D2001/4, Transcript of Proceedings [2001] AIRCTrans 2557 (2 October 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT McINTYRE

D2001/4

STRIPTEASE ARTISTS AUSTRALIA
INCORPORATED

Application under section 188(1)(b) of the Act
by Striptease Artists Australia Incorporated
for registration by an association of employees

SYDNEY

8.57 AM, MONDAY, 10 SEPTEMBER 2001

Continued from 14.08.01

THIS HEARING WAS CONDUCTED BY VIDEOCONFERENCE IN SYDNEY

PN126

THE VICE PRESIDENT: Are there any changes in the appearances?

PN127

MS S. BELLINO: If the Commission pleases, I appear on behalf of the ALHMWU, and I believe Ms Schofield appeared for the union last time.

PN128

MR S. WHIPP: If the Commission pleases, I appear for the Media, Entertainment and Arts Alliance.

PN129

THE VICE PRESIDENT: Thanks, Mr Whipp. Yes, Mr Wilson?

PN130

MR WILSON: Your Honour, there is a lot of noise coming from Sydney and I can hardly hear. But your Honour firstly I apologise that due to a number of personal circumstances I did not get out the application to read until the weekend, however, I've faxed that on Saturday to all objectors and to your chambers. Do you have it in front of you?

PN131

THE VICE PRESIDENT: Yes, I've got it thanks.

PN132

MR WILSON: That is the application, your Honour.

PN133

THE VICE PRESIDENT: I think on the previous occasion it was anticipated that the objectors would have a reasonable chance to have a look at it and express a view about it prior to today's proceedings.

PN134

MR WILSON: Your Honour, on 15 August Ms Shagan did send a letter to the parties, as it were, to which these amendments relate. I do accept that the AWU and the ALHMWU would not have got it until very recently however the amendments do not pertain to any dialogue between either of those organisations.

PN135

THE VICE PRESIDENT: All right. Well, just let me find out the position of the objectors who are represented first. Who is going to go first, Mr Whipp?

PN136

MR WHIPP: I could indicate that we did receive the correspondence indicated by Mr Wilson shortly after 15 August, that it accords with the discussions that we have had with the organisation and accordingly based on the amendments which are proposed to the organisation's rules we would withdraw our objection.

PN137

THE VICE PRESIDENT: All right, thank you. Ms Bellino?

PN138

MS BELLINO: Your Honour, this is the first time that I've actually had a chance to have a look at the proposal. I haven't received any correspondence prior to this and I mean on the face of reading it, it doesn't really pertain to the ALHMWUs involvement in this application because we still haven't been able to settle our objection and at this stage are still opposing the application. So I'm not in a position to be able to respond specifically to it today other than to say that it really doesn't involve the ALHMWU on the face of reading it now.

PN139

THE VICE PRESIDENT: All right, thanks. Mr Beard?

PN140

MR BEARD: A similar situation, your Honour. I was hoping that the AWU would have been presented with the document a little bit earlier so that we had an opportunity to have further discussions with the striptease artists and maybe might have helped the AWU and the striptease artists come a little bit closer. Unfortunately we haven't had any further dialogue and obviously our objection still remains. However, we have no objection to having further discussions with the organisation to try and seek a pathway through this matter. If it please, your Honour.

PN141

THE VICE PRESIDENT: All right, thanks. Mr Wilson, the application for leave to amend on its face relates directly to the CPSU and the Media, Entertainment and Arts Alliance. Have you heard from the CPSU in respect to other proposed change.

PN142

MR WILSON: Your Honour, would you excuse me because as I said Ms Shagan did write to them on 15 August. Your Honour we haven't heard from them however the fact of the matter is the application is simply the agreement that we have reached with them.

PN143

MR WHIPP: Your Honour, I can also indicate that the officer within our organisation who has been dealing with the matter has had contact with the representative from the CPSU who has indicated, as I understand it, that the alterations to the proposed rules is acceptable to the CPSU and on that basis of the proposed rules they were proposing to withdraw their objection. That is my understanding from the officer within our organisation who has been dealing with the matter.

PN144

THE VICE PRESIDENT: Thanks for that, Mr Whipp. Mr Wilson, what do you ask me to do in the light of the present situation?

