C2002/3991, Transcript of Proceedings [2002] AIRCTrans 4127 (18 October 2002)

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 VT281
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2002/3991

COASTAL COMMUNICATION PTY LTD

and

AUSTRALIAN LIQUOR, HOSPITALITY
AND MISCELLANEOUS WORKERS UNION

Application pursuant to section 101 of the Act
to vary or revoke finding of dispute concerning
the applicant allegedly not having been served
by the respondent with any document notifying an
industrial dispute

MELBOURNE

3.02 PM, THURSDAY, 3 OCTOBER 2002

PN1

MR N. HARRINGTON: I seek leave to appear on behalf of the applicant in this application.

PN2

MS J. SCHOFIELD: I appear for the LHMU.

PN3

THE SENIOR DEPUTY PRESIDENT: Any difficulty with leave being granted to Mr Harrington to appear?

PN4

MS SCHOFIELD: Yes, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: There is difficulty?

PN6

MS SCHOFIELD: Sorry, sorry, we have no difficulty.

PN7

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Harrington.

PN8

MR HARRINGTON: Thank you.

PN9

THE SENIOR DEPUTY PRESIDENT: In addition to the documentation that was lodged by I assume your instructing solicitors, Mr Harrington - - -

PN10

MR HARRINGTON: Yes.

PN11

THE SENIOR DEPUTY PRESIDENT: - - - and the application which contains the grounds upon which the dispute finding is sought to be revoked, I have received some documents from the union. Did you send them to Mr Harrington, Ms Schofield?

PN12

MS SCHOFIELD: Yes, I did.

PN13

MR HARRINGTON: I have a copy of those documents through my instructing solicitor.

PN14

THE SENIOR DEPUTY PRESIDENT: I will just identify - it is a bundle of documents forwarded to me under cover of a letter dated 2 October 2002. Now this matter is listed only for a conference today although I suspect most of the argument has now already been reduced to writing in any event but there might be some manner in which there is a compromise that can be reached in this. If there is not, we will talk about how we finalise the application.

PN15

MR HARRINGTON: Yes, Senior Deputy President. I might start by just referring to the application itself. I checked with the Registry prior to drafting this document and there didn't seem to be a standard form application pursuant to section 101 of the Act so I endeavoured to provide some level of detail within the application. However - and I think, Senior Deputy President, you have just referred to this fact - the applicant would reserve the right to put in a few pages of contentions or legal submissions and I think it is also incumbent upon the applicant at any future hearing if there can be no settlement to lead some evidence and produce some documentation, particularly in the form of company searches evidencing registered offices at particular times.

PN16

THE SENIOR DEPUTY PRESIDENT: Yes, well - - -

PN17

MR HARRINGTON: And that could be dealt with later I suppose, Senior Deputy President.

PN18

THE SENIOR DEPUTY PRESIDENT: I think that is right and whether that needs any witness evidence as well, we can talk about that later.

PN19

MR HARRINGTON: Yes.

PN20

THE SENIOR DEPUTY PRESIDENT: But in any event, you are seeking the revocation of the dispute finding made by Commissioner Foggo, are you?

PN21

MR HARRINGTON: Yes, I am just - - -

PN22

THE SENIOR DEPUTY PRESIDENT: It would appear now to be Commissioner Foggo.

PN23

MR HARRINGTON: I think that is right. I need just to refer back in my own notes to check who made the dispute finding but I think in the union's documentation - - -

PN24

THE SENIOR DEPUTY PRESIDENT: I will tell you why I raised it.

PN25

MR HARRINGTON: Yes.

PN26

THE SENIOR DEPUTY PRESIDENT: As pleaded, the dispute finding is said to have been made in 1994.

PN27

MR HARRINGTON: Yes.

PN28

THE SENIOR DEPUTY PRESIDENT: Now if there is another dispute finding that was made in this C number, I don't have a copy of it but I do have the one that the union has attached to its submissions and that is the one reduced to writing in November 1993 naming - - -

PN29

MR HARRINGTON: Yes. I endeavoured to search the file, Senior Deputy President, but I think it may have been with yourself or somebody else in Sydney of recent times and I wasn't able to obtain access prior to finishing the draft of this application but I am happy to amend the application and provide you with a copy confirming that being the relevant dispute finding in 1993 and I have got it before me from the union's documentation here and it is Commissioner Foggo.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well we will read your grounds as being that is the dispute finding you seek to have revoked.

PN31

MR HARRINGTON: Yes. I think paragraph 24 of my application, the applicant's application, says:

PN32

The applicant seeks an order that the dispute findings made in 1993, if any -

PN33

because I wasn't sure and it seems on 22 that the November 1994 be revoked.

PN34

THE SENIOR DEPUTY PRESIDENT: Well if there is a dispute finding on that later date, you will need to bring it to my attention what it is.

PN35

MR HARRINGTON: Yes, I will do that. I will just make a note to check that. Yes, so to confirm that, Senior Deputy President, it is the dispute finding of Commissioner Foggo on 19 November 1993 that the applicant seeks to have revoked by order of this Commission, primarily on the basis as it states in the application that the documentation was forwarded by the union - and I don't think this is in contention - was forwarded by the union to an address at 1-13 Newington Avenue, West Rosebud, and the union asserts as much between paragraph four and paragraph six of its contentions.

