C2002/1128, Transcript of Proceedings [2002] AIRCTrans 1154 (8 April 2002)

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 VT03108
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2002/1128

TEXTILE, CLOTHING AND FOOTWEAR
UNION OF AUSTRALIA

and

COOGI AUSTRALIA PTY LTD

Notification pursuant to section 99
of the Act of an industrial dispute re
alleged stand-down of employees, non-payment
of superannuation entitlements and concern
regarding employees' entitlements

MELBOURNE

4.25 PM, THURSDAY, 21 MARCH 2002

Continued from 13.3.02

PN944

THE COMMISSIONER: Thank you for joining me in hearing this afternoon. I know that this matter had been listed for a report back conference, but I have asked for a brief hearing on the record this afternoon, because in working on the decision in regard to this matter I have been struggling to understand a number of relationships between companies in the Coogi group, and with regard to the award and the original log of claims. And so I have asked the company to make submissions this afternoon that might further and better explain that. So, Ms O'Neil, is Ms Wiles your spokesperson this afternoon?

PN945

MS M. O'NEIL: That is right, Commissioner.

PN946

THE COMMISSIONER: Yes. Thanks very much. So, Ms Wiles, that is what is going to happen on the record this afternoon. And they will provide you with a copy, and I will give you time to have a look at it and see if there is anything in particular you want to say in regard to it. Thanks very much. Yes, Mr Murphy?

PN947

MR D. MURPHY: Yes. Thank you, Commissioner. Commissioner, you faxed to us some three questions, and we have just got a written answer to those questions - - -

PN948

THE COMMISSIONER: Yes.

PN949

MR MURPHY: - - - which should assist you, Commissioner. Commissioner, just to explain that - I am sorry, I apologise that the Commissioner was in a state of uncertainty following the hearing last time. Essentially the position is that the - we say that only one company is bound by the award, and that is Coogi Australia Manufacturing. The companies that you have questioned in your first question, none of those companies have employees who are members of the TCFUA, or are otherwise subject to the award.

PN950

THE COMMISSIONER: Yes.

PN951

MR MURPHY: Now, and which are the Coogi Companies? In question 2, only Coogi Australia Manufacturing has employees who are members of the TCFUA, and are subject to the award.

PN952

THE COMMISSIONER: Yes.

PN953

MR MURPHY: And the exact name of the employer is Coogi Australia Manufacturing. Now - - -

PN954

THE COMMISSIONER: Yes.

PN955

MR MURPHY: You will see there, our answer to the third - the third question was that there was a business restructuring.

PN956

THE COMMISSIONER: Yes.

PN957

MR MURPHY: And Coogi Australia Pty Limited was the company which, inter alia, the employees involved in manufacturing were employed by that company.

PN958

THE COMMISSIONER: Yes.

PN959

MR MURPHY: Now, there was a restructuring of the business and the whole manufacturing part of the business was transferred to a new company, Coogi Australia Manufacturing. Now both the employees and the union were advised of that at the time, and it occurred about midway through the 2000 financial year.

PN960

THE COMMISSIONER: Yes.

PN961

MR MURPHY: And what happened, the employees in that year received in fact two group certificates.

PN962

THE COMMISSIONER: Yes.

PN963

MR MURPHY: One group certificate covering their period of employment until - under Coogi Australia Pty Limited.

PN964

THE COMMISSIONER: Yes.

PN965

MR MURPHY: And then a second one for the balance of that financial year.

PN966

THE COMMISSIONER: Yes.

PN967

MR MURPHY: So, we then go to - and of course, Coogi Australia Manufacturing took over all their employee entitlements as the successor business.

PN968

THE COMMISSIONER: Yes, yes.

PN969

MR MURPHY: And we then go to who is the current respondent to the award. And, Commissioner, the matter is governed by both section 149(1)(d) as we indicate, of the Act - - -

PN970

THE COMMISSIONER: Yes.

PN971

MR MURPHY: But it is also governed by the award itself, which has a transmission of provision - transmission of business provision in it.