PN145

MR WILSON: Your Honour, I ask you to do two things. My first application, as it were, would be to grant the application for leave to alter the rules. The grounds of that application are firstly that the parties to whom the amendments relate have agreed to them. The other parties, that is ALHMWU and the AWU are not affected by these changes either way and so it doesn't affect their objections in substance anyway. The other thing that I ask you to do your Honour is simply set the matter down for the hearing of the substantive application. The reason I ask you to do that is that there has been dialogue in good faith between the ALHMWU and the AWU and my client and proposals have gone back and forth however no agreement has been reached and unless either the ALHMWU and the AWU has another proposal to put to my client we have reached, as it were, a stalemate and then therefore we should simply just hear the substantive matter.

PN146

THE VICE PRESIDENT: Prior to any hearing it would probably be desirable for witness statements and statements of contentions to be filed and exchanged I'd suggest.

PN147

MR WILSON: Yes. I'm not quite as happy with that, your Honour, and we anticipated a form of direction in that regard.

PN148

THE VICE PRESIDENT: All right. Let us just go back then to the ALHMWU and the AWU. Do you wish to say anything further about the way the matter should be programmed, Ms Bellino?

PN149

MS BELLINO: I would your Honour, thank you. Can I suggest two things essentially. We did email to Ms Shagan an alternate form of work last Thursday which would settle the ALHMWUs objection. It may be the case that Ms Shagan hasn't received that email, being what it is, so we're not certain whether the proposal that we sent was acceptable to the Striptease Artists Association but it certainly would be acceptable to the ALHMWU and settle our objection. However, if it is not acceptable we don't propose to have the matter set down for hearing just yet on the basis that we think the parties are so close to settling the objection, your Honour, on a without prejudice basis. We've certainly seemed to have agreed on the form of the rules and constitution as proposed by the Striptease Artists Association but cannot at this stage agree on the form of wording in an undertaking under section 2045 of the Act which would what we say protect the interests of the parties.

PN150

So essentially we think we're extremely close on settling the application and it may be the case that we can set the matter down for hearing but we would propose some sort of conference prior to that with your Honour conciliating the matter just to bring the parties together one more time, only because we are really that close, and to prepare witness statements, and all that type of material takes an extremely long time and is costly to all of the organisations involved and it is our preference, if at all possible. It has been some time since we have sat down in the same room with the SAA, in fact I never have, Ms Shagan once the application was first filed certainly came into our office in Sydney and spoke to one of our national assistant secretaries but we think perhaps that might benefit the settlement of the objection of the LHMU. Thank you, your Honour.

PN151

THE VICE PRESIDENT: All right. Mr Beard?

PN152

MR BEARD: Yes, I'd endorse and support the comments made by Ms Bellino, your Honour. I think prior to undertaking, as has been explained to you, a substantial exercise in regard to an arbitration and it may be pertinent to first explore the possibilities through conciliation and obviously if that doesn't work then the matter would be there to be arbitrated. But I think in the first instance it certainly is worthwhile in the course of conciliation. If it please, your Honour.

PN153

THE VICE PRESIDENT: Mr Wilson, can you hear?

PN154

MR WILSON: Your Honour, we are having trouble hearing you it sounds like you're on a mobile phone breaking up from time to time.

PN155

THE VICE PRESIDENT: Did you hear what Ms Bellino and Mr Beard said?

PN156

MR WILSON: I did, but then I didn't hear you perhaps it might be your microphone.

PN157

THE VICE PRESIDENT: All I was asking was would you like to respond to what they said.

PN158

MR WILSON: Yes, thank you, your Honour. With respect to Ms Bellino my client does not think we are close, if by that she means that her proposal of last Thursday brings the parties closer together that's not my client's view. My client's view is the matter should be set down for hearing your Honour and if in the course of preparing for that we reach an agreement with either the ALHMWU and/or AWU, well, then fine. But in any event we are going to have to convince you of the various criteria under section 189, and so in any event we are going to have prepare a statement of facts and contentions and witness statements.