PN36

At that time the applicant did not have that address as its registered office, nor as its usual place of business. Paragraph three of the application states that from 4 July 1989 to October 1990 the applicant maintained a registered office located at 13 Newington Avenue, Rosebud, Victoria. That was the relevant address then but between - this is paragraph four - 10 October 1990 to 4 July 1993 the registered office was actually 2375 Nepean Highway, Rye, Victoria.

PN37

Senior Deputy President, you are probably aware that for the purposes of the rules and service and the rule back then under what was known as the Industrial Relations Act was rule 36. It is now under the Workplace Relations Act, rule 72. But back then rule 36 of the Industrial Relations Act stated that service could take place at an employer's or a company's registered office and that is (a), or its principal place of business for the purposes of the rule. I don't think that rule has changed remarkably since that time, Senior Deputy President, but the simple contention of the applicant today is that service was not effected in the proper fashion and pursuant to the rules of the Commission back in 1993.

PN38

THE SENIOR DEPUTY PRESIDENT: As I understand your contentions, on the date the letter of demand was served, on or about 19 July, your principal place of business was Sorrento and your registered office was Point Nepean Road, Rosebud.

PN39

MR HARRINGTON: Yes, and I will just check that.

PN40

THE SENIOR DEPUTY PRESIDENT: So I don't need to concern myself - - -

PN41

MR HARRINGTON: Yes, at paragraph six of the application we state the registered office - and that is for the purposes of the Corporations Law I might say, Senior Deputy President - is Point Nepean Road, Rosebud, Victoria, and the principal place of business was a residential address being 30 Cambridge Wind, Sorrento, Victoria, and that is at paragraph five of the application.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well they are the addresses you say the letter of demand or any other document should have been served at in or about July 1993, are they?

PN43

MR HARRINGTON: Yes.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well I have perused briefly the documents lodged by Ms Schofield as you would have, and identified at least one document that has the company at the Newington Avenue, Rosebud address at the relevant time.

PN45

MR HARRINGTON: Yes.

PN46

THE SENIOR DEPUTY PRESIDENT: Well, not at the relevant time but at a time on or after February 1991 until 12 April 1994.

PN47

MR HARRINGTON: Yes. Might she be referring to the Victoria Police - - -

PN48

THE SENIOR DEPUTY PRESIDENT: That is right.

PN49

MR HARRINGTON: - - - and may I just say briefly - and we are not here for argument today - in relation to that document and I quote from that:

PN50

Please be advised that Coastal Communications Pty Ltd trading as Coastcom Security Service first lodged an application for a security firm licence on 12 February 1991. The address recorded -

PN51

and these are the crucial words -

PN52

at the time of application was Factory 1-13 Newington Avenue, Rosebud West.

PN53

And crucially:

PN54

The address was changed after lodgment but it is not known exactly when or what to.

PN55

And it goes on to say the licence was issued for three years.

PN56

THE SENIOR DEPUTY PRESIDENT: All right. Well how much more time would you want to file any other contentions or to attach either to a statement or to those contentions any documentation you wish to rely on, for example, registered office or principal place - - -

PN57

MR HARRINGTON: I can do that relatively quickly and attach the relevant ASIC - it is an ASIC extract that will be required I think for the purposes of the Commission and then there will be some short legal submissions.

PN58

THE SENIOR DEPUTY PRESIDENT: Why has this taken so long?

PN59

MR HARRINGTON: Because there is some background, Senior Deputy President. Of recent times there was a Federal Court application by the union on behalf of two of its members for breach of award and at that time the allegations were made in the proceeding - in the statement of claim if you like in the Federal Court that the applicant here today, the company, had been a respondent dating back to that time. That is the first time - there were letters from the unions and allegations being made before the proceedings themselves were issued but it was not - it came to a head with those Federal Court proceedings.

PN60

There was a mediation, there was a settlement of those claims, but it was subsequent to that the view of the company was, "Well we need to address this issue", and now it has come before the Commission. It could have been done earlier this year but I think there was a mediation in the Federal Court in or about May.

PN61

THE SENIOR DEPUTY PRESIDENT: So the Federal Court proceedings have settled, have they?

PN62

MR HARRINGTON: They have.

PN63

THE SENIOR DEPUTY PRESIDENT: All right. Ms Schofield - you can come back to - we will maybe deal first with - is that right, whatever Federal Court proceedings there were between you and them are settled?

PN64

MS SCHOFIELD: That is my understanding, your Honour, yes.

PN65

THE SENIOR DEPUTY PRESIDENT: All right. Well I have perused briefly the documents you have filed. I assume you might want to file some others after you have seen all of their documents.

PN66

MS SCHOFIELD: That is correct, your Honour, yes.

PN67

THE SENIOR DEPUTY PRESIDENT: Okay.

PN68

MR HARRINGTON: Sorry, Senior Deputy President, you did ask me a question which I didn't answer which is how long would I need. Did you want me to respond?

