C2445/399, Transcript of Proceedings [2002] AIRCTrans 1844 (28 May 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N VT03950

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C No 24453 of 1999

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

and

AUSTRALIAN HOTELS ASSOCIATION
AND OTHERS

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

MELBOURNE

10.37 AM, MONDAY, 13 MAY 2002

Continued from 14.3.02 in Sydney

THESE PROCEEDINGS WERE CONDUCTED BY
VIDEO CONFERENCE

PN328

MR N. SWANCOTT: Yes, your Honour, I appear for the Australian Liquor, Hospitality and Miscellaneous Workers Union.

PN329

THE SENIOR DEPUTY PRESIDENT: Thanks, Mr Swancott.

PN330

MS S. ZEITZ: May it please the Commission, I seek leave to appear for the Australian Hotels Association and with me is MS J. BERGMANN-HANNA who is on the other monitor.

PN331

THE SENIOR DEPUTY PRESIDENT: Thank you, Ms Zeitz.

PN332

MR P. COOPER: If it pleases the Commission, I appear for the Club Managers' Association. I seek leave to intervene in this matter this morning.

PN333

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Cooper. Yes, Mr Swancott.

PN334

MR SWANCOTT: Your Honour, do you require us to stand? I don't mind.

PN335

THE SENIOR DEPUTY PRESIDENT: I can't see your face very well because it gets in the shadow when you stand up so perhaps if you remain seated it might be - actually that is not much different but that is all right. You can remain seated.

PN336

MR SWANCOTT: Thank you, your Honour. Your Honour, I have no objection to the application for intervention or the application for leave to appear.

PN337

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Swancott. The application by Ms Zeitz for leave to appear is granted and Mr Cooper's application for leave to intervene is granted.

PN338

MR SWANCOTT: Thank you, your Honour. This is a notification of an alleged industrial dispute made in November 1999 and the sequence of events were this, that the ALHMWU served a log of claims on the Australian Hotels Association and various state branches of the AHA on 25 October 1999. On 25 November 1999, in the absence of advice from any of the persons served with, they agreed to the demands set out in the letter of demand and the attached log of claims. The LHMU notified the existence of an alleged dispute to the Commission.

PN339

In the notification copies of the letter of demand were attached, as were the log of claims and a list of the persons against whom the log was served. Your Honour, there have been a number of discussions since then. It is fair to say that the LHMU has actively pursued its interest in relation to this log of claims although no formal dispute finding has yet been made. The LHMU, as your Honour is aware, is a registered organisation of employees under the Act and the Australian Hotels Association is a registered organisation of employers.

PN340

At the time that the letter of demand and log of claims were served, for abundant caution the union also served the State branches of the Australian Hotels Association. Further inquiry has indicated to the union that the appropriate representative body for members of the Australian Hotels Association is the national organisation, the Australian Hotels Association. Accordingly the union does not seek to press a finding of a dispute against any of the State branches of the organisation.

PN341

In other words, in this application we seek a finding under section 101 that there is an industrial dispute, interstate in nature, about matters pertaining to the employment relationship between the two registered associations, the LHMU and the Australian Hotels Association. Your Honour, it is not my intention to address you at length but the capacity of the union as an organisation recognised by the Act to make demands on an employer organisation registered and recognised by the Act is well established in industrial law.

PN342

I make reference only at this stage to the decision of the High Court in Dunlop Rubber v The Federated Miscellaneous Workers Union at [1957] HCA 19; 97 CLR 71, particularly pages 80 to 85. Your Honour, in related proceedings, and I am not sure if there is formal joinder, but in matter C253 of 1998 which was an action under section 33 of the Act on the Commission's own motion to initiate an item 51 review of the Hotel Managerial Staff Federal Award, the union put forward an outline of its constitutional capacity to cover and represent the industrial interests of managerial employees of various kinds employed in hotels.

