C2001/4770, Transcript of Proceedings [2001] AIRCTrans 2657 (4 October 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2001/4770

THE AUSTRALIAN WORKERS UNION

and

ADECCO AUSTRALIA PTY LTD

Notification pursuant to Section 99 of
the Act of a dispute re log of claims

SYDNEY

10.15 AM, WEDNESDAY, 19 SEPTEMBER 2001

PN1

THE COMMISSIONER: Can I have appearances please?

PN2

MS M. PIERCY: I appear for the Australian Workers Union.

PN3

MR D. HARGRAVES: I appear on behalf of the Australian Industry Group. Commissioner, I appear today with Mr Karakatsanis also from Australian Industry Group and today we are representing Adecco Australia Pty Ltd, Manpower Services Australia Limited and Skilled Engineering as well as Westaff Australia.

PN4

THE COMMISSIONER: And do you represent them in respect of all the locations in which they have been served? I see, I thought they were at several addresses. Wherever they have been served, you represent them? They are all over Australia, aren't they? Some are in Melbourne - Adecco is in Melbourne Head Office.

PN5

MR HARGRAVES: I think all of them may have offices in various parts of Australia but I think the way it appears is that it is predominantly the eastern States.

PN6

THE COMMISSIONER: For your people?

PN7

MR HARGRAVES: That I am representing, yes.

PN8

THE COMMISSIONER: Thank you. Yes?

PN9

MR R. BREDEN: I appear on behalf of Ready Workforce Pty Ltd.

PN10

THE COMMISSIONER: We have also had Ms Piercy, communication from the Chamber of Commerce and Industry, do you have a copy of that?

PN11

MS PIERCY: Yes, Commissioner.

PN12

THE COMMISSIONER: They oppose the dispute finding and they request that the matter be adjourned to Perth. It is not clear to me who they represent apart from saying that 8 of the 12 companies are in WA and it means nothing of course. Whether they are members is more relevant and they haven't told us, but anyway that is just one aspect. The other one - have you had communication from Mr Gibson Lyons, the lawyer?

PN13

MS PIERCY: No, Commissioner.

PN14

THE COMMISSIONER: They represent Cloister Securities Trading As Blue Collar People and they are number 2 on the list. They will all put arguments against the dispute finding and also section 111AAA and see if they can have the matter dealt with convenient to Perth people. I'll give you a copy of this in due course. In respect of the WA companies there is a general interest by Chamber of Commerce and Industry but there is a specific interest in respect of Blue Collar by somebody. What else do you wish to say, either in response to that or generally?

PN15

MS PIERCY: Commissioner, for the record, I would like to advise the parties subject to today's matter, were informed of the hearing and notices were forwarded on 6 September. I have a statement as to service with a registered post receipt for the Commissions's file to show that the service was performed correctly.

PN16

The details of the dispute, Commissioner, on 22 August, 2001, the union served letters of demand and logs of claims upon the parties listed in the schedule. The log of claims was a full and comprehensive claim for certain wage rates and allowances and working conditions for employers to apply to their employees engaged in the wine industry. The parties were asked to contact the union within 7 days that they would agree to apply those demands, however, unfortunately the union did not receive any positive responses from those parties and on 3 September, a formal notification of dispute was filed with the Sydney Registry.

PN17

Commissioner, the notification included a schedule A which is a list of parties shown in the Register's post receipt. Schedule B, copy of the letter of demand and the log of claims. I can also advise that the union forwarded to those parties, for R5 which is part of rule 16 of the rules which is an information sheet trying to explain the purpose of the log of claims. The notification also included as schedule C, which was a statement signed by myself that the letter of demand and log of claims had been served in accordance with the rules of the Commission. The schedule D is a statement signed by Mr Graham Roberts who is the Assistant National Secretary of the Union stating the log of claims was served in accordance with the union rules.

PN18

Commissioner, since receiving the advice from several of the parties, I have prepared schedule 1 accordingly which outlines a list of parties the union is seeking to not have a dispute found and the parties outlined in schedule 2 are a list of parties the union wishes to have a dispute found with and you will note that the parties listed are not restricted to one State of the Commonwealth. Due to the non-acceptance of those parties to the union's demands, I ask you formally find and record the assistance of interstate industrial dispute in accordance with section 101 of the Act and direct the parties to confer, if the Commission please.

PN19

THE COMMISSIONER: The schedule 1 which is those you don't want to have a dispute found with will exhibit AWU1 and the ones that you do seek to have bound will be exhibit AWU2.

EXHIBIT #AWU1 SCHEDULE 1 BEING LIST OF PARTIES UNION NOT SEEKING TO HAVE DISPUTE FOUND

EXHIBIT #AWU2 SCHEDULE 2 BEING LIST OF PARTIES UNION IS SEEKING TO HAVE DISPUTE FOUND

PN20

THE COMMISSIONER: In respect of AWU1, Ms Piercy, why are they - there is National Workforce and then there is the 4 WAs, do you know why the four WAs have been excluded, is that because of discussions with the Chamber of Commerce and Industry?

PN21

MS PIERCY: That is correct, Commissioner. I have had discussions with Mr Borlase and he informs me that several of those companies no longer exist and have been taken over by other people and that is including the National Workforce of North Sydney.

PN22

THE COMMISSIONER: Do I take it, that as far as Mr Borlase is concerned, he either has nothing to say or does not represent the other WA people that are in exhibit AWU2?

