place of business would be. And ultimately the Commissioner's view there is that the place of business may well be in the electronic ether. It does not necessarily simply mean the business premises of Franklin Mint. Now, in that case the decision of Commissioner Whelan, it is submitted, and the other cases that the Commissioner has referred to are absolutely different from the present case. They are quite distinguishable.

PN1205

A Franklin Mint telemarketer is selling Franklin Mint goods. And the place of business of Simon Richards Group, it is submitted, is clearly and unambiguously within its own building. All the witnesses were again clear on one other issue. As well as the issue of not leaving the building, they were also clear on the fact that when they are speaking to customers they are doing so, not on behalf of the Simon Richards Group, but on behalf of the clients of their employer.

PN1206

Now, they may be acting on behalf of clients whose activities are out there in the electronic ether. But their role, the role of the Simon Richards Group employees, is entirely within the office. They are not promoting or selling anything for the Simon Richards Group, but they are doing so for the clients. Any transactions that they may be involved in are for the clients of Simon Richards Group. So, for example, the food manufacturer may be a party to a transaction in the ether, but the role of Simon Richards Group remains in the call centre. It is only the client's business which even arguably is outside of the premises of Simon Richards Group that is in the electronic ether or at the home of the person at the other end of the line, or the business premises or the other person.

PN1207

Simon Richards Group is not a party to anything which happens outside of its office. So even if Commissioner Whelan is right, that the place of business is not limited to the office, that is the client's business in this context. Simon Richards Group only has its office. Now, under the rule, under the NUWs rule, it is the employer's place of business that matters. It is simply not tenable to contend, in my submission, that Simon Richards Group's place of business is anything other than its office, anything other than where these people work.

PN1208

Again, commonsense approach to ordinary words. And those ordinary words when speaking of the place of business of the employer must be construed as referring to where these people are actually physically working. On a commonsense literal and everyday construction of those words they cannot mean anything other than the premises, the business premises, of Simon Richards Group. The role of Simon Richards Group and its place of business is entirely limited to its business premises.

PN1209

Now, ultimately if your Honour cannot distinguish the decision of Commissioner Whelan and the other decisions referred in there, it is my submission that that decision is wrongly decided, and a decision which is bad law should not impede the Commission in this case. But it is easily distinguishable on the grounds that I have suggested, that Franklin Mint was a case dealing with transactions that occurred for Franklin Mint. Franklin Mint itself advertises widely. Franklin Mint itself has retail premises. Franklin Mint itself conducts telemarketing activities.

PN1210

There was a strong basis there to say that the place of business was something other than simply where the people were sitting. In this case Simon Richards Group does nothing outside of the building, and that is its place of business, and the employees concerned do not leave that place of business.

PN1211

Now, ultimately my friend will no doubt urge you to get tangled up in decisions of the Victorian Commission or decision on the validity of awards and earlier decisions, other decisions of this Commission. And the reasons for doing so are obvious. It is only by getting bogged down in the weight of juris prudence that has gone on with this eligibility rule that the convoluted reasoning which supports the view that my friend is urging is available. It is only by resorting to an application of earlier decisions and a fine analysis of authorities that my friend may take you to. It is only by doing that that there is any hope of avoiding the clear operation of the ordinary words used in this case.

PN1212

Now, in finishing, your Honour, can I simply come back to the point in the Bulk Handling case that we referred to before. That you have to look at whether in the evolution of an eligibility rule whether the words are capable of bearing the meaning contended for. You cannot stretch the words in the eligibility rule, in my submission, in the way that the union contends. Now, if they want coverage of call centres, this new form of work, then the appropriate course if for them to amend or apply to amend their eligibility rule. To apply to change their rules to include this new form of work.

PN1213

In my submission, they should be up-front about it, allow other unions with an interest in this issue to contest the issue if they wish. That is a much more satisfactory course than relying upon artificial reasoning and stretching of words beyond, in my submission, their breaking point. The concept of a commercial traveller, quite apart from the reasoning on the definition, the concept of a commercial traveller simply cannot be extended to include a whole new type of work in call centres. They have a clear means available under the Act in order to pursue the substance of their contention by amending their rules.

PN1214

It would not simply be seeking a clarification or application of their rules, they would be seeking to add to their rules to cover a new form of work and not simply a change in the concept of commercial travellers. It is not necessary to decide that issue, of course, your Honour, but if the union were being really genuine about their desire to cover call centre operators, in my submission, the Act provides a mechanism for them to apply to amend the rules. That is what they should do rather than to attempt to extend the application of their rules in this way. If the Commission pleases.

PN1215

THE SENIOR DEPUTY PRESIDENT: I will mark the written outline of submissions.

EXHIBIT #SRG12 WRITTEN OUTLINE OF SUBMISSIONS OF THE SIMON RICHARDS GROUP

[11.45am]

PN1216

THE SENIOR DEPUTY PRESIDENT: Ms Parkes?

PN1217

MS PARKES: If the Commission pleases. On 2 April 2001 the National Union of Workers served a log of claims on the Simon Richards Group which has been rejected. At that hearing on 10 May, your Honour, you did record a dispute finding between the applicant and all the other respondents that the union sought to pursue a dispute finding with at the time of hearing with the exception of the Simon Richards Group. Now we have had three issues that have been put before your Honour today by the Simon Richards Group.

PN1218

And it is indeed submitted that it opposes the finding of an industrial dispute with the NUW on these three grounds. Firstly, the issue of non compliance with the rules of the Commission. Secondly, the issue of community of interest between the respondents, and thirdly, that the union is not eligible under its rules to represent employees of the Simon Richards Group. The NUW submits that these three grounds of opposition cannot be substantiated and that a finding of an industrial dispute between the union and the Simon Richards Group should be made.

