C2410/400, Transcript of Proceedings [2001] AIRCTrans 603 (12 April 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 6644
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT POLITES

C NO 24104 OF 2000

AUSTRALIAN LIQUOR HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

AND

A AND K BLASCH PTY LTD AND OTHERS

NOTIFICATION PURSUANT TO SECTION 99 OF
THE ACT OF AN INDUSTRIAL DISPUTE RE LOG
OF CLAIMS

MELBOURNE

3.41 AM, FRIDAY, 30 MARCH, 2001

PN1

MS R. FRENZEL: I appear on behalf of the ALHMWU.

PN2

MR D. PEARSON: I appear on behalf of the F.A.B.

PN3

MR B. NEILL: I appear on behalf of JMS trading as Workhire in this matter.

PN4

MR L. BLIGNAUT: I appear on behalf of VECCI, for Rattray Property Services and Our Hauff Pty Limited trading as Martrene Personnel.

PN5

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, Ms Frenzel.

PN6

MS FRENZEL: Thank you, your Honour. Firstly, I would like to apologise for being late to the Commission, but Friday afternoon traffic out there is far worse than what I expected it to be. Your Honour, this is a section 99 notification of dispute arising out of the service of a log of claims and letter of demand on a number of employers, or potential employers in the contract cleaning industry.

PN7

We would seek to rely upon the notification of alleged industrial dispute dated 11 December 2000 signed by Tim Ferrari, Assistant National Secretary of the LHMU. Attached to that notification was a copy of the log of claims and the letter of demand, and the respondents to that log of claims and letter of demand. I would also seek to rely upon the statement as to service, and as to authority to act in support of the notification also signed by Tim Ferrari on 11 December 2000.

PN8

Upon receipt of the hearing notice from the Commission, the union caused to be sent by certified mail on 8 March copies of the notice fixing time and place of hearing and the information sheet required by the Commission to those individual companies and organisations. I seek to rely upon the statement as to service signed by Tim Ferrari on 8 March 20001.

PN9

Your Honour, we would say the service of the log of claims, and the fact that none of the employers have complied with the log of claims indicates clearly to us in any event that there is a dispute between the parties with respect to the log. We would seek to rely upon that section of the Act which deals with the transition of Victorian matters to the Federal jurisdiction, and we would ask that the Commission find the dispute accordingly. If the Commission pleases.

PN10

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Ms Frenzel. Mr Pearson.

PN11

MR PEARSON: Yes, your Honour. The F.A.B. are seeking an exemption. We do not hire labour. We are a franchise company, so therefore we are seeking an exemption from this procedure.

PN12

THE SENIOR DEPUTY PRESIDENT: Thank you. I will ask Ms Frenzel to comment on that in a minute. Mr Neill.

PN13

MR NEILL: Thank you, your Honour. Workhire, on my instructions, does not employ labour of this type, and has no intention of employing labour of this type. Most of its business is in engineering maintenance in the Latrobe Valley, and my client has requested tha they be exempted from the finding of this dispute.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Well, we will get back to you on that. Mr Blignaut.

PN15

MR BLIGNAUT: Thank you, your Honour. Our members have received a notice of demand and a log of claims. The terms and conditions of employment contained in the log of claims are rejected. As far as our members are concerned, a dispute can be found within the meaning of the Act except for claim 36 which deals with preference of employment, and claims 82 which deals with union deductions.

PN16

The argument in that respect is, first, claim 36. It is in conflict with the freedom of association principles as contained in the Act. As far as claim 82 union deductions are concerned, members are of the view that it does not concern a matter pertaining to the relationship between employer and employees. As authority we refer to the High Court decision in Elkin Australia and Others, ex parte Federation of Industrial Manufacturing and Engineering Employees, the reference [1994] HCA 34; [1994] 181 CLR 96.

PN17

Our members' rights in respect of any further action in terms of this application are reserved.

PN18

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Blignaut. Now, Ms Frenzel, what do you say about F.A.B. Cleaning?

