C2001/5866, Transcript of Proceedings [2001] AIRCTrans 3554 (18 December 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 1549
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2001/5866

THE AUSTRALIAN MUNICIPAL, ADMINISTRATIVE,
CLERICAL AND SERVICES UNION

and

AUSTAR ENTERTAINMENT PTY LTD AND OTHERS

Notification pursuant to section 99
of the Act of a dispute re conditions
of employment

MELBOURNE

10.36 AM, MONDAY, 3 DECEMBER 2001

PN1

MR J. NUCIFORA: I appear for the Australian Services Union.

PN2

MR G. HATCHER: I seek leave to appear for Austar Entertainment Proprietary Limited.

PN3

MR P. O'GRADY: I seek leave to appear on behalf of Foxtel Proprietary Limited, and also Customer Services Proprietary Limited.

PN4

THE COMMISSIONER: Any objection to the appearances?

PN5

MR NUCIFORA: No, Commissioner.

PN6

THE COMMISSIONER: No? Then leave is granted. Yes, I should hear from you, Mr Nucifora.

PN7

MR NUCIFORA: Thank you, Commissioner. Commissioner, this is a section 99 notification of a dispute between the Australian Municipal, Administrative, Clerical and Services Union, better known, or colloquially known as the ASU, the Australian Services Union, and Austar Entertainment Proprietary Limited and others. We include in that - there were three organisations that have been served with the log of claims. That includes; Austar Proprietary Limited, Customer Services Proprietary Limited, and Foxtel Management Proprietary Limited.

PN8

We are seeking, as a result of this notification, a formal dispute finding, pursuant to section 101 of the Act. If I may first up, Commissioner, I will just check that on the Commission's file there is a statutory declaration in relation to the serving of the log of claims?

PN9

THE COMMISSIONER: Yes, there is, from Mr Slape.

PN10

MR NUCIFORA: My friends wouldn't have a copy of that declaration of service. I am only just providing the cover page. They would otherwise have a copy of the log. I won't tender that as an exhibit, Commissioner. I will go to the statutory declarations in relation to the service of, not only the original notification, but the amended notification. If I may tender that as an exhibit?

EXHIBIT #ASU1 STATUTORY DECLARATION OF MICHAEL O'SULLIVAN

PN11

MR NUCIFORA: Commissioner, ASU1 is a statutory declaration, as required under the Act, made by a Mr Michael O'Sullivan, the National Executive President of the union, in relation to the serving of the original notice on 23 November, for a hearing at 9 o'clock today, and that is attached at letter A. We have the notification there that also includes an information sheet, and we have also, in letter B, the amended notification. Sorry, B is the confirmation of registered mail being sent to the three parties, and then in letter C was the amended, as it says in letter C, change to commencement time. Of course, it was changed to 10.30am as a result of one of the parties seeking - and I think it benefited everyone all round at the end of the day, a later time today.

PN12

They were sent through to the three parties, and you have attached a transmission report, Commissioner, and of course, statutory declaration by one of the national officers, duly authorised, of the Australian Services Union, and that is Mr Michael O'Sullivan. That is by way of service. Now, we have the three parties represented here today. While there are issues where three of the parties are opposing a formal dispute finding, as I understand, I don't believe that in terms of there being the service of notices, there is any issue, and prior to that, there was the serving of the log of claims.

PN13

Commissioner, the issues - with formal dispute findings there is normally, at least, the four issues that we need to address. Firstly, whether the log of claims is properly authorised and properly served, whether there is interstateness secondly, whether the union covers the employees it intends to cover with the log of claims, under its eligibility rules, and fourthly, genuineness.

PN14

Commissioner, if I may take you to our rules. If I may tender as a copy, a full copy of the rules that are provided by the Commission website. So, these are copies that go to - the rules to which the Australian Services Union relies on for its operations.

