C2001/4274, Transcript of Proceedings [2001] AIRCTrans 2540 (2 October 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HARRISON

C2001/4274

THE AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

KINKO'S INTERNATIONAL (AUSTRALIA) PTY
LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re log of claims re wages and
working conditions

SYDNEY

10.10 AM, MONDAY, 10 SEPTEMBER 2001

PN1

THE COMMISSIONER: Could I have the appearances, please.

PN2

MS K. COTIS: If it please the Commission I appear on behalf of the Australian Manufacturing Workers Union and appearing with me today is MS S. TAYLOR.

PN3

THE COMMISSIONER: Thank you, Ms Cotis.

PN4

MR R. CLARKE: If the Commission pleases I appear on behalf of Kinko's, this morning, Commissioner. I have brought with me MR T. FROST from Allens Arthur Robertson, lawyers, MR D. BOLTON, the managing director of Kinko's and seated behind the Retail Operations Manager, MR J. MAR TORANA.

PN5

THE COMMISSIONER: Thank you, Mr Clarke. Mr Frost, you are seeking leave to appear?

PN6

MR FROST: I am not formally appearing, Commissioner. Mr Clarke will, be doing the talking.

PN7

THE COMMISSIONER: All right, I see. Ms Cotis?

PN8

MS COTIS: Thank you, Commissioner. The matter before you today is an application which has been made by the Australian Manufacturing Workers Union of a dispute finding under section 99 of the Workplace Relations Act. I just want to briefly make an initial submission, Commissioner, in relation to the processes relating to the alleged dispute notification. On 24 July 2001 the AMWU served a duly authorised log of claims on the parties involved in this matter today, the company with a letter of demand.

PN9

Following the failure of these parties to meet the demands made upon them we notified an industrial dispute to the Sydney registry of this Commission on 1 August 2001. The notice of this hearing was posted by registered mail to the parties on 17 August 2001 and I believe that proof of that service is on the bench's file. Commissioner, at this stage we simply ask that, based on the parties failure to accede to our demands in the log of claims that you find and record an industrial dispute, which is this pursuant to section 101 of the Workplace Relations Act between the AMWU on one hand and the parties listed at schedule B in a dispute notification on the other hand.

PN10

Finally the matters in dispute are, of course, the matters that are contained in the AMWU's log of claims. Sorry, I should finally say that this dispute exists in more than one stage. But having said that, Commissioner, the AMWU received a letter from Kinko's late Friday afternoon. I understand that they have some issues in relation to this dispute finding today which I foreshadow they may raise. Thank you, Commissioner.

PN11

THE COMMISSIONER: Thank you. I think there is a late appearance by Mr Chisholm, is it, from Westaff?

PN12

MR CHISHOLM: If it please the Commission, yes.

PN13

THE COMMISSIONER: Thank you. Mr Clarke?

PN14

MR CLARKE: If the Commission pleases, I thought firstly it is important in this matter to give you a little bit of a background to the dispute itself. I might indicate that enterprise bargaining negotiations have been taking place at Kinko's for really, in effect, most of this year. I have been handling those negotiations on behalf of Kinko's. If this dispute proceeds further Gary Hatcher has been briefed to step into my role to handle the dispute but I think it is important to give you a background and that background touches on not only what has been happening at Kinko's now but since they commenced operations in Australia in 1997.

PN15

Kinko's is an international company founded in the United States. Kinko's commenced its operation in 1997 with a branch in Liverpool Street in Sydney. It is our submission that Kinko's operates as a retail outlet relying heavily on customer service and support. Part of Kinko's sales come from the sale of photocopied or laser printed material. Kinko's philosophy and the way it operates though focus primarily on customer service. Importantly Kinko's has several other components including the contracting out of typical print work, sale of stationery, renting of computers and the ability of the renter to print direct from the computer and the public's ability to do their own photocopying.

PN16

On commencing business in Australia Kinko's joined the Retail Traders Association of New South Wales, now the Australian Retails Association of New South Wales. Kinko's terms and conditions of employment were underpinned and continue to be underpinned, we say, by the Shop Employees State Award in this State. In early 1999 Kinko's sought to introduce a certified agreement direct with its employees pursuant to 170LK of the Workplace Relations Act. The employees rejected the first proposal put to them in a ballot of all employees.

PN17

I might say at Kinko's the employees are referred to as co-workers so occasionally I might skip between the two terms, Commissioner. During the fourteen day employee agreement consideration period - this is in 1999 - the AMWU became active at the workplace. As a result of the failed ballot Kinko's elected branch representatives for the purpose of negotiating a second proposed agreement for co-workers. The AMWU were invited to participate in these negotiations. At about the same time the AMWU commenced a round of hearings in the New South Wales Industrial Commission seeking - and this is from memory I might say, Commissioner - the application of a State Printing Award at Kinko's.

PN18

Kinko's, the branch representatives and the AMWU concluded negotiations in early April 1999 and a second proposal was put to co-workers and accepted by way of co-worker ballot in April 1999. The AMWU neither supported or opposed the second agreement put to workers but - and again I rely on memory - recognised the proposed agreement as one that carried the support of the branch representatives and therefore did not seek to oppose it. I might add that I was involved in these negotiations as I have been involved in the previous ones. In June 1999 the Australian Industrial Relations Commission certified that agreement. The expiry date was 31 March 2001.

PN19

THE COMMISSIONER: It was an agreement in this Commission, was it?

PN20

MR CLARKE: It was an agreement in this Commission and I do have the numbers for you.

PN21

THE COMMISSIONER: Yes.

PN22

MR CLARKE: I do have a copy of the document. I have got C21865 of 1999 and I have got agreement ID number, Commissioner, of AG786783.

PN23

THE COMMISSIONER: Thank you.

PN24

MR CLARKE: The expiry date was 31 March 2001. The AMWU did not seek to be a party or seek to be bound by this agreement nor did they intervene in the certification hearing. As indicated the agreement expired in March this year and for that reason Kinko's again went direct to its co-workers with a proposed agreement to replace the 1999 agreement in March of this year. There was no negotiations with co-workers, instead formal consultation and meetings. The agreement was presented, notices as every right to do under the act, and consultation and the fourteen day consideration period and ballot soon followed.

PN25

I might say there was some consultation with co-workers in the lead up to and the drafting of that agreement. After a two absence from the workplace the AMWU again became active at Kinko's branches. The proposed March 2001 agreement was rejected by a margin of sixteen co-worker votes in, from memory, early April this year. Kinko's advised co-workers that despite the failed ballot minimum rates of pay would raise by 1.75 per cent whilst a second agreement proposal was negotiated with co-workers. In a similar exercise to 1999 two co-worker representatives were elected per branch at Kinko's.

PN26

The major difference this time was that Kinko's had grown from five branches to twelve branches and operated instead of just New South Wales, in Victoria as well. These elected co-worker or branch representatives commenced formal discussions with Kinko's on 3 July this year. The AMWU sought to be involved in these negotiations, sought access to Kinko's branches and sought to hold report-back meetings with co-workers. Kinko's allowed the AMWU participation in co-worker representative meetings and by way of letter of 20 July 2001 Kinko's gave the AMWU some rights of access.

PN27

Kinko's although conditioned these rights on the basis that in our belief the AMWU did not have the right to represent the industrial interests of Kinko's co-workers. I have a copy of that correspondence. Negotiations continued into August. At this stage Kinko's placed a final negotiating position before the brach representatives and the AMWU. The offer was rejected by a majority of the branch representatives and he AMWU. I am not giving you any of the reasons, I am just trying to give you a background and I am certainly happy to go into reasons for each of these.