PN972

THE COMMISSIONER: Yes. Which provision is that?

PN973

MR MURPHY: It is clause 7, 7.2 - - -

PN974

THE COMMISSIONER: This is the 2000 award.

PN975

MR MURPHY: Of the 2000 award. Yes.

PN976

THE COMMISSIONER: Yes. I haven't brought the award in to - I have it in my Chambers, of course, but I haven't brought it in with me.

PN977

MR MURPHY: Well, the 7 - yes. The 7.2 says:

PN978

The employers and members of the union ...

PN979

Sorry:

PN980

The employers, and members of employers organisations named in the schedule of respondents in respect of their employees, whether members of the union or not engaged in any of the occupations specified herein, there bound ...

PN981

And then it provides that:

PN982

Where a business is before or after the date of this award transmitted from an employer to another employer ...

PN983

THE COMMISSIONER: Yes.

PN984

MR MURPHY:

PN985

... and an employee who, at the time of such transmission was an employee of the transmittor in that business, becomes an employee of the transmittee, and continuity of employment will be deemed not to have been broken, and the period of which the employee has had with the transmittor will be deemed to be the service of the employee with the transmittee.

PN986

THE COMMISSIONER: yes.

PN987

MR MURPHY: So, what we say is that the whole business was transferred to - - -

PN988

THE COMMISSIONER: Yes.

PN989

MR MURPHY: - - - Manufacturing Pty Limited. Therefore, Coogi Australia are no longer bound by the award, but Coogi Manufacturing is bound by the award.

PN990

THE COMMISSIONER: Yes. I should make clear that in the detective work, Ms Wiles, that my Associate and I have been engaged on in the last week, which has not been inconsiderable, it became apparent that Coogi Australia Pty Limited, under its previous name Coogi Aust Pty Limited, was a party to the original 1992 log of claims, which led to the 1994 award.

PN991

MR MURPHY: Yes. Well, that is not in dispute. But then - - -

PN992

THE COMMISSIONER: Well, it was far from clear to me, I might say, at the end of the last hearing.

PN993

MR MURPHY: Yes. Well, it wasn't raised, and we didn't understand that to be a matter in contention.

PN994

THE COMMISSIONER: No.

PN995

MR MURPHY: Now, we then go back to the - - -

PN996

THE COMMISSIONER: Well, Mr Irving, I should say, Mr Murphy, ran through - Mr Irving was not clear of the precise details.

PN997

MR MURPHY: Yes.

PN998

THE COMMISSIONER: And so was not able to give me information at the last hearing. I don't say that by way of, in any sense by way of criticism of Mr Irving.

PN999

MR MURPHY: Yes.

PN1000

THE COMMISSIONER: But it simply was completely unclear to me how Coogi Manufacturing Australia Pty Limited was now subject to the award.

PN1001

MR MURPHY: Yes.

PN1002

THE COMMISSIONER: And I wanted to understand that. And I wanted to understand whether Coogi Australia Pty Limited still had any employees who are subject to the award. And I guess I am still wanting to understand to what extent the fact that Coogi Australia Pty Limited is in fact the company that was a party to those log of claims, I want to understand the extent to which it is in some way involved in that sense in the matter. As opposed to involved as a related entity.

PN1003

MR MURPHY: Yes.

PN1004

THE COMMISSIONER: In the - in terms of the submissions of Mr Irving, on 13 March.

PN1005

MR MURPHY: Yes. Well, you will recall that his submissions were on the basis that - were only related - were on the basis that it was - he was seeking a dispute finding on the basis that it was a related corporation.

PN1006

THE COMMISSIONER: It was one of the related entities, was the term. Yes.

PN1007

MR MURPHY: He wasn't seeking that dispute finding on the basis that it was the employer of the employees, and there seems to be - - -

PN1008

THE COMMISSIONER: Prior to 2000.

PN1009

MR MURPHY: Yes. Prior to 2000.

