C2002/4524, Transcript of Proceedings [2002] AIRCTrans 4720 (25 November 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 10, MLC Court 15 Adelaide St BRISBANE Qld 4000
(PO Box 38 Roma St Brisbane Qld 4003) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HODDER

C2002/4524

NATIONAL UNION OF WORKERS

and

THE WAREHOUSE GROUP (AUSTRALIA) PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re applying of a State award where
a Federal award is currently used

BRISBANE

11.00 AM, MONDAY, 11 NOVEMBER 2002

PN117

THE COMMISSIONER: Could I have appearances, please?

PN118

MR T. KENNEDY: If the Commission pleases, Kennedy, initial T., appearing on behalf of the National Union of Workers, and appearing with me is COSGROVE, initial J. and PENNEY, initial H.

PN119

THE COMMISSIONER: Thank you.

PN120

MR G. ALMOND: If it pleases the Commission, no change from the previous appearance. Almond, initial G.

PN121

THE COMMISSIONER: Mr Almond, you're appearing - you didn't appear - - -

PN122

MR ALMOND: For the company, and with me, Commissioner, the Distribution Centre Manager, MR FORRESTER, initial G. also. If it please the Commission.

PN123

THE COMMISSIONER: Thank you. Mr Kennedy?

PN124

MR KENNEDY: Thank you, Commissioner. Commissioner, this matter has come about as a result, as you would be aware, of the union notifying in the first instance a section 99 dispute about the application of a Federal Award at the Queensland warehouse of the Warehouse Group (Australia) Pty Limited operations. Just by way of some background since we last met, Mr Almond wrote to the national office of the union on 4 October seeking clarification as to how the union understands the Roping-In Award Number 1 made by SDP Acton on 23 March 2001 operating.

PN125

The union responded to that by way of correspondence on 8 October. It might be - if the Commissioner doesn't have a copy of that correspondence I can table that now.

PN126

THE COMMISSIONER: Do we have a copy of that? My associate tells me we have a copy of that.

PN127

MR KENNEDY: I can table a copy now if it's quicker.

PN128

THE COMMISSIONER: This is correspondence of 8 October from yourself to Mr Almond in response to his of - - -

PN129

MR KENNEDY: 4 October.

PN130

THE COMMISSIONER: - - - 4 October. Yes, I have that.

PN131

MR KENNEDY: That's right.

PN132

THE COMMISSIONER: I will mark that correspondence. The correspondence of the NUW of 8 October 2002 in reply to correspondence from Mr Almond for the respondent in today's proceedings will become NUW exhibit 1.

EXHIBIT #NUW 1 CORRESPONDENCE OF NATIONAL UNION OF WORKERS DATED 08/10/2002 IN REPLY TO CORRESPONDENCE FROM MR ALMOND FOR RESPONDENT DATED 04/10/2002

PN133

THE COMMISSIONER: Yes, thank you.

PN134

MR KENNEDY: Thank you, Commissioner. This correspondence sent by the union basically outlines what has occurred. The union logged the company early in 2000 and on 18 October 2000 SDP Acton found that a dispute existed between the company and the union beyond the limit of any one State of Australia and that the matters in dispute were contained in both the letter of demand and log of claims served upon the company at its head office in Blacktown, New South Wales.

PN135

There were a number of hearings subsequent to that but essentially - the union sought part settlement of the dispute between it and the company in the form of a Roping-In Award which was known as the Storage Services General Roping-In Award Number 1 2001. And essentially that Award bound the company - or required the company to apply the terms and conditions as contained in the Storage Services General Award 1999 in respect of those employees covered by that Award.

PN136

Now, we say quite clearly that the making of that Award, which at the time we note the company's legal representatives - initially the company was represented by Baker McKenzie Lawyers based in Melbourne and then latterly at the time of the Roping-In Award were represented by Freehills - made no arguments or opposition against the part settlement sought by the union and accordingly on 23 March 2001 SDP Acton was satisfied that she should make an Award in the terms sought by the union, and it bound the company, as it was then known, to the terms of the Storage Services General Award 1999.