PN28

As negotiations had broken down Kinko's again put an agreement proposal to co-workers. This went to co-workers in the week commencing 20 August. Phil Laws of Elections Australia conducted the co-worker ballot on Thursday the 6th and Friday 7 September, being last Thursday and Friday. The result was unanimous. 146 yes votes to 61 no votes with 88 per cent of the co-workers voting last Thursday and Friday.

PN29

I do not want to get into the background too much but it would be fair to say that a large amount of effort has gone in at Kinko's over the last three months at the very least to getting, in quite difficult circumstances - and I hope the Commission would appreciate in getting a co-worker ballot up under the opposition of the union movement and to some extent to a majority of the co-workers. And I do use the word "majority."

PN30

It has taken a very large amount of the managing directors, the retail operations manager, district managers, store managers and indeed, really, co-workers' time and effort over the last three months. And it is for this reason - I mean, this is one of the reasons that we say that matters are this stage be deferred while some proper consideration could be given to this dispute here, this morning.

PN31

THE COMMISSIONER: Mr Clarke, I do not want to cut you off but I think the - what you are explaining to me now is probably more relevant to the second stage of this process, for want of a better description. The first stage is simply, in my view, a fairly routine finding as to whether or not a dispute within the terms of the Act exist and the grounding of that decision is essentially based on the serving of the log of claims and their rejection - often called "a paper dispute".

PN32

The second stage is where the parties, or one of the parties, or the union in this case, would seek you to be bound by an award, or roped into an award, and maybe the sort of submissions you are making to me now would be more appropriate at that stage, if I were to find a dispute in the first instance.

PN33

MR CLARKE: Commissioner, I accept that. I just thought it was important - I mean - - -

PN34

THE COMMISSIONER: It is very interesting - I am finding it interesting.

PN35

MR CLARKE: No, no, you have - look we accept that proposition. I suppose it is really - it is one of our submissions that the workplace relations should be dealt with, why cannot the workplace, that we have been - that we have been very tied up in this process, that we are opposing the findings of a dispute, that Gary Hatcher is involved, now has been briefed, and I will touch on the matters now, because the first of those is that the union, we say, does not have the constitutional capacity to make a dispute.

PN36

And, Commissioner, I do not want to - I mean, go through all the limbs, but it is the affidavit of, I believe it was Sally Taylor, that was filed with the material - sorry, it is with the - yes, it was sworn on 1 August 2001 - sorry, it is not a sworn statement, it is just a statement of Ms Taylors, and in paragraph 3, it says:

PN37

The National Council of the AMWU authorised the serving of a letter of demand and the log of claims served on each of the employers set out in schedule B of this notification.

PN38

We say that that does not prove that the National Council of the AMWU actually authorised the log of claims. That statement does not take the position high enough, and we would seek - we would say that there should be a record of the National Council's minutes to that effect and that it also should appear in the form of an affidavit, so that it can be properly attested to.

PN39

THE COMMISSIONER: But this is the record of demand dated 24 July you are referring to, is it?

PN40

MR CLARKE: Sorry, I am referring to an affidavit. I have got it. It is a statement of facts, signed on 1 August and it should be on the material.

PN41

THE COMMISSIONER: Yes.

PN42

MR CLARKE: Yes? I have got a copy, if the Commission pleases.

PN43

THE COMMISSIONER: Yes, I have a copy.

PN44

MR CLARKE: A second point, Commissioner, is that the ambit log of claims of the unions cannot give rise to an industrial dispute, as we are concerned that some of the claims are not industrial matters as they do not pertain to the employer/employee relationship and I can take you specifically to the numbers of those matters in the log of claims and they are 49, 51, 54, 58, 59, 60, 65, 67 and 70. In relation - the third point that we raise is that the union does not genuinely press the demands against Kinko's as it is merely a device to extend the jurisdiction of the Commission as the union has not complied with its rules in purporting to serve the letter of demand on Kinko's.

PN45

Having read clause 1, HDA and WU's rules - sorry, Commissioner. We submit that the AMWU does not have constitutional capacity to cover employees. This submission is based on the following points. The rules of the AMWU are based on a trade of printing with a specific underlying body of skills and knowledge and these, we submit, do not applies to Kinko's co-workers. The processes which are generally known as "printing" do not include the processes undertaken by Kinko's co-workers. Kinko's co-workers are required to perform a range of functions in addition to the operation of relevant machinery. These functions include customer services, which we say is the primary function, operation of computers, assistance to customers in operating photocopiers and other equipment.

PN46

The business of Kinko's is not the business of printing, even having regard to the broad definition given to that term in the AMWU's rules, rather it is an integrated business that brings together a range of technological document production and other customer based services in an aggregation that it cannot be regarded as a printing business. We rely on the determination of the meaning of "business" from the High Court's decision in PB Consultants v FSU. This decision, in our submission, talks about the character of the business. It is our submission that the character of Kinko's business is not printing but rather an integrated service that brings together a range of components.

PN47

The character is a customer-service, focused business providing a range of services including document related services to the retail environment, on our submission. Kinko's do not look for trade skills when employing workers, Commissioner. The primary function they look for is the ability of a potential employee to service customers. It is really a hybrid business. It is unique, we say, in the world, Commissioner. It operates 24 hours, 7 days a week and has a large range of components to it.

PN48

Commissioner, it is our submission that there are complicated matters before you, that we submit that some material does need to be exchanged between the parties before these matters are dealt with and then the dispute can be heard, on our respectful submission.

PN49

THE COMMISSIONER: Mr Chisholm?

PN50

MR I. CHISHOLM: Thank you, Commissioner. My name is Ian Chisholm, Managing Director of Westaff, and I would like to give the Commission a letter I wrote to Ms Taylor on 2 August 2001, if I may read it in?:

PN51

Re your letter of demand received 26 July. I wish to advise that Westaff Australia Pty Limited ...(reads)... accordingly your demand is rejected.

PN52

I wish to further add that we have no employees unfortunately at Kinko's. And I am here at a cost to the company of something over a $1000 which I would like somebody to pay me for, and having heard the arguments put forward just then, I think that any reasonable person would have to say there is no dispute.

PN53

THE COMMISSIONER: Well, I do not think there is any suggestion that you have employees employed at Kinko's. This demand is served on Westaff, I take it, as a separate entity and is part of a dispute finding process which the rules of the Commission require unfortunately.

PN54

MR CHISHOLM: Yes, okay, but I - I beg your pardon, Commissioner. I understand also that under recent amendments the union are required to have members. I have no record of any members from the union to me.

PN55

THE COMMISSIONER: Well, that may or may not be the case. We will hear what Ms Cotis has to say, anyway, in response, but carry on?

PN56

MR CHISHOLM: Westaff is an international company, headquarters in United States. We actually supply clerical and industrial people, the majority of whom are place both permanently and temporarily and for the union to try and rope us into this dispute is, we believe, not appropriate. We are not part of this particular dispute. We have no record from them of any - in fact no contact other than the log of demands that has been sent. No record that they have the support of any staff of ours, suggesting that they should deal with us. Accordingly we believe that the hearing should be dismissed.

PN57

THE COMMISSIONER: Thank you. Ms Cotis or Ms Taylor?

PN58

MS TAYLOR: Commissioner, I will put aside for the minute, if you please, the matter of the Wesfarmers and Ms Cotis will deal with that later, but in relation to the matters raised by Mr Clarke on behalf of Kinko's we would say that those issues raised in opposing the dispute finding go to firstly the constitutional capacity of the union. The claim said:

PN59

Not to pertain to the relationship between employers and employees and the genuineness and the authorisation.

PN60

Now, the issue of constitutional capacity we will deal with, if the Commission pleases. We go through an exhibit which I have prepared and will hand up now, if it please the Commission?

PN61

THE COMMISSIONER: I will mark this exhibit AMWU1.