PN69

THE SENIOR DEPUTY PRESIDENT: I rather sort of made my own assessment of what "not long" means.

PN70

MR HARRINGTON: Yes, not long.

PN71

THE SENIOR DEPUTY PRESIDENT: Well, where is all this going other than being an interesting legal argument? May I make some observations about the industrial issues rather than the interesting legal argument?

PN72

MR HARRINGTON: Yes, certainly, Senior Deputy President.

PN73

THE SENIOR DEPUTY PRESIDENT: Depending on the result, either they retain their dispute finding and their roping in award or they lose their dispute finding and that award goes too and one doesn't have to think for long as to what they are likely to do immediately after that.

PN74

MR HARRINGTON: Yes.

PN75

THE SENIOR DEPUTY PRESIDENT: Now that is why I am interested in - that there were Federal Court proceedings, that they have settled - - -

PN76

MR HARRINGTON: They were settled on a confidential basis, Senior Deputy President.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes, and I don't need to know anything about them and they have no impact on what will be a construction of the rules in the Act as to proper service but I am just looking down the track as to where this is going but in any event I am not saying anything that the two of you don't know as to whether there is some compromise depriving us all of the interesting legal arguments but still, if you reach a compromise that is all well and good. If you don't, shall I put some time limits on the filing of some documentation?

PN78

MR HARRINGTON: Yes.

PN79

MS SCHOFIELD: Yes, your Honour, yes.

PN80

THE SENIOR DEPUTY PRESIDENT: I was initially inclined to think I wouldn't need a hearing but I don't think that is wise. I think I should set it then for a short hearing for you to address the documents.

PN81

MS SCHOFIELD: Yes.

PN82

THE SENIOR DEPUTY PRESIDENT: I think that would be better.

PN83

MR HARRINGTON: Sorry, I just misunderstood there. You would like some documentation filed?

PN84

THE SENIOR DEPUTY PRESIDENT: Yes.

PN85

MR HARRINGTON: And then a short hearing?

PN86

THE SENIOR DEPUTY PRESIDENT: I think we would have a short hearing, yes. Initially I thought it might have all been able to be done with written submissions but it might be a matter that I will be aided by some exchange with you.

PN87

MR HARRINGTON: Certainly. Just on that question too in relation to the calling of evidence. On one hand there might be a need to call evidence being Mr Opie who is a director of the company to say - just to I suppose verify a statement and attachments, but there may not be a need for that.

PN88

THE SENIOR DEPUTY PRESIDENT: That is right. Well - - -

PN89

MR HARRINGTON: That is a matter for the union as to whether they wish to cross-examine Mr Opie.

PN90

THE SENIOR DEPUTY PRESIDENT: Tell you whether they want to cross-examine but I mean if all of this is business records which one can't challenge the fact of there being a business record and probably the accuracy of the content. It is just the consequences of what is in that record for the application of the rules in the Act. I don't need a witness to help me on that.

PN91

MR HARRINGTON: Yes, well I will put the statement in and the union - - -

PN92

THE SENIOR DEPUTY PRESIDENT: You two sort it out. Two weeks?

PN93

MR HARRINGTON: For mine?

PN94

THE SENIOR DEPUTY PRESIDENT: Mm.

PN95

MR HARRINGTON: Yes, certainly without being - - -

PN96

THE SENIOR DEPUTY PRESIDENT: Ms Schofield?

PN97

MS SCHOFIELD: Yes.

PN98

THE SENIOR DEPUTY PRESIDENT: Two weeks after that for anything in addition - - -

PN99

MS SCHOFIELD: Yes, that is no problem, your Honour.

PN100

THE SENIOR DEPUTY PRESIDENT: - - - you want to put on. All right. We will go off transcript for a short time, Madam Reporter.

OFF THE RECORD

RESUMED [3.26pm]

PN101

THE SENIOR DEPUTY PRESIDENT: The employers are to file any additional documentation they wish to rely on in this matter by no later than Friday, 18 October. The union to file any additional documentation by no later than Friday, 1 November, and the matter will be left on the basis that either party has liberty to apply to call the matter on again. A telephone call or a brief letter to my chambers with advice to the other side as to what you are doing would be adequate to have the matter called back on again. In the interim, well tomorrow we will set in train inquiries to locate the file and have it sent promptly to the Melbourne Registry so that both of you will be able to have access to it. Anything else we need to do today?

PN102

MR HARRINGTON: I just wonder if we could be notified, not necessarily by your associate but by the people in Melbourne if the file - it may well be here now because they talked about it being returned.

PN103

THE SENIOR DEPUTY PRESIDENT: It could be, yes, we will track it down.

PN104

MR HARRINGTON: Is it up to us maybe to contact Registry about that?

PN105

THE SENIOR DEPUTY PRESIDENT: No, my associate will let both of you know that it is either in the Melbourne Registry available or that we have sent it down that day from Sydney. We will let you know that.

PN106

MR HARRINGTON: Thank you.

PN107

THE SENIOR DEPUTY PRESIDENT: The Commission now adjourns.

ADJOURNED INDEFINITELY [3.27pm]