C2002/3955, Transcript of Proceedings [2002] AIRCTrans 3544 (12 September 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 VT05502
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2002/3955

THE COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

and

KORUMBURRA ELECTRICAL SERVICES

Notification pursuant to section 99 of the
Act of a dispute re non-compliance with a
certified agreement denying access of the
union to employer documents

MELBOURNE

10.08 AM, TUESDAY, 27 AUGUST 2002

Continued from 8.8.02 (Not transcribed)

PN1

THE VICE PRESIDENT: Is there any change in the appearances?

PN2

MR C. FERRUCCIO: I appear on behalf of the CEPU Electrical Division.

PN3

MR W. SWAIN: No, sir, there is no change in the appearance of the company.

PN4

THE VICE PRESIDENT: I think it has been called back on at your request, Mr Ferruccio.

PN5

MR FERRUCCIO: It has, your Honour. And once again I would like to raise an objection arguing against Warren Swain who is a barrister. I believe that Ian Laity, once again, he is sitting beside him and I am sure he can speak for himself.

PN6

THE VICE PRESIDENT: Mr Swain.

PN7

MR SWAIN: Your Honour, I think he did last time. This is not a new hearing, it is a resumption of the last time. I would maintain my submissions that I am here in order to assist the Commission in conciliating this matter. Mr Laity is not represented by any employer organisation. He is not - it is a small company of only - only had a very small number of employees and I would seek leave to appear.

PN8

THE VICE PRESIDENT: Yes. I don't think I did rule on it the last time because we were only in conciliation, we adjourned into conference. I think I might have reserved on the point but do I need to decide it now? What is it that you want me to do, Mr Ferruccio? Not in relation to leave but have you struck a problem since the last occasion?

PN9

MR FERRUCCIO: Yes. Why I have re-listed it?

PN10

THE VICE PRESIDENT: Perhaps if you outline what the problem is and I will - - -

PN11

MR FERRUCCIO: Okay, thank you, your Honour. Korumburra Electrical Services have a current certified agreement. The agreement was certified on 28 January 1998 before Commissioner Tolley. Your Honour, as the ETU Compliance Officer it is my job to ensure that companies comply with the certified agreement. On 8 August when we were last before you, while we were in conference, I listed the various problems I was having with this employer. They all related to non-compliance with the current agreement and the company's refusal to communicate.

PN12

Out of desperation I brought this matter to the Commission. It was agreed, while in conference, that the company would provide a copy of the payslips for one anonymous employee for the period of the agreement.

PN13

THE VICE PRESIDENT: Yes, I think there were two A grade licences and an apprenticeship, something like that? Yes.

PN14

MR FERRUCCIO: One apprentice. That is what we have been told, yes, your Honour. It was suggested, I think by yourself, that I would be able to gauge - - -

PN15

THE VICE PRESIDENT: Yes.

PN16

MR FERRUCCIO: - - - from seeing those - if there were any further concerns. On 14 August I still had not received any form of payslips from the employer and so then I re-listed for the hearing again. On the 20th I finally got some payslips and there were a few problems. Your Honour, the first - - -

PN17

THE VICE PRESIDENT: Have you had an opportunity to raise the problems with the employer?

PN18

MR SWAIN: No, your Honour, there has been no correspondence from the union since the last time we were before you, not even a phone call.

PN19

MR FERRUCCIO: And just as, since, there has been no phone call from the employer to the union either on any stage.

PN20

THE VICE PRESIDENT: Perhaps if I can - I am content for you to outline them, now, Mr Ferruccio, but I think the most sensible course in these matters is - and I accept that it won't be successful on every occasion and no doubt it gives rise to some frustration, not particularly with this employer but with others when you make attempts to correspond or communicate and they are not returned, but I think it would probably be a better use of everyone's resources if once you get access and there are particular problems, they are raised at least initially with the employer to provide them with an opportunity to respond and perhaps reach a resolution without the need for yourself and the other side to come here. But perhaps if you go through the matters - we are here now - and we will see how far we can take it this morning.