PN1010

THE COMMISSIONER: Yes.

PN1011

MR MURPHY: Or even now - or, yes. So - - -

PN1012

THE COMMISSIONER: Yes.

PN1013

MR MURPHY: So the point about that and what we say then, is that given that the employees are employed by the Coogi Australia Manufacturing - - -

PN1014

THE COMMISSIONER: Yes.

PN1015

MR MURPHY: - - - even though in the past Coogi Australia were bound by the award, the dispute finding that is being sought is to be considered on the basis that the employees are no longer employed by Coogi Australia Pty Limited, and on the basis of the grounds of the dispute finding which is seeking to - or seeking to have a related corporation pay their entitlements. Because - - -

PN1016

THE COMMISSIONER: Yes.

PN1017

MR MURPHY: - - - there is no dispute, we would say, that Coogi Australia Manufacturing is responsible for their entitlements. Now, by reason of this transmission of the manufacturing business formerly held by Coogi Australia Pty Limited.

PN1018

THE COMMISSIONER: Australia Pty Limited. And, the means by which Coogi Australia Manufacturing - I note you have left Australia out of that last reference to Coogi.

PN1019

MR MURPHY: Yes.

PN1020

THE COMMISSIONER: Is it - - -

PN1021

MR MURPHY: It is Coogi Australia - - -

PN1022

MS WILES: Coogi Australia, yes.

PN1023

THE COMMISSIONER: - - - Manufacturing Pty Limited.

PN1024

MR MURPHY: Yes. That is left out. Yes.

PN1025

THE COMMISSIONER: Another thing that wasn't clear to me until today.

PN1026

MR MURPHY: No, there is a - there is only - - -

PN1027

THE COMMISSIONER: Coogi Australia Manufacturing Pty Limited - - -

PN1028

MR MURPHY: Yes.

PN1029

THE COMMISSIONER: - - - is now bound by the award by virtue of section 149(1)(d) of the Act - - -

PN1030

MR MURPHY: Yes.

PN1031

THE COMMISSIONER: - - - and clause 7.2 of the 2000 award.

PN1032

MR MURPHY: Award. Yes, that is right.

PN1033

THE COMMISSIONER: Yes. All right.

PN1034

MR MURPHY: Yes. So that is our position.

PN1035

THE COMMISSIONER: Thanks very much. Well, I thank you very much. I find that very helpful. Ms Wiles, would you like a few moments to consider and digest that information?

PN1036

MS WILES: Yes, we would, Commissioner. We haven't had notice of these issues arising - - -

PN1037

THE COMMISSIONER: No, no. I - well - - -

PN1038

MS WILES: - - - so we are not prepared at this point to - - -

PN1039

THE COMMISSIONER: Well, we should have all had notice of these issues, because they are crucial issues for the case. And - but I fully understand. This is fresh information that you are having to look at. Would you like - I am sorry to - would you like me to adjourn for a little while for you to have a think about it, Ms Wiles?

PN1040

MS WILES: If we could just have five minutes and we will come back before you.

PN1041

THE COMMISSIONER: Yes. Sure. I will adjourn for five minutes. Thank you very much.

SHORT ADJOURNMENT [4.35pm]

RESUMED [4.45pm]

PN1042

THE COMMISSIONER: Yes, Ms Wiles?

PN1043

MS WILES: Thank you, Commissioner. Look, these are obviously important issues that have been raised by yourself in context of the dispute finding hearing.

PN1044

THE COMMISSIONER: Yes, yes.

PN1045

MS WILES: And the company has been given an opportunity to respond to those issues in writing. And it - - -

PN1046

THE COMMISSIONER: Yes. Well, it wasn't an opportunity to respond. It was a request for information. But I understand that it was fresh information because it is fresh information for me. Yes.

PN1047

MS WILES: Yes. And they have been able to do that with the benefit of consulting with their in-house solicitor - - -

PN1048

THE COMMISSIONER: Yes, yes.

PN1049

MS WILES: - - - and also with counsel.