PN137

And her Honour was also satisfied that to do so would be consistent with the requirements of the Act and the relevant principles and that the effect of the Roping-In Award would commence from the date of the 21 March 2001. It is also a well understood legal principle that - dragging back into my mind to section 109, I think, of the Constitution that Federal laws have privilege over State laws to the extent of any inconsistency and I think that is confirmed also in the Workplace Relations Act and with respect to these things.

PN138

So we say that for all workers who are eligible to be members of the NUW and are covered by the coverage clause of the Storage Services Award in terms of the functions performed that that Award is - was intended to apply to the site in Brisbane and does apply to the site in Brisbane.

PN139

THE COMMISSIONER: Well, it would apply to more than the site in Brisbane, wouldn't it?

PN140

MR KENNEDY: It also applies to their operations - - -

PN141

THE COMMISSIONER: It would apply to every site in Australia.

PN142

MR KENNEDY: It applies to all their operations in Australia which currently consist of a warehouse in Somerton, Victoria - Melbourne, Blacktown in Sydney and here in Brisbane. And those terms and conditions apply to all those workers covered by it. Upon receiving a notice of this hearing, Commissioner, we sought from the company their position with respect to the company's correspondence.

PN143

And I should note that the company have given an undertaking to meet with the General Secretary of the National Union of Workers on 12 December this year at their offices to talk in more broad terms about the relationship between the union and the company and the union has said that it has an intention to try and put that relationship on a proper footing and to negotiate a collective agreement if possible. So they are the type of things that we would hope to discuss with the company at that meeting, however, we think in the interim it needs to be clarified that the Award made by her SDP Acton on 21 March be abided by and - by the company.

PN144

To that end, Commissioner, the union has prepared an order pursuant to section 111(1)(e) of the Act which seeks to ensure that orders of the Commission and Awards of the Commission are observed by the parties and we would note that it is important that Awards of the Commission are observed by the parties who are bound by them and to that end I would seek to table an order that the union is seeking, if that could be of benefit. However, I would also note that the company have indicated that they would like to have the matter resolved today.

PN145

To the extent that the company might think it's useful to go into conference the union is willing to do that as a first port of call but, however, I thought it was important at this stage to table the order that the union is seeking under 111(1)(e). A copy has been provided to the company. Unfortunately the union sent by facsimile on Friday afternoon to the company a copy of this order, however, Mr Almond was not in Sydney at the time so he's only just received a copy of that order this morning from me not more than 10 minutes ago. But at this stage and I think that will be the extent of our submissions subject to what the Commission would have me do.

PN146

THE COMMISSIONER: All right. I'll mark the proposed orders as NUW exhibit 2.

EXHIBIT #NUW2 PROPOSED ORDERS

PN147

MR KENNEDY: And if need be we can - the union would speak today to order after some conference matters if needed.

PN148

THE COMMISSIONER: Yes. Mr Almond?

PN149

MR ALMOND: Thank you, Commissioner. Commissioner, in very brief detail, I just want to clarify one point. I didn't give an undertaking that we can seek to resolve the matter today. I have given an undertaking to Mr Kennedy that we are willing to talk about the matters today.

PN150

THE COMMISSIONER: Yes. Mr Almond, have you seen the log of claims which went to the dispute finding and then the roping-in - the record of findings?

PN151

MR ALMOND: Yes, Commissioner, I have.

PN152

THE COMMISSIONER: And do you still maintain the position that your company is not bound by that award?

PN153

MR ALMOND: I have, Commissioner, and on that point I'd like to make a couple of comments because I think it's probably important to air those - - -

PN154

THE COMMISSIONER: Well, you want to make more than comments. You've got to make some submissions.

PN155

MR ALMOND: Oh, well, I'll make some submissions then, Commissioner, if we choose to put it that way, because there are a couple of important points which I think perhaps need to be misunderstood from the company's end on - sorry, on the union's end on behalf of the company. In short, Commissioner, what we do say is that the transcript is one area that we do need to look at. The context of the original dispute listed in Commission matter number 37884 of 2000 is - sorry - and the subsequent conduct of the union is another area that we need to consider.

