C2001/3798, Transcript of Proceedings [2001] AIRCTrans 2490 (1 October 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 0129

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER JONES

C2001/3798

AUSTRALIAN LIQUOR HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

and

PRESTIGE PROPERTY SERVICES

Notification pursuant to section 99 of the Act
of a dispute re alleged failure of the employer
to comply with section 285(b) of the Act with
respect to inspection of time and wages records

MELBOURNE

2.20 PM, THURSDAY, 6 SEPTEMBER 2001

Continued from 20.8.01

PN97

THE COMMISSIONER: No changes to appearances? Yes, Mr Snaden, I think you have got a response to give to us, haven't you?

PN98

MR J. SNADEN: What is that, sorry, sir?

PN99

THE COMMISSIONER: You have got a response to give to us regarding - I know you have responded by letter, but we need it on transcript.

PN100

MR SNADEN: I responded by fax.

PN101

THE COMMISSIONER: Yes, but we need it on transcript where the current situation is.

PN102

MR SNADEN: The current situation is that the company has been unable to locate the records that were contemplated by the summons.

PN103

THE COMMISSIONER: Okay. In other words, they didn't keep the records by the sound of it.

PN104

MR SNADEN: They were unable to find them. They certainly were, at one stage, in existence but they are not at this point such that we can get our hands on them.

PN105

THE COMMISSIONER: Okay. Where does that leave you, Ms Frenzel?

PN106

MS R. FRENZEL: Commissioner, what we have done is we have drafted another summons dealing with a different period of time, and I would seek to tender a copy of that. I have provided my friend with a copy of the summons and I would briefly seek to address the Commission about it.

PN107

THE COMMISSIONER: Yes.

PN108

MS FRENZEL: Okay. The summons is in the same form as the previous summons issued by the Commission, save and except for the union has included the periods of time which were contained in the Commission's recommendation of 18 July, from memory - sorry, 16 July. And the other difference is that rather than the original time sheets and - the original time sheets, sorry, being provided up until 16 July, we have extended that out to today's date being 5 September. Now there may be an issue with respect to three of the four people and that would be that the people referred to under sub-clause (1), sub-clause (3) and sub-clause (4), given that they are no longer employed by the employer, so therefore they wouldn't have any records up to 5 September.

PN109

But what we are asking for, is records during that period between 12 April 1999 up to the date of any termination which may have occurred prior to 5 September. And the other period referred to in all of the four points, is 17 January 1998 to 16 January 1999, is contained in the Commission's recommendation, as I say, which was issued on 16 July. Can I say that we are disappointed the company can not locate the records for the specified period in the last summons, but we would be requesting that the Commission bear with us and issue this summons with respect to the periods contained therein, in the hope that maybe this employer can supply some records for those periods. Obviously, if the employer then either remains unable to supply any records, or can not supply adequate records, then obviously it is a matter for the union to prosecute elsewhere, but we would certainly ask that the summons be issued in the terms sought.

PN110

THE COMMISSIONER: Okay. Maybe it would be better - do you know the dates of termination of these people?

PN111

MS FRENZEL: I am sorry?

PN112

THE COMMISSIONER: Do you know the dates that these people terminated their employment?

PN113

MS FRENZEL: I am not certain about the dates. That is the problem that I have. But I do know that three of those people have been terminated, or have terminated, and I am not certain about the dates. If I was certain about the actual dates of termination, then we would have specified those dates in there, but the difficulty that I have is that I don't have the dates, so obviously the scope of the summons can only be valid with respect to those three individuals for as long as those three individuals were actually employed by the employer.

PN114

THE COMMISSIONER: Were these employees terminated by the company or by their own volition? From memory?

PN115

MS FRENZEL: I think - - -

PN116

MR SNADEN: I think, sir, they were made redundant in October last year. It was when the company ceased to be the contractor for that particular building. This was certainly my understanding.

PN117

THE COMMISSIONER: Okay. If I make this following modification to the summons, 12 April '99 to date of termination occurring prior to 5 September. Occurring prior to 5 September. And that would be in the case of 1, 3 and 4.

PN118

MS FRENZEL: That is right.

PN119

THE COMMISSIONER: Okay. Have you got a response to that, Mr Snaden?

PN120

MR SNADEN: Well, I do. I suppose the response is in two forms. The first is that I am not certain, and I wouldn't necessarily articulate this particularly strongly, but I am not entirely certain that it is necessary to compel attendance, if indeed, it is necessary to summon these documents at all. I don't see why it can't be done in the same way as were the documents under the last summons. The second point I would raise - it was a point that I raised last time, albeit perhaps not as strongly as I might have, and if I am allowed I might take the opportunity to do so a little more strongly today, is that this really - I think this has really got to stop at some stage.

PN121

We are here, as far as I understand it, to determine whether there is an industrial dispute between the employer and the employees. This fairly clearly is an argument as to alleged underpayment and I think the documents that are being asked for, clearly are being asked for not for the purposes of ascertaining the existence or otherwise of an industrial dispute, they are being asked for to ascertain whether or not these employees were underpaid. I think to that end, you know, we really might be, I guess, bending the jurisdiction of this institution perhaps a little bit too far. I really think that if the union has a legitimate beef with the company in terms of what it has paid to its employees, then they should agitate those issues in the appropriate jurisdictions.