EXHIBIT #ASU2 AUSTRALIAN SERVICES UNION RULES

PN15

PN16

MR NUCIFORA: Now, firstly, if I may take you to - I won't take them in order of the four issues that I raised earlier, but if I can take you, in where we are able to find them in the rules, if I can take you to Rule 5, the industry and eligibility rule. The Australian Services Union, it should be no surprise to anyone here, is, of course, most interested in this sort of operation in clerical workers, and in part II of 5, if I may quote from that - and, of course, 5a is a description of the industry. Part II, if I may quote:

PN17

The industry in, or in connection with which the union is formed, is without, in any way, limiting the generality of the provisions of rule 4, Eligibility of Membership Part II, and the construction proper at any time or times in place, are on the clerical industry.

PN18

And I won't go through all the authorities here today, but we know that the clerical industry, certainly, is a definition that, in the private sector in particular, covers a wide range of people, and we say that the three parties here before you today are private companies. We are not talking about the public sector. We say, they have a number of clerical and administrative employees, and I will go to that later, Commissioner, but even if they only have one receptionist, or one secretary, or one administrative officer, we say that we have the rules to cover them.

PN19

If I now may refer you to, in 5b Eligibility for Membership Part II. If I may quote from that:

PN20

The union shall consist of all persons engaged in any clerical capacity and/or engaged in the occupation of shorthand writers and typists, and/or on calculating, billing or other machines designed to perform or assist in performing any clerical work whatsoever.

PN21

If I may just refer, in particular there, to the reference to billing, and the reference to "clerical work whatsoever", and I will come back to that in relation to the employers that we are dealing with today. Commissioner, that goes to eligibility. If I may now take you back to the other issue that arises with objections is the power, of course, of the National Executive Officers of the union, and proper authorisation under the rules. If I can take you to 14b, and 14 goes to the power of the National Executive Presidents and National Secretary.

PN22

Now, you saw that both of the National Executive Officers involved with this matter so far was a stat dec signed by Michael O'Sullivan. He is the National Executive President. He signed the statutory authority in relation to service of the notice, but more importantly, the log of claims was served by a Paul Slape, and of course, Paul Slape, as the National Secretary, has served numerous logs, and we might recall that a number of those have gone to Full Benches under appeals, particularly the legal industry is one that comes to mind, but if I can refer you to 14b:

PN23

The National Executive President and National Secretary shall in b(i), be the executive officers of the union who, between the meetings of the national conference and national executive, shall conduct and manage the affairs of the union, and in consultation with each other, do all things necessary to be done by or on behalf of an organisation registered under the Australian Industrial Relations Act (1998).

PN24

But now, of course, is the Workplace Relations Act. If I refer you to 14b(vi), it says there:

PN25

Notwithstanding the provisions of subclause (i) of this sub-rule, any and each ...(reads)... or whom the union seeks to represent, either as agent or otherwise.

PN26

And we say those are the essential rules when we are talking about whether there was proper authorisation, and whether the log of claims was properly served on the employers involved. We say - there are specific issues that have been raised by the individual companies, and letters that they have written, and I will come to that next. Firstly, I would seek to establish that these companies are - that there is interstateness, and that we are dealing with the correctly named companies, as registered. Now, if I may tender as copy, a company search that was done in relation to one of the companies that was served, and this is Foxtel.

EXHIBIT #ASU3 COMPANY SEARCH

PN27

Commissioner, ASU3 is company search that our union always carries out when we serve logs of claims and are otherwise required to serve logs of claims, as requested by our various branches, and that refers to Foxtel Management Proprietary Limited as a company, and the address is Wharf 8, Pyrmont, New South Wales. There are other details that go to the company there in terms of directors, we say, that is not as important in relation to the formal dispute finding, but otherwise may be relevant.

PN28

That is in relation to Foxtel, and in fact, if I may now tender a copy of material that was obtained off the internet, in relation to Foxtel and their business.