PN19

MS FRENZEL: Your Honour, on the face of it, we would press the finding of dispute against F.A.B. Cleaning on the basis that if they are a franchise arrangement and they are seeking not to have a dispute found against them with respect to the service of the log of claims and letter of demand, they ought to produce evidence before this Commission to resolve the issue of fact about whether or not they do in fact employ persons who would come under the scope of the LHMU rules.

PN20

It is not sufficient, in my respectful submission, for an employer or a representative to come before this Commission to debate an issue of fact without producing the evidence to back up those assertions from the bar table.

PN21

THE SENIOR DEPUTY PRESIDENT: Yes. And what about the position of Workhire?

PN22

MS FRENZEL: The position with Workhire, your Honour, is exactly the same. We served these logs of claims arising out of these employers tendering for work in the contract cleaning industry. We are happy to have the matter of Workhire adjourned so that they can produce evidence that they have not ever, and never intend to tender for work within the contract cleaning industry, or indeed with another industry covered by the LHMU rules.

PN23

If, on the other hand, they are not happy to produce the evidence, your Honour, we would ask that the dispute be found against Workhire today.

PN24

THE SENIOR DEPUTY PRESIDENT: Thank you. Now, there is one other matter I need to raise with you, Ms Frenzel. We have had returned the notice of hearing in respect of A and K. Blasch Pty Ltd. I will show it to you. Sorry, we suspect - it is my mistake - we suspect the company involved is Skyway Executive. We will show you the notice of hearing, which has been returned by a firm of accountants saying, not known at this address. Now, the address shown there is Wellington Parade, East Melbourne. The respondent said to have resided at Wellington Parade, East Melbourne, is Skyway Executive Pty Ltd.

PN25

MS FRENZEL: Your Honour, just as a matter of interest, there are two Skyways. There is Skyway Cleaning Australia Pty Ltd, Level 2, 112 Wellington Parade, East Melbourne. There is also Skyway Executive Pty Ltd. I might indicate that with respect to Skyway, I can vaguely recall doing a company search on this particular company - in fact, on both of them - in October of 2000. I do not have copies to tender to the Commission, but I am quite happy to shown the Commission the copies I do have.

PN26

Both of them show the registered - the current registered office as being Level 2, 112 Wellington Parade, East Melbourne. I am quite happy to tender those two company searches.

PN27

THE SENIOR DEPUTY PRESIDENT: You have only actually served Skyway Executive, is that right?

PN28

MS FRENZEL: No, your Honour, we have served them both. We served Skyway Cleaning Australia Pty Ltd, and Skyway Executive, as far as I am aware.

PN29

THE SENIOR DEPUTY PRESIDENT: Well, I was just looking at the statement of service.

PN30

MS FRENZEL: Just bear with me, your Honour. No, that is right, your Honour, I am sorry: between the two lists, there does appear to be a discrepancy. These searches were carried out in - - -

PN31

MS FRENZEL: In October of last year, your Honour.

PN32

THE SENIOR DEPUTY PRESIDENT: October of last year. We will put them to one side for a minute. Mr Pearson, are you in a position to prove that the franchise operators - well, that F.A.B. Cleaning does not have any employees, and that all employees are franchise operators?

PN33

MR PEARSON: I am, sir. Not right at the moment, obviously, but we can do that.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Neill, you are in a similar position?

PN35

MR NEILL: Yes, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: Well, Ms Frenzel, what I propose to do in relation to those two companies and Skyway, is to fix a further date on which we will deal with the matter. What I would ask you to do, could you refresh the company search to check that the registered office was still where it was.

PN37

MS FRENZEL: I will, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: I mean, I am satisfied that if the registered office was still there, that - or you could make any further inquiries that you wish to make.

PN39

MS FRENZEL: Yes. They do move around, these contract cleaning companies, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. But it may be that their registered office always was a firm of accountants, and somebody is just being smart, to use the vernacular.

PN41

MS FRENZEL: Far be it for me to say that, your Honour. Now, we still have the matter remaining about the issue of the AIGs clients, about the log, to deal with, do we not?

PN42

THE SENIOR DEPUTY PRESIDENT: The VECCI clients?

PN43

MS FRENZEL: So are the VECCI clients.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, 36 and 82.