PN1219

If I could take your Honour to the first issue that is being raised by my friend in respect of non compliance with the rules. There is an affidavit before your Honour by Mr Greg Sword the general secretary of the union and the union would submit that that is not deficient in demonstrating compliance with rule 16(2) of the Commission. Attached to annexure A of the affidavit was a copy of the document served on the parties which includes both the notice of listing and the information notice in accordance with from 5. You also have the registered post receipt of annexure B indicating service of that Simon Richards Group.

PN1220

Thus the union would put to you that the affidavit as a whole is not deficient in demonstrating compliance with rule 16(2). The union also notes that Simon Richards Group from its arguments has not contended that it never raised a notice in accordance with from 5. Instead it is raising what the union would term a technical argument in relation to this matter. The union would also note that the Simon Richards Group is represented in this matter by both a firm of solicitors, Harwood Andrews, and a barrister, Mr Millar, and that hence even as conceded by Mr Millar it would not have found to have suffered prejudice or be disadvantaged should the affidavit had have been found to be deficient.

PN1221

But I do draw your Honour's attend to the fact that Simon Richards Group is not claiming that it never received a notice in accordance with R5, it is just claiming that the affidavit itself is deficient. Your Honour, the union would also submit that if you were persuaded that, indeed, the affidavit was deficient the union would request that you exercise your power of discretion pursuant to section 111(1)(q) to correct, amend or waive any error, defect or irregularity whether in substance or form.

PN1222

If I could take your Honour to the second argument that has been raised today by my friend, which is in relation to community of interest between the respondents. The Simon Richards Group has contended that there is no community of interest between the respondents in this matter and that on this basis it is not possible for the Commission to find that a genuine industrial dispute is in existence between the union and the SRG.

PN1223

Now, under section 111 of the Act the Commission has the legislative power to determine the parties to an industrial dispute and the matters in dispute and to record its finding. Now, the union would submit that the service of the log of claims and letter of demand, and the rejection of that by Simon Richards Group, is enough to establish prima facie that there is, indeed, an industrial dispute between the parties.

PN1224

We have then had the issue raised by my friend, in respect of community of interest, which traditionally is an argument that is raised in relation to interstateness. Now, in this matter quite clearly Simon Richards Group operates in Victoria, under the current legislation there is no requirement to establish that interstateness is a requirement that needs to be satisfied in respect of employees operating within Victoria.

PN1225

Now, in respect of onus the Commission's attention was drawn to a number of decisions, and my friend has indicated that it is the onus of the union to establish that the community of interest does exist. The union takes issue with this, but just to draw your Honour's attention to some quotes referred to by my friend. Firstly, in the decision before your Honour that was handed up by my friend, the Australian Public Service General Employment Conditions Award 1995, Commissioner Larkin's decision of 2 September 1997. In there there is reference there to the Full Bench of the Commission in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Others, which is on page - I apologise, your Honour, the document before me does not have a page number on it. Page 7, and the Full Bench of the Commission there stated that:

PN1226

It is doubtful how far the notion of onus of proof is relevant at all to Commission's proceedings. There is a respectable basis for the view that where there is a statutory requirement for the Commission to be satisfied about exercising a discretion, the notion of onus of proof imports legal doctrines that should have no part in the Commission's procedural or decision process.

PN1227

If I could then take your Honour to another of the decisions referred to by my friend, the M. Dahl Australia Pty Ltd and Others, a decision of the Full Bench of the Commission of 23 June 1998, page 18 of that decision and a quote there by Kirby J of the High Court. And Kirby J states:

PN1228

THE SENIOR DEPUTY PRESIDENT: What page are you on?

PN1229

MS PARKES: Sorry, page 18, your Honour.

PN1230

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1231

MS PARKES:

PN1232

The requirement to establish the existence of an industrial dispute is always the obligation of the notifier. On the other hand the formalities of a ...(reads)... or a mere device will rest upon the objector.

PN1233

So the union submits, your Honour, that certainly that the formalities of the paper dispute have been properly established and the onus to indicate that the companies in question are not in the community of interest with the Simon Richards Group is an onus that the Simon Richards Group needs to establish. And I would further, your Honour, refer you to page 19 of that decision which refers to a decision of the Full Bench Commission in the Australian Municipal Administrative Clerical and Services Union (1992) IR 357, where the Commission said:

PN1234

We are reluctant to accept in the context of this Tribunal's operations notions of evidential burdens and onus of proof which are ...(reads)... in judicial proceedings.

PN1235

Your Honour, the union has indicated that the arguments in relation to community of interest that there is, indeed, a nexus which links the parties. Notwithstanding that the union, in response to my friend's comments concerning onus, has put to you that we have established the formalities of an industrial dispute and that it is the Simon Richards Group which has raised the issue of community interest to establish that, indeed, there is no such community of interest.

PN1236

Now, if I could just proceed with this matter, your Honour. The High Court discussed the issue of nexus and community of interest in the Australian Meat Industry Employees Union ex parte Aberdeen Beef Company Pty Limited which has been raised by my friend, and a copy of which is before you, your Honour. Now, the majority of the Court said in that case, and that was at page 159 of the version of the Commonwealth Law Reports - I believe the copy that was handed to you, your Honour, was the Australian Law Reports, so I do apologise that the numbering will be different. But the majority of the Court said that:

PN1237

However recognising that the expression "industrial disputes" in the constitution is used in its popular and not in any narrow sense does not present the existence of an identifiable industry from providing the nexus or unifying factor which combines in a ...(reads)... Other factors may provide the nexus.