PN156

THE COMMISSIONER: What do you mean "the subsequent conduct"?

PN157

MR ALMOND: Commissioner, that's what I'm about to just perhaps overview with the Commission because we feel it is important.

PN158

THE COMMISSIONER: Well, why is that important? I'll tell you're confronted with.

PN159

MR ALMOND: Yes.

PN160

THE COMMISSIONER: You're confronted with a record of findings in relation to a log of claims that were served upon your company, and that log of claims included within its terms the incidence of the claims. That was at point 1. At point 2, the areas covered by the claims. Now, at point 1, 1(b):

PN161

Any employer in receipt of these claims in respect of the employment of employees who are members or who are eligible for membership of the union -

PN162

so that talks about the incidence of the claim - the area covered by the claims.

PN163

These claims shall apply throughout Australia.

PN164

On its face, that's pretty clear. Now, your company received a copy of that, that log of claims, by registered mail.

PN165

MR ALMOND: Yes.

PN166

THE COMMISSIONER: Now, there's a registered mail which indicates that. Then the Deputy President recorded a record of findings in relation to that log of claims in Melbourne on 18 October 2000. Now, clearly from that time on - that was a record of findings, and then she made a roping-in award dated 11 November 2000 and - no, I'm sorry. The roping-in award was made - - -

PN167

MR KENNEDY: 21 March 2001.

PN168

THE COMMISSIONER: 21 March 2000. Now, it's very clear that the company was then a party to that award. That award, once made, ousts all state awards. No question of that. 23 March 2001, the award was then made, the roping-in award. And specifically in clause 2, Parties Bound, at (b):

PN169

Colonel Clint's Crazy Bargain Stores Proprietary Limited, Head Office, 11 to 21 Ford Street, Blacktown, in respect of persons employed who are eligible members of the union whether members or not.

PN170

Now, I don't know what you're trying to raise about the behaviour of the union, but the behaviour of the union has got nothing to do with it.

PN171

MR ALMOND: Well, Commissioner, we say that it does to some extent, and I put it in this context.

PN172

THE COMMISSIONER: What, in terms of your company not being bound by the terms of this award?

PN173

MR ALMOND: I'll put it in this context, Commissioner. It's our understanding that the New South Wales Branch of the NUW is not aware that it applies and the conduct of the union - I'm not talking about the Federal body; perhaps if I localise it to the state body of the NUW - has raised a number of matters before the New South Wales Industrial Relations Commission. In fact, there is one or two matters which are now live before that Commission. So I guess when I talk about the conduct of the union, I guess I'll cut to the chase. One is that the New South Wales body perhaps hasn't been given an opportunity to be heard at the time that original award was made.

PN174

THE COMMISSIONER: Well, it's a question of what - in which guise do you say they should have been heard?

PN175

MR ALMOND: Sorry?

PN176

THE COMMISSIONER: In which guise should they have been heard?

PN177

MR ALMOND: Well, under section 111AAA, you know, there should be an opportunity for that union to be heard. Now, Commissioner, we're playing with employees - - -

PN178

THE COMMISSIONER: Well, it's a bit late. It's after the event.

PN179

MR ALMOND: If I can please continue, Commissioner, I understand that you're helping to try and resolve this. Commissioner, we're dealing with people's terms of employment; we understand that. Okay? We want to resolve this matter. However, you know, we have matters which are before the New South Wales Industrial Relations Commission. If matters proceed there, then I guess there is some, you know, argy bargy about what is the appropriate jurisdiction, not just in Victoria, Queensland, but also New South Wales.

PN180

THE COMMISSIONER: Well, no. No, the State Commission can only deal with matters involving that state.

PN181

MR ALMOND: Correct.

PN182

THE COMMISSIONER: It can't take itself outside of the State in terms of being a State Tribunal.

PN183

MR ALMOND: Correct, Commissioner. I guess the question is why is the New South Wales Division of the NUW pursuing matters that relate to a state award, not a federal award - - -

PN184

THE COMMISSIONER: Well, what is the Queensland state union of the NUW doing about this? Are they complaining?