EXHIBIT #AMWU1 CONSTITUTIONAL CAPACITY

PN62

MS TAYLOR: Thank you, Commissioner. In relation to the issues raised that the log served on the company does not contain matters that pertain to the relationship between employers and employees. The respondent parties have argued with mixed success that the Commission should undertake as part of its finding under section 101 a purge from the subject matter of the dispute of all claims considered by the Commission to be fanciful or not about matters pertaining to the relationship between employers and employees.

PN63

There is an abundant authority for the Court, not striking down a finding of dispute because the log evidencing it may contain demands as to matters that may not be the subject of an award. And in relation to that matter, Commissioner, I would like to hand up a decision - a Full Bench decision of this Commission. This is an extract of that decision, Commissioner. It is a Full Bench decision in relation to the State Public Sector versus the State of Victoria and others, and it was amongst other things in relation to whether industrial dispute was created in the related matters.

PN64

It was a very large decision, at chapter 20 the Full Bench considered that issue of claims said not to pertain to the relationship. In relation to that matter the Full Bench concluded that there were in fact matters contained in the log that did not pertain to the relationship and cited the example of union dues. However, concluded:

PN65

We have decided to, not at this stage, go through the log which forms part of SPS4 and the former view as to which claims may or may not be the subject of an industrial dispute. At any award making stage it can be determined which of the claims in SPS4 can be made the subject of an award obligation.

PN66

And we would encourage the Commission to follow that precedent which is also evidenced in re AU (1995)128 ALR 609 at 632, and further authority for that proposition is found in re Munro J print M8771 at page 21. And in relation to any further proceedings - - -

PN67

THE COMMISSIONER: Sorry, that last reference, what was the year?

PN68

MS TAYLOR: 1995.

PN69

THE COMMISSIONER: Thank you.

PN70

MS TAYLOR: And in relation to the settlement of this dispute we have informed the company, and I believe a copy has gone to the Commission that we intend to rope the company into the Graphic Arts General Interim award and a copy of that award has been forwarded to the company. That particular award has been simplified, the remaining issue is the issue of classification structure. So not does it only not contain matters that relate directly to employers and employees, it also only contains allowable award matters.

PN71

Commissioner, the AMWU has a prima facie right to have the Commission exercise its jurisdiction as to the finding under section 101. The view expressed by the Industrial Relations Court in re McIntyre has been given added weight from the fact that the decisions survived an application for leave to appeal. In that case, Wilcox CJ, Keeley and Moore JJ said:

PN72

Determining whether an industrial dispute exists ought to be a simple matter. Where a party claims that a dispute exists because of someone's failure to accede to a log of claims there is not much room for legitimate argument.

PN73

And I will end the quote there, Commissioner, because I think you went to those very points earlier today. Now, the - Mr Clarke has raised the issue that there is no evidence before the Commission, apart from my statement, that the council in fact did authorise the vote, and has indicated that there should be further evidentiary material put before the Commission in the way of an affidavit. On that point I would refer the Commission in re Hodda and Another, ex parte the Western Australian Mint was unreported (1997) FCA at 811.

PN74

In that matter the AMWUs log was carefully considered in minutia by the Court, not only its log, but the processes under which it authorises logs of claims to be served. In re Hodda in relation to authorisation of the demands and the unions motives, Marshall J cited the following passage from Kirby J judgment in Attorney-General Q versus Re Horden (1997) 192 CLR 1:

PN75

Not much time should be spent in examining the subjective intentions, opinions ...(reads)... conclusion reserved in the first instance to the Commission.

PN76

In addition to that matter, Commissioner, I would like to hand up another exhibit, which is the voting ballot papers by the National Councillors in relation to the authorisation of the service of the log of claims.

PN77

THE COMMISSIONER: I will mark that document exhibit AMWU2.

EXHIBIT #AMWU2 VOTING BALLOT PAPERS
BY THE NATIONAL COUNCILLORS

PN78

MS TAYLOR: Commissioner, AMWU rule 9(5) provides for a National Council decision to be taken by ballot. On 5 July the National Secretary who was authorised under rule - in his duties of National Secretary to distribute such material as to the business of the union two National Councils, caused to be sent to National Councillors a ballot paper in relation to a service of a log of claims on a number of companies including Kinko's International Australia Pty Limited, the company represented here today.

PN79

The second page in dated July 19, also under the hand of our National Secretary, summarises the result of that ballot on Kinko's, and it indicates in relation to the service of the log on Kinko's, and it indicates that 24 ballots were distributed and the number of votes endorsed were 18. Commissioner, we submit that this is ample evidence of the authority to serve the log of claims on Kinko's and that it was properly authorised under the union's rules. Now, if it please the Commission, I will go to AMWU1, particularly in relation to the issue of constitutional capacity. And if we go to tab 1 of that exhibit, this was a document generated by Kinko, the Liverpool Street Branch and it is an add for a position in the Liverpool Branch:

PN80

Amongst other things, the successful applicant is required to be experienced with the use of Quarke ...(reads)... the ability to deal effectively with co-workers, customers and management at all levels.

PN81

We submit that they are standard skills and responsibilities required of people in the printing industry. Now, if we go over, Commissioner, to the second page behind tab 1, there is a list of advertisements from The Sun Herald. I believe the date was June 2000 last year, Commissioner. But if we go down the bottom of that page we see an add by Pacific Publications. This is currently a company that is roped into the Graphic Arts General Award 2000. It is looking for a pre-press Mac operator, with a good knowledge of Quarke, Photoshop and Illustrator:

PN82

The person also must have an ability to work within a team environment. Good communication skills would be required.

PN83

And, Commissioner, we would submit that they are the same sorts of qualifications as we have seen evidenced in the Kinko's Liverpool Street application.

PN84

THE COMMISSIONER: Are we looking at the same tab. Tab 2 in my folder is an add for Kinko and also a price list.

PN85

MS TAYLOR: Commissioner, we are still tab 1 on the second page.

PN86

THE COMMISSIONER: On tab 1, okay, thank you.

PN87

MS TAYLOR: And I was making the point that the same skills and abilities that Kinko was searching for in their own ad are evidenced in the skills and qualifications required by Pacific Publications, which is the company respondent to the Graphic Arts Award, namely they were seeking a pre-press operator who had the knowledge of Quarke, Photoshop and Illustrator. Now, Commissioner, if we also look at the top of that page, not in the plumbing section, but in the printing section, we see an ad for a digital copy machine operator for on demand copying. Now, these ads were all under the printing section of that Sun Herald paper. We also see printing, the next ad down, someone required to do table hand work, bindery person, etcetera.

PN88

And when we go further through the material, it will establish that that is also the bindery, finishing, laminating services are also services performed by workers at Kinko. Now, moving to tag 2, Commissioner, there is not much I will say about that first page because it did not come out very well at all, but actually that one that is hard to read is an advertisement by Kinko's and it goes to large format printing and a range of services they do. When we go over the page, this is a price list that Kinko distributes to its customers and it lists a variety of services that they perform, including black and white digital prints, colour prints, oversized colour prints, a variety of documents that they will create. They scan, they do black and white copies, they do plan printing and they do binding and laminating services. These are all services and areas when we come to it, which I mentioned in the rules of the union, in its coverage rule, and also in the industry rule of the Graphic Arts General Award.

PN89

When we turn over the page, again to that ad, we see that there is also a wide variety of finishing services, hand collating, hand folding, machine folding, hand stapling, etcetera. Now, turning over again, Commissioner, this was an ad that Kinko placed in the Manly Daily on 22.6.2000. And I might say, Commissioner, that this is all material that I have presented to the company in our meeting of 12 July. So it is not a shock to the company that we claim we do have constitutional coverage of this company.

PN90

MR CLARKE: Commissioner, I know I will get another chance, but we totally reject that submission.