PN1238

And in that same case McHugh J stated that:

PN1239

Obviously a wide range of factors is or can be relevant in determining whether employees have such a community of interest in resisting the demands of their employees that they can be regarded as being engaged in a single industrial dispute. ...(reads)... from one class of work to another.

PN1240

Thus there is no requirement that employers must operate in the same industry or have a common business in order for parties to be in industrial dispute. With the community of interest in relation to that can arise from the industry in which employers operate, or the vocation or calling of the employees. If I could just hand up an authority.

PN1241

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1242

MS PARKES: In Re Australian Education Union ex parte State of Victoria and Others (1995) ALR 128, page 609. The majority in the AEU case at page 633 stated that:

PN1243

The notion that interstate employers must have a common business or operate in a particular industry as a precondition of the existence of an industrial dispute has never been accepted. Although statements have been made ...(reads)... The nexus may also be found in the calling or vocation in which the participants are engaged.

PN1244

Now, the union has submitted that there is a community of interest linking the respondents in this matter, with the companies in question all employing employees that share a common vocational calling, namely, that they fall within the industry of commercial traveller, and more specifically the calling of a telephone operator who is involved in the order, sale, or promotion of goods, merchandise or services via telephone.

PN1245

Now, just to continue on for there, your Honour, it has been said by my friend that Ms McLeod - he has referred to the evidence of Ms McLeod. Now, it was put to Ms McLeod that all of the companies in question did, indeed, employ such persons, and Ms McLeod's response was that she did not know. It was not the response that, "no, they do not" or "that I challenge that they do." It was a response of, "I do not know."

PN1246

And, indeed, your Honour, in terms of the companies in question, and you yourself specifically referred to one of them at that time, Skilled Communications Personnel Pty Limited, and that there was in fact in existence a Skilled Communication Personnel Pty Limited Call Centre Framework Agreement 2000-2003. Now, my friend has indicated today before you that even if those, as a matter of speculation, even if these other companies do, as the union says that they do, have such employees in question that they would be different because they would all be employees that promote the sales or the services or the business of their employer.

PN1247

Now, in respect of Skilled Communication, it is actually quite similar to the Simon Richards Group in that Skilled employs its own employees in a call centre. They have a call centre in Burnie, Tasmania. And that they perform work, not for Skilled but for their clients. They have a range of clients at this point in time and that the employees there in question do very similar work to what the employees at the Simon Richards Group do, and similar they are not promoting the business of Skilled, they are promoting the business, the services or the sales of businesses of clients of Skilled.

PN1248

So the suggestion there and speculation that all the companies in question, even if they do have such employees, can be distinguished on the basis that they are only performing work for their employer and not for clients is certainly incorrect in respect of Skilled. In respect of the other companies, I can confirm that they do have such employees. Certainly Australian Pharmaceutical Industries in Victoria. There is the Australian Pharmaceutical Industry Victoria Certified Agreement 2000 in place, and your Honour also did refer to that after Ms McLeod's comments in respect of the companies that she was not aware of exactly who or what they did employ.

PN1249

In respect of George Weston Foods, Nestle, Farm Pride Foods, Faulding, Pacific Dunlop, the Distribution Group, BOC Gases, Australian Cables and Tyre Marketers, they do all, indeed, have the employees in question, in that they do all have telephone operators involved in the orders, sales or promotion of goods, merchandise and services. So, as I said, my friend has raised this issue of speculation. I have confirmed that these companies do have that, that the evidence presented by Ms McLeod was not that, no, these companies do not have these employees but merely that she did not know and was not in a position to ascertain.

PN1250

Further, as I said, the speculation raised by my friend that, as I said, if these companies did have such employees that they could be distinguished on the basis that they were only performing work for their employer, the example of Skilled Communications in performing work for a range of clients, not performing work of Skilled but for a range of clients, is certainly analogous to the situation before us.

PN1251

If I could also draw another authority to the attention of your Honour, and that is the decision of Le Corning Furniture Centre, Coke Cola, Amatil South Australia Limited and Another v National Union of Workers. This is a 1996 decision of the Full Bench of the Commission found at print N2389. And the Full Bench of the Commission found that:

PN1252

A community of interest existed between the union and companies engaged in different industries, such as the sale of furniture and another company involved in aspects of the supply of soft drinks and another company involved in snack foods.

PN1253

In the majority in that case Senior Deputy President Hancock and Deputy President Maher stated at page 5 that:

PN1254

Unions which are conglomerates need to show that the employees to whom demands relate have some community of interest. But community of interest does not require that the employees perform the same tasks. Different activities may belong to discernible classes, and the class may constitute the nexus. Whether or not such a class exists is a matter of judgment. ...(reads)... wider class it would be an unduly restrictive view of the dispute in the absence of further evidence to confine it to commercial travellers.

PN1255

So Senior Deputy President Hancock and Deputy President Maher held that the vocations covered by the claims fell within a single employment class and that it would be unduly restrictive to limit the finding in that case. And Commissioner Lewin, in his minority decision in that case, came to a similar conclusion and stated at page 15:

PN1256

In context I can well accept that there may be a connection between various vocations going to make up a class of storage and distribution work. Further depending upon that context, in my view the class of storage and distribution work can comprehend commercial travelling. Whether or not it does in particular circumstances is a matter of fact.