PN185

MR ALMOND: Now they are, Commissioner, yes. Yes.

PN186

THE COMMISSIONER: They are?

PN187

MR ALMOND: Yes.

PN188

THE COMMISSIONER: They're complaining about what?

PN189

MR ALMOND: About the application of the Federal Award not applying or the business not applying to the site.

PN190

THE COMMISSIONER: Well, this gets back to the rules of the organisation and whether the federal body had an obligation to inform the state union of what its intentions were in terms of the log of claims.

PN191

MR ALMOND: Yes, and perhaps - - -

PN192

THE COMMISSIONER: And the making of the award.

PN193

MR KENNEDY: Could I be of some assistance, Commissioner?

PN194

THE COMMISSIONER: Yes, you may be there, thank you.

PN195

MR KENNEDY: The National Union of Workers has acted in accordance with these rules and has notified all its relevant branches of all of its activities, and making this award is in accordance with its rules. I'm not here to speak on behalf of some officials acting in New South Wales, but they are aware of what our rules are, what our obligations are, and the making of this award is consistent with that. What is going on in the State Commission is irrelevant to this matter and - - -

PN196

THE COMMISSIONER: In New South Wales?

PN197

MR KENNEDY: In New South Wales; that's right. I mean, the reality is a federal award has been made by Senior Deputy President Acton. It applies to this company in respect of the people that it covers. And we have acted in accordance with the rules of our organisation and have communicated that to all our branches.

PN198

THE COMMISSIONER: Yes, well, it's a bit of a mess. It sounds to me like it's a bit of a mess, then, based on what Mr Almond is raising. But, you see, Mr Almond, what I'm interested is why aren't those two branches that you say are complaining - why aren't they here today?

PN199

MR ALMOND: I can't answer that, your Honour.

PN200

MR KENNEDY: The Queensland Branch of the union is not complaining. The Queensland branch of the union is simply seeking to make certain that the terms and conditions of the members that it represents, the Queensland operations, are those of the Storage Services General Award.

PN201

THE COMMISSIONER: I understood that on the last occasion the matter was before the Commission that it was an industrial officer of the state branch or federal branch that appeared in this matter, Ms Tunjic.

PN202

MR KENNEDY: That's right. She appeared on behalf of our union seeking the same thing that I'm seeking today on behalf of the union.

PN203

THE COMMISSIONER: So, Mr Almond, I think you'll have to do better in terms of what is happening in Queensland. I mean, there's nothing before the State Commission. There's no representative of the state union here today complaining, and, frankly, you are not in a position to be making representations on their behalf.

PN204

MR ALMOND: I'm not making representations, Commissioner, on behalf of the - - -

PN205

THE COMMISSIONER: No, but you're making submissions to me that the Queensland Branch is opposed to the application of this award in Queensland.

PN206

MR ALMOND: No, I'm not, Commissioner.

PN207

THE COMMISSIONER: Well, then, you see, the problem you've got - - -

PN208

MR ALMOND: What I - - -

PN209

THE COMMISSIONER: - - - is that you can have - you can do what you like in New South Wales, but you can't in effect, because of something you say is happening in New South Wales, in effect then say, "Well, it can't have application in Queensland," because if the state union is acting in its own right in the state jurisdiction, they can only complain about matters involving those sites in New South Wales, not outside of New South Wales. They don't have that authority.

PN210

MR ALMOND: I understand what you're saying, Commissioner. But I guess in any event - - -

PN211

THE COMMISSIONER: But, look, at the end of the day, Mr Almond, are you saying that the award doesn't apply in Queensland?

PN212

MR ALMOND: Yes, we are, Commissioner.

PN213

THE COMMISSIONER: On what grounds?

PN214

MR ALMOND: Sorry?

PN215

THE COMMISSIONER: On what grounds?

PN216

MR ALMOND: On the grounds that - well, quite simply that - - -

PN217

THE COMMISSIONER: And never mind the New South Wales Branch of the NUW. You're not here representing them. I want you to tell me what you say I can take notice of in terms of your company as to why I don't accept that the award, or I can't form the view, that the award has application in Queensland.