PN21

MR FERRUCCIO: Okay. Thanks, your Honour. The first was the company only provided payslips for a five-month period from the beginning of February 2002 until the end of June 2002. The second was the company does not pay travel allowance, nor does it pay fares allowance as in accordance with the EBA and the award. Next is the calculation of accrued balances. What I have - - -

PN22

THE VICE PRESIDENT: Sorry, no travel allowances or fares, yes.

PN23

MR FERRUCCIO: Or fares allowance, yes. What I actually have with me, your Honour, is a copy of the letter and the payslips that the employer has sent me that I would like to hand up.

PN24

THE VICE PRESIDENT: Can you take me to the clause in the agreement that deals with the allowances and fares that you are concerned about?

PN25

MR FERRUCCIO: Okay. The clause that brings into the relationship with the parent award is clause 6, Relationship to Parent Award and the clauses of the award, looking at the 19 - - -

PN26

THE VICE PRESIDENT: I see. So it is under the Electrical Contracting Award.

PN27

MR FERRUCCIO: Yes. I have got - unfortunately I have only got one copy of it. I had to dig it out of my file.

PN28

THE VICE PRESIDENT: It is all right. If you can get the clauses and my associate will photocopy that for everyone while we are listening to you.

PN29

MR FERRUCCIO: Okay, no problem, thank you. The clause is clause 22 of the Electrical Contracting Industry Award 1992 as called up in the EBA. It is clause 22 and it encompasses all of 22.

PN30

THE VICE PRESIDENT: The first point you raise, that it was only for a five-month period, is that because - my recollection was we were talking about six months. Is that - or did you want a longer period?

PN31

MR FERRUCCIO: I was - yes - no, I was under the belief that we were going to go back to signing of the agreement.

PN32

THE VICE PRESIDENT: Yes. Which was - - -

PN33

MR FERRUCCIO: '98.

PN34

THE VICE PRESIDENT: I see. Well, for the purpose of travel allowance it probably wouldn't make much difference, would it, whether it is - - -

PN35

MR FERRUCCIO: No. Well - - -

PN36

THE VICE PRESIDENT: What date it was, because it is covered by the award. But, in any event, perhaps if you move onto your next point.

PN37

MR FERRUCCIO: Thank you, your Honour. Now that I have handed up the letter and the payslips, what I have done is the payslips were sent out to me in small form so I photocopied three to a page and I have numbered those pages. If your Honour would have a look at sheet 5 you will notice at the bottom of sheet 5 - sorry, I am looking at - oh, sorry, sheet 4, the bottom of sheet 4, you can see that this employee took annual leave. If you have a look at the annual leave and - - -

PN38

THE VICE PRESIDENT: I am sorry, just bear with me for a moment. How do I see that the employee took annual leave?

PN39

MR FERRUCCIO: On the bottom payslip there you will see that the pay rate, annual leave, 16 hours.

PN40

THE VICE PRESIDENT: Yes, yes. Took two days annual leave, yes.

PN41

MR FERRUCCIO: Yes, that is right, your Honour. If you look at the payslip in the middle of slip 4 it will show you the annual leave accrual as 22.6 hours. Then on the next payslip it shows it as 22.6 hours. On the next payslip after that, on the top of page 5, it shows 22.6 hours even though he has clearly already taken annual leave. I would - - -

PN42

THE VICE PRESIDENT: What, you are complaining about they haven't taken the annual leave off the accrual?

PN43

MR FERRUCCIO: What I am suggesting, your Honour, is that this is not a true and accurate record of time and wages because it does not take into account the accrual records there. You will also notice - - -

PN44

THE VICE PRESIDENT: Just take me through this one again. Am I right in thinking that the amount of accrued annual leave is recorded at the bottom of each payslip - - -

PN45

MR FERRUCCIO: Yes.

PN46

THE VICE PRESIDENT: - - - as 22.6?

PN47

MR FERRUCCIO: Yes.

PN48

THE VICE PRESIDENT: What is your understanding as to what that means?

PN49

MR FERRUCCIO: That means - my understanding is that there is 22.6 hours of accrued annual leave and when you access that annual leave, whatever annual leave you access comes off that accrued total.