PN91

MS TAYLOR: Well, Commissioner, let me redefine what I have said. Not all the evidence I have indicated so far was raised at that meeting, but certainly the rules of the union, this particular ad, the award industry rule were all presented to Kinko's. In relation to this, Commissioner, we see that Kinko's advertises its services as, not a retail customer service, but in fact it does comprehensive graphic design service. It provides copying of oversight work, including posters and plan prints. It does all print and desktop publishing jobs and a feature are the latest laser printers, including a Docutec.

PN92

These Docutec machines, Commissioner, are very evident in the printing industry at the moment, not only in the Quick Copy Centre, but also in the mailing house sector, and we have many companies roped into the Graphic Arts Award, for example, Style Map, Hermes Presica which use these Docutec Xerox machines, they are smart copiers. And these machines can print up to 135 pages a minute. On the second paragraph we find that the latest scanners are also available. And as we go down the page we find that Kinko's provides a variety of programs and they are loaded with Quarke Express, Photoshop and Pagemaker. And, Commissioner, they are the sorts of pre-pressed programs that are commonly used throughout the industry.

PN93

Commissioner, the rest of that material behind tag 2 I will not go to, but it is simply once again lists the sorts of activities that Kinko does provide, and once again we submit that these are all services and tasks described in the Graphic Arts Award. Commissioner, behind tag 3 is material taken from the Yellow Pages Directory 2000, Sydney, under the printing section. On your right-hand side you will see an ad for Kinko's placed in that section and once again it describes a variety of services offered by Kinko, including the:

PN94

...black and white colour copying, volume self-serve copying, digital colour, desktop publishing plan and oversized colour printing, presentations and transfer, binding and laminating.

PN95

Now, if we go over the page to the second page behind tag 3 we see two other ones, two other ads which I would draw the Commission to. One is an ad for Snap Printing, which is an on demand printer and is directly in competition with Kinko, and also the Quick Copy Shops. I think there is over 100 centres Australia wide. Now, Snap Printing indicates that it does:

PN96

All black and white and full colour printing, photocopying and graphic design.

PN97

And they are the sorts of services that Kinko was also indicating it provides in the previous ad that I referred to. In relation to Quick Copy, it does:

PN98

Quality full colour, single colour printing, digital copying in colour or black and white, design facilities, professional laminating, binding and finishing.

PN99

And once again they are all services claimed by Kinko. Later on, Commissioner, I will indicate, behind one of the tags there is a roping in award where we will see that we have roped in several Snap Printing and Quick Copy Centres to the Graphic Arts Award. Now, over the page again, Commissioner, there is a digital in-house printing ad in the top left-hand corner by a company called SOS Printing which is a respondent to the Graphic Arts Award and once again it lists a variety of services it does which have a parallelness to the work offered by Kinko's.

PN100

Behind tag 4, Commissioner - I will not dwell on this. The managing director at that point in time, John Eason, was interviewed in relation to the impact of technology and how the printing industry is very much cost driven. And in that interview there was also a comment from Phillip Drew, I believe his name is, who is the Managing Director of Snap Printing. So it is really just to indicate that these are two companies which are operating in the same industry and competing in a market which they both say is increasingly cost driven.

PN101

I would say the point in relation to some of the comments made by Mr Clarke in relation to the service nature of Kinko's and the fact that there are customers that use the photocopying and some of the other technology available, we can only applaud that initiative, but it still does not take away the fact that because they are managing to construct a system which increases the utilisation of capacity and increases the plant, we are not seeking to rope those customers who come in and use that material. We are simply seeking to rope in the company in relation to the people that it employs.

PN102

Commissioner, behind tag 5 is a printout from the Business Who's Who in relation to Kinko's. Business Who's Who lists a variety of companies, their zipcodes and some other information about them. That information is provided to them by the company itself. Now, in relation to the line of business, Kinko's indicates that it does printing and photocopying, it does plan printing, it does laminating, binding and other finishing services.

PN103

Commissioner, if you go to the second page of the BWW printout, it lists the zipcodes, so these zipcodes are used by the Business Who's Who to group like companies. So the zipcodes that have been assigned to Kinko's include Miscellaneous Publishing, Commercial Printing Not Else Where Classified, and Photocopying and Duplicating Services.

PN104

Commissioner, the rest of the exhibit - and I will not go to it extensively - however I did a search on those zipcodes in the Business Who's Who and for example in the first zipcode, 2759 Commercial Printing Not Else Where Classified, the second company down, Canberra Plan Printing and Colour, which also fits into this area of the zipcode that was identified with Kinko's, is respondent to the Graphic Arts Award, as is the fifth company down, the Federal Capital Press, and then further on down we have the company Anzpac Services at Smithfield, and that company is also a respondent to the Graphic Arts Award.

PN105

Now, I have done that exercise for all three zipcodes and in all three zipcodes we find companies - well, Kinko's is listed in all those zipcodes, but so are companies which are respondent to the Graphic Arts Award.

PN106

Now, Commissioner, if I could move to tag 6 which contains the Industry Rule of the union in relation to the Printing Division. Industry Rule 1H defines who can be a member of the union in relation to the Printing Division and we see at 1H(a)(i):

PN107

Any business, trade, manufacture, undertaking, calling, service.

PN108

Now, Mr Clarke made much of the fact that the Kinko's establishment is a service centre; it provides a service. What we say clearly is our allows us to cover people who are providing a printing service or otherwise in the printing industry as defined in our rule. Now, in relation to some of the matters described in our Industry Rule, we have printing of all classes which includes the non-impact printing performed at Kinko's, we have commercial designing, we have commercial designing, we have publishing, we have dispatching, we have bookbinding, we have binding, we have paper cutting and we have paper products working. Commissioner, we submit that our Industry Rule clearly provides for and gives the union capacity to cover the work performed at Kinko's.

PN109

Commissioner, if I could take you to tag 7 which is an extract from the Graphic Arts (General) Award 2000 as varied to 4 July 2001. If you go to page 5 of 192, which is the fourth page in, the definition at 1.4.11(b), Graphic Pre-Press, means image design and development, composition and graphic reproduction and all incidental process. This is exactly the work that has been described in the material that I have taken you to before, Commissioner, particularly in relation to the material that Kinko's has generated itself, advertising has generated itself, advertising the services in the printing industry that it supplies.

PN110

Further on down the page, Commissioner, at 1.4.13(e) we have "Non-impact Printing, machining means", and it gives the definition there:

PN111

Non-impact printing machines used in or in connection with the commercial printing industry, but not including non-impact printing machines used solely for photocopying or facsimile transmission.

PN112

Commissioner, that definition there squarely describes the Docutec machine and the Xerox machines that I was mentioning before, that I utilised at Kinko's. Then we have a further definition at 1.4.13(e)(2):

PN113

Non-impact printing machines which employ non-impact printing technology in applying images to paper and/or other services and includes, but it is not limited to -

PN114

And a variety of processes there, including Zero graphing, which is one of the processes used at Kinko's. Then at 1.4.13(e)(3) it lists a variety of machines which were evidenced at that point in time. But as the technology in this industry is changing rapidly all the time, I think the machines used at Kinko's are some of the Xerox machines, but the company may correct me on that. Commissioner, as we go down to 1.4.14, the classification definitions, we have:

PN115

Art and/or designing, including commercial art or in copying art work or layouts or in any way prepare an art work or layouts manually or electronically for the use of prospective use within the industry, as defined in this award.