PN218

MR ALMOND: Well, I mean - - -

PN219

THE COMMISSIONER: Never mind the NUW. I want to know what you say.

PN220

MR ALMOND: Sure, I understand that, Commissioner. I mean, it's our view that there was perhaps some opportunity taken by the NUW, perhaps at a federal level or a state level in Queensland, to seek that this award apply to us nationally, and, you know, it might - - -

PN221

THE COMMISSIONER: Yes, but your organisation had an opportunity before the Deputy President to put arguments as to why she shouldn't make a roping-in award - - -

PN222

MR ALMOND: Yes.

PN223

THE COMMISSIONER: - - - that applied to your company. They didn't do that.

PN224

MR ALMOND: Yes.

PN225

THE COMMISSIONER: You know, it's a bit late after the event to be now standing up and telling me that there's something wrong.

PN226

MR ALMOND: Well, Commissioner, if the union are saying that it should apply, then perhaps a declaration would need to be sought by the union.

PN227

THE COMMISSIONER: Well, that's what they're doing.

PN228

MR ALMOND: Yes, in which case, is this the appropriate jurisdiction for that matter to be heard?

PN229

THE COMMISSIONER: Well, it's under section 111EE. 111(1)(e). They've got the right to make the application. I don't enforce it. I can issue the order if I'm satisfied I should.

PN230

MR ALMOND: Yes.

PN231

THE COMMISSIONER: They have to go somewhere else to get the award enforced, not here.

PN232

MR ALMOND: In which case, you know, I am sure the New South Wales body of the NUW will be quite shocked by this. So will the Commission.

PN233

THE COMMISSIONER: But, look, you can't make submissions for them.

PN234

MR ALMOND: But I guess the question is - - -

PN235

THE COMMISSIONER: You have got to stop making submissions - you can't make submissions for the NUW, please. Make all the submissions you like on behalf of your own company, but you can't make submissions for the NUW.

PN236

MR ALMOND: What I am - - -

PN237

THE COMMISSIONER: If they want to make submissions, they should be here.

PN238

MR ALMOND: Yes.

PN239

THE COMMISSIONER: If they are so concerned about all this, why aren't they here, and they are not here.

PN240

MR ALMOND: I have not notified them, Commissioner.

PN241

THE COMMISSIONER: Sorry?

PN242

MR ALMOND: I haven't notified them, Commissioner. Has the federal body?

PN243

THE COMMISSIONER: Well, neither have I. I had no obligation to notify them of this matter.

PN244

MR ALMOND: No.

PN245

THE COMMISSIONER: About the application of this award to a site of the company in Queensland.

PN246

MR ALMOND: Yes, yes.

PN247

THE COMMISSIONER: I had no obligation to do that, and I don't have any obligation to do it.

PN248

MR ALMOND: No, and we haven't taken the opportunity to notify them either.

PN249

THE COMMISSIONER: Well, it is a question of whether I would hear them, anyway.

PN250

MR ALMOND: Sorry?

PN251

THE COMMISSIONER: It is a question of whether I would hear them anyway, even if they sought to be represented here. This isn't the appropriate tribunal for them to be in.

PN252

MR ALMOND: Well, what would be, then?

PN253

THE COMMISSIONER: It is in New South Wales.

PN254

MR ALMOND: But if we are saying a federal award has application - - -

PN255

THE COMMISSIONER: That's right. The federal award has application all over Australia.

PN256

MR ALMOND: So surely they would be given the right to make submissions as to whether it does or doesn't.

PN257

THE COMMISSIONER: No, they can't make submissions about a matter in Queensland as a state union.

PN258

MR ALMOND: Right.

PN259

THE COMMISSIONER: That's what I am saying.

PN260

MR ALMOND: Okay.

PN261

THE COMMISSIONER: They can make all the submissions they like in New South Wales in the State Tribunal, but I tell you, honestly, I think that, you know, this has just gone too far. I mean, what you seem to be inferring is that there is some of an inter-union dispute - an intra-union dispute. Well, so what. What am I supposed to do about it?