EXHIBIT #ASU4 MATERIAL FROM FOXTEL WEBSITE

PN29

MR NUCIFORA: Commissioner, ASU4 is documentation that we have been able to obtain from the Foxtel website, and if you see on the first page there is a reference to working at Foxtel. If I may just quote that first paragraph:

PN30

Foxtel has over 1000 employees nationally, primarily split across two sites. Sydney is home to Foxtel's head office and playout centre ...(reads)... Western Australia and South Australia.

PN31

I refer to that, not only to show that there certainly are employees, but there is interstateness with that particular company, and we say that there is interstateness in relation to the log. If I can refer you to the second page on that in particular. This is getting closer to our core membership areas of coverage, but under the title there "Customer Sales and Services Centre", if I may quote from that:

PN32

Conveniently located at Moonee Ponds, Foxtel's Customer Sales and Service Centre ...(reads)... from all over Australia.

PN33

If I can refer you to the business overview, which is about three pages - sorry, then on to four pages. Under "Melbourne", in particular page 2 of the business overview section of this exhibit. Under "Melbourne", if I may quote from that:

PN34

The national Customer Sales and Service Centre located at Moonee Ponds employs a workforce of over 500 full-time and a further 100 part-time ...(reads)... and programming inquiries.

PN35

We say, that in particular in relation to Foxtel there, that is clearly employees, there is interstateness, and there are employees who are eligible to be, and some are, members of the Australian Services Union. Commissioner, if I may now take you to Customer Services Proprietary Limited. If I may tender as an exhibit the company search that our union has followed.

EXHIBIT #ASU5 COMPANY SEARCH FOR CUSTOMER SERVICES PROPRIETARY LIMITED

PN36

MR NUCIFORA: Commissioner, ASU5 is a company search that we have done via the internet, and it refers to the employer registered here as Customer Services Proprietary Limited. The address is the same as Foxtel. It is Wharf 8, Pyrmont, New South Wales, and that, we believe to be, the third party after Austar and Foxtel, involved with this formal dispute finding, and we understand that there is, obviously, a relationship there between Customer Service Proprietary Limited and Foxtel.

PN37

If I may now take you, Commissioner, to Austar. If I may tender as copy, an exhibit copy of a company search that our union carried out on Austar Entertainment Proprietary Limited.

EXHIBIT #ASU6 COMPANY SEARCH FOR AUSTAR ENTERTAINMENT PROPRIETARY LIMITED

PN38

MR NUCIFORA: Thank you, Commissioner. ASU6 refers to Austar Entertainment Proprietary Limited. The registered address Level 29, AAP Centre, 259 George Street, Sydney. We are dealing with a company that has its registered office in Sydney, but we are aware of employees, particularly employed in Queensland, where we have membership interests. In relation to Austar and its operations, if I may tender as an exhibit, material on the internet which goes to Austar United Communications.

EXHIBIT #ASU7 MATERIAL FROM AUSTAR WEBSITE

PN39

MR NUCIFORA: I won't take you through the summary at the front of that, Commissioner, but I will refer you to - there should be a yellow marker about half way through the exhibit, which refers to the National Customer Operations Centre. That refers to customer services provided through this NCOC at - I think it is Boondall, near Queensland's Gold Coast, and that the NCOC services all of Austar's subscribers, and there is a call centre that is open 24 hours a day, 7 days a week. If I may quote:

PN40

Staff handle inbound and outbound sales calls and customer inquiries, including ...(reads)... broad band internet services.

PN41

And down the bottom, the last paragraph:

PN42

Austar has recently entered into a long term lease for a new purpose built building to house all customer service and operation functions. It is currently being built at Robina on the Gold Coast.

PN43

And, it would be fair to say that our interests at this point, lie in membership that we have in Queensland. Although I note here where it refers to "IT staff", that our union also has coverage, through the predecessor union, the technical officers, but would have to say that the log of claims that we have served goes to our clerical and administrative employees coverage.