PN1257

So Commissioner Lewin is stating that no significance arises from the fact that there is no exact coincidence between activities if employees served the community of interest laying and resisting the demands made in relation to specified occupations. So here whilst we have a range of companies, some of which have multiple industries and large companies in which they operate, and certainly my friend has alluded that, yes, these companies have a range of industries there, and whilst some of these companies may, indeed, also have more than one category of employees eligible to be members of the National Union of Workers is a community of interest in existence with all of the companies employing persons with a common trade or calling, namely telephone operators, involved in the order, sale or promotion of goods, merchandise and services, and who perform work which requires a similarity of skills.

PN1258

In any event, your Honour, even if it was to be established that the community of interest is not to be made out, the union would suggest that it is open to your Honour to find in existence a dispute between the NUW and the Simon Richards Group, and that pursuant to section 111 of the Act that your Honour would have the power to do that. So notwithstanding the fact that there are approximately 12 or 13 other companies that have acceded to the demands and have been found to be in - a dispute finding made between them and the NUW, that notwithstanding the fact that how the dispute was notified, the existence of a formal dispute, it is open to your Honour to find that should you not be satisfied that the community of interest exists it would still be open to your Honour to find a single dispute between the union and the Simon Richards Group.

PN1259

THE SENIOR DEPUTY PRESIDENT: That dispute would exist where?

PN1260

MS PARKES: Within the State of Victoria, your Honour. If I could now take your Honour to the third argument that has been raised by my friend in relation to the eligibility rules of the NUW. And it is my understanding that there are two aspects to this aspect that my friend has drawn to the attention to the Commission this morning. The first argument was not something that was addressed in my friend's outline of submissions, and that is that the employees in question do clerical work and effectively, notwithstanding the requirement in the rules of "substantially employed away from the employer's place of business" but that the first argument is that employees do not perform work that comes within the NUW rules.

PN1261

And the second argument is in respect of the issue of what is meant by the expression "employed substantially away from the employer's place of business". If I could take your Honour to the first of those arguments. The National Union of Workers is eligible to cover persons employed at the Simon Richards Group engaged in sales functions or functions incidental to sales functions. The duties of customer service and telesales employees at Simon Richards Group include handling purchasing orders, up-selling or cross-selling further products, targeting customers of clients, and promoting and/or selling products or services based on a profile of previous purchases, promoting products or services or the business of clients, and conducting some market research or enquiry by surveying targeted customers of clients.

PN1262

The NUWs rules allow it to represent the industrial interests of employees at the Simon Richards Group engaged in telesales, teleservices consultants and customer service operators.

PN1263

THE SENIOR DEPUTY PRESIDENT: You said "engaged in sales" or incidental were words that you used. Which rule do you take that from?

PN1264

MS PARKES: Your Honour, the NUW would bring to your Honour's attention rule 5(d), if I could take your Honour to that rule now. The union has traditional coverage of commercial travellers and persons engaged in telephone sales functions and incidental functions through its federally registered rules which have derived from the United Sales Representatives and Commercial Travellers Guild of Australia, which amalgamated to form the union as currently registered. If I could take you to rule 5(d) which outlines the conditions of eligibility that must be present in order for the union to represent people undertaking particular types of works.

PN1265

Rule 5(d) provides:

PN1266

The union shall also consist of an unlimited number of employees in the industry, the craft occupation of commercial traveller. For the purpose of these rules commercial traveller shall mean a person employed substantially away from the employer's place of business in or for the purpose of soliciting orders or promoting business of whatsoever kind, of conducting market research and inquiry and without limiting the ordinary meaning of the foregoing shall include:

PN1267

And then there is a range of examples that are provided below that, your Honour. Now, 5(d) also needs to be read in conjunction with rule 4(d) which outlines the industries in or in connection with which the NUW is registered. And that includes the industry of sales representatives and/or commercial travellers. Now, my friend has put it to you, your Honour, that leaving aside the issue of the location of the employees, that leaving that issue aside, that employees do not come within the definition of rule 5(d).

PN1268

The question that needs to be asked is are the activities of what the employee is doing within the scope of 5(d). And we have heard from the witnesses, your Honour. We have heard from Brenda Bryant, at one stage she was involved in telemarketing for charities which involved cold calling, not just customers of the client, but cold calling. We have heard from Cherie Cumming that she was involved in doing outbound calls with scripts for telephone advertising company, finding surveys of former clients - sorry, former customers of the telephone company seeking as to why they had not renewed and trying to encourage and promote sales of advertising. We have heard from Maureen Davis and also Cherie Cumming that as part of their role at Simplot, and also from - sorry, Therese Lawler as well, that as part of their role on the Simplot campaign their calls involve up-selling or cross-selling. That is not just an administrative function, as my friend has alluded to, but that there is an expectation that on call they would up-sell and cross-sell products.

PN1269

And indeed when a client might ring in to purchase X amount of pies that they will always say, "And would you like sausage rolls" or "Would you like donuts" or "Would you like more of that"? That indeed there is also a $25 limit as Maureen Davis advised the Commission, and that they have to try and boost the customer over that amount. That further that they liaise with sales representatives of the client to promote sales meetings. So in that sense also promoting sales and promoting the business.

[12.10pm]

PN1270

We also heard from Therese Lawler that operators in her section ring small businesses, that don't currently have orders with the client, to try to encourage them to place orders. We have also heard from Brenda Bryant that there is an outbound script for a credit card company which involves the operator promoting the highest possible credit limit to customers and promoting new credit cards to customers where the bank in question, or the financial institution in question, has decided that the credit cards that they currently have are no longer viable.