PN122

THE COMMISSIONER: Yes, I agree with some of what you said, but basically over the history of this institution there have been cases - numerous cases, all too numerous to mention, where the union has taken - not this particular union but unions per se have taken this course of action as the least in terms of overall costs involved, certainly for them, and for the employer, it generally turns out that way too. Things can be ascertained at this level, then there is no need to go to further expensive situations that may result from going to another Tribunal where there are charges or the possibility of fines and that type of thing. If things can be ironed out here, that is the course that for an infinitum, most parties are prepared to have taken.

PN123

MR SNADEN: I do, of course, take that point, Commissioner. The position of the company, of course, is that there is no issue whatsoever about the payment of these employees. They have been paid in accordance with the award and if the union thinks otherwise then they should - - -

PN124

THE COMMISSIONER: Yes, well the union - that is part of what I agreed to. But the union is taking this course to try and find out once and for all, and I see that if I was prepared to issue this summons, it certainly would be the last time I will be an issuing a summons in this regard. I wouldn't be issuing another summons, because ..... I think we are going as far as we can go with this. If the records can't be produced for this lot, then the union can take whatever course it wants to.

PN125

MR SNADEN: Will they - I mean, I - will they issue or attempt to issue another summons in respect of a different time period? I guess the issue from the company's perspective - - -

PN126

THE COMMISSIONER: No, I am saying they can't issue another - well, they would have extreme difficulty in trying to convince me to issue another summons over and above this one. I think we have gone to the limit.

PN127

MR SNADEN: Sir, I think really I can summarise the position of the company quite simply. You make reference to the cost associated with these kinds of proceedings. The company is of the view that there is no issue whatsoever and in which case it shouldn't be compelled to - - -

PN128

THE COMMISSIONER: I - look, I accept that as the company's view. But the union equally is saying there is something and they want to ascertain whether they have got a case or not.

PN129

MR SNADEN: And I think - I would submit that the best way for them to do that, would be to adopt the appropriate jurisdictional avenues which necessarily would involve some element of protection from the company's perspective of its costs.

PN130

THE COMMISSIONER: Well, as I said earlier, I think there is some degree - most organisations have been involved in certain things, realise that it can be cost effective if there can be a result through this Tribunal from their point of view. So they don't have to go to some other Tribunal where they are likely to run into charges. What is the problem? Most parties seem to accept that this Commission, although as you might indicate, probably is stretching the section 99 of the Act, but, you know, to endeavour to try and get the thing ironed out here with the least costs involved for all parties. If you go into another Tribunal, you are both going to run into costs.

PN131

MR SNADEN: But those costs will be protected by virtue of - they will be covered by the losing party in the event that - - -

PN132

THE COMMISSIONER: Yes, but I mean, where are the costs here? All the company has to do is research its records.

PN133

MR SNADEN: It is - well, there is costs in terms of appearances here, for one.

PN134

THE COMMISSIONER: Well, they have chosen to - - -

PN135

MR SNADEN: There will be another - there will be a subsequent appearance when this - - -

PN136

THE COMMISSIONER: They have chosen to utilise your services. They didn't really have to utilise your services if they didn't want to. But they have chosen that of their own volition to use you. I mean, in a lot of cases, just the manager stands up.

PN137

MR SNADEN: Yes, sir.

PN138

THE COMMISSIONER: It is their choice. I am prepared to issue this summons as it stands with that alteration, so I will let you have it this afternoon.

PN139

MS FRENZEL: Thank you very much.

PN140

THE COMMISSIONER: But that is the end of it.

PN141

MS FRENZEL: No, we accept that, Commissioner. Can I also say, just in response to my friend, that it is all well and good to say go off to another jurisdiction. The fact is, is that these proceedings already have produced enough to warrant proceedings being commenced in another jurisdiction, with respect to those missing records. I mean, the fact is that the union is trying to adopt a more pragmatic approach to trying to resolve the issue as opposed to prosecuting his client, and we have prosecuted this particular client in the past with respect to pay slips and the Court awarded - the Court - well, the Court found that the employer had not complied with the Act and dealt with it accordingly.

PN142

Now, we are not trying to do that to this employer. We are just trying to get the time and wages records, ascertain the extent of the breach because we know it does exist, and then claim recompense from the employer accordingly. If the invitation is extended to us to go off to the Federal Court, then we will take up that invitation. With respect to the breach of the Act, that has already occurred, but it is not something I would have thought that my friend's client would have necessarily wanted the union to do right now. Having said that, we do thank the Commission for its assistance in issuing the further summons. I have already said on the record that we don't intend to ask the Commission to issue a further one, primarily because we see no point in doing that and we would hope that this company should be able to find some time and wages records so that we can ascertain the extent of the breach of the award that we know exists, if the Commission pleases.

PN143

THE COMMISSIONER: Okay. As I said, I will issue the summons. The parties will receive that this afternoon. This case stands adjourned.

ADJOURNED INDEFINITELY [2.32pm]