PN50

THE VICE PRESIDENT: Yes, okay. So your complaint is that - or the suggestion you are making is that because the accrued annual leave has not been reduced by the 16 hours that was taken on the week of the 19th to 25 April, that that gives rise to an inference that they are not an accurate record. Is that the essence of it?

PN51

MR FERRUCCIO: Yes. I would suggest they are not an accurate record because you will also notice that the gross tax and net wages do not move from week to week either.

PN52

THE VICE PRESIDENT: Well, those bottom items, I don't think they are required to be on payslips anyway. It may be some - I mean, I don't know whether it has got some accounting significance that escapes me at the moment but - - -

PN53

MR SWAIN: Your Honour, there is a fairly straightforward explanation which perhaps Mr Laity could - - -

PN54

THE VICE PRESIDENT: Sure, yes - - -

PN55

MR LAITY: Can Rose speak, sorry?

PN56

MRS LAITY: Sorry.

PN57

THE VICE PRESIDENT: Absolutely, anybody can have a go.

PN58

MRS LAITY: I process the pays. I only work one day a week and I go in and - I am Ian's wife and I go in and process the pays. The system that we purchased when we became directors, it only allows you that accrual total on the day that you print it. So even if I print something that is a month old it will print the accrual for the day of that printing unless I manually change it. But if I manually change it then it alters what goes on for, say, next week. So I didn't try and change them because then it would alter what they were actually entitled to now. It will print - of the day of printing, which is why they are all exactly the same, it will print what is owed to that date.

PN59

THE VICE PRESIDENT: I see.

PN60

MR LAITY: It doesn't - - -

PN61

MRS LAITY: It doesn't allow me to go back unless I want to change the accrual for what they are entitled to right now.

PN62

THE VICE PRESIDENT: Okay. Just bear with me for a moment if you wouldn't mind. The contents of payslips is dealt with in regulation 132B. That doesn't provide any requirement in the payslip for accruals - accrued entitlements or anything like that. It is essentially, in this case, because the employee is paid an hourly rate, what the rate is, the hours worked, normal hours and overtime hours, and the gross amount, net amount of the payment made. Whether anything is made by way of an allowance and any deductions. I don't know that - from the explanation that has been given I don't know that we can draw much from the notations at the bottom of the slip.

PN63

MR FERRUCCIO: No, that explanation goes a long way to explaining what I was reading, your Honour, so I don't have a real problem with that. If I can move on. While in conference the solicitor representing the company argued the EBA did not apply as the company only ever performed work in the domestic market. I have been currently in touch with an organiser from the Valley, Peter Mooney, is an organiser of this union. He came across this employer performing works on the construction of a brand new school in Newborough, I think he said, and at the Murray Goulburn milk factory, they were doing works there as well, which are both clearly not domestic.

PN64

And further to that, your Honour, it was argued that a threshold question of union membership. I would like to note that the employer himself, Mr Laity, is a member of the union and I am reliably informed that at least one more member is employed by this company.

PN65

THE VICE PRESIDENT: Okay. Well, we may not need to get to that point. Can I just go to whether the - let us assume that the work to which these payslips relate is covered by the certified agreement. Are there any breaches of the certified agreement, if that is the basis?

PN66

MR FERRUCCIO: Yes, your Honour, I would suggest that since there are no fares and travel.

PN67

THE VICE PRESIDENT: No, but fares and travel is an award issue, isn't it?

PN68

MR FERRUCCIO: It is but it still breaches clause 6 of the EBA.

PN69

THE VICE PRESIDENT: I appreciate what you say about it being caught up, that is fine. In any other way do you say the employer is operating in a way that is inconsistent with the certified agreement other than the fares and travel?

PN70

MR FERRUCCIO: From what I see in front of me, no, I cannot say anything else.

PN71

THE VICE PRESIDENT: Okay. Can I just have a look at their fares and travel. Have you got a copy, Mr Swain?

PN72

MR SWAIN: Yes.

PN73

THE VICE PRESIDENT: Okay. Can you just take me through this, Mr Ferruccio?