PN1271

So we have a range of functions there and certainly we have heard from other employees that were brought forward by my friend in relation to some of the roles that they have done. But perhaps the position is best described by Ms Eva Trainor who stated that, the types of work that people do vary significantly, that that is the beauty of call centres, that there is no limit to the sort of work that people do, it is essentially whatever the client wants. Now, the union submits the union does not need to establish that every single employee in the Simon Richards Group is performing work that comes within the NUW rules.

PN1272

The union submits that we only need to demonstrate that some employees perform such work in order for a dispute to be found, and certainly on the evidence that has been brought to the Commission the range of roles, particularly for the employees working for the food manufacturer, which does involve up-selling and cross-selling, promoting of the business, it does also involve surveying. And Ms Maureen Davis advised it involves surveying lapsed customers of the client to find out why they had lapsed and to try and encourage them to come back.

PN1273

But it did involve, as I said, setting up meetings with sales representatives to promote business and that the employees themselves though actually did participate in selling functions. Now, the Simon Richards Group has also objected to the union being eligible to cover its employees on the basis that its employees are not employed substantially away from the employer's place of business. Now, certain principles interpretation should be followed when interpreting trade union constitution rules.

PN1274

The nature of trade union rules requires a generous or liberal construction, eligibility provisions by the Commission. And there have certainly been numerous authorities that have been brought before the Commission on this matter. But this approach has two aspects of it; firstly, the decision in R v Aird ex Parte Australian Workers Union [1973] HCA 53; 129 CLR 654, and in particular the reference there by Barwick CJ, at page 659, which was referred to by my friend:

PN1275

The Commission should not focus on errors in drafting or conformity with legal convention ...(reads)... likely to have been -

PN1276

and the quote from Barwick CJ -

PN1277

union officials more familiar with the practical affairs of industry than with the ...(reads)... nuances of language.

PN1278

And the second aspect to this approach that trade union rules do require a generous or liberal construction in relation to their eligibility provisions, was referred to in the R v Cohen ex Parte Motor Accidents Insurance Board (1979) ALJR 53 vol 719, where the then Mason J, stated that:

PN1279

The expression is in such a context no doubt intended to have a wide meaning and it should be ...(reads)... formal construction.

PN1280

So this approach is suggesting that the content of the words used in the eligibility rule should be assigned a broad rather than a narrow or technical meaning. Now, it is inconsistent with these principles for the Simon Richards Group to apply a narrow meaning to the words, employed substantially away from employer's place of business in order to say that workers in its call centre do not fall within the eligibility rules of the union. There has been increased emphasis by the Courts on giving meaning to words within union eligibility rules upon the basis of industrial practices and understandings in relation to such words.

PN1281

Now, this decision being referred before you, your Honour, the Cooperative Bulk Handling Ltd v Australian Workers Union (Western Australian Branch) Industrial Union of Workers and Waterside Workers Federation of Australia (1980) vol [1980] FCA 141; 32 ALR 541, which I will refer to as the Cooperative Bulk Handling case. The Full Court of the Federal Court in that case, your Honour, had to determine the meaning, as my friend as alluded, the meaning of waterside work, and held grain handlers in Western Australia were sufficiently linked to the loading operations of grain on to bulk carriers that they could be regarded as waterside workers and hence fall within the eligibility rules of the union in question.

PN1282

The Cooperative Bulk Handling case stands for the proposition that the Commission should place appropriate emphasis on industrial usage offered to the words within union rules and that a broad interpretation should be placed on a union's eligibility rules, as the coverage of an eligibility rule may evolve with changes in the way that work is conducted. In order to determine the industrial meaning of the words, waterside worker, the Full Court of the Federal Court enquired about the meaning by looking at the awards, agreements and judgments of various Courts. The Court said at page 554:

PN1283

The awards and judgments to which reference has been made all seem to us important sources from which to decide the meaning of the term waterside worker as used in the conditions of the eligibility rule. In considering awards with a view to ascertaining the meaning given to words in an industrial sense it is of equal value to look at consent awards as to look at those which are contested, and agreements between parties seem to us of no less value. Thus to determine the industrial meaning of words employed substantially away from the employee's place of business, the Commission should be prepared to examine decisions and awards that address this issue.

PN1284

The Cooperative Bulk Handling case is also authority for the proposition that the meaning of the words in a union's eligibility rule is not static, and that in interpreting the meaning of such words it is not appropriate to confine the meaning of the words to when they were first placed in the rule. Rather it is appropriate to interpret the eligibility rule by considering the changes to the industry in question. Thus in interpreting the phrase in question, the Commission needs to consider the context and history of the NUWs rules as well as the impact of technicological change on the industry of the commercial traveller.

PN1285

And there are a number of decisions of this Commission relating to the general construction of the NUWs rules which specifically address this very issue of what industrial usage is meant by the phrase:

PN1286

Employed substantially away from the employer's place of business.

PN1287

Now, I do apologise, your Honour, I unfortunately do not - unfortunately left at the office copies of the decision of the NUW v Elder Research and Ors, a decision of Commissioner Lawson a 1995 decision found at print L1750, and also the decision of Commissioner Foggo in National Union of Workers v Bendigo Advertiser and Independent Pty Ltd, a 1995 decision. But they are also referred to in Franklin Mint, your Honour, which was referred to by my friend.

PN1288

In National Union of Workers v Elder Research and Others, Commissioner Lawson adopted a broad view of the application of the union's eligibility rules consistent with the approaches in R v Aird and R v Cohen, to find that:

PN1289

Market researchers working from a specialised telephone facility at the employer's head office are capable of falling within ...(reads)... of the NUW rules.