PN44

Commissioner, in relation to correspondence that we have received from Mr Richard Lund on behalf of - he is a partner with Acuity Legal, on behalf of Austar, I only have one copy of their letter here, but what I am able to provide, if multiple copies avow, may my friend Mr Hatcher can provide copies of that letter. If I may tender a copy of the letter Mr Hatcher has kindly provided here today.

EXHIBIT #ASU8 CORRESPONDENCE FROM MR RICHARD LUND

PN45

MR NUCIFORA: Commissioner, ASU8 is correspondence from Mr Lund from Acuity and now, on behalf of Austar and represented by counsel here, Mr Hatcher, today, which goes to - clearly raising a number of questions they seek that the union answers, and I think they were seeking an adjournment at that point. We responded in a letter dated 29 November, and if I may tender a copy of that letter.

EXHIBIT #ASU9 CORRESPONDENCE FROM ASU

PN46

MR NUCIFORA: I guess, Commissioner, this letter doesn't go to answering all the questions that Austar are raising, but we believe, goes to the fundamental when seeking a formal dispute finding. Attached to that letter is extracts from the rules that I read out earlier in relation to the eligibility rules, the clerical industry, in particular the eligibility for membership, and also the powers of the National President and the National Secretary, in rule 14. We say in that letter, and we would submit today, that we answer all the questions that are necessary for a formal dispute finding, as we indicate in the second paragraph of ASU9.

PN47

We say there in the third paragraph:

PN48

Our union is seeking a formal dispute finding with respect to clerical and administrative employees eligible to be members of our union

PN49

And we refer to the rules there, and we indicate that Mr Slater is duly authorised, and we say, in the second last paragraph, that we believe that we have met all the legislative requirements for the purposes of a formal dispute finding, and we therefore don't consent to the matter being stood over, and we do request that Austar particularise, before the hearing, when they may have concerns with a formal dispute finding, as we indicate in the second paragraph of ASU9.

[10.59am]

PN50

We say at a later stage in relation to what our ambitions are, on behalf of our members, and potential members in this industry. And we are prepared to have discussions in earnest about that. Because we cannot have that if we don't recognise that we have a relationship in the first place. And we say, if we are not here for a formal dispute finding, we are not - I can't think of what else we are all here for. But we say that there is a formal dispute. We do have members and we can certainly provide further evidentiary material in relation to our interests in the industry. We have recognition. The parties, at least one of - Austar would be aware and that we have support from the other union in this industry.

PN51

That is the Media and Entertainment and Actors Alliance. The MEAA. Who are respondents to two Federal Awards that otherwise apply to one in relation to Austar, and the other Foxtel. That union is supporting our union in terms of our traditional areas of coverage, clerical/admin employees. I don't have - there is - I don't have the material going to that agreement here, the demarcation agreement. We don't believe that it is absolutely necessary here today. It has been raised by, in particular Mr O'Grady, that we ought have discussions - that he had proposed a process that I will let him go to.

PN52

We are not unhappy about half of that process, so long as we are going into it with good faith. That is, we don't want this to drag on forever and a day. We want to provide the necessary written material. That is, a witness statement from Mr Slape in relation to - if genuineness is the key issue that is being raised. We - if we are going into in-depth discussions about our interests in the industry, then we would like to know that there is an open mind about a roping-in award. And if it is possible that you could have a formal dispute finding and a roping-in award for the three organisations finalised at the same time.

PN53

If we are going into it in good faith. Happy to go through all the discussions we need to. And I know Mr Hatcher, on a completely separate matter has raised - it was in relation to the simplification of the Austar Award. What our interests were. We are happy to be as up-front as we have to be, and to have this matter dealt with expeditiously. We have members who have a right to be members of ours. Of course, the objects under the Act go to freedom of association in Rule 3. We do - we are concerned that this doesn't drag on like a lot - some dispute findings can before the Commission on technicalities.