PN74

MR FERRUCCIO: Yes, your Honour. 22.1, Travel Time Allowance:

PN75

All employees should be paid an allowance of 3.45 per day for each day they present themselves to work. The allowance - - -

PN76

THE VICE PRESIDENT: What is the reference in the asterisk there?

PN77

MR FERRUCCIO: The asterisk says that there is also a different rate that applies to apprentices. You will see - - -

PN78

THE VICE PRESIDENT: I see.

PN79

MR FERRUCCIO: Yes, and 22.2.

PN80

THE VICE PRESIDENT: Okay. So it is $3.45 for each day on which they present for work.

PN81

MR FERRUCCIO: That is correct.

PN82

THE VICE PRESIDENT: And it is also paid for rostered days off.

PN83

MR FERRUCCIO: That is correct, yes.

PN84

THE VICE PRESIDENT: And fares?

PN85

MR FERRUCCIO: And the fares actually starts - it is called Start and Finish on the Job, 22.3.

PN86

THE VICE PRESIDENT: Yes.

PN87

MR FERRUCCIO: And that goes on to say that:

PN88

When required by the employer to start and/or cease work on the job site employees should be entitled to the - - -

PN89

THE VICE PRESIDENT: Okay. So it wouldn't apply if they started work at the employer's normal place of business and then travelled to the job site?

PN90

MR FERRUCCIO: But then it does go on to say - it depends if they use their own vehicle obviously, if they have started work at the employer's then they would be paid their allowance plus a kilometres allowance. But it also goes on to say that where the employer offers to provide transport free of charge, whether from the employee's home or from the employer's registered office or depot, $2 per day is applicable. You will find that $3.45 travel time allowance is reflected in the agreement, appendix A of the EBA, and it refers back to clause 22.1 of the award.

PN91

THE VICE PRESIDENT: Just bear with me for a moment. And whereabouts in appendix - - -

PN92

MR FERRUCCIO: Appendix A. You will see it says clause 22 - - -

PN93

THE VICE PRESIDENT: Yes, I see, yes.

PN94

MR FERRUCCIO: And that refers to the clause of the award.

PN95

THE VICE PRESIDENT: Yes. Have these rates not been adjusted since '98?

PN96

MR FERRUCCIO: Yes, definitely, the award does continue to move. I have just taken a snapshot.

PN97

THE VICE PRESIDENT: Okay. So this - okay, no, that is fine. Well, Mr Swain, leave aside whether the agreement applies or the award applies - well, the award applies, presumably. There would seem to be an issue on that basis about travel time and fares. The travel time doesn't seem to be qualified. Fares, it depends on the circumstances - where they start work, whether the employer provides transport or whatever. Is that an issue that you and your client have had an opportunity to think about or do you want one?

PN98

MR SWAIN: No, because we are under no understanding of why we have been brought back here today, given the complete absence of correspondence from the union apart from - which is something I would like to address you on later - a campaign the union seems to be running via their radio program against this company which we have some fairly strong views on. I think it is particularly unhelpful and pretty unprofessional in this situation. But Mr Laity has just advised me that of the employees of Korumburra Electrical Services - there are only three of them in any event - they are all provided with vehicles by the company which they use in their private time as well as in their work time.

PN99

Now I haven't had a chance to go through this award in any great detail yet but those are the instructions I have, is that they are provided with work vehicles which they take to drive to and from home as well as in the course of their work and in their own private time. So I am not sure where this - your Honour, we are at a complete loss as to where this matter is heading. We are not sure what this campaign is all about. We would have thought the union might have had better use of its resources for looking after its actual financial members' interests rather than embarking on this sort of vilification.

PN100

There are a number of issues that we need to address and that is the situation with respect to travel. There are three employees - there is one apprentice, two A grades, all of whom are provided with vehicles. Now - none of whom are complaining about it either, mind you. We are being brought in here and the goal posts move every time we get brought in here and the union - the company is really at a loss as to - apart from the issue of the alleged union membership which seems to be - we are not going to be coy about this - seems to be driving this whole charade, is that Mr Laity - the union just won't accept Mr Laity's resignation from the union going back some years ago and is pursuing this idea that they are entitled to unpaid union dues and this seems to be driving, now, in pursuit of that personal campaign against Mr Laity, we get brought along here and get these allegations fired at us.