PN262

MR ALMOND: Well, perhaps we are the meat in the sandwich, Commissioner.

PN263

THE COMMISSIONER: Well, you might be. But, I mean, under the circumstances, the NUW as a federal organisation complied with the Act and had an award made. It's as simple as that.

PN264

MR KENNEDY: Commissioner, on behalf of the NUW, we are not aware of any intra-union dispute regarding The Warehouse Group Australia Pty Ltd.

PN265

THE COMMISSIONER: Well, neither am I, other than what Mr Almond tells me about.

PN266

MR KENNEDY: And that is news to us as well today. As I said, we have acted in accordance with our rules in serving the log of claims, as we are required to under our rules. The company abide by the award made by SDP Acton in respect of its Victorian site, and we expected the - abide by the award made by SDP Acton in respect of all its Australian sites.

PN267

THE COMMISSIONER: Well, look, the alternative is you will have to take this company to the Federal Court.

PN268

MR KENNEDY: Well, that is - the reality is, and that is why we are seeking the order today, Commissioner, if we have to.

PN269

THE COMMISSIONER: Yes. Well, I think it is pretty clear you have to. Mr Almond. So, Mr Almond, can I say to you there is no point in you trying to make submissions to me about the NUW, be it state union in Queensland and New South Wales. You don't have that right. You can make all the submissions you like about your own company, but at the end of the day you need to satisfy me that this award doesn't apply. And I am having some difficulty understanding what your argument is.

PN270

MR ALMOND: Commissioner, I am not making submissions on behalf of the NUW in New South Wales. I am raising - - -

PN271

THE COMMISSIONER: All right. Well, make some on behalf of you own company.

PN272

MR ALMOND: I am raising - purely raising with the Commission that there is another body here, another NUW body which perhaps may have some rights, and - - -

PN273

THE COMMISSIONER: But you don't have the right to raise that; that is for them to raise.

PN274

MR ALMOND: Okay.

PN275

THE COMMISSIONER: I mean, you wouldn't like it if they stood up in here and started making submissions on behalf of your company, would you, because that is in effect what you are trying to do. That is their business, not your business. So tell me why this award doesn't apply?

PN276

MR ALMOND: Well, Commissioner, we see it as purely a stake of opportunism from the NUW - - -

PN277

THE COMMISSIONER: Well, irrespective - look, it doesn't matter whether it is opportunism or not. What is illegal about the award that has been made and having application to your company here in Brisbane? Tell me that?

PN278

MR ALMOND: What is illegal?

PN279

THE COMMISSIONER: Yes, what is illegal? What have they done illegally? Tell me what is illegal about it.

PN280

MR ALMOND: I couldn't answer that.

PN281

THE COMMISSIONER: Well, I know, because they haven't done anything; they have complied with the Act. I mean, the decision - the documentation and the decision made by Deputy President Acton supports their actions. So, you know, the award is made and it is enforceable. If you want to end up in the Federal Court, well, that is where you are going to end up, with claims for - I don't know. What are you paying these people out here now? Is it something less than the federal award, is it?

PN282

MR ALMOND: No, they are paid above the award, is my understanding, Commissioner.

PN283

THE COMMISSIONER: Above the award?

PN284

MR ALMOND: That is my understanding.

PN285

THE COMMISSIONER: Which award?

PN286

MR ALMOND: Both the applicable state award here and the federal award.

PN287

THE COMMISSIONER: Yes. So what is the problem, then, with the federal award having application?

PN288

MR ALMOND: Sorry?

PN289

THE COMMISSIONER: What is the problem, then, with having the federal award have application, if you are paying above it?

PN290

MR ALMOND: Obviously, their ancillary items which are associated with each award which may be different, maybe allowances, maybe overtime provisions.

PN291

THE COMMISSIONER: Well, then, they may not be being paid above the award, may they?

PN292

MR ALMOND: Well, collectively, you may be right, Commissioner.

PN293

THE COMMISSIONER: So, I mean, that is what it comes down to, doesn't it?

PN294

MR ALMOND: You may be right, Commissioner. I haven't done a pressure test to see what - or a comparison between the state and federal awards.