PN54

Happy to go into those discussions, and happy to try and resolve everything within a short period of time. I was going to say, Commissioner, I am aware that your Associate has kindly referred to that you may be away in February.

PN55

THE COMMISSIONER: Yes.

PN56

MR NUCIFORA: We are seeking to deal with most of this, hopefully, through December and January. I know Mr O'Grady will propose a time frame. We are happy to try and provide the necessary witness statement and written submissions. But we would hate to be sitting around here in June/July next year, still wondering whether there is a dispute over a dispute finding, or whether there is a roping-in technicality that we are still hung up on. If the Commission pleases.

PN57

THE COMMISSIONER: All right. Thank you. Followed all of that. Who is going first? Mr O'Grady?

PN58

MR O'GRADY: Only because I am nearest to Mr Nucifora I think, Commissioner. There are a couple of things that fall out of that. There has been some correspondence between Minter Ellison on behalf of Foxtel and customer services, and the ASU on Friday, which I don't need to trouble you with, sir. Essentially what we put forward to the ASU was that yes, at this stage we were opposing the finding of a dispute. We provided the ASU with a draft of a summons which we would seek to ultimately be issued directed to the ASU calling for some documents, etcetera.

PN59

And I am in a position to undertake to leave sufficient copies of that summons with your Associate this morning, Commissioner, to have that issued and serve that promptly. In terms of the way forward, what I proposed to Mr Nucifora this morning was that if the summons could be made returnable, say, on a date convenient to the Commission in about two weeks time, that would enable Mr Nucifora, if he wishes to put a witness statement to us. If that witness statement then answers the queries that we have, that may forego the need to call upon the summons on that date.

PN60

I came with, in mind Commissioner, a further direction then that we put on some contentions by a date, say, the end of January, having had the opportunity to look at the material. And the union then respond with their material by, say, mid-February. If you would like to make a note, Commissioner, those dates would be the return of the summons on 17 December. Contentions from Foxtel and, subject to what Mr Hatcher says, Austar as well, by 29 January. And contentions in reply from the ASU by 12 February 2002. And then listing the matter for argument on a day after that, convenient to you, Commissioner.

PN61

Now, if Mr Nucifora wants to build into that a direction in relation to service of a witness statement or something like that, that is fine by me. I am not asking the Commission to issue that direction. I am happy to accept what Mr Nucifora says to me this morning, that that is what he would like to do. And we can go forward from there.

PN62

THE COMMISSIONER: All right.

PN63

MR O'GRADY: Unless there is anything further you have, Commissioner.

PN64

THE COMMISSIONER: No, no. Thank you. I am following all that.

PN65

MR O'GRADY: Thank you.

PN66

THE COMMISSIONER: Mr Hatcher?

PN67

MR HATCHER: Well, Commissioner, I think my job has largely been done. It is a flight from Sydney for no great purpose.

PN68

THE COMMISSIONER: Just enjoy our beautiful weather.

PN69

MR HATCHER: Well, it didn't help yesterday, Commissioner. If it please the - the Commission will have seen from Exhibit ASU8, my instructing solicitors attempted to facilitate this matter. But regrettably ASU9 makes it clear that wasn't thought appropriate. And it would seem that it will be necessary for us to issue a subpoena, or a summons. And certainly the timetable proposed by Mr O'Grady is convenient to my client in that regard.

PN70

THE COMMISSIONER: All right. Good.

PN71

MR HATCHER: As to the contentions, we would ask that it be set back one week. That is 7 February, and 21 February. That is just because counsel instructed in the matter surprisingly enough takes the law vacation and won't be on deck until 30 January.

PN72

THE COMMISSIONER: All right. So 7 February and 21 February.

PN73

MR HATCHER: If that is convenient, Commissioner.

PN74

THE COMMISSIONER: Yes. Yes, all right.

PN75

MR HATCHER: May it please.

PN76

THE COMMISSIONER: Have you got anything further to add, Mr Nucifora?