PN101

THE VICE PRESIDENT: Well, Mr Ferruccio, to the extent that you think there is a breach of the award or the agreement your options are to prosecute for the breach. I am not sure what you - you have had access to the records which have disclosed, on the face of it at least, a potential breach of clause 22 of the award. As you know, I can't make any determination and impose any penalty for breach. What further - - -

PN102

MR FERRUCCIO: Once again, your Honour, what I was seeking was an order to allow me to inspect the employer documents from what I first wanted.

PN103

THE VICE PRESIDENT: But you have inspected them and you have ascertained there is a breach. Where is it going - what purpose is served - - -

PN104

MR FERRUCCIO: No. Your Honour, what I have seen is a very small amount of an anonymous employee's wages. Now they only go back six months. Who is to say that prior to that their rate was greatly less and would have been less than what was allowed for in the EBA. Travel is obviously a concern and despite Mr Swain's assertions that this is something personal with Korumburra, it is not. What happened was that I first contacted Korumburra to work out why they hadn't paid severance into the Protect Fund for X amount of years as allowed for in their EBA.

PN105

THE VICE PRESIDENT: All right. What specifically are you seeking in terms of an order from me?

PN106

MR FERRUCCIO: I am seeking that the Commissioner endorse the draft orders and issue them.

PN107

THE VICE PRESIDENT: And this is the draft order that was forwarded on 8 August, is that right? Have you supplied a copy to the other side?

PN108

MR FERRUCCIO: Yes. I have got an updated copy which has today's current date on it instead of - that one there.

PN109

THE VICE PRESIDENT: Yes, okay. And when did you provide a copy of that to the employer?

PN110

MR FERRUCCIO: I provided it this morning when I got here, your Honour.

PN111

THE VICE PRESIDENT: All right. When you say 1.2, section 285B(2), (3), what does that - it is obviously not - there isn't a section like that. I am just wondering what section you are referring to.

PN112

MR FERRUCCIO: Section 285A of the Act talks about permits, about people who are permitted to enter. Section 285B talks about inspecting - suspected breaches of the Act, etcetera.

PN113

THE VICE PRESIDENT: No, that is fine. I am familiar with the division but in your draft order, 1.2, it refers to - in the first sentence:

PN114

As required, pursuant to section 285B(2), (3).

PN115

What is that referring to, because there isn't a section like that?

PN116

MR FERRUCCIO: 285B, I have got (2).

PN117

THE VICE PRESIDENT: What is the (3) after it?

PN118

MR FERRUCCIO: (3) is 285B(3).

PN119

THE VICE PRESIDENT: I see. So it is (2) and (3)?

PN120

MR FERRUCCIO: Yes. Sorry about that your Honour.

PN121

THE VICE PRESIDENT: No, that is all right. Anything further?

PN122

MR FERRUCCIO: Yes, just one little bit I worked on this morning.

PN123

THE VICE PRESIDENT: Just before you do. Mr Swain, I recall on the last occasion you had a threshold argument.

PN124

MR SWAIN: Yes. Last time we were here we were under the - - -

PN125

THE VICE PRESIDENT: I don't want you to put - I don't want to put you to it but if you can sketch it and then I will decide where we go in relation to the matter.

PN126

MR SWAIN: Sure. Well, last time we were here we were under the impression that it was pursuant to the Act, this alleged right of entry. And 285B(2), as we foreshadowed to you last time, has a threshold which is that:

PN127

...for the purpose of investigating a suspected breach the person may enter during working hours any premises where employees work who are members of the organisation of which the person is an officer or an employee.

PN128

Now - - -

PN129

THE VICE PRESIDENT: No, that is fine, you don't need to take it any further.

PN130

MR SWAIN: The union hasn't produced any evidence of - - -

PN131

THE VICE PRESIDENT: No, no - yes, that is right, Mr Swain, I understand what you have to say about that.

PN132

MR SWAIN: And we don't accept that there is any right under the Act and we have other qualifications with respect to any alleged right under the certified agreement which I can address you on in a minute.