PN23

MS PIERCY: As far as I am aware, Commissioner, he represents and I'm not sure of all the people in schedule 2 but some of the people there, he seeks to have the matter heard in Western Australia to deal with the WA people.

PN24

MR HARGRAVES: I may be able to be of some assistance. I have had some discussions with Mr Borlase and it is my understanding and I don't have any instructions in relation to this but it is my understanding that those companies that are on AWU2 that Australian Industry Group are not representing, that is Extra Man, Integrated Workforce - - -

PN25

THE COMMISSIONER: Blue Collar?

PN26

MR HARGRAVES: Blue Collar and South West Personnel or I thought you may have said that you had representations from solicitors of Blue Collar?

PN27

THE COMMISSIONER: Yes, I have but you are not representing them either.

PN28

MR HARGRAVES: No, I'm not representing them but it is my understanding that Mr Borlase is representing those other Western Australian companies and that is my understanding.

PN29

THE COMMISSIONER: I get the picture there. What do you say about the dispute finding or the whole process in respect of those people who you do represent, Mr Hargraves?

PN30

MR HARGRAVES: Commissioner, each of the companies that I represent oppose the finding of an industrial dispute. At this stage we oppose the finding of dispute on a number of grounds which will need to be the subject of evidence if the matter proceeds. To give an indication as to the nature of that opposition, the grounds in which we may well put argument relate to firstly, there are some technical deficiencies in the names and addresses in relation to the entities that have been served the letter of demand and the log of claims.

PN31

Secondly that the companies for which I appear would want to test the evidence in relation to the union's contention that the log of claims has been duly authorised and served under the rules of the Australian Workers Union. Thirdly that the AWU lacks constitutional coverage of employees performing work in the labour hire sector. Fourthly that the AWU demands are fanciful, unintelligible and lack industrial reality and fifthly that we foreshadow an application on behalf of each of the companies that I represent.

PN32

That an application may be made under either section 111AAA on the basis that there is coverage of a State industrial instrument in place or in the alternative that under section 111(1)(G) on the basis that there is in existence industrial instruments in the form of Federal awards and/or agreements that cover the work in question. We just foreshadow at this stage, Commissioner, that they could be the nature of the arguments that the companies that I represent may wish to proceed. Having said that I make reference to a couple of other points.

PN33

Firstly that none of the companies I'm instructed that I represent employ any employees within the wine industry in any State of Australia. Commissioner, we are uncertain at this stage as to what the AWU is seeking in terms of the eventual outcome. We did attempt to contact the union last week but unfortunately our phone call was not returned. We would have preferred to have had those discussions with the AWU in order to understand their position and achieve an outcome. It is our submission, Commissioner, that the companies that we represent be placed on a leave reserve list pending those discussions.

PN34

In the event that an agreed position is not achieved then clearly it's open for the matter to be brought back on and re-listed for mention at which time the Commission could issue orders for the parties to produce the evidentiary material required. For our part, Commissioner, we are certainly prepared to, as I've indicated to Ms Piercy this morning, that the companies that I represent are prepared to enter into discussions with the AWU as soon as practicable to see whether or not an outcome can be achieved through those discussions. If the Commission pleases.

PN35

THE COMMISSIONER: Yes, Mr Bredon.

PN36

MR BREDON: Thank you, Commissioner. I've had brief discussions with Ms Piercy this morning and I have received instructions from my client that there is apparently an existing certified agreement between ourselves or a former company but by virtue of transmissions would apply to ourselves and the AWU. Now, subject to further investigation as to whether that particular rumour does exist I have discussed and as I understand agreed with Ms Piercy to place ready workforce on a leave reserve list so we can ascertain whether in fact we are, or the parties are, covered under a certified agreement at this stage.

PN37

Subject to those findings then we would reserve the right to make additional submissions at that time.

PN38

THE COMMISSIONER: Yes, thank you. Ms Piercy, can I just ask you this, what do you say about what Mr Bredon has just said?

PN39

MS PIERCY: Commissioner, the union does agree that we can place his company he is representing on a reserve list until it is ascertained that he has found that there is a certified agreement in place.

PN40

THE COMMISSIONER: Yes, thank you. Yes, well the union has served a demand. It has not been acceded to. It's not apparent to me that it's been served contrary to its rules, nor that it doesn't have constitutional coverage. It may not have so but we are going to spend a lot of time on this including our friends in Western Australia have not informed the Commission as to who they represent. So what I propose to do is issue the following directions.

PN41

That all companies listed in exhibit AWU2 who seek to oppose the dispute finding and it may very well be that Mr Bredon's company won't need to worry about this if they can reach an accommodation, is to file in the Commission and serve upon the AWU comprehensive written submissions and witness statements by Friday 20 October 2001 and the Australian Workers Union is to respond with written submissions in response and witness statements if necessary by Friday 9 November 2001.

PN42

The Commission will on the seat of that material take steps to have further hearings. It should be indicated that if the objections persist in respect to Western Australia appropriate processors will be undertaken to ensure that they are not disadvantaged by having hearings in Sydney. The processors of video conferencing facilities can be available but we will leave that for now but as I said I'll issue formal directions in written form but they will be along the lines that I have indicated.

PN43

On that basis these proceedings are now adjourned.

ADJOURNED INDEFINITELY [10.32am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 SCHEDULE 1 BEING LIST OF PARTIES UNION NOT SEEKING TO HAVE DISPUTE FOUND PN20
EXHIBIT #AWU2 SCHEDULE 2 BEING LIST OF PARTIES UNION IS SEEKING TO HAVE DISPUTE FOUND PN20