PN343

I understand that that was exhibit LHMU2 in those proceedings and that exhibit was tendered and accepted by the Commission on 14 December 2001. Your Honour, I don't intend to go through that exhibit unless required to but it established, through the registered rules of the organisation, our constitutional capacity to represent the industrial interests of managerial employees of various classes employed in hotels. The union seeks to exercise its rights under the Act in relation to those employees.

PN344

Your Honour, in summary our submission is that there is an interstate industrial dispute in existence. The parties to that dispute are the Australian Liquor, Hospitality and Miscellaneous Workers Union on the one hand and the Australian Hotels Association on the other. The subject matter of the dispute is the non-acceptance of the log of claims and letter of demand served by the union in October 1999 and the dispute extends to all parts of the Commonwealth of Australia. Accordingly we would ask that a formal finding of a dispute be recorded under section 101 of the Act. Thank you, your Honour.

PN345

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Swancott. Perhaps I had better mark the documents that you rely on.

EXHIBIT #LHMU1 LETTER OF DEMAND AND LOG OF CLAIMS

PN346

THE SENIOR DEPUTY PRESIDENT: The postal receipts I will mark - is there just the one postal receipt or two?

PN347

MR SWANCOTT: I had one on my file, your Honour, and it is dated 1 November 1999, Statement of Service.

PN348

THE SENIOR DEPUTY PRESIDENT: Yes. I have another one that is dated 24 December 2001.

PN349

MR SWANCOTT: Yes, your Honour, sorry, that is the notice of the first hearing I understand of this matter which was to be heard by Vice President Ross.

PN350

THE SENIOR DEPUTY PRESIDENT: I see, all right. Well, I will mark the registered post lodgment document postmarked 1 December 1998, is it?

PN351

MR SWANCOTT: No, 1 November 1999.

PN352

THE SENIOR DEPUTY PRESIDENT: Sorry, I must have a different one again.

PN353

MR SWANCOTT: 1 November 1999, your Honour, is the notice of fixing the time and place of hearing.

PN354

THE SENIOR DEPUTY PRESIDENT: I see.

PN355

MR SWANCOTT: The original - it seems a bit strange because the notification of the dispute - sorry. The notification of dispute is 25 November 1999.

PN356

THE SENIOR DEPUTY PRESIDENT: Yes. I think the postal receipt for the service of the letter of demand and log of claims is postmarked 25 October 1999. Would that be right?

PN357

MR SWANCOTT: Yes, your Honour.

EXHIBIT #LHMU2 POSTAL RECEIPT FOR THE SERVICE OF THE LETTER OF DEMAND AND LOG OF CLAIMS POSTMARKED 25/10/1999

PN358

MR SWANCOTT: Thank you, your Honour.

PN359

THE SENIOR DEPUTY PRESIDENT: Yes, thank you, Mr Swancott. Ms Zeitz, what do you say about all that?

PN360

MS ZEITZ: Your Honour, my instructions are to oppose the finding of a dispute. You would be aware of the wider issues involving Mr Cooper's organisation and much of our objection relates to the appropriateness or otherwise of having both the LHMWU and a managers' association involved in this area - in relation to this particular matter.

PN361

THE SENIOR DEPUTY PRESIDENT: Sorry, in this area or in respect to the managers only?

PN362

MS ZEITZ: In respect to the managers only.

PN363

THE SENIOR DEPUTY PRESIDENT: Yes.

PN364

MS ZEITZ: The other aspect which I raise as a basis is that your Honour will note that clause 36 of the log deals with preference of employment and includes a demand for absolute preference of employment, promotion and retention in employment. In my submission that substantially flaws the validity of the log of claims. Your Honour would be aware that section 4(1) of the Act defines an industrial dispute for the purposes of this log certainly and specifically excludes an industrial dispute as defined in part 10A which is the freedom of association provision and we say that clause 36 of the log deals with freedom of association which is a matter which is beyond the Commission's power certainly to arbitrate and indeed conciliate on the basis of that demand and therefore fundamentally colours the whole log, and on that basis we say the Commission should refrain from making a dispute finding.

PN365

THE SENIOR DEPUTY PRESIDENT: Is that not capable of being excised from the log?