PN116

Once again, Commissioner, that squarely defines part of the activities performed at Kinko's. Commissioner, if we can go to clause 1.6, Industry of the Award, which in many way reproduces the industry coverage rule in the rules of the union. So I will not necessarily go to that part, except that at page 9 it certainly expands in some way, the finishing processes which are processes that once again we saw advertised by Kinko's, including:

PN117

...folding, paging, numbering, perforating, gathering, wrapping, collating -

PN118

Etcetera. Commissioner, if I could go to tag 8, behind which is a copy of the Shop Employee's State Consolidated Award, the splinter award. Now, this is the award, Commissioner, which Kinko's indicates is the appropriate award to cover the work performed at Kinko's. However, Commissioner, when you go through the second page in, the definitions includes:

PN119

...general shops, means and includes all shops other than special shops. Special shops means and includes pastry shops, flower shops, garden plant shops, food shops, hairdressers -

PN120

Etcetera. And the confectionary shops are so defined there. None of which describes in any way the nature of the work performed at Kinko's or the nature of the enterprise or the outlet that sits at any of the 12 Kinko's locations in Australia. Turning into that extract from the award on the fourth page, we have the classification definitions. At 1 we have:

PN121

Shop assistants, demonstrators, sales persons.

PN122

We have people required to perform the role of Santa Clause. We have:

PN123

...ticket writers, mannequins, people employing goods by bicycle or tricycle, reserve stock hands -i

PN124

Etcetera. Now, that in no way, Commissioner, describes the work done by the employees at Kinko's. Behind tag 9, Commissioner, if we could go there now. Now, this is an email copy. I understood that Mr de Bruyn was to send you directly a copy.

PN125

THE COMMISSIONER: He did so, yes.

PN126

MS TAYLOR: Commissioner, well, then you would be aware that the National Secretary of the Shop Distributive and Allied Employees Union states:

PN127

The SDA does not seek, nor is it able to cover the work of employees engaged by Kinko's in graphic design, publishing, non-impact printing, scanning, colour printing, plan and large format printing, binding and other finishing services, laminating, mailing services and the other activities described in the Graphic Arts General Award.

PN128

Commissioner, once again, to press the point that these are all services that the company has indicated that it provides.

PN129

MR CLARKE: Sorry, if I can just - we obviously have not seen or we are quite clear we have not seen a copy of that letter. Number 2, I would say that I have myself had conversations with the union on this matter, which only takes our point further, that this sort of material we need to be able to consider more carefully, on our submission. Because I was aware that some form of conversation had occurred with the union, but certainly if the AMWU seeks to rely on it today, we say we must be given an opportunity to cross-examine the people who are making those statements.

PN130

THE COMMISSIONER: All right. Well, just let me indicate my views at this stage of the proceedings. Because of the volume of material and the initial submissions of Kinko's in this matter, I intended to adjourn today, without arriving at a decision, to allow any further submissions that the company may wish to make. I think that is a fairer process in all of the circumstances. But I think it is also helpful in the sense that at least you have both been able to ventilate your views about the issues, which may be helpful at the end of the day.

PN131

MS TAYLOR: Commissioner, if the Commission pleases, I do find it somewhat disappointing. We have raised these issues, as I said, with the company, they have been aware of them, not to the extensive detail, but for some months. We have also sought to have meetings with them prior to this hearing, which they cancelled. We sought for those meetings to be convened prior to this hearing again today, which they did not respond to, and I just think it is an abuse of process of them to come here today and say they need more time. The issues have been before them.

PN132

They have an agreement which has been voted on. That agreement is going to come before this Commission for certification, and we need to go and run the case there about what is the relevant award. So the matter has to be determined one way or another in the near future.

PN133

THE COMMISSIONER: Yes, I agree. Mr Chisholm?

PN134

MR CHISHOLM: Commissioner, I have had none of this material before me, therefore I cannot of course have had any opportunity to check it. But I did note that - I think it was under tag 8 - one of the areas discussed there was the provision of people acting as Santa Clause. Now we do, and they are exempt. So, on the basis that we have not been given the information that is being relied upon, I support your decision to adjourn it, but I still request that it be dismissed.

PN135

THE COMMISSIONER: Thank you. Mr Clarke?

PN136

MR CLARKE: Commissioner, only just to touch on those last couple of submissions, that the company did speak to the union and asked them to postpone this in light of what has been going on. More than happy to deal with it, we have made that clear all the time. There have been discussions and meetings, we do not deny that. We were put off, and the sole reason was that we could not get any indication from the union we could discuss the primary issue, being, in our belief what industry Kinko's actually fall into. The union was seeking only to discuss the terms that they could re-focus some deal with us, and for that reason we could see any - we could not actually discuss these matters that are before us today and that was made clear. I do have some timetabling to suggest, but - - -

PN137

THE COMMISSIONER: Well, we will get to that. Mr Chisholm?

PN138

MR CHISHOLM: Pardon me, Commissioner, I have neglected something there. We do have arrangements with other unions, and at this point I have not seen anything put to the Commissioner about one, interstateness or two, whether the people that we actually employ do not more reasonably belong to another union, and that is something I think should be covered.

PN139

THE COMMISSIONER: We might get to that. Ms Taylor.

PN140

MS TAYLOR: Commissioner, I totally reject the comments made by Mr Clarke and I can take you further into my exhibit, if you like which is - Commissioner, can I just seek some instruction here. Are we adjourning the matter now or should I go through the rest of my - - -

PN141

THE COMMISSIONER: I think let us do what we can today.

PN142

MS TAYLOR: Okay.

PN143

THE COMMISSIONER: And you have obviously come well prepared and I think the more the material is on the table, the better. So let us just continue.

PN144

MS TAYLOR: Okay. Well, I will address the issue of the meetings when we get to the correspondence section. But just going through Mr de Bruyn's letter - and a signed copy can be provided to Kinko's and Mr Clarke. But the SDA has no members employed at Kinko's. That they absolutely reject that the work performed by employees at Kinko's is capable of being covered by the award that Kinko says covers the award. And they acknowledge the appropriateness of us seeking a finding of dispute and a further roping-in award. Commissioner, behind tag 10 we find the Graphic Arts General Roping-in Award number 2 of 2000.

PN145

On page 2 of that roping-in award, half-way down we will find a company called Copy Kwik Print Centres. That is a centre that does similar work to the work described by Kinko's, the work described by Snap and the work described by Kwik Kopy. And then further down, the fourth from the bottom, we have a Kwik Kopy Centre itself. Now, at page 12 and 13 of the roping-in award - excuse me, Commissioner, at - just going back - at page 7 of that roping-in award, in the bottom quarter, we find a list of companies called Dashing Printing and Stationery - Dashing Printing and Stationery. Further in the exhibit, we have an affidavit by one of the employees at Kinko's, Mr Keith Salter, who describes one of his earlier positions as being employed at Dashing Printing and Stationery, which is clearly respondent to the Graphic Arts Award.

PN146

At page 12 and 13, we have at the bottom of the page, a variety of Kwik Kopy Centres which are roped into the Graphic Arts Award in New South Wales and they go over to page 13 as well. On page 18 of the roping-In award, we have at the bottom of the page a variety of Snap Printing enterprises which have been roped into the Graphic Arts Award in New South Wales and they go over the page to page 19, and then about two shops under the last Snap Printing entry on page 19, we have the SOS Printing Group, Commissioner, which was one of the enterprises that I referred to before when we had the ads from the yellow pages. One of the them was for the SOS Printing Group describing the sort of work it does, which is very similar in nature to that of Kinko's.

PN147

And then at page 24, we have arrived of Kwik Kopy Centres and they are operating in Queensland and I take the Commissioner, just to establish that we cover the Kwik Cover, Instant Print in all States in Australia under the Graphic Arts General Award. And at page 34, we have a variety of Kwik Kopy, and at page - Kwik Kopy shops in Victoria, and at page 38 we have a variety of Snap Printing shops in Victoria.

PN148

Commissioner, at tag 11, we have a copy of a certified agreement made in 1998. It was with the Current Knowledge Print Group which later evolved to become Snap Printing. So I insert this just to indicate that the union does have a history, not only of award coverage of the Kwik Kopy Centres, but also of agreement making in that area. Commissioner, at tag 12, I think it is important to indicate to the Commission that the wishes of many of the employees at Kinko's are to be covered by the Graphic Arts Award and here we have a list of - and I have cut out the name at this stage, because I think that is appropriate - but this list is a list of people, their occupation, and the particular Kinko shop that they work at, who have applied for membership of the AMWU Printing Division.

PN149

Commissioner, there is roughly 42 there, but in addition I understand that there is probably another eight more, which includes employees who already are existing members of the AMWU and also people who have filled out cards but were not - I was not able to capture that material in time to place on this exhibit. So we estimate that we have about 50 people who are, or who have applied to be, covered by the AMWU.

PN150

Commissioner, at tag - the next tag 1, we have a witness statement by Keith Salter and, really, Commissioner, I think at this stage the material behind tags 2 and 3 we will leave for another day, if Kinko's are going to move on that, but they simply indicate the work that two of the Kinko employees do and their beliefs that they are in the printing industry. But I will take the Commissioner to attachment A of the witness statement of Keith Salter.

PN151

During the series of negotiations that the company mentioned after the first agreement was rejected this year, and the union was invited in by employees at Kinko's to assist with the negotiations, what usually occurred was that there were two co-workers elected, or appointed from the branch to represent that branch in negotiations, so roughly there was about 18 at any one time, co-workers negotiating. This group of co-worker representatives would meet from time to time, after or before the negotiations with the company, to discuss their various claims.

PN152

At the co-worker delegate meeting held on 24 July, the following points were discussed at the meeting held at Liverpool Street where all the co-worker delegates were represented, and as you will see in bold, Commissioner, the union was not present at that meeting by any means. The co-worker delegates found that any new agreement should be based upon the Graphic Arts Award.

PN153

Commissioner, in relation to - my document is a bit out of wank here. I believe if we got to tag 2, there should be - tag 2, there is a series of correspondences. Now, this is correspondence that the company has referred to before of 20 July. In the first paragraph, the company states that, "We are again bent on attempting to class Kinko's retail operation solely as a printing business", and indicates that this occurred unsuccessfully in 1999.

PN154

Well, Commissioner, I acknowledge the fact that Mr Clarke said he was referring - and his comments based on memory. I was not present in those proceedings, but I have examined the file that was created in the Industrial Relations Commission of New South Wales, but in fact there was - the Commission at that point in time in New South Wales, Kinko's and the union were in that Commission on the subject of a industrial dispute and that was in relation to certain matters in relation to the negotiation of the agreement.

PN155

So, at no point in time was this State Industrial Relations Commission asked to determine which award applied to these people, in fact, and the Commission did not make such a determination. The matter was left in the Commission when further discussions took place outside of the Commission between the company and the union and the co-workers in relation to the agreement that was subsequently certified in 1999.

PN156

In the second paragraph, the company again asserts that their continuing belief is that the Shop Employees State Award is the relevant award and we would rely on not only the industry coverage rule of the union, but also on the statement of Mr de Bruyn in relation to the capacity of the SDA to enrol people in the capacity that State's retail award to cover and properly describe the work performed by employees at Kinko's.

PN157

Under the heading "Retail Focus", Mr Clarke went to some length in relation to the sorts of business that Kinko's is, that it is a retail business and it is a service business. And, Commissioner, when I took the Commission to rule 1H(a)(1), I referred specifically to the rule describing any service in the printing industry. So, however, we coin it, whether it is service through the printing industry, or in the printing industry, the printing industry in many extents, particularly with the convergence of technology, is becoming more a service industry as well as a manufacturing industry.

PN158

The company asks us, does the AMWU know what a co-worker's benefit from the Graphic Arts Award coverage, and we certainly believe that they do. We have done some testing on that matter in relation to real life scenarios and people's working arrangements, and we are confident that the Graphic Arts Award is the appropriate award to cover the employees at Kinko's, but not that, it does provide benefits, wages and conditions, which are relevant to the printing industry and are in fact superior to that found in the State award, which we believe is one reason why the company is struggling so hard to avoid award respondency to the Graphic Arts Award which would put it on an even footing with the companies it competes with in the quick print industry.

PN159

The company in its letter of 20 July indicates that AMWU rules do not cover Kinko's workers. Now, Commissioner, I have covered that, but I would also indicate that as at 20 July, and certainly at our meeting which the company refers to that was held on 12 July, the company was appraised of the issues that we would be raising and what we were seeking to do. It has had plenty of opportunity to contact us to discuss these issues. Mr Clarke refers to the very issue about which he claims we have not had an ability to discuss, which is the AMWU's rules. We have certainly had every opportunity to discuss that and we have indicated to the company that we do cover Kinko's workers under these rules. And so I would seek that if any adjournment is to take place, that it be a very brief one.

PN160

In relation to the summary of this correspondence dated 20 July, the company actually concedes that it is a printing company, when it states, "Unfortunately for the AMWU, we are not the type of printing operation that you would like us to be", and I would again refer the Commission to the union's coverage rule which says, "Printing of all classes". Now, we do not have a particular preference for the Kinko's to be of any particular establishment type. We simply state, as the company seems to concede here, that they are in the printing industry and they are a printing establishment.

PN161

Commissioner, the next correspondence then dated 30 July, goes to the AMWU's proposals for a general right of entry and the process that would occur during the report back of the - or report back meetings in relation to the negotiation of the agreement. The company requested that we do this, provide a right of entry protocol, when we met with the company on 12 July, so I did do that.

PN162

On 23 August, I wrote to the company again indicating that we wished to initiate our right of entry protocol, particularly under that - in relation to the report back meetings. We have had requests from several co-workers for assistance in reporting back to their work sites in relation to the negotiations. A particular concern at that time was reports from co-workers to us that material that co-workers had produced in relation to the proposed agreement and some material that the union had produced, was being taken down from notice boards, was being taken down from people's personal lockers, and co-workers indicate that they felt that this was a gagging of their rights to inform people, as was their duty, being elected representatives.

PN163

And I would indicate, Commissioner, that I was present at the negotiation which took place when the co-worker representatives rejected the last offer by the company. Now, that was overwhelmingly rejected. There were probably about 19 approximately co-workers in that room. 17 of those co-workers voted to reject the company's offer.

PN164

Now, I believe that that establishes a fairly strong case that in the role of these representatives going back to their workplace to inform the employees at the workplace of the issues, of the offer, of their views, and of the union's views, they should have been given every opportunity to ventilate those fairly, and I believe that this gagging of them was incredibly inappropriate and established an unpleasantness, an uneasiness at the workplace, where employees could not be kept informed in a way which would have assisted their decision making.

PN165

I asked the company to contact me if they had any issues in relation to that, but what occurred was, if we go to the next page, was an email from David Bolton indicating that he was in receipt of my letter dated 23 August and he was reviewing the response and would reply in the next couple of days. Well, Mr Bolton nor his representative did contact me in relation to those matters.

PN166

On 27 August, I sent correspondence to Dave Bolton. At that last negotiation where the agreement was rejected overwhelmingly, I had approached Mr Bolton and sought to have meetings with him to discuss the log of claims and what the union would like to do with that industrial dispute when it is found, and any other matter in relation to those areas. I was subsequently advised by Mr Clarke that the company wished to postpone the meeting which had been scheduled for 30 August.

PN167

I asked in my letter of 27 August - indicating that we agreed to the postponement, however we sought an alternative date prior to the hearing scheduled for today. I also included in that correspondence an agreement which we had just settled with a company called Salmack who use these Docutec laser printing machines and I included the hours of work clause, because this had come up during discussions with the companies, an area of great concern to the company. I was indicating to the company that the union is willing to negotiate on award matters in relation to a certified agreement.

PN168

Once again I asked - I made the observation that removing material regarding the proposed agreement placed by co-worker member representatives of the staff was not in keeping with the spirit of the negotiations and did not support informed decision-making, and again invited the company to contact me, did it have any concerns or comments to make, and I did not hear from the company.

PN169

I did receive on 5 September a letter from Mr Bolton advising us that they were going to oppose a finding of dispute. If a dispute was found today, they would oppose any roping in award made, and it is still the union's preference that we would have a dispute found and any matter arising could be ventilated at the time of a roping in award. But what is concerning most in this letter I think is the claim at the bottom of that letter that "in circumstances where we have sought unsuccessfully to have discussions with the union about appropriate award regulation". Now, that is simply not true. The company had not sought to have any discussions with me and had not responded to my several invitations to do so.

PN170

I will not go to the next document, Commissioner; it is material that Mr Bolton - or under the hand of Mr Bolton that was put out to co-workers in relation to the agreement. I think it does contain several inaccuracies, however, I do not think that it is relevant to the issue of a finding of dispute today.

PN171

On 6 September I wrote to the company indicating that I was incredulous regarding the correspondence that I referred to on the 5th, asking again for conversations and meetings and once again inviting the company to contact me.

PN172

Commissioner, the last tag at tag 3 is a copy of the Kinko Certified Agreement 1999 and the issue that I would take the Commission to there is at 1.2.3 which is the scope clause, to indicate to the Commission that at that point in time it was the express intention of the parties that this agreement stand alone and should not be read in conjunction with any other agreement or award. That provision is carried over into the agreement which Mr Clarke has informed us today has been voted on by the employees at Kinko's. We have indicated to the company if it was the wish of the employees at Kinko's to vote for that agreement, we certainly would not be opposing certification. However, we will be in those proceedings arguing that the Graphic Arts Award is the relevant award to underpin that agreement for the no disadvantage test. That is all I have for the moment, thanks, Commissioner.

PN173

THE COMMISSIONER: Thank you. Mr Clarke.

PN174

MR CLARKE: In light of your earlier comments, I have only really got two matters to put to you. Firstly, there is the suggestion that the company had chosen the shop award for financial purposes as opposed to any other. I took you earlier to the fact that the company has considered itself a shop since its commencement in Australia, that testing has been done of this agreement and I do not think it is in dispute. The AMWU might disagree. I believe it is not in dispute that the agreement that went to co-workers or employees passes the no disadvantage test against both awards in our mind.

PN175

And that was intentional. In fact, it is the case that the actual wage rates in the awards are not actually that different, Commissioner, abut what does differ is the way the penalties apply. And in the Retail Award because it is not a specialty shop, as what we would say is a general shop, overtime applies after 6 pm in the evenings. Now, you can understand for a 24 hour seven day a week operation, that creates quite a burden for the business. Under the Printing or the Graphic Arts Award, it is a penalty system of 20 or 30 per cent for the shifts.

PN176

That round about swings on the weekend when the Shop Award, because shops are used to trading on weekends, provides penalties. I mean they vary between the states, but in New South Wales it is a 25 per cent penalty during ordinary time for permanents on Saturday and 150 per cent on Sunday; it is a little bit higher in Victoria. But compared to the Graphic Arts, that then swings back to that being overtime or paid at around I think 200, 220 per cent from memory. So when the testing is done, there is only a few cents difference between the two awards and it was really important as part of the negotiation process, and you can see some of the history there, that we could show, in light of the contentious issue that is now before the Commission, that we could show the co-workers that in our belief, and I do not think this is opposed, that the no disadvantage test is passed for both awards, and the agreement was tailored for the purpose of doing that.

PN177

THE COMMISSIONER: Is it proposed that the agreement be a section 170LJ, LS or LK?

PN178

MR CLARKE: It is proposed that it is a section 170LK agreement, as it was before, in that it was put directly to the co-workers. I could not say that we have - we have not discussed the matter because the matter has not been raised with us. If the matter was raised we would give it further consideration, but it was put to the co-workers as a direct agreement and unless we hear otherwise we would certainly be looking to lodge that agreement and a move - I mean the work force has been in a disruptive state for some time I suppose because of the events that have flowed. No one would say that it has been an easy process for management or the co-workers.

PN179

THE COMMISSIONER: I do not think that anybody has ever said enterprise bargaining is an easy process?

PN180

MR CLARKE: No, no, and I suppose it becomes a lot more - it becomes a bit more difficult in my experience which is primarily in retail, Commissioner, when you are dealing with customers, and those - you know - it makes it just that little bit more difficult, but look any enterprise bargaining is difficult. The company would be moving pretty quickly to certify that agreement. We will be checking the undertakings that have been provided to the AMWU today, because if they are not intending to intervene or stall that certification process, the agreement pay rates will flow immediately to the co-workers, and that is our intention.

PN181

So that is the first issue, and the second issue just deals with the conversations that have occurred between the AMWU and myself. I really think if I take you to the correspondence you can see that what Dave Bolton said in his letter of last week is that the AMWU will not discuss the award - the appropriate award to apply. And what the AMWU was seeking, and that is witnessed by the certified agreement that was supplied was to discuss a separate issue and that is where matters got a little bit confused - we really sought to have these sort of discussion in a little bit more details, and it is our submission and it is perfectly clear - I can take you to the wording - it becomes perfectly clear when you read it - that in fact Dave Bolton's letter of last week actually says, "The appropriate award that applies".

PN182

And it was responded that we would not discuss the matter at all, but that just was not the case. We wanted to discuss these issues, not any others. But there our submissions - we do continue to seek a deferral so that we can properly respond to what is quite lengthy material that has been put to us this morning, if the Commission pleases.

PN183

MS TAYLOR: Commissioner, I really only have one comment to make, and if I heard it correctly I think Mr Clarke was saying that pay rises will flow to Kinko's employees on the basis that the union does not intervene in the certification process. I think that was the submission being made, and if that was the submission, I would submit that that is getting close to coercion and the union will be following that up.

PN184

MR CLARKE: Commissioner, I want to make this very clear. The union said at the last meeting that they would honour the wishes of the co-workers, and on that basis the agreement will - the pay rises will flow immediately. If they are not I have to do some legal questioning to see what problems could be if we start providing pay rises now on an agreement that may not be certified, so there is no - I want to make it very clear on the record that we reject those comments outright, but we just - it is not a matter of the intervention itself, it is a matter of whether the agreement that is voted on is going to apply at Kinko's. So I cannot make - I hope I do not have to make myself - we are not - the union if they intervene they intervene, and that will be dealt with, but what we are trying to do is get some pay rises to people - it is not based on anything to do with the union, it is based on when and if the agreement will apply.

PN185

THE COMMISSIONER: All right. Mr Chisholm?

PN186

MR CHISHOLM: Commissioner, just a couple of things if I may. Firstly, there is a lot of material been put forward, zero about Westaff. There was a comment made earlier that lots of contact has been taken place between union and Kinko's. May I advise the Commission that other than one registered mail letter I have had zero contact. I have, however, been asked to come before the Commission on another matter, originally next Tuesday, but it has now been postponed until October, and I think there must be some confusion because here am I a person simply trying to put people to work, and I have been dragged up here, at expense, and there has been nothing put forward to the Commission to demonstrate that there is a reason why I am here. I therefore request that it be dismissed?

PN187

THE COMMISSIONER: Ms Cotis?

PN188

MS COTIS: Thank you, Commissioner. Whilst Ms Taylor has put the union's position in relation to adjourning the matter concerning Kinko's today, we are not particularly happy about that and would like a dispute found in relation to Kinko's today. But if you are of the mind to adjourn the matter then we seek that the adjournment only relates to Kinko's and that we proceed with the dispute being found against Westaff. I am actually at a loss to respond to some of the comments made by Mr Chisholm.

PN189

I do not quite understand some of his comments. I think - there is actually a history in relation to the union seeking dispute against Westaff, and that has been - that history has actually been before Commissioner Cargill. I do not intend to go through that in any detail today with you, unless you wish me to, but I will say that Mr Chisholm's claims of some ignorance towards this process are unfounded as he has been involved in the lengthy process before the Commission.

PN190

We, the union, attempted to rope Westaff into - sorry - have a dispute plan against Westaff in a matter - I do not have a C number off the top of my head - but it was in a matter that was called, ANCO and others, so he is fully aware that the process while the name of the matter may be - today's matter may be Kinko's and another, he is fully aware that this dispute finding is not necessarily about Kinko's and having him involved in the Kinko's dispute.

PN191

I just raise that, and I also say that - we did - the union was successful in having a dispute found against Westaff before Commissioner Cargill for a variety of reasons. That dispute finding was reversed by the Commissioner - Commissioner Cargill - but the main reason was on the basis of service not being - a technicality on our service and that was that we actually served the wrong floor of Westaff's building. We actually served level 3 as opposed to what is their registered office at level 4.

PN192

Irrespective of level 3 being their reception area, Commissioner Cargill, based on that, decided that she was going to revoke her initial dispute finding against Westaff. So having just given you that very brief outline of some of the problems that we have had with Westaff in the past, I simply say that the very brief submissions that I made at the opening of this hearing in relation to our appropriate service and the evidence of that service has been provided to the Commission, Westaff have very clearly not met - acceded to our demands - therefore prima facie union has a case to have a dispute found as you have quite rightly pointed out, Commissioner, and I again, just seek that you find the dispute in relation to Westaff today, if it please the Commission.

PN193

THE COMMISSIONER: I note that the registered post slip on my file, the letter of demand was served on the Managing Director of Westaff level 3, 100 Albert Road, South Melbourne. That does not compound the problem that Commissioner Cargill had?

PN194

MS COTIS: Yes, sorry, Commissioner, I have obviously got the levels incorrectly. We initially served level 4 but I think it is level 3 which is their registered address, sorry, Commissioner.

PN195

THE COMMISSIONER: Yes, Mr Chisholm?

PN196

MR CHISHOLM: Commissioner, matter C 22761 for Commissioner Cargill was revoked and it was revoked not just because of the incorrect service, and clearly by writing to the union in this instance, I have reflected the fact that service has been made. It was in fact revoked, the 22761, because the log was never sent to us, it is as simple as that, so to suggest otherwise is in error. Now, that matter is behind us, we have a new matter in front of us, I think the number is 4204, and therefore the point that I wish to make is again, no telephone calls, nothing other than one registered mail letter. There is another matter that the same union are putting to the Commission before Commissioner Cargill and that as I said before is in October.

PN197

THE COMMISSIONER: Is that related to this?

PN198

MS COTIS: I am unsure, Commissioner.

PN199

MR CHISHOLM: I am unsure too, Commissioner. I am just here, at expense at a cost incurred by them. So clearly there is an act that needs to be got together to stop wasting time.

PN200

THE COMMISSIONER: Ms Cotis, Mr Chisholm the - I agree with the reference that was made earlier in these proceedings about - I think it was the Full Bench of the Federal Court said that, "The finding of a dispute is a simple matter", I wish it was, they usually are, but in the normal run of events or the normal course of events, a log of claims is served, the employer rejects the claims and in terms of the requirements of our constitutional forefathers, a dispute is found.

PN201

It is essentially a paper exercise, and that is where you are at today. What goes beyond the finding of the dispute is again a matter for discussions between the parties, which I would - what I always direct that the parties do undertake. In respect of the Kinko's the circumstances are much more complex and potentially difficult, although I say potentially because I still think there is scope for the parties to have some discussions prior to the matter resuming, but in the case of Westaff, I have all of the elements before me which I could find that a dispute exists, and decide accordingly, and then refer you into discussions. Do you oppose a finding of a dispute?

PN202

MR CHISHOLM: We do.

PN203

THE COMMISSIONER: You do. On what grounds?

PN204

MR CHISHOLM: Constitutionality, I beg your pardon. Lack of any statements being put forward, lack of membership, no evidence being put forward, but I do admit proper service.

PN205

THE COMMISSIONER: I see. Anything further?

PN206

MS COTIS: Well, clearly the union asserts that it has constitutional coverage within Westaff. If you wanted me to go into that further today, Commissioner, I can do, however, again, I say that I do not - we do not believe that we are required to do that, and I think you have quite rightly pointed that out on two occasions now, this morning. We are simply seeking the finding of a dispute, and we have, we believe, met all our statutory requirements in relation to that today.

PN207

I would just simply also say that Mr Chisholm's concerns about lack of proof of membership are quite extraordinary. Our members join our organisation on the basis of confidentiality. We are under no obligation, whatsoever, to reveal our membership to anybody unless directed by the Commission or another court of law. Therefore we are not prepared unless you are requiring us to do so, Commissioner, we would - if you do require us we would ask you that we provide you the details of membership on a confidential basis for your eyes only. We are not intending on providing membership nor do we believe we have to provide membership details to Westaff or for that matter any other employer.

PN208

THE COMMISSIONER: Thank you.

PN209

MR CHISHOLM: If the Commission please, I find it is in contrast between the list of members already handed over to Kinko. I would assume that - I made a point earlier that that point is still valid, that that company does have arrangements with other unions and there is a situation where those people may more conveniently belong to those - that particular other union, particularly referring to the AMACSU union - the services union, ASU, where we have arrangements. We in fact regularly deduct union dues and reimburse them to that particular union. I can assure the Commission that we do not deduct any union dues to the AMWU.

PN210

THE COMMISSIONER: Yes, thank you. Mr Clarke, I did note somewhere in the correspondence between yourselves and the union - let me see if I can find it. This is at tab 2, at the back of exhibit AMWU1. It is the correspondence from Mr Bolton on 5 September. In the last paragraph you say, "Even if a dispute is found", and I think you correctly, or Mr Bolton correctly identified the two-stage approach to these types of proceedings and as I indicated earlier when you were making your initial submissions, I thought a lot of the material you were raising dealt with the second stage of this roping-in.

PN211

What I am going to do today for simply - mainly for procedural reasons, is to deal with the dispute finding on both of the companies that have been served, and then adjourn the matter to a date to be fixed which we will talk about in private, I think, about future dates, to deal with the second stage, that is the roping-in. I think that is a cleaner approach and if there is - if I am wrong about that, well, then, your rights are reserved in respect of revocation.

PN212

So, in that sense I am going to proceed to find that pursuant to 101 of the Act that an industrial dispute within the meaning of the Act exists between Kinko's International, Suite 101, Level 1, 55 Mountain Street, Ultimo, New South Wales and Westaff, Level 3, 101 Albert Road, South Melbourne. The matters in dispute are those contained in the letter of demand served by Ms Taylor on 24 July 2001 on both companies. I direct that the parties confer in regard to the matters in dispute and the formal finding of dispute will be attached to the files.

PN213

As I said, rights are extended to both the parties, that includes Westaff, in respect of the finding of dispute. I will now adjourn and talk to the parties in respect of Kinko's about the future dates for hearing.

ADJOURNED INDEFINITELY [10.45am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AMWU1 CONSTITUTIONAL CAPACITY PN62
EXHIBIT #AMWU2 VOTING BALLOT PAPERS PN78