PN77

MR NUCIFORA: Commissioner, sorry. I just want to check those dates again. Mr Hatcher was talking about changing 17 December.

PN78

MR NUCIFORA: No.

PN79

THE COMMISSIONER: No.

PN80

MR NUCIFORA: No, no. No, sorry. The contentions.

PN81

MR HATCHER: Yes.

PN82

MR NUCIFORA: From 29 January to 17 February.

PN83

THE COMMISSIONER: 7 February and then 21 February for your response to the contentions. Yes.

PN84

MR NUCIFORA: 7 February. Sorry, 7 February. Yes. I just raise the question about whether a summons is necessary, if we know from the parties what questions are required, then I think we can - we can provide a witness statement to the Commission in relation to - it may not be all the questions that we believe we need to answer, but we will certainly seek to answer as many as we can.

PN85

THE COMMISSIONER: Well, if I issue them as directions - - -

PN86

MR NUCIFORA: Yes.

PN87

THE COMMISSIONER: - - - I am prepared to be a bit flexible about that. At least if we have got it detailed, and we have got some - - -

PN88

MR NUCIFORA: Yes.

PN89

THE COMMISSIONER: - - - timeframes in place, I am happy for that to be amended and changed as it suits the parties.

PN90

MR NUCIFORA: Yes.

PN91

THE COMMISSIONER: But I agree with you. Now that the ball has been bounced, so to speak, we ought to deal with the issues. As it turns out, I am not going to be available in February. But if we go through a process, there is some debate to be had and we would be looking at mid-March or something like late March to hear the matter. And I will determine it, you know, as soon as practicable. So we won't be sitting around in June and July. I guarantee you.

PN92

MR NUCIFORA: Yes. Yes, Commissioner. I guess in the directions, and I was trying to get consent from my friends. I know they have got instructions to go so far today, but if we knew that the parties were going to keep an open mind about all that we are committing to, to do, for a formal dispute finding goes a long way towards resolving this question of the next step, of roping-in. So I just raise that, but otherwise we - - -

PN93

THE COMMISSIONER: Well, I am sure Mr O'Grady and Mr Hatcher have heard what you have had to say.

PN94

MR NUCIFORA: Yes.

PN95

THE COMMISSIONER: And they know where you are coming from.

PN96

MR NUCIFORA: Yes.

PN97

THE COMMISSIONER: And they will report that back to their clients. No doubt will respond.

PN98

MR NUCIFORA: Otherwise we are happy that they are - that that is issued as directions, Commissioner.

PN99

THE COMMISSIONER: All right. Well, if there is nothing further, what I will do is issue directions along the lines that have been agreed and outlined by the parties. And I will do that at some point today. If there is a need for any variation to that timetable, for any reason, or in fact there is - it is deemed not necessary by any or all of the parties that summonses needn't be issued, then I will leave that up to the parties to contact my Associate. And, as indicated, I am also prepared to be fairly flexible about all of that. On that basis I will simply adjourn these proceedings.

ADJOURNED INDEFINITELY [11.10am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 STATUTORY DECLARATION OF MICHAEL O'SULLIVAN PN11
EXHIBIT #ASU2 AUSTRALIAN SERVICES UNION RULES PN15
EXHIBIT #ASU3 COMPANY SEARCH PN27
EXHIBIT #ASU4 MATERIAL FROM FOXTEL WEBSITE PN29
EXHIBIT #ASU5 COMPANY SEARCH FOR CUSTOMER SERVICES PROPRIETARY LIMITED PN36
EXHIBIT #ASU6 COMPANY SEARCH FOR AUSTAR ENTERTAINMENT PROPRIETARY LIMITED PN38
EXHIBIT #ASU7 MATERIAL FROM AUSTAR WEBSITE PN39
EXHIBIT #ASU8 CORRESPONDENCE FROM MR RICHARD LUND PN45
EXHIBIT #ASU9 CORRESPONDENCE FROM ASU PN46