PN366

MS ZEITZ: That would be a matter for the Commission. Our submission would be that it flaws the whole process.

PN367

THE SENIOR DEPUTY PRESIDENT: Thank you. Anything else, Ms Zeitz, at this stage?

PN368

MS ZEITZ: No.

PN369

THE SENIOR DEPUTY PRESIDENT: Mr Cooper, do you wish to say anything?

PN370

MR COOPER: Your Honour, we also object to a dispute finding in relation to the coverage of managerial staff in the hotel industry. In light of a formal dispute finding in the Association's renewed interest in this award and in a previous hearing I have given this Commission an undertaking that the two unions would work closely in the development of award coverage for hotel managers and the Association is very mindful to protect or safeguard the interests of both organisations and their respective current coverage within the industry. Thank you, your Honour.

PN371

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Swancott, are you going to say anything in reply?

PN372

MR SWANCOTT: Well, yes, your Honour. If I can take up the reference to clause 36 of the log of claims. I do point out to you that that clause is carefully drafted and is qualified by the words "to the extent permitted by law". The question of whether an award clause or an award can be made in relation to that paragraph in the log of claims is a matter to be determined at the time that such an award or award provision is sought, by reference to the existing state of the law.

PN373

So, your Honour, to the extent that there is a qualification in that clause, we don't believe that it taints or offends the Commission's dispute finding principles. But if the Commission is against us on that, we do acknowledge that the clause 36 can be severed from the log of claims if that is the Commission's view. Your Honour, I also finally make the observation that the finding of a dispute that we seek is in relation to the rights of our members and our constitutional capacity.

PN374

The question of whether we proceed further to act on that dispute finding is a matter that can be argued and debated at the time that we do so. In other words, the issues that are foreshadowed or raised by the Australian Hotels Association and the Club Managers' Association go to the question of whether the LHMU should be, as I understand it, a party to any award that might evolve from the item 51 process and those matters can be addressed in our submission at that time. The constitutional requirements for the Commission to record a formal finding of a dispute under section 101 exist, in our submission, and we ask the Commission to make that finding. Thank you, your Honour.

PN375

THE SENIOR DEPUTY PRESIDENT: Ms Zeitz though says that the inclusion in the log of claims of the provision for preference raises a jurisdictional issue about whether or not the whole log is flawed. I gather from what you say you obviously disagree with that and say that it doesn't give rise to any jurisdictional issue because it only - well, 89 and 89A would allow me to make a finding of the existence of an industrial dispute in respect of all matters other than those matters. Is that right?

PN376

MR SWANCOTT: Well, that is not what I put, your Honour.

PN377

THE SENIOR DEPUTY PRESIDENT: No, I know - sorry, go on.

PN378

MR SWANCOTT: Because with respect section 89A operates at the point of the making of an award.

PN379

THE SENIOR DEPUTY PRESIDENT: Yes.

PN380

MR SWANCOTT: Not at this point and secondly my submission - primary submission - - -

PN381

THE SENIOR DEPUTY PRESIDENT: But isn't - sorry, Mr Swancott, isn't that relevant to what is an industrial dispute?

PN382

MR SWANCOTT: Well, it has a relevance, your Honour, but the issue that section 89A is directed at is what can be done in settlement of an industrial dispute.

PN383

THE SENIOR DEPUTY PRESIDENT: Yes.

PN384

MR SWANCOTT: As opposed to the content of an industrial dispute. Your Honour, I was not put on notice that clause 36 was going to be challenged.

PN385

THE SENIOR DEPUTY PRESIDENT: No, I appreciate that.

PN386

MR SWANCOTT: But for example there are areas - there are elements of a log of claims that by operation of section 89A cannot be included in an award of the Commission but which by operation of other parts of the Act can ground the jurisdiction for clauses in a certified agreement in settlement of an industrial dispute. So the issue - the questions of whether matters can be found to pertain to the employment relationship but not be subject to an award is an issue that is addressed at the point where an award is sought.