PN1290

Commissioner Lawson found that the phrase, employed substantially away from the employer's place of business, did not limit the operation of the rule to exclude persons engaged in tele-sales or telephone research. A key factor that influenced the Commissioner was that the advances in technology had resulted in work often being conducted via telephone, there were specialised telephone facility rather than face to face by persons away from their employer's premises.

PN1291

Commissioner Lawson's decision was subsequently upheld by a Full Bench of the decision in Roy Morgan Research Centre and Others v National Union of Workers 1995 decision found at print M4927. We also have the National Union of Workers v Bendigo Advertiser and Independent Pty Ltd a 1995 decision of Commissioner Foggo. And Commissioner Foggo referred to the union's industry rule and eligibility rule and interpreted the Cooperative Bulk Handling decision to mean that:

PN1292

A broad interpretation could be placed on a union's eligibility rules.

PN1293

And Commissioner Foggo stated at page 16 that:

PN1294

It is, I believe, well established in that matter -

PN1295

By that she was referring to the Cooperative Bulk Handling case that:

PN1296

it is inappropriate to narrowly interpret the rules of an organisation. Rules are not static in meaning ...(reads)... organisation of workplaces.

PN1297

Commissioner Foggo went on to find that the union had coverage of tele-marketers and classified advertisement sellers that were employed on site at the Bendigo Advertiser. Commissioner Foggo, was influenced by the impact of technicological change on the nature of the work of employees in the industry of commercial traveller and stated at page 16:

PN1298

There has been a sea of change in the duties of employees in the industry brought about ...(reads)... considerable time ago.

PN1299

And then following on from those decisions, your Honour, we have the decision that my friend referred to, Franklin Mint Pty Ltd v National Union of Workers a 1999 decision, found at prints SO959 and S1377, whereby Commissioner Whelan held that:

PN1300

The National Union of Workers has the capacity in accordance with clause 5(d) of its rules ...(reads)... and customer service employees.

PN1301

Now, a key issue in the Franklin Mint decision was whether the union was eligible to cover employees of Franklin Mint which had the primary business of direct response marketing of collectible products to consumers. Now, my friend has indicated that the situation can be distinguished on the basis that the work performed in Franklin Mint was work performed for Franklin Mint. Whereas in this scenario the work performed in the Simon Richards call centre is not work performed for Simon Richards, but is work performed for a range of clients.

PN1302

One could argue obviously that direct response marketing is something that Simon Richards Group does, although certainly as my friend has acknowledged it does do that for a range of clients. But in respect of that I would also say that the decision in Elder Research, which involved market research, was involved persons employed by Elder Research to go and do work for a range of market research clients. So once again they weren't performing work on behalf of Elder Research, they were performing work on a range of clients.

PN1303

So given that that decision, and given that Franklin Mint follows on from that, the union would certainly say that the situations are analogous and should not be distinguished on that basis. In terms of the specific occupations of the employees, like the Simon Richards Group, Franklin Mint did employ persons in a range of categories involving tele-marketing operators who made outbound calls to existing customers; some, what you would call tele-sales employees who took inbound calls, who as a result of that incoming call made an up-sell. And customer service employees who mainly handle enquiries, complaints and file maintenance matters, but as part of their job also sought to do an up-sell.

PN1304

And certainly the Commission has heard that some of the employees at the Simon Richards Group are certainly involved in doing up-selling, cross-selling, promoting orders and the sale of orders, promoting meetings with sales representatives. There has been some tele-marketing for charities which has involved some cold calling. There was some surveys of existing customers and also lapsed customers and that there has been promotion of credit card limits amongst others.

PN1305

But in finding that the NUW was eligible to cover tele-marketers, tele-sales employees and customer service employees in the Franklin Mint decision, Commissioner Whelan was influenced by the impact that changes of technology have had on the type of work that fall within the industry of commercial traveller. And Commissioner Whelan observed at page 14 that:

PN1306

There are now a whole range of ways they -

PN1307

And by that she was referring to the employees in the industry of commercial traveller -

PN1308

Can move outside the employer's premises without leaving their seats. In my view the essential element of the transactions they conduct is that the customer does not need to come to the seller in order to transact business ...(reads)... from the employer's place of business.

PN1309

And the union also notes that following on from that, the point made by the Simon Richards Group that look the employees are performing work for a range of clients, but they are not actually performing work for the Simon Richards Group. The two points that the union would want to make on that, firstly to reiterate the point in respect of the decision in the Elder Research case whereby the market research company there was performing work on a range of clients and not for the market research company, that is certainly analogous, so the union would certainly say that it cannot be distinguished on that basis.

PN1310

But that secondly the union's rules at 5(d) do not require that the employees be promoting the business or the products or the services of the employer, they merely require that the employees promote, I refer your Honour back to rule 5(d):

PN1311

A person employed substantially away from the employer's place of business in or for the purpose of ...(reads)... and enquiry.

PN1312

So there is no requirement there that the work performed by the employees in question has to be on behalf of the employer. The union also refers to the Commercial Sales (Victoria) Award 1999, a copy of which I shall tender to your Honour. And the union on the basis of the Bulk Handling decision, the union submits that the Commercial Sales (Victoria) Award should also be used as a guide to interpretation of the NUWs eligibility rules. Because as stated in the Elder Research decision by Commissioner Lawson at page 12 and 13:

PN1313

The acceptance by other employers in the industry of the ability of the union to cover all classes of labour ...(reads)... of an award of the Commission.