PN133

THE VICE PRESIDENT: Sorry, Mr Ferruccio, go on.

PN134

MR FERRUCCIO: Yes, your Honour. I have actually got copies of print-outs from our system that show two employees, one being Mr Ian Laity. I understand what Mr Swain is saying. He is suggesting that Mr Laity has tried to resign. Unfortunately, he has not resigned and as such still remains a member of the union. Your Honour - - -

PN135

THE VICE PRESIDENT: Who is the other person?

PN136

MR FERRUCCIO: The other employee I have is Mr Lucas Ford.

PN137

THE VICE PRESIDENT: Okay. Well, Mr Ferruccio, as I understand it what we have got is you are seeking to assert a right of entry for the purpose of investigating a suspected breach of the award and the certified agreement, but it is only the certified agreement because it picks up provisions in the award. And you are seeking to do that under 285B and you have mentioned two subsections, correct?

PN138

MR FERRUCCIO: Yes, your Honour.

PN139

THE VICE PRESIDENT: There is a threshold issue as to whether or not you have any members employed at the premises. What I propose to do is - you will need to establish the existence of the provisions that provide the jurisdictional basis for me to issue the order that you are seeking. One of those is that the employees who work at these premises are members of your organisation. Now this is against the background where that is contested so it won't be enough for you to simply assert that you have members on the basis of a print-out, you would need to go further than that.

PN140

In relation to whether Mr Laity is a member or not, that will depend on, ultimately, no doubt, documentary material about what Mr Laity says is his attempts to resign and the legal question is whether those attempts have been successful or not. That will require a construction of the union's rules no doubt. In relation to the other employee, similarly, we would need to investigate whether that person is a member or not. Now I don't see how we are going to do that now.

PN141

So the course that I propose is that I will set down a program which will provide for the filing of written submissions and any witness statements or evidence which goes to establishing the existence of the jurisdictional basis of the order. And for you to do that within a time period, for the employer, similarly, to file any reply and then we will list it for hearing. Now does anyone have any other suggestions as to how we might establish a program for dealing with it? I think, in fairness to the employer, you need to put the material upon which you rely and in fairness to yourself if I was to determine the matter now, all I have got is an assertion from yourself that you have got two members and a rebuttal from the employer.

PN142

In those circumstances I wouldn't find that I have got jurisdiction. You can usually rely on a bar table statement as to the existence of members where it is not contested but where it is contested I think you need to go to evidence to establish that membership. So in order to give you an opportunity to do that and to give the employer an opportunity to see what argument they are obliged to meet, that is the course I propose. Now, in terms of time frame I am in your hands, Mr Ferruccio, to some extent. How long do you need to put a written submission together dealing with what you are seeking and the evidentiary basis for it, including any witness statements or any other material?

PN143

MR FERRUCCIO: To be honest, your Honour, I would be guessing two to three weeks. I really don't know.

PN144

THE VICE PRESIDENT: Well, it is your notification so if you require three weeks I will give you three weeks.

PN145

MR FERRUCCIO: Well, yes, your Honour, we will make it three weeks then.

PN146

THE VICE PRESIDENT: Mr Swain?

PN147

MR SWAIN: Your Honour, there is one thing. I mean, as you have heard, we are a bit bemused by this whole process but - Mr Laity and his wife, Rose, only became directors and shareholders of this company on 1 March this year. They have provided, as was recommended by yourself at the last conference, a copy of the time and wages that they have under their control on their premises and which, obviously, only date back to - the first one being as at 28 February 2002. The other records are not on their premises, they are with the previous owners who have retired.

PN148

The Laitys only have, as is required under the Act, whatever the documents are on their premises at the time. So even if we went through this whole process and any order was made we say, well, we have complied with as best we could at the end of the day. I am not sure it is really - I mean, if an order has - - -

PN149

THE VICE PRESIDENT: Look, Mr Swain, can I explain my difficulty?

PN150

MR SWAIN: Yes, I appreciate - - -

PN151

THE VICE PRESIDENT: I understand, and this wouldn't be the first case where an employer is faced with a claim like this and has a view about what has motivated it and simply the union will indicate that it is pursuing the interests of its members. I am not able to make any sort of judgment about - - -

PN152

MR SWAIN: I appreciate that.