PN387

Now, our submission is that a claim for preference to the extent permitted by law is a matter concerning the employment relationship but whether that can ground a provision - an award or a particular provision in an award - is a second issue to be determined at the award making stage, not at the disputes finding stage.

PN388

But if your Honour is unhappy with that submission or uncomfortable with that, then our submission is that there is ample authority that that clause can be - that the dispute can be found in relation to all clauses other than clause 36 of the log of claims and that can be severed or excised so to speak from the log. Now there are many cases which I can, if required, put on record or refer to where the severance of particular clauses has been undertaken by the Commission and a dispute has been found on the remaining uncontroversial clauses if you like.

PN389

THE SENIOR DEPUTY PRESIDENT: All right. Now this log of claims goes beyond the provision of terms and conditions of employment for managerial staff though, doesn't it?

PN390

MR SWANCOTT: The letter of demand confines the area of dispute, your Honour. The log of claims is in general terms. The letter of demand, if I can take you to that - - -

PN391

THE SENIOR DEPUTY PRESIDENT: Yes.

PN392

MR SWANCOTT: - - - refers to members of the Australian Hotels Association who employ persons in a managerial capacity who are eligible to be members of the LHMU or who will employ such persons from time to time. So in other words the incidence of the dispute is restricted by the letter of demand to persons employed in a managerial capacity and further qualification, who are eligible to be members of the LHMU.

PN393

THE SENIOR DEPUTY PRESIDENT: Yes. Have there been any further discussions, Mr Swancott, between your Association and the Managers' Association about the question of coverage of managerial staff?

PN394

MR SWANCOTT: No, your Honour, although Mr Cooper has offered and we will accept an invitation to discuss the terms of any award that might flow from the item 51 process and in the context of those discussions the respective roles or rights if you like of the two Associations. So there are discussions planned but they haven't taken place.

PN395

THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Cooper, why shouldn't I make a finding of a dispute confining the matter to your objection about the issue of your coverage of managerial staff? Why shouldn't I make a finding of a dispute and give directions that that matter be the subject of further discussions between your two Associations?

PN396

MR COOPER: Your Honour, we have had Federal Award coverage in the hotel managers' area for many years and we have just renewed our interests in that field. I think it would - once making that firm commitment our executive will pursue it to the end. I think it would be most unhelpful or very confusing for the industry to have two competing unions covering managerial staff.

PN397

THE SENIOR DEPUTY PRESIDENT: But the Act in its current form allows for competition between unions.

PN398

MR COOPER: Yes, it does. Hence that is why we have demarcation disputes. I am making a submission that I think at this juncture it would be most unhelpful to have a dispute finding made in relation to a renewed Federal Managers' Award for the hotel industry and seeing it progress through the Commission.

PN399

THE SENIOR DEPUTY PRESIDENT: Isn't the appropriate course in relation to that issue for me to make a finding of a dispute and in the event that the LHMU seeks to prosecute a claim for an award, for that matter to be considered then under section 111(1)(g)?

PN400

MR COOPER: Yes.

PN401

THE SENIOR DEPUTY PRESIDENT: What do you say about that, Ms Zeitz?

PN402

MS ZEITZ: Your Honour, I - - -

PN403

THE SENIOR DEPUTY PRESIDENT: Just leaving aside the other issue which you raised about jurisdiction at this stage.

PN404

MS ZEITZ: I acknowledge that the concerns the Australian Hotels Association has about the role of each of the respective unions in future more properly perhaps fall under section 111(1)(g) than at the point of the Commission establishing the Commission's jurisdiction to deal with the matter. I think to say otherwise would be inconsistent with the authorities.

PN405

THE SENIOR DEPUTY PRESIDENT: So do you think the course of finding a dispute is the most appropriate course - you object to that course but I am saying what do you say the authorities stand for?

PN406

MS ZEITZ: I say that the issue - the argument that I have foreshadowed is one that the AHA would pursue at the point at which the LHMU may seek to become a party to an award that may be made by the Commission covering managers and we would have a lot to say about whether that is in the public interest under section 111(1)(g) and that the authorities are consistent with that approach, that it is very rare for the Commission to decline to make a dispute finding simply on the basis that - certainly the employers that I represent have concern about that issue.