PN1050

THE COMMISSIONER: Yes.

PN1051

MS WILES: As you are aware, we don't have counsel here today.

PN1052

THE COMMISSIONER: Yes, indeed. Indeed.

PN1053

MS WILES: I contacted the company by letter this morning to advise them that Mark Irving wouldn't be attending the conference.

PN1054

THE COMMISSIONER: Right, right. Right.

PN1055

MR MURPHY: So I guess in terms of the union's response, we would be seeking an opportunity to respond in writing in a timely manner, prior to you bringing down your decision, in relation to the - - -

PN1056

THE COMMISSIONER: Indeed. Absolutely. That is fine. I am anxious to wrap that up as quickly as possible.

PN1057

MS WILES: Yes, I understand. Yes.

PN1058

THE COMMISSIONER: And so what sort of time frame would you like?

PN1059

MS WILES: Look, I mean, we would need to speak to Mr Irving. But we would hope by later tomorrow or Monday.

PN1060

THE COMMISSIONER: Yes. Why don't I give you until 5 pm on Monday to - - -

PN1061

MR MURPHY: Right.

PN1062

THE COMMISSIONER: To make any, and to make your submissions in writing, to lodge submissions in writing, and to provide copies to Coogi.

PN1063

MR MURPHY: Commissioner, we have only - we only had two hours notice of this, too.

PN1064

THE COMMISSIONER: Yes, yes.

PN1065

MR MURPHY: And we got your fax at 1.57, so - and I have only just had a chance to - - -

PN1066

THE COMMISSIONER: Yes. Well, if you want to - if you want to lodge - - -

PN1067

MR MURPHY: We want - we would - - -

PN1068

THE COMMISSIONER: If you want to put any - can I suggest a process would be, if you want to make any further submissions, you provide them to my Chambers by 5 pm tomorrow.

PN1069

MR MURPHY: Yes.

PN1070

THE COMMISSIONER: And to the union.

PN1071

MR MURPHY: Yes.

PN1072

THE COMMISSIONER: And the union's submissions are to be in by 5 pm on Monday.

PN1073

MR MURPHY: Yes.

PN1074

THE COMMISSIONER: Is that all right?

PN1075

MS WILES: Commissioner, can we actually get a copy of the letter which you sent to the company, in terms of - - -

PN1076

THE COMMISSIONER: It is exactly - it is precisely - - -

PN1077

MS WILES: It is just this? Okay. I see.

PN1078

THE COMMISSIONER: It is precisely that.

PN1079

MS WILES: Yes.

PN1080

THE COMMISSIONER: I just said that is what I want to know, the answers to these questions.

PN1081

MS WILES: Okay.

PN1082

THE COMMISSIONER: Because I have, after endless attempts inside the orbit of this place to try and track the information down, and going through the original 1992/'93 log file myself, and all that sort of thing, I just - I had just reached a point where I just thought I had to ask the company for the specific information about its understanding of its - of what had actually happened. So the questions were - the letter - it was simply a fax. It had three - those three questions on it. That is all.

PN1083

MS WILES: Commissioner, and if we could just clarification that the company will provide a copy of their submissions to us by 5 o'clock.

PN1084

THE COMMISSIONER: Yes, absolutely. Yes. Yes, thanks very much. What about 4.30, Mr Murphy?

PN1085

MR MURPHY: Yes.

PN1086

THE COMMISSIONER: Thanks very much. Yes, good. Thank you very much. Then I will - and if I have that information in, and I can take it into account, I would hope to be able to issue my decision before Easter. I had hoped I was going to issue it today, but I just found that I was continually struggling around the issue of the precise nature of the obligations of each of the - each of the companies in the Coogi group, and their relationship to the award. And I wanted to be absolutely clear of that, and it didn't appear clear to me from the last hearing, or anything else I have been able to gather information on. All right. I will now adjourn, and rejoin you in conference. Thank you.

ADJOURNED INDEFINITELY [4.50pm]