PN1314

The union is a respondent to the award which covers the industry of Commercial Traveller, and the award has its origins in the Commercial Traveller's Award, an award of the Commercial Travellers and Market Researchers Conciliation and Arbitration Board of the Victorian Commission. Now, this award covers employees engaged in a range of tasks and if I draw your Honour's attention to clause 6, coverage of the award:

PN1315

This award shall apply in the State of Victoria in respect of the employment of any person ...(reads)... or any combination thereof.

PN1316

Now, the union is using this award, not to say that the Simon Richards Group should be respondent to this award, but to state that this award covers employees engaged in a range of tasks where the employee conducts such duties via telephone or other electronic means. Employees covered by this award include persons who are not physically located away from the employer's premises. And this clause was inserted into the award by the former Victorian State Commercial Travellers Award as a result of arbitration.

PN1317

So there is a recognition by other employees, other employers with employees in this industry, that the National Union of Workers by its rules can certainly be covering the employer's place of business can also be taken to mean that where the employee conducts such duties via telephone or other electronic means, that they do fall within this award and certainly within the eligibility of the NUW. Now, on a broad as opposed to a narrow reading of rule 5(d), the employees at Simon Richards Group are as a matter of fact employed substantially away from the employer's place of business.

PN1318

This rule does not require the employee to work at the employer's premises, it refers to the place of business. The Simon Richards Group does not operate through face to face contact with its client's customers through a retail or wholesale establishment, but relies on telephonic and electronic commerce to conduct business on behalf of its clients. Because of the use of modern technology such as telephone, facsimile, credit card facilities and the internet, face to face sales or promotion of business either in or away from a specific retail or wholesale establishment are no longer required in order to conduct this type of business.

PN1319

To the extent that the Simon Richards Group has a place of business in terms of the eligibility rule it exists in the electronic ether, where these transactions take place, rather than where the employees are located. Simply because the Simon Richards Group has an office at a particular place does not make that place itself a place of business for the purpose of these rules. And this reading of rule 5(d) is consistent with the decisions in Elder Research, Bendigo Advertiser and Franklin Mint.

PN1320

Now, my friend has said to you, well, even if you accept that these decisions can't be distinguished the Commission got it wrong, got it wrong in those decisions. Well, I think we have the situation here, quite similar to Franklin Mint, okay whilst the Simon Richards Group has a specialised telephone call centre, and that my friend is suggesting that that is the place of business and therefore the employees can't fall within the definition of the NUWs eligibility rules.

PN1321

The Simon Richards Group also has an agency centre in Sydney, which quite possibly could be argued to be a place of business. But all that aside, the issue was, and we heard this from the witnesses themselves, a client rings up, they might have a question or a problem that cannot be solved. The client can be transferred automatically to the despatch area or the accounts area or to a sales representative of the client. So you have one minute the client speaking to a Simon Richards Group employee and the next minute the client, without having moved from their seat, is speaking to perhaps - sorry, the customer without having moved from their seat is speaking to a representative of the client who is located in an entirely different physical location, yet the customer has not had to move from their seat.

PN1322

And so the argument there of the electronic ether, you have situations where you have credit card processing, you have orders from the customers ringing in. And my friend has said, well, the Simon Richards Group is distinct, it has no operation effectively with the outside world or with other sections of the client. But surely the orders that are processed are then forwarded to the client so that they can organise the despatch of the goods.

PN1323

And the very fact that the witnesses themselves have testified that customers ringing up can be automatically transferred to various representatives of the client indicates that that statement is not correct. Because for the place of business it could be multiple places of business. So it is very much a situation that the place of business is the electronic ether, the nature of work has changed. It is not that the clients physically have to come to a shop to order pies, for instance, it can ring up, order pies via the telephone using a credit card, but then it could be automatically transferred to despatch of the client. To have queries in relation to the pies it could automatically be transferred to a sales representative to talk about new pies and it could automatically come back again to the original person that it spoke to at the Simon Richards Group.

PN1324

So in terms of the place of business the argument can be certainly made that to the extent that the Simon Richards Group has a place of business in terms of the eligibility rule it exists in the electronic ether where the transactions take place, rather than where the employees are located. There is no basis in logic or authority to require that the employer's place of business, within the meaning of the rule, must be where the employer's representative making or receiving telephone calls is physically located.

PN1325

As stated if there has to be a specific geographic location it could be in a range of places not just a Simon Richards Group office in Melbourne. They have got their Sydney office; it could be at the client's office where they have their despatch section or another section where they have accounts, or it could be at the customer's home or business where they are making the call. Your Honour, if market researchers employed in a specialised telephone facility performing work for a range of clients and not for their employer, as in the Franklin Mint - as in the Elder Research decision, and if tele-marketers, tele-sales employees and customer service employees employed in a specialised telephone decision - sorry, a specialised telephone facility, as in Franklin Mint, are eligible to be members of the NUW, then employees employed by the Simon Richards Group are also eligible.

PN1326

To find that the phrase, employed substantially away from the employer's place of business, excludes from the definition of Commercial Traveller, employees employed in soliciting orders or promoting business of whatsoever kind of conducting market research and enquiry, where the employees principally conduct such duties via telephone from premises that may be either owned or leased by the Simon Richards Group, to find that phrase, employed substantially away from the employer's place of business, does exclude employees working in a specialised telephone facility, would cast doubt upon the validity of two awards of the Commission, as stated by Commissioner Whelan in the Franklin Mint decision at page 13. And would also cast doubt upon conclusions on this very point reached by three single members of the Commission and also a Full Bench of the Commission.