PN159

The only extra time that will be involved that I can anticipate at this point of time is us addressing the more conveniently belong issues that may be more substantive if the ALHMWU or the AWU are there. In any event we are still going to have to address those issues for you to be satisfied that my client meets the criteria under section 189. Did you hear that, your Honour?

PN160

THE VICE PRESIDENT: Yes, I can hear you perfectly well, thank you. If the statements of witnesses and contentions are to be filed would it be appropriate for the applicant to do theirs first and then the objectors or the other way around. Does anyone want to say anything about that as I think it is probably a fairly fluid approach on those things here.

PN161

MR WILSON: Your Honour, my client certainly does not mind and he is quite happy to go first. If of course matters, if the objectors are again second, as it were, it would simply be a simple of replying to any matter still in contention or to clarify matters still in issue after they have filed and served their statement of facts and contentions in their witness statements.

PN162

THE VICE PRESIDENT: What sort of time would you need to prepare witness statements and statement of contentions.

PN163

MR WILSON: Would you excuse me your Honour, I'll just ask Ms Shagan. About four weeks, your Honour.

PN164

THE VICE PRESIDENT: I take it that the objectors would like something of the same order at least, if not more?

PN165

MS BELLINO: I was looking at about six weeks, your Honour, actually to prepare our evidence if we were continuing to oppose the application.

PN166

THE VICE PRESIDENT: The same with you, Mr Beard?

PN167

MR BEARD: Yes, your Honour.

PN168

THE VICE PRESIDENT: What I had in mind is seeing if a further attempt to reach agreement could be achieved and I don't think it would be appropriate for me to conciliate, that would probably lead to an objection to me hearing the case and someone else would have to be found. But what I might do is see if I can get another member of the Commission to convene a conference of the parties and at the same time I will fix a program for the filing of statements leading up to a hearing date, but if the conciliation could take place fairly soon that might be the best first step. Because if it can be settled, it would obviously be desirable from everyone's point of view. Does anyone wish to comment?

PN169

MR WILSON: No, that's acceptable, your Honour, particularly if the conciliation could take place in the immediate future, but nonetheless you could set the timetable now. One thing, your Honour, could the conciliation be in Canberra, please?

PN170

THE VICE PRESIDENT: Does anyone wish to comment on that?

PN171

MS BELLINO: Only a preference for Sydney as a conciliation, your Honour.

PN172

THE VICE PRESIDENT: It might depend on availability too of a member, but just leave that with me, I think I'll need to talk to others about that.

PN173

MR WILSON: Well could I just, with respect, your Honour, say this about the geographical location? My client's registered office is in Canberra. It's incorporated under the Association's Incorporation Act of the ACT and its secretary, Ms Shagan and I are here. I understand that both the AWU and the ALHMWU have branch offices here, that would be all I would submit with respect, your Honour.

PN174

THE VICE PRESIDENT: I will make some inquiries, I think, and see. All I will do formally at the moment is adjourn the matter to a date to be fixed. I will make some inquiries as to who might be able to conciliate and at the same time I will give some consideration to a program and I'll put that in writing and send it to the parties.

PN175

MR WILSON: Excuse me, your Honour, one thing you may have overlooked is the application for leave to alter the rules.

PN176

THE VICE PRESIDENT: Yes, well, I would just like to have written confirmation from the CPSU, I think, that there's no objection to that and that that meets their - so I've noted what Mr Whipp said and that should therefore be just a formality. But subject to that and subject to what Mr Whipp said about the alliances view today, I would be prepared to make that change.

PN177

MR WILSON: And, your Honour, you would draft the application in chambers shortly?

PN178

THE VICE PRESIDENT: Yes, but if you could chase up the CPSU please and ask them to send me a fax that they have no opposition to that.

PN179

MR WILSON: Yes, your Honour.

PN180

THE VICE PRESIDENT: As I take it there is no opposition to this from either the ALHMWU or the AWU, it doesn't really - - -

PN181

MR WILSON: Yes, your Honour.

PN182

THE VICE PRESIDENT: Well subject to that, I'll do that and I'll just do that in chambers and issue that and send it to you and, as I said, I'll just formally adjourn the matter now to a date to be fixed, but I'll take the steps that I've indicated. Thank you.

ADJOURNED INDEFINITELY [9.17am]