PN153

THE VICE PRESIDENT: - - - what the circumstances are here. It is not - and I am not suggesting that is necessary to the case, but it wouldn't be the first time that an employee has said one thing to an employer and at the same time has contacted his or her union expressing concern about working conditions, and there is a fear of retaliation in some way. So I am not really in any position to make a judgment about how serious it might be. I understand what you say about the existence of the records and that still, I suppose, would only meet part of Mr Ferruccio's request in any event, because he is seeking access to all of the records to which your client has available to it. So unless your client is - - -

PN154

MR SWAIN: I appreciate what you are saying.

PN155

THE VICE PRESIDENT: Yes, unless your client is - - -

PN156

MR SWAIN: It is a matter for the union, if they want to go down this, well I am not sure they are going to get any more than what they have already got at the moment but - - -

PN157

THE VICE PRESIDENT: Yes, look, I understand what you say, but ultimately I have to determine the application and they are entitled to make it.

PN158

MR SWAIN: Yes.

PN159

THE VICE PRESIDENT: Mr Ferruccio, given that you have heard what Mr Swain said about the only records that they have and you have seen the A grade record, in those circumstances do you press - what is it that you will be seeking, access to all of the records that they possess?

PN160

MR FERRUCCIO: Well, actually, your Honour, I notice it was Mr Laity who actually signed the agreement back in '97 as the manager, so I would be suggesting he would have access to considerable - a few more documents than they are letting us believe right now. It is the same company, definitely, regardless of whether some directors have retired or not. So those records should still be accessible.

PN161

THE VICE PRESIDENT: Yes, but that will be a separate issue. If the records haven't been kept and it is a continuing entity then the prosecution is for not keeping time and wages records. And again it is a prosecution, not a - I am not sure that me making findings one way or the other about that is going to be particularly helpful. Well, you are seeking three weeks. Mr Swain, once you have got the material how much longer do you want?

PN162

MR SWAIN: I would want three weeks to respond.

PN163

THE VICE PRESIDENT: All right. That puts us at 8 October, I think, for you to respond and from yourself, Mr Ferruccio, 17 September and the first day I have after that is 22 October at 10 am. In the meantime what I want both of you to do is to have some discussions about this travel allowance or fares issue. Mr Laity, in the event that your employees have a preference for vehicles being provided to them, the difficulty is that the award doesn't give you the alternative, if you like, it doesn't say that if you are provided with a vehicle which you can use for work and private purposes then you don't have to worry about any of this.

PN164

You may still be in breach of these provisions, notwithstanding that you provide it and notwithstanding that it is the preference of the employees. You can deal with their preference by way of an agreement that either with the union or with your employees or an AWA that addresses the question of the travel time, fares etcetera. That may not deal with your past - any past issues about whether or not you comply with the provision but that would be the most appropriate way of dealing with it in the future, otherwise you may get caught in providing a benefit and the same time you are going to be prosecuted for an award breach. But hopefully we won't get to that point.

PN165

I would encourage you to have discussions. Mr Ferruccio, for you to have discussions with your member, I don't expect your discussions with Mr Laity about representing him is going to be too successful, but the other member that you have indicated you have at the site and see where they wish to go, because the difficulty with these matters is always that they may end up with Pyrrhic victory inasmuch as they may well get an entitlement to $3.45, or whatever it is now, but they will lose the car. And I am pretty sure I know which one they would prefer.

PN166

So if you can bear that in mind as well and have some discussions with the employer in an effort to resolve the matter amicably, if you can, because as Mr Swain has indicated, if in fact the employers don't have any more material than - well they will have it for the other employees but only for that limited period, you may get access and you may prosecute for breach in relation to travel and fares, but that may not give you the result that your member is seeking. Okay. If there nothing further, I will issue formal directions so there is no misunderstanding about what is required and I will see you on 22 October at 10 am. I will adjourn.

ADJOURNED UNTIL TUESDAY, 22 OCTOBER 2002 [10.45am]