C2002/4943, Transcript of Proceedings [2002] AIRCTrans 4315 (31 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 VT413
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GRAINGER

C2002/4943

TEXTILE, CLOTHING AND FOOTWEAR
UNION OF AUSTRALIA

and

EPONA PTY LTD (KPC TRADING/AS
TRUSTEE FOR THE RANDAN TRUST)

Notification pursuant to Section 99 of the Act
of a dispute re negotiation of an enterprise
agreement and union access to the manufacturing
premises of Epona

MELBOURNE

12.13 PM, TUESDAY, 15 OCTOBER 2002

PN1

MS V. WILES: I appear on behalf of the Textile, Clothing and Footwear Union with MS D. PETERSON, who is the organiser for the workplace.

PN2

MR C. MOLNAR: I seek leave to appear on behalf of Epona Pty Limited. With me is MS F. O'DAY, an operations manager of the company.

PN3

THE COMMISSIONER: Ms Wiles, do you have any objection to Mr Molnar appearing?

PN4

MS WILES: No, Commissioner.

PN5

THE COMMISSIONER: Without hearing any further reasons from you, Mr Molnar, I am happy to grant you the requisite leave. Yes, Ms Wiles, would you run me through and tell me what the application is about.

PN6

MS WILES: Commissioner, essentially the subject of the dispute finding relates to a denial by Epona Pty Limited to the union in terms of access to employees, to have discussions with employees pursuant to section 285C of the Act. We also indicated in our dispute finding that we also believe that there is a potential breach of section 170NC of the Act. Commissioner, it is probably useful if I just take you through the history of this dispute initially and then go to arguments.

PN7

THE COMMISSIONER: Yes. Can I just ask - I note that I have received a copy of a draft order just before this hearing. Mr Molnar, have you seen the draft order?

PN8

MR MOLNAR: I have not seen any draft - - -

PN9

THE COMMISSIONER: All right, fine. I just want you to be aware that there is a draft order which has actually been sent to me. Yes, Ms Wiles.

PN10

MS WILES: I should say, Commissioner, that a copy was also faxed to Mr Molnar's office but I have one here.

PN11

THE COMMISSIONER: Well, why don't you give that to him so that he can be having a look at it while you are running me through things.

PN12

MS WILES: Thank you, Commissioner. I should also indicate that on the dispute notification there is also an error. It also indicates that the company is a respondent to the Clothing Trades Award 1999 and at this stage they are not, although the matter is relisted for hearing next week in Sydney for that matter to be resolved.

PN13

THE COMMISSIONER: Right. That may be a matter of some materiality. Good, all right. I am sure Mr Molnar will tell me about that point in due course. Thanks.

PN14

MS WILES: Yes. Commissioner, on 11 February this year, the TCFUA served a letter of demand and a log of claims on various employees in Victoria and Queensland and one of those employees was Epona Pty Limited. On 26 March the TCFUA notified the New South Wales Registry of the Commission of an alleged industrial dispute pursuant to section 99 between the union and various employers. In March of this year, the TCFUA - Victoria Branch sought access to the premises of Epona Pty Limited pursuant to section 285C and that access was denied. And we received correspondence from Harmers Workplace Lawyers acting for Epona in relation to that and I seek to tender a copy of that letter.

EXHIBIT #A1 LETTER DATED 21/03/2002 FROM MR MOLNAR AND MS LEE OF HARMERS WORKPLACE LAWYERS TO MS PETERSON, TCFUA

PN15

MS WILES: As you will see, Commissioner, in paragraph 4, I think it is the second sentence, Harmers asserts that:

PN16

An award does not apply to the work being carried out by our client at Porter Street, Prahran. Therefore, the TCFUA does not have a right to enter the premises at Porter Street, Prahran for the purposes of having discussions with employees under section 285C of the Act.

PN17

On 4 June 2002, Commissioner Cargill in Sydney made a decision in relation to the log of claims and, particularly in relation to Epona Pty Limited, the Commissioner found that a dispute finding did exist in relation to Epona Pty Limited, however, issued directions whereby the Victorian branch should have further discussions with the company as they were objecting to the roping-in. Those discussions did occur on 2 September 2002 and Ms Peterson, who is the organiser, participated in those discussions with, I believe, Sonia Botega, who is the managing director of the company, and I am not sure if Fiona O'Day was there as well.

PN18

Ms Peterson actually asked Ms Botega on what basis she believed the company should not be a respondent to the Clothing Trades Award. Her response, in summary, was that they pay reasonable rates of pay, are a growing company and do not employ outworkers and do everything correctly. In response to a further question from Ms Peterson as to whether the company did manufacture clothing, Ms Botega replied yes, that they did. At the conclusion of that meeting, the union's view had not changed and that is that there are no grounds for the company to argue that it should not be roped in to the Clothing Trades Award.

PN19

THE COMMISSIONER: And it is the finalisation of that matter which is being heard in Sydney next week; is that right?

PN20

MS WILES: Next Tuesday it is back before Commissioner Cargill for hearing, yes.

PN21

THE COMMISSIONER: And what impact do you say that has on your application in this matter today?

PN22

MS WILES: Commissioner, we say it has no impact. We say that the right of the union to enter premises pursuant to section 285C exists independently from any award respondency but I thought, to put it on the record, we should indicate to you that that is where we are at in terms of the roping-in process.

PN23

THE COMMISSIONER: Yes. And where are you at in regard to the requisite permit?

PN24

MS WILES: Both myself and Ms Peterson have a requisite permit.

PN25

THE COMMISSIONER: Yes. Are you able to tender evidence of that today?