PN45

MS FRENZEL: Clause 36, your Honour, has a clear caveat contained within it. I will quote clause 36. It says:

PN46

Preference of employment. Absolute preference of employment, promotion, retention of employment, re-grading, transfer, taking annual leave, overtime and training to the extent permitted by law shall be given to financial members of the Australian Liquor Hospitality and Miscellaneous Workers Union.

PN47

We say those words, "to the extent permitted by law", clearly confines the operation of that clause, if it were to operate, within an enterprise agreement, because it certainly would not operate within the scope of an award under the current Act, clearly limits the operation of that clause to ensure that it does in actual fact comply with the freedom of association provisions of the Act.

PN48

With respect to clause 82, I think my friend was saying that clause 82 did not deal with the relationship between employers and employees. We would say that the issue of union deductions is a matter which is an industrial matter. It is found once again commonly within certified agreements of this Commission, and in fact there have been a few that I have had certified myself very recently with such a provision in it.

PN49

Although once again it would not find its way into an award necessarily, it would certainly find its way into an enterprise agreement. We would say it is an industrial matter as defined by the Act, and therefore the log is in no way defective.

PN50

We would accordingly ask that the dispute be found on the entirety of the log against the employers, except for those who have had their objections noted and adjournments granted. If the Commission pleases.

PN51

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Blignaut, do you want to add anything?

PN52

MR BLIGNAUT: As far as claim 82 is concerned, your Honour, I just again wish to refer to the decision in the Elkin case. It is very clear. The High Court makes it clear. It is not a matter pertaining to the relationship between employer and employee.

PN53

As far as claim 36 is concerned, your Honour, I would submit that the law makes it clear, and I refer to the objects of the Act as contained in 298E, is to ensure that employees are not victimised or discriminated against because they are members of the union. I would say the clause as it stands is against the law, and the caveat does not take matters any further. Thank you.

PN54

THE SENIOR DEPUTY PRESIDENT: Well, in this matter I am prepared to find in existence an industrial dispute between the Australian Liquor Hospitality and Miscellaneous Workers Union, on the one part, and the persons and companies set out in the statement of service annexed to the notification herein and dated 21 November 2000, with the exceptions of F.A.B. Cleaning Services Pty Ltd, Workhire Pty Limited - is it, Mr Neill?

PN55

MR NEILL: It is Workhire - it is JMS Trading, trading as Workhire.

PN56

THE SENIOR DEPUTY PRESIDENT: Sorry, JMS Trading Pty Ltd, trading as Workhire, and Skyway Executive Services Pty Ltd. The question of whether those three companies should be made parties to the dispute will be adjourned to be determined at a later date.

PN57

The subject matter of the dispute are those matters set out in the letter of demand and log of claims dated 21 November 2000, with the exception of claim 82, union deductions. I am satisfied that that claim is not capable of giving rise to an industrial dispute within the meaning of the Act.

PN58

I am not satisfied that the claim numbered 36, preference, is incapable of giving rise to an industrial dispute within the meaning of the Act, although it may be impossible within the terms of the present Act to make any award in settlement of it. The dispute exists in the state of Victoria within the meaning of section four hundred and - - -

PN59

MS FRENZEL: Your Honour, it is section 493.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes, thank you. The dispute is an industrial dispute within the meaning of the Act by virtue of the operation of section 493 of the Act. This finding will be reduced to writing and placed on the file in due course. Now, a question arises as to when we can deal with the three outstanding respondents. We will probably need about half a day, would we, or less? There would need to be some evidence. Does 2.15 on 12 April suit everyone?

PN61

MS FRENZEL: Certainly, your Honour. Can I indicate that I am taking annual leave from 9 April through until 25 April.

PN62

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, it might have to be early May. What about the afternoon on 4 May? We will make it 2.30 - 2.30 on 4 May. Very well. As I have indicated, a formal finding in respect of the companies other than those whom I have mentioned will be placed on the file and reduced to writing.

PN63

The issue of those remaining respondents will be dealt with at 2.30 pm on 4 May in Melbourne. We will adjourn until that time.

ADJOURNED UNTIL FRIDAY, 4 MAY, 2001 [4.03pm]