PN295

THE COMMISSIONER: Well, tell me this. What is it you are trying to prove by this, by refusal of acceptance of this award? What are you trying to achieve?

PN296

MR ALMOND: Well, we just find it rather unusual that out of the blue, probably about three/four months ago, you know, the National Union of Workers say, "Hey, you're not applying it in Queensland". Now, there has been no concerted effort to say you are not applying it nationally. It's only, yes, you are applying in Victoria; you are not applying it in Queensland. So you know, we feel that there is perhaps a stake of opportunism in there.

PN297

THE COMMISSIONER: Well, look, from 23 March 2001, whether you liked it or not, or whether they did anything about it or not, this award applied to your establishments throughout Australia; simple as that.

PN298

MR ALMOND: Sure.

PN299

THE COMMISSIONER: You know, there is no question about that.

PN300

MR ALMOND: Yes.

PN301

THE COMMISSIONER: And whether it is opportunism or whatever you want to call it, that is not the point. They are entitled to see that those rates of pay are met, their minimum rates of pay. This isn't a paid rates award, as I understand it, is it, Mr Kennedy?

PN302

MR KENNEDY: No, it is a minimum rates award.

PN303

THE COMMISSIONER: So they are the minimum rates that have to be paid, in all aspects. You can't pay them over award in one area and say, well, that will compensate for something else. The award has to be applied in its terms.

PN304

MR ALMOND: Commissioner, can I ask for your suggestion, then, on how the matter be raised with the NUW New South Wales Branch? I mean, is that something which you feel the company should, or perhaps the - - -

PN305

MR KENNEDY: If I could be of some assistance to the Commission. The national office of NUW - we are federally registered union - advises all branches according to our rules. That is a matter for us to determine.

PN306

THE COMMISSIONER: Well, I assumed that the decision to serve a log was taken by your federal executive.

PN307

MR KENNEDY: That is right.

PN308

THE COMMISSIONER: Because that is what the rules in the Act normally require. And that - upon that body there would be representatives of both the Queensland and New South Wales branch, are there?

PN309

MR KENNEDY: Yes.

PN310

THE COMMISSIONER: And they were made aware of that.

PN311

MR KENNEDY: Is - - -

PN312

THE COMMISSIONER: And so a federal log was served on this company, and an award was made from that.

PN313

MR KENNEDY: That is right.

PN314

THE COMMISSIONER: All right. Now, just enlighten me this way, then. Mr Almond talks about some matters before the New South Wales Commission. What are they? Are you aware of what they are?

PN315

MR KENNEDY: I am not aware of any matters before the New South Wales Commission. The New South Wales branch - - -

PN316

THE COMMISSIONER: In relation to this, the application of this award?

PN317

MR KENNEDY: Well, the New South Wales Commission may be operating under the misapprehension that there is a state award in place; I don't know how. But if they are, there - - -

PN318

THE COMMISSIONER: Well, it might be a state award, but it certainly has been ousted by this award.

PN319

MR KENNEDY: That is right. And really, the outcome of this hearing will be communicated to all the branches as normally, with the internal communication processes of the union. But as I have said before, Commissioner, NUW will look after its own internal machinations in accordance with its rules, and that is not on trial here today, if I might put it.

PN320

THE COMMISSIONER: No, exactly. Well, look, can I say this, Mr Almond. In a preliminary way, it is pretty clear to me that your company was served with a log, it was logged, it was notified of a hearing because the company was represented at that hearing, and that was before Deputy President Acton on 18 October 2000. It was very clear, at the time that the Senior Deputy President made the award, that - firstly, if you look at point 11 of the transcript of those proceedings, Ms Linados, who represented the company on that occasion, and she was - she was appearing for Freehills, had obviously been instructed by your company:

PN321

We are instructed not to oppose the finding of a dispute.

PN322

And the Senior Deputy President then went on to make her findings:

PN323

As to an industrial dispute between the NUW on the one part and Colonel Clint's Crazy Bargain Stores Proprietary Limited on the other part -

PN324

and that the dispute extended beyond the limits of any one state, and she