[12.25pm]

PN1327

So on the basis of the above, your Honour, a construction of the eligibility rules of the Union is capable of including employees at the Simon Richards Group. So your Honour, on the basis of the arguments that have been raised by the Company, and the Union's response in relation to those arguments, the Union would, submit, your Honour, that the Commission should make a finding of an industrial dispute between the Union and the Simon Richards Group. Unless your Honour has any further questions, that is the Union's submission.

PN1328

MR MILLAR: Your Honour, might I just refer to three or four points there briefly in reply?

PN1329

THE SENIOR DEPUTY PRESIDENT: Just before you do, Mr Millar.

PN1330

MR MILLAR: Yes.

EXHIBIT #NUW6 OUTLINE OF SUBMISSIONS

PN1331

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Millar.

PN1332

MR MILLAR: My friend referred to the activities of the other respondents, and referred to, I think, the Skilled Communications Call Centre Agreement and referred to the activities of a number of other - of the respondents. Well, there has been no evidence put on any of that. My friend can't rely on the good fortune of being before a member of the Commission who may have been involved in other cases. Evidence would need to be put in this case of what the activities of the other respondents are and what the employees of those other respondents - is. It hardly needs to be said that your Honour could only decide the case on the evidence before you in this matter.

PN1333

THE SENIOR DEPUTY PRESIDENT: Or issues that I raise, and which you are on notice about.

PN1334

MR MILLAR: Well, yes, your Honour, but the evidence that has been put before you in this case by the Union falls short of showing, in my submission, the community of interest involving the other employers. The assertions that have been made from the bar table about what the other employers do, about what capacities the employees of those employers are engaged in, was not put in evidence, was not subject to cross-examination.

PN1335

The only evidence that is before you, the only material that has been tested in that way, has been what Ms Macleod has said in her witness, and what she said in the witness box, which casts doubt upon the community of interest, because her view was - her researched view - was that the other respondents were not engaged, or she had no material to suggest that they were engaged, in similar work to that undertaking by the Simon Richards Group.

PN1336

The contentions that have been put to you by my friend suggesting that employees are engaged in similar capacities to those of the Simon Richards, by the other respondents, should not be given any weight, because there is no evidence to substantiate it. I speculated about what that evidence might have been, if it had have been given, in the course of my submissions, and speculated that there would be distinguishing features with the other employers and their employees from the Simon Richards Group. But ultimately there is nothing there to consider, because there has been no evidence put.

PN1337

My friend referred to a number of awards and referred to the industrial usage of the term in the eligibility rule of the Union, employed substantially away from the employer's place of business. It is my submissions that the Union can't pull itself up by its own bootstraps in the way that they are attempting to do. Just because on prior occasions the Union may have been able to step outside its eligibility rule and create awards that have exceeded the demands that they are legitimately able to make, doesn't give them the legal right to continue to do so.

PN1338

It comes back to what their eligibility rule says. And that eligibility rule clearly refers to the requirement that the person be employed substantially away form the employer's place of business. If in other awards that principle has been transgressed, if they have stepped beyond what is possible on the ordinary meaning of the eligibility rule, then I submit that adds no support for you doing so again, your Honour. They cannot, as I have said, haul themselves up by their own bootstraps. They can't use to their benefit cases in the past that have overstepped the mark.

PN1339

In the submissions that have been provided of - run through and distinguished the other decisions, Elder Research, and Roy Morgan Research Centre, and Bendigo Advertising cases. I won't go over the grounds of how they've been distinguished in oral submissions, but it is set out in writing and it's all subject to the overriding point of distinguishing the cases that the employees in this case - the employees of Simon Richards Group, engaged in very different activities, and Simon Richards Group itself has a place of business that should be the limit of the expression, place of business, in the eligibility rule.

PN1340

THE SENIOR DEPUTY PRESIDENT: What is the Simon Richards Group place of business?

PN1341

MR MILLAR: Where is it?

PN1342

THE SENIOR DEPUTY PRESIDENT: Yes, what is it?

PN1343

MR MILLAR: What is it?

PN1344

THE SENIOR DEPUTY PRESIDENT: Yes.

PN1345

MR MILLAR: Well, it is the business premises in Port Melbourne, where these employees work. And that is the limit of it. Clients may be engaged out there in the ether, perhaps, and there is limited evidence of any actual transactions involving Simon Richards Group employees in any way taking place, in terms of the credit card numbers and the like being processed by Simon Richards Group. What the evidence has been is that the employees are engaged in acquiring information, if you like, from customers and clients, and then passing that information on to the client for processing.

PN1346

But ultimately - and I should mention in that regard that there has been no mention of the decision of Senior Deputy President Polites in Australia Media, which both my friend and myself have referred to in our submissions which, I submit, gives support for the view, that those involved in telemarketing are outside of the eligibility of the Union. It all comes back, in my view, in my submission, your Honour, to the natural meaning of the words.

PN1347

If you asked 100 people what is the place of business of the employer, what is the place of business of Simon Richards Group, and if you asked them, are thee employees engaged substantially away from that place of business, you would get 100 answers which would be the same. The ordinary natural commonsense meaning of the words is the one that I am contending, and in my view the submissions that have been made by the Union are not open. If the Commission pleases.

PN1348

THE SENIOR DEPUTY PRESIDENT: Yes. I will reserve my decision in this matter. I will now adjourn.

ADJOURNED INDEFINITELY [12.45pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SRG12 WRITTEN OUTLINE OF SUBMISSIONS OF THE SIMON RICHARDS GROUP PN1216
EXHIBIT #NUW6 OUTLINE OF SUBMISSIONS PN1331