PN407

THE SENIOR DEPUTY PRESIDENT: Yes, this competition between them. Yes, I thank you for that, Ms Zeitz. Now, the other issue you raise in relation to the question of preference, what I propose to do is to reserve that issue regarding clause 36 to allow the parties to advance any arguments they wish to advance in relation to that clause but to make a finding of a dispute in relation to all of the other clauses in the log of claims, save for clause 36. So I do find that there is in existence an industrial dispute within the meaning of the Workplace Relations Act.

PN408

The parties to the dispute are the Australian Liquor, Hospitality and Miscellaneous Workers Union and the Australian Hotels Association. The matters which are in dispute insofar as they are industrial matters within the ambit of the Workplace Relations Act are set out in the letter of demand dated 25 October 1999 which is exhibit LHMU1, and the log of claims attached thereto, from the ALHMWU to the Australian Hotels Association, save and except that I reserve the question of any dispute being found in relation to clause 36 of the log of claims. In relation to that, Ms Zeitz, do you wish to put an argument about clause 36?

PN409

MS ZEITZ: I think it rather depends on whether Mr Swancott wishes to pursue it at this time or not.

PN410

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Swancott, do you wish to pursue the clause 36 aspect at this time?

PN411

MR SWANCOTT: No, your Honour, I will seek advice from my principals and if the position changes I will talk to Ms Zeitz.

PN412

THE SENIOR DEPUTY PRESIDENT: Yes.

PN413

MR SWANCOTT: Thank you. At this stage, no, we don't pursue it.

PN414

THE SENIOR DEPUTY PRESIDENT: Very well. Well I direct that the LHMU and the AHA confer on the contents of the log of claims and the letter of demand with a view to resolving any issues about those matters and that the matter be listed for report back at 2 pm on Monday, 27 May, and I also direct that the LHMU and the Club Managers' Association confer to see if they can resolve any differences they may have about the coverage of managerial staff in hotels. Any other matters, Mr Swancott?

PN415

MR SWANCOTT: No, thank you, your Honour.

PN416

THE SENIOR DEPUTY PRESIDENT: Ms Zeitz?

PN417

MS ZEITZ: Your Honour, I am just mindful of when - I am not sure if the Club Managers log is currently listed.

PN418

THE SENIOR DEPUTY PRESIDENT: 14 June.

PN419

MS ZEITZ: 14 June. Just given that these two logs do attach to the same individuals in the same industry, my application would simply be that they at least be listed concurrently before the Commission.

PN420

THE SENIOR DEPUTY PRESIDENT: I think that sounds pretty sensible actually. Mr Swancott, do you have any - - -

PN421

MR SWANCOTT: No objection.

PN422

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN423

MR SWANCOTT: No objection, your Honour.

PN424

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Cooper?

PN425

MR COOPER: That makes sense, your Honour.

PN426

THE SENIOR DEPUTY PRESIDENT: Yes. Well perhaps it might be as well if that matter is dealt with in Sydney, would it be?

PN427

MR COOPER: That is correct.

PN428

THE SENIOR DEPUTY PRESIDENT: Yes, all right. I will list the matter in Sydney. Is that inconvenient for you?

PN429

MS ZEITZ: No, we will manage I am sure. Thank you.

PN430

THE SENIOR DEPUTY PRESIDENT: Okay, all right. Anything else, Mr Cooper?

PN431

MR COOPER: No, your Honour, thank you.

PN432

THE SENIOR DEPUTY PRESIDENT: Thank you. The matter is adjourned till 14 June.

ADJOURNED UNTIL FRIDAY, 14 JUNE 2002 [11.09am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #LHMU1 LETTER OF DEMAND AND LOG OF CLAIMS PN346
EXHIBIT #LHMU2 POSTAL RECEIPT FOR THE SERVICE OF THE LETTER OF DEMAND AND LOG OF CLAIMS POSTMARKED 25/10/1999 PN358