PN26

MS WILES: Yes. Do you wish to see that now?

PN27

THE COMMISSIONER: Yes, you should tender it. Yes, you should tender a copy of that. It is a pre-requisite to the relief that you are seeking and the respondent should see it and be able to comment on it.

PN28

MS WILES: Commissioner, I have one copy of mine and Ms Peterson has a small one that will need to be blown up and photocopied.

PN29

THE COMMISSIONER: You mean enlarged.

PN30

MS WILES: Enlarged, yes.

PN31

THE COMMISSIONER: Yes. It is probably not the week to talk about blowing up.

EXHIBIT #A2 PERMIT ISSUED TO MS WILES ON FORM 13 UNDER REGULATION 109B OF THE ACT ON 27/03/2001

EXHIBIT #A3 PERMIT ISSUED TO MS PETERSON ON FORM 13 UNDER REGULATION 109B OF THE ACT ON 28/05/2001

PN32

THE COMMISSIONER: At a suitable moment, an adjournment, my associate will make copies of them to furnish to the respondent and a copy for my file. Now I can return these to you, Ms Wiles. Thank you.

PN33

MS WILES: Thank you, Commissioner. On 2 October 2002, Ms Peterson, on behalf of the union, wrote to Epona Pty Limited giving notice of its intention to enter the premises pursuant to section 285D(2) of the Act in order to exercise powers under section 285C of the Act, and I seek to tender a copy of that correspondence.

EXHIBIT #A4 LETTER DATED 02/10/2002 FROM TCFUA TO MS BOTEGA OF KPC

PN34

MS WILES: On the same day, Commissioner, the union also wrote to the company seeking clarification as to whether it was intending to enter into an agreement with its employees and seeking to have that agreement certified according to section 170LK. We then received a letter on 4 October from Harmers Lawyers on behalf of the company responding to both of those letters that the union had sent them. I seek to tender a copy of that letter.

EXHIBIT #A5 LETTER DATED 04/10/2002 FROM MR MOLNAR OF HARMERS TO TCFUA

PN35

MS WILES: Commissioner, you will see there in paragraph 4 that the response from Epona Pty Limited is pretty much in the same terms as its earlier correspondence forwarded to the union in March.

PN36

THE COMMISSIONER: Yes.

PN37

MS WILES: On page 2 of that correspondence - I think it is the second last paragraph - it is confirmed that the employer is seeking to enter into an agreement with its employees. On 7 October 2002, Dorothy Peterson and myself attended the manufacturing premises of Epona Pty Limited at Porter Street, Prahran. We were allowed entry upstairs into the main manufacturing area of the business. We were advised by Simon Clark, who is the production manager, that we would be denied access, that in his view we didn't have a right to have those discussions with employees.

PN38

We indicated to him that we, as union officials, had valid permits, had given the required notice and had a right under the Act to speak with assembled employees during their lunch break. A short time later, the managing director, Sonia Botega, arrived at the workplace essentially repeated the earlier comments of Mr Clark. Shortly after that, the company called the police and the police spoke to both Ms Peterson and myself, and the company and the police actually sought to facilitate access of the union to the employees. However, that was again denied by the company.

PN39

Early on 8 October, the union became aware that the company had issued a notice to its employees pursuant to section 170LK(2) of the Act in relation to the entering of an agreement, and I have a copy of that notice and I seek to tender that.

EXHIBIT #A6 NOTICE UNDER SECTION 170LK(2) OF THE WORKPLACE RELATIONS ACT DATED 07/10/2002

PN40

MS WILES: During the morning of the 8th, the union was contacted by several of its members who worked at Epona concerned about the distribution of the notice and also concerned that the union have been denied access the day before; and it also sought that the union negotiate or seek to negotiate and confer with the company about the proposed agreement. And we wrote to the company again on 8 October to that effect, and I will tender a copy of that.

EXHIBIT #A7 LETTER FROM TCFUA TO MS BOTEGA, DATED 08/10/2002

PN41

MS WILES: On 10 October the union received a response to that letter from the company and I seek to tender a copy of that letter also.

EXHIBIT #A8 LETTER FROM MS BOTEGA, GENERAL MANAGER OF KPC EPONA, TO MS WILES, TCFUA, DATED 10/10/2002

PN42

MS WILES: Commissioner, you will see there in paragraph 2 of the 10 October correspondence it states that:

PN43

You have advised us that you have received a request to represent employees ...(reads)... it would be appreciated if you would inform us of their names.

PN44

And then the company set out a series of meeting times at which it is available to meet and confer with the union.

PN45

THE COMMISSIONER: Yes.

PN46

MS WILES: The union responded on 11 October, and I seek to tender a copy of that correspondence.

EXHIBIT #A9 LETTER FROM TCFUA TO MS BOTEGA, DATED 11/10/2002

PN47

MS WILES: And you will see in paragraph 4 that the union indicates to the company that it is under no obligation to indicate to them or to give them names of the union members who have requested the union to confer on their behalf. And we also set out some issues, or some agenda issues that we are seeking to discuss at the meeting to be arranged between the parties. And you will see, Commissioner, that on page 2, the last dot point, that one of those issues is, in fact, this issue that we are here today to hopefully have resolved and that is to gain access to the workplace.

PN48

THE COMMISSIONER: Yes.

PN49

MS WILES: On 13 October 2002 a letter was sent from Harmers, Lawyers to Michelle O'Neill of the union seeking an adjournment of this matter. We wrote back to the company on the 14th at which we essentially said that if the company gave an undertaking to give the union unhindered access, that we would agree to the adjournment. And I seek to tender a copy of that letter.

EXHIBIT #A10 LETTER FROM TCFUA TO MR MOLNAR OF HARMERS, DATED 14/10/2002

PN50

MS WILES: And, Commissioner, the Commission was then in receipt of documentation from the company in response to that letter - - -

PN51

THE COMMISSIONER: Yes.

PN52

MS WILES: - - - whereby it basically says that it is still in dispute with the union in relation to this matter.

PN53

THE COMMISSIONER: Yes.

PN54

MS WILES: So you can see there is quite a long history which has preceded the parties coming here before you today. Commissioner, in terms of the union's legal position essentially it is this that, I mean, clearly division 11A of the Act relates to - I will go back a step. Division 11A relates to the rights and obligations of registered organisations; and, in particular, 285C relates to rights of entry. What we say the key elements of that section are that the official or officer have a valid permit, and we have indicated that that obligation has been satisfied.

PN55

The second element relates to the entering of premises in which:

PN56

(a) work is being carried on to which an award applies that is binding on the organisation of which the persons holding the permit is an officer employee.

PN57

The premises located at Porter Street and operated by Epona are manufacturing premises at which the production and manufacturing of clothing does occur. And, as I understand it, this issue actually isn't in dispute between the parties that production does occur.

PN58

What we say is that the requirement in that section basically is that an award applies to the work and that that award is binding on an organisation; that is the TCFUA, which clearly is bound to the Clothing Trades Award 1999. The clause does not state that the award must be binding on the employer. The nexus is between the award binding the registered organisation and the work being performed.

PN59

And the third element is that the registered organisation may enter premises in which:

PN60

(b) employees who are members or eligible to become members of that organisation work.

PN61

And, again, I don't think that issue is in dispute, that the TCFUA has rights under the Act and under its rules, etcetera, to represent the industrial interests of those workers. And the fourth element is the giving of required notice, which I think we have indicated in our correspondence has been done.

PN62

As I understand it, the main dispute between the parties here is in relation to that terminology relating to award which binds the work and, as I have indicated, in our view there is no requirement that the employer be respondent to a particular award for the union to have rights in that respect. And, in fact, to conclude otherwise would mean that, in fact, the union would never have right to workplaces that were only covered by a schedule 1A, for example. There are other sections in the Act which I believe assist you in terms of interpreting that section, and that is 127AA of the Act and, effectively, that clause states that: if there are rights of entry clauses in awards, then they are deemed to be unenforceable.

PN63

THE COMMISSIONER: So you say these are premises in which work to which the award or order applies is being carried on?

PN64

MS WILES: In our submission, the intention of that clause from the Parliament is that it has removed right of entry clauses from awards. There is no expectation that an employer has to be respondent to an award for right of entry rights to exist and, in fact, by removing right of entry clauses or making them unenforceable in awards the Parliament is really saying that the primary source of that right is found in 285B and C, etcetera.

PN65

THE COMMISSIONER: Right.

[12.38pm]

PN66

MS WILES: At section 298A, the objects of the freedom of association section.

PN67

THE COMMISSIONER: Yes.

PN68

MS WILES: 298A states that:

PN69

As well as the objects set out in section 3, this part has these objects, and A is to ensure that employers, employees and independent contractors are free to join industrial associations of their choice, or not to join industrial associations,

PN70

etcetera. In our view, one of the main mechanisms by which unions can recruit in workplaces is by having access to employees during their unpaid lunch breaks.

PN71

Commissioner, section 285G gives you a specific power to prevent and settle industrial disputes about the application of the section. In our view, that is quite a broad power, although of course it cannot be a power that provides rights in addition to the Division itself.

PN72

What we say is that Epona has deliberately hindered access, and one of the reasons it has done so is it is seeking to negotiate a non union agreement with its members. It is no coincidence that the notice issued to employees under section 170LK(2) was issued to employees either on the afternoon, or on the morning after we attempted to gain access. And as you would be award, the 14 days starts to run once the employees receives that notice, effectively.

PN73

We also say there is a potential breach of 170NC, in that by the company taking that action by denying access, it is action that is designed to coerce employees into entering a non union agreement. Clearly, if the union has no capacity to speak to members about the terms of that agreement, it is in no position to outline to employees in any effective way any of the limitations of that agreement.

PN74

I should say, too, Commissioner, that there is approximately 50 to 55 production employees who work at these premises. Our observation is that probably 90 to 95 per cent of those workers are from a non English speaking background, and the main language groups are Vietnamese, Mandarin and East Timorese. So it is a workforce that in our view probably has limited language skills in terms of negotiating their own agreement.

PN75

Commissioner, the union is seeking to resolve this matter. We did meet with the company yesterday and conferred about the non union agreement. If there is an alternative that the company can put to us that would have the desired result, then we are quite prepared to look at that. And so on that basis we are prepared to enter into conference.

PN76

THE COMMISSIONER: Yes, thanks, Ms Wiles. Yes, Mr Molnar.

PN77

MR MOLNAR: I note that the union's position is to enter into conference, so I think my comments will be tailored accordingly. However, I do - - -

PN78

THE COMMISSIONER: Well, could I just say, Mr Molnar, you should be as fulsome in addressing me on the matters raised by Ms Wiles - - -

PN79

MR MOLNAR: And I will be.

PN80

THE COMMISSIONER: Yes, as answers the matters which have been raised. And then let me know that your view is about a conference, and I will decide whether I think a conference is - if I get the feeling from the parties that a conference is worth having a go with, then I am happy to do that.

PN81

MR MOLNAR: I will, sir.

PN82

THE COMMISSIONER: But I may, at the end of hearing from you and having a conference, may feel that there is some course of action that would be appropriate for the Commission to take.

PN83

MR MOLNAR: I understand sir. Can I commence by saying that we were not award, prior to arriving here today, what precisely we were here for. Now, it is a section 99 application. They could have been seeking an industrial dispute finding, they could have been seeking conciliation powers. I have turned up, and they have now a draft order before me which - - -

PN84

THE COMMISSIONER: Well and truly noted, Mr Molnar, so don't need to wax eloquent on that point. I understand the point.

PN85

MR MOLNAR: Well, there are certain consequences. We are under-prepared for that.

PN86

THE COMMISSIONER: Yes.

PN87

MR MOLNAR: If we knew that this was the order that was to be sought by the union, we would have had witnesses. Because you have a discretion under 285G as to whether or not you grant this order. There are matters going to the conduct of the TCFUA on 7 October when they entered the premises that we would say would weigh on that issue of conduct - weigh on the issue of discretion. Our witnesses, in particular one witness, is not available.

PN88

THE COMMISSIONER: Yes.

PN89

MR MOLNAR: And had I known this, I would have encouraged that witness to have been here to give the evidence. Well, of course, we haven't had any evidence from the other side on these matters.

PN90

THE COMMISSIONER: No. Can I say to both parties, of course, that before I was minded to issue any orders, I would want to be sure that both sides had had the opportunity to put submissions and evidence in regard to any orders that I might issue.

PN91

MR MOLNAR: Yes. So, we have not had any opportunity to cross-examine any evidence that the other side of course wish to make. In terms of the correspondence, we have no objections with that, that it represents a - the correspondence between the parties.

PN92

The other side raise issues to the other proceedings which are currently before Commissioner Cargill, and they made the assertion from the bar table that there was an industrial dispute finding. We contest that there is any industrial dispute finding, sir. Now, because I wasn't aware that they were going to raise that, I didn't bring my other file. But I can hand up to you, and I would appreciate if your Associate was able to obtain a copy of this, a letter from W. G. McNally and Company, who act on behalf of the TCFUA in respect of the proceedings before Commissioner Cargill.

PN93

It just simply reflects the position, the understood position from at least their solicitors, in terms of what was to occur following the original listing before Commissioner Cargill. I will read it out:

PN94

We refer to the listing of this matter before Commissioner Cargill on 4 June 2002 -

PN95

which was the original listing, the parties having been asked to come back. They then go on to say:

PN96

We note that from your discussion with our Mr Bill McNally that you will provide us with further details as to whether your client maintains the objection to be included in the dispute finding.

PN97

So their position is very clear. They don't think that there is a dispute finding, and indeed they are asking whether there is an objection. If I could have that handed up and marked as an exhibit, sir.

PN98

THE COMMISSIONER: Yes.

EXHIBIT #R1 LETTER FROM W. G. McNALLY AND COMPANY

PN99

THE COMMISSIONER: What, though, is your understanding of the status of the hearing before Commissioner Cargill next Tuesday 22 October?

PN100

MR MOLNAR: It is listed for a video hearing before the Commissioner. Obviously it is a matter of submissions between the parties as to what they wish to occur. I am not aware precisely what the TCFUA will be pressing for at that hearing. It could be that they press for a dispute finding; I don't know.

PN101

Sir, if I could address you - - -

PN102

THE COMMISSIONER: Is it likely to - is that hearing likely to finalise the issue of roping-in?

PN103

MR MOLNAR: Well, unlikely. A number of outcomes could take place in that hearing. One of the outcomes could be just further conference. Another outcome could be a dispute finding. I can only - given the state of where tha proceeding is, I can't see any other outcomes.

PN104

Sir, as I stated before, we wish to obviously deal with the facts in a much more - evidentiary material, but if I could address you on some of the legal issues in a preliminary way, subject to any sort of further submissions that they wish to make later on.

PN105

THE COMMISSIONER: Or that you may wish to make later on.

PN106

MR MOLNAR: Yes. The issue revolves around the interpretation of 285C of the Act. That section, sir, reads in subsection (i):

PN107

A person who holds a permit in force under this Division may enter premises in which -

PN108

(a) work is being carried on to which an award applies that is binding on the organisation of which the person holding the permit is an officer or employee.

PN109

That is the relevant sub-clause, sir, which is in question. I will not read on further. There is no doubt that the TCFUA is an organisation that is bound to a number of awards, including the Textile Trades Award, the Clothing Trades Award, and a number of other awards. The issue is whether an award applies to work being conducted at Porter Street, Prahran. That is the issue.

PN110

We say, sir, that no award applies to that work. Indeed, the TCFUA admitted in their submissions, and indeed the Clothing Trades Award does not apply to work being carried out on those premises. The TCFUA have a different interpretation. They say that all that is required under subsection (a) is essentially that some award has coverage of whatever takes place.

PN111

Now, what they are talking about is potential hypothetical coverage. There are many awards to which the TCFUA are - bind the TCFUA which could potentially, maybe, apply to the work being conducted at Porter Street Prahran. But it only applies, sir, when an award is made by this Commission, or in circumstances which are otherwise covered by section 149: for example, transmission.

PN112

Sir, if I could just take you to a few cases, if that is of assistance.

PN113

THE COMMISSIONER: Yes, thank you. And, Ms Wiles, if you have any cases to draw to my attention, I would appreciate having them pointed out to me.

PN114

MR MOLNAR: If I could take you to the CPSU v Stellar Call Centres. Sir, you might be familiar with this case as a transmission case that was heard initially by Wilcox J and then by a Full Court of the Federal Court and it is known as a transmission case and indeed that is what its principal argument was, or the principal issue was. But what is less well known is that this case arose from circumstances where the union attempted to gain entry under 285C and the employer in this case said: No, we are not bound by an award. The union said: No, you are bound by an award through transmission.

PN115

So at first instance Wilcox J said: Yes, there was transmission and therefore you do have to permit access. But the Full Federal Court, of course, said something different. If I could just take you to a couple of passages, sir, it would be of assistance. If I could take you to paragraph 55 and I take you to the last sentence. His Honour says the following:

PN116

The contest between the parties is centred about paragraph (a).

PN117

And what he is talking about is 285C(1)(a) -

PN118

However, it follows from my determination that section 149(1)(d) applies to this case.

PN119

In other words, the award binds Stellar Call Centres and so that paragraph (a) is also satisfied. Consequently he decides to make an injunction. Now, if the union's contention was right that the award does not need to bind the employer we would never have had the case, Stellar Call Centres, because all the union would have had to have done, the CPSU in this case, would have established that they had coverage in terms of the work conducted by Stellar Call Centres. But that wasn't the way that they approached this case.

PN120

The way they approached this case was to prove that there was transmission, that the award was binding through the transmission provisions under 149(1)(d) and therefore an award applied under 285C(1)(a) so that entry could be permitted to the premises for the purpose of holding discussions. It is all predicated on there needing to be an award binding Stellar. If his Honour determined that an award was not binding then there would be no basis for seeking the orders.

PN121

Now, whilst when it went to the full Federal Court there was a different view in terms of transmission, that doesn't disturb the approach adopted by his Honour because then ultimately the full Federal Court said, no, there wasn't a transmission and so, therefore, presumably the union didn't have access to the premises through 285C(1)(a). That is the first case, sir. If I could take you to another case.

PN122

THE COMMISSIONER: Yes.

PN123

MR MOLNAR: This case is a decision by his Honour, Senior Deputy President Williams earlier on this year and I put this in - I submit this case by way of illustration in terms of the Commission's approach to these sort of issues. This was a case involving again 285C and it was between the National Union of Workers v Sakata Rights Snacks, and if I could just take you to paragraph 3. Under paragraph 3 his Honour obviously recognises that he has issued the Grocery Products (Manufacturing Grocers) Roping-in Number 2 Award 2001. He immediately notes the effect is to bind Sakata to the provisions of the award. So the union, they have got their award binding, now they are pressing for orders under 285G. And if I could just take you to, sir, paragraph 15. That paragraph says, if I could take you to the second sentence:

PN124

It is apparent, therefore, that being in mind the requirements of section 285C the Commission cannot make the order sought unless -

PN125

the first dot point -

PN126

the work being carried on at Sakata's premises at Laverton North is work to which an award applies.

PN127

"Work to which an award applies." And he then sort of proceeds on to deal with the issue of whether they are not eligible, and then deal with his discretion. I will take you to another case, sir.

PN128

THE COMMISSIONER: Yes.

PN129

MR MOLNAR: The case is a case involving the AMWU - - -

PN130

THE COMMISSIONER: Can I just ask, Mr Molnar, does your client concede at least that at these premises in Prahran there are employees who are members or eligible to become members of the TCFUA?

PN131

MR MOLNAR: No. No, we don't concede that, sir.

PN132

THE COMMISSIONER: Right, okay. All right. So that is something which the TCFUA would have to satisfy me as to.

PN133

MR MOLNAR: Yes.

PN134

THE COMMISSIONER: Yes, all right.

PN135

MR MOLNAR: This case, the AMWU v Bullcraft Proprietary Limited, this involves the Food Preservers Award; again it deals with right of entry. And if I could just take you to relevant passages. Unfortunately, this isn't numbered in terms of paragraph but if I could take you to page 7 of that, sir, and the second dot point.

PN136

THE COMMISSIONER: Yes.

PN137

MR MOLNAR: Again, his Honour acknowledges that one of the issues that obviously needs to be done, very similar to the previous case, is that work being carried on at the company's premises at Altona is work to which the Food Preservers Award 2000 applies; that is the first issue. The second issue is whether or not they are members or eligible to become members of the AMWU.

PN138

Then if I could take you further on down that page under the heading: Is the work in question covered by the Food Preservers Award 2000? Now, the very first thing that the Commission deals with in dealing with that issue is whether or not this award binds the organisation - binds, sorry, the employer. And he first deals with the issue of - you know, the fact that the Australian Industry Group is bound; that the company, in the second dot point, is a member of the Australian Industry Group and he immediately acknowledges that the AIG is a respondent to the Food Preservers Award to which the AMWU is the sole union party.

PN139

So his attention is immediately focused on whether or not this employer is bound to the Food Preservers Award. If this wasn't relevant, sir, the fact that the employer had to be bound was not relevant, he need not do this. This is not the approach that he would undertake. All he would simply do is go immediately to the Food Preservers Award, look at the coverage of the Food Preservers Award, and determine in terms of what the company is doing whether there is coverage. But he doesn't do that. He spends a bit of time analysing the fact and determining the fact that the company is, in fact, bound. And at the end of that section on page 9, the very last dot point he states:

PN140

I am satisfied that for the purposes of section 285C of the WR Act the work being carried on by the employees of the company is work to which the Food Preservers Award 2000 applies.

PN141

Because he has considered first of all the fact that they are bound and, secondly, he has then looked at coverage of that award: two issues. The union, the TCFUA in this case just says, well, there is one issue. That case, sir, to be fair, was subsequently appealed but it was appealed and the appeal focused not on that part of the judgment but whether or not the union members, whether the employees were eligible to be members of the union. And I will just hand this up, sir, not that I wish to refer to it but because - well, in fact, I will refer to it just very briefly. If I could just take you to paragraph 6 of that decision, this is the Full Bench decision. The Full Bench state:

PN142

Arising from section 285C, it is common ground that there are three relevant conditions that must be fulfilled ...(reads)... who are members or eligible to be members of the AMWU.

PN143

Now, you just see in paragraph 7 that the ALHMWUs principle ground of appeal to the company employees are not eligible for membership. So that was the focus of the Full Bench decision, but you can still see that the approach of the Full Bench is that three step process.

PN144

And finally, sir, if I could just hand up to you some useful commentary on section 285C that I found in Butterworths, the service on the federal award. If I could just hand that up, sir. This is a useful commentary on the operation of section 285C, and if I could just take you to the second page. Under the heading, it is three quarters of the way down, it says:

PN145

Right to enter restricted -

PN146

well, it is wrong but -

PN147

restricted premises where work subject to award, 285C(1)(a).

PN148

And the third paragraph - the third sentence states rather, in terms of talking about 285C(1)(a) that it usually means that the organisation and that the employer must both be parties to the award. So the learned authors of Butterworths are acknowledging and recognising that the way that this section operates is that the employer needs to be bound. And, of course, it might be bound for a common rule award. It may apply to an employer, not because of their being a direct respondent; there are common rules awards which are issued by this Commission which apply to employers.

PN149

So we say, sir, that the application by the union is not maintainable. The approach adopted by this Commission and also by the Federal Court is one of first ascertaining whether or not the award itself is binding on the employer. There is no evidence - well, there is no evidence at all, but there is certainly no evidence that any award at all binds Epona Proprietary Limited. So I make those submissions, preliminary submissions subject to any sort of further submissions which the union may wish to make on the legal question. But it is quite clear, in my submission, that the approach by parties and by the Commission and a court is one of first ascertaining whether or not the employer is bound before any rights of access are granted under 285G. Thank you, sir.

PN150

THE COMMISSIONER: Yes, thanks very much, Mr Molnar. Ms Wiles, anything further in reply to that? Is there any case law you want to refer me to? This is probably the right moment for you to do so if you have got anything there.

PN151

MS WILES: Commissioner, I have just some preliminary comments. I think none of the authorities that Mr Molnar has referred to, in our view, disturb our premise whatsoever. We agree that they are the three elements involved in that section. But if you read the section on its face, what it does say is that - it relates to work which is being carried on to which an award applies. And certainly, in our submission, the work that is being carried on by Epona basically is covered by, or potentially covered by the Clothing Trades Award. The coverage of the work is clearly within the realms of the Clothing Trades Award and, contrary to Mr Molnar's submission that the TCFUA is a respondent to various awards and any one of those potentially could apply, the type of work that is being produced there is clearly clothing manufacturing.

PN152

THE COMMISSIONER: Well, of course, I would need evidence about that; that is the problem. And I am wondering whether you have got any case law which favours the view that you have put.

PN153

MS WILES: Commissioner, the majority of the case law relates to situations where, in fact, the employer is a respondent to the award. There are some Federal Court cases where that issue is in dispute and, in fact, in some of those cases injunctions or interlocutory injunctions have been granted on that basis. But quite the converse, there is no authority that I have been able to identify that states that an employer that is not a respondent to an award is not covered by that section, and I have searched extensively. There is no authority that I can find that states that. And, in our view, the correct interpretation of that clause - you know, the nexus is between the award and the work that is being performed. It doesn't relate to the employer or the premises, in fact.

PN154

THE COMMISSIONER: I suppose it is - the issue is, is it, the work or work of the kind?

PN155

MS WILES: Well, in our view, that is made clear because the - the Parliament is clear here. It says the award applies - - -

PN156

THE COMMISSIONER: Oh, Parliament. We often think Parliament is being clear. They often think they are being clear, too. They are often not, that is the trouble.

PN157

MS WILES: Well, put it this way, if the Parliament intended - - -

PN158

THE COMMISSIONER: It makes lawyers rich.

PN159

MS WILES: - - - to be completely explicit on this point, in support of what Mr Molnar is saying, I would have thought it would have said: an award applies that is binding on the organisation and on the employer. And it doesn't say that. And, in fact, if it did say that, it would have had the consequence of excluding a large majority of employees from the ambit of that clause.

PN160

On the point about - I think you asked Mr Molnar whether Epona concedes that employees are members or eligible to be members. Commissioner, we have a list of TCFUA members, which I am prepared to show you but I am not prepared to give to Epona of our members. And in terms of the work that is being performed, we have photographic evidence of clothing manufacturing being performed which I can also show you.

PN161

THE COMMISSIONER: Yes. Can I just ask, Mr Molnar, is there any dispute that it is clothing manufacturing which is going on there?

PN162

MR MOLNAR: In a general sense there is manufacturing of clothing taking place. Now, whether a particular award applies to that is a matter of some issue potentially.

PN163

THE COMMISSIONER: Yes.

PN164

MR MOLNAR: You know, the Clothing Trades Award seems to have the most amazing ambit and the distinction between the Textile Trades Award and the Clothing Trades Award is a very confusing one and certainly not anything that is particularly well clarified by either award, in my submission.

PN165

THE COMMISSIONER: Yes, yes. All right. Anything else, Ms Wiles?

PN166

MS WILES: Well, Commissioner, on that point, in our view, the awards are quite clear about what they cover. The Textile Industry Award will apply in a situation usually where clothing goods are knitted, usually in the form of very complex knitted woven fabrics as in the case of hosiery and socks. Other than that, most clothing apparel is covered by the Clothing Trades Award.

PN167

THE COMMISSIONER: Yes, yes. Anything else, Ms Wiles?

PN168

MS WILES: That is all at this stage, Commissioner.

PN169

THE COMMISSIONER: No. Mr Molnar, what is your view as to the usefulness of a conference at this stage?

PN170

MR MOLNAR: After sort of hearing the TCFUA and sort of considering it, whilst I am as a practitioner in this area always somebody who encourages negotiations and discussions, I can't see on this particular issue of entry into the premises that the company is going to be - adopt a different view than what the union's view at the moment is. I must say that my instructions are that on the day, 7 October 2002, the company did offer the union to use the - you know, part of the - I think the car park if they wanted to have discussions with the employees on the day. There are issues relating to the conduct of the TCFUA in the building when they entered the premises.

PN171

THE COMMISSIONER: And what were they?

PN172

MR MOLNAR: Completely unacceptable conduct, sir. There was raised voices. There was language that is completely inappropriate in these circumstances. Employees were scared; they were scared. And it is certainly not the approach that division 11 envisages in terms of the right of entry to premises. So the only way of really managing it was really saying to the union, well, perhaps you could have your - if you are going to behave like that, perhaps you could have your meeting in the car park because we can't have everybody here upset.

[1.09pm]

PN173

THE COMMISSIONER: But your company's objection is about, if you like, the tenor which the TCFUA officials took when they were there.

PN174

MR MOLNAR: On the day it was, it certainly was, but the company maintains its position that there isn't - and this is what is requested under this draft order, that entry is permitted under division 11, and we maintain our position that because an award does not apply to actually work being conducted out there, that there can be no right of access under division 11.

PN175

THE COMMISSIONER: Yes.

PN176

MR MOLNAR: And what is the company's proposed timetable? Given that it issued its notice on 7 October, what is its proposed timetable for making an agreement with the employees?

PN177

MR MOLNAR: I believe that the 14 days expires next week.

PN178

THE COMMISSIONER: Yes.

PN179

MR MOLNAR: There were discussions with the union yesterday. They raised a number of issues. The company, I suppose, hasn't, sort of, formally decided in any way what it wants to do with those issues, so - - -

PN180

THE COMMISSIONER: Well, I mean, of course, you understand that, putting to one side whatever may happen out of today, the company may proceed to enter into an agreement and find that the union objects to the agreement and appears in the certification process, and the Commission may find that there is an impediment to the certification of the agreement, which would seem not to be desirable, I would have thought.

PN181

MR MOLNAR: No, not by any means. I mean, you know, the company is very keen to ensure that it complies with the Act in all respects.

PN182

THE COMMISSIONER: Yes.

PN183

MR MOLNAR: And, of course, it needs to make submissions to the Commission in respect of meeting the requirements under the Act.

PN184

THE COMMISSIONER: Yes.

PN185

MR MOLNAR: And there is no question that those submissions won't be made or that the Commission won't obviously properly consider it.

PN186

THE COMMISSIONER: Well, I suppose what I wonder is whether the company would be prepared to refrain from making the agreement pending any process by which submissions could be made by the parties.

PN187

MR MOLNAR: The difficulty, sir, is that the proceedings before Commissioner Cargill are proceeding. The company is mindful of that and the outcome of those proceedings and wants to transition to the terms and conditions under the agreement if obviously there is a valid majority and valid approval under the Act as quickly as possible in the light of that.

PN188

THE COMMISSIONER: Yes. But, I mean, you have got your opportunity to appear before Commissioner Cargill and argue against roping-in.

PN189

MR MOLNAR: Well, that is right, but I don't think that these proceedings are in any way - ought to be, sort of, dependent upon what happens with Commissioner Cargill or with what happens in terms of any sort of process that has been conducted at the site. I mean, clearly the - certain rights are granted to the union in accordance with division 11, certain rights are granted to the employer in respect of division 11, and each side is entitled to access those rights, and the company is simply taking a viewpoint in terms of its approach. There is nothing stopping the union from outside of the work premises obviously speaking to these employees as I believe it may have done so. There is nothing stopping the union from meeting and conferring with us, the company, as they have done so; you know, at all times the company has tried to do what is reasonable.

PN190

THE COMMISSIONER: Yes, so where does that leave us with regard to a conference now?

PN191

MR MOLNAR: I just had a quick work with the company's representative. Their position is that if and when an award applies to work being carried at Porter Street, Prahran, of course they will comply with section 285C. So what the company is saying is that there doesn't seem to be any value at this - at least at this time in terms of having a conference.

PN192

THE COMMISSIONER: Yes. Ms Wiles.

PN193

MS WILES: Commissioner, I would like to put on the record just some brief responses to Mr Molnar's assertions. The union categorically denies that it acted unreasonably. In terms of the offer, so called, made by the company, you should be aware that the lunch break starts at 1 o'clock and, after 20 minutes of the police trying to facilitate access of the union to a meeting in the canteen - and that was the police's view - the company at approximately 1.30 offered that we could meet people outside in the car park which, by any definition, does not constitute the premises. It would also have been after the end of the employees' lunch break and it would also have identified which employees were union members, or potentially wanted to be union members which the whole intent of that section is designed to protect people in terms of their union membership or potential union membership. So the offer, in our view, was completely unacceptable.

PN194

In terms of the union's position, well, given Mr Molnar's view on behalf of the company, we will obviously need to seek further advice and we may choose to go to other jurisdictions in terms of this matter. But at this point, if there is no prospect of a conference, we would probably be suggesting that the matter be adjourned while we get that advice.

PN195

THE COMMISSIONER: Yes. I couldn't make a decision on the orders that you have put to me today, Ms Wiles, because I would need to receive further submissions from the union and the company, and the evidence of the kind that we have talked about here. And I would need to give you time to put those submissions in; I would need to give the company time to respond to those submissions, which leaves you with no orders today. I would have thought - it is Tuesday today. I am just wondering what sort of timetable you would consider you could respond to with regard to providing written submissions and documentation of evidence, and any cases that you want to refer me to in support of your application for orders. Friday, Monday, Tuesday?

PN196

MS WILES: Commissioner, obviously one of the issues, as you have already indicated, is the intention by the company to proceed with the vote probably as soon as they can. And so the desired effect for them is achieved if, in fact, that agreement is supported by those employees because they have had a situation where employees have had no access to an alternative view about that agreement. The union has had no access, or no capacity to have access to the employees in the workplace as a group.

PN197

THE COMMISSIONER: Yes. The union, of course, will be able to seek to represent that view in any attempt to certify an agreement emerging from that process. I suppose what I am looking at is how to try and create a timetable over the next week and a half that might avoid the whole thing simply having to go over to the certification process and standing or falling on what may appear to be right to the Commission in the certification process.

PN198

MS WILES: Commissioner, I will need to take advice on that.

PN199

THE COMMISSIONER: Yes, all right.

PN200

MS WILES: I can't give you an indication at this point.

PN201

THE COMMISSIONER: Well, how long will it take you to get back to me?

PN202

MS WILES: Probably this afternoon.

PN203

THE COMMISSIONER: Yes, all right. My worry is in terms of adjourning it. I do have another case at 2 o'clock in any event. But I suppose I should say that I am minded, but I am not going to be minded if you are not - if your view is really that you need to go back to base and have a discussion about it, I would simply adjourn it without doing anything and wait to hear from you. On the other hand, if we could agree on a timetable for dealing with the matter, I would be inclined to give serious thought to a recommendation that the company permit a meeting between the union and the employees, and that the company refrain from the finalisation of the agreement pursuant to the 7 October notice for a period of time to enable the finalisation of submissions in this matter. That is what I would be minded to do without having had an opportunity to have a conference with the parties.

PN204

But if you say that you just want me to adjourn it and to do nothing, then I am prepared to adjourn it and to attempt to relist it in the next few days if that helps.

PN205

MS WILES: Commissioner, can I just request a five minute adjournment?

PN206

THE COMMISSIONER: Yes, sure. Well, you might, Mr Molnar, as well be having a think about all of that. I will adjourn for five minutes. We will reconvene at 1.30. Thank you.

SHORT ADJOURNMENT [1.22pm]

RESUMED [1.32pm]

PN207

MS WILES: Commissioner, the TCFUAs view is that it seeks to have this matter adjourned indefinitely.

PN208

THE COMMISSIONER: Yes. Indefinitely?

PN209

MS WILES: Yes.

PN210

THE COMMISSIONER: You definitely wish to have it adjourned indefinitely?

PN211

MS WILES: Well, adjourned but - - -

PN212

THE COMMISSIONER: Yes, and you will let me know when you want it relisted?

PN213

MS WILES: Yes.

PN214

THE COMMISSIONER: Yes, all right. Mr Molnar, you are happy with my doing that?

PN215

MR MOLNAR: I am happy with you doing that, sir.

PN216

THE COMMISSIONER: Yes, all right, fine. Yes, well, I now adjourn this matter.

ADJOURNED INDEFINITELY [1.33pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 LETTER DATED 21/03/2002 FROM MR MOLNAR AND MS LEE OF HARMERS WORKPLACE LAWYERS TO MS PETERSON, TCFUA PN15
EXHIBIT #A2 PERMIT ISSUED TO MS WILES ON FORM 13 UNDER REGULATION 109B OF THE ACT ON 27/03/2001 PN32
EXHIBIT #A3 PERMIT ISSUED TO MS PETERSON ON FORM 13 UNDER REGULATION 109B OF THE ACT ON 28/05/2001 PN32
EXHIBIT #A4 LETTER DATED 02/10/2002 FROM TCFUA TO MS BOTEGA OF KPC PN34
EXHIBIT #A5 LETTER DATED 04/10/2002 FROM MR MOLNAR OF HARMERS TO TCFUA PN35
EXHIBIT #A6 NOTICE UNDER SECTION 170LK(2) OF THE WORKPLACE RELATIONS ACT DATED 07/10/2002 PN40
EXHIBIT #A7 LETTER FROM TCFUA TO MS BOTEGA, DATED 08/10/2002 PN41
EXHIBIT #A8 LETTER FROM MS BOTEGA, GENERAL MANAGER OF KPC EPONA, TO MS WILES, TCFUA, DATED 10/10/2002 PN42
EXHIBIT #A9 LETTER FROM TCFUA TO MS BOTEGA, DATED 11/10/2002 PN47
EXHIBIT #A10 LETTER FROM TCFUA TO MR MOLNAR OF HARMERS, DATED 14/10/2002 PN50
EXHIBIT #R1 LETTER FROM W. G. McNALLY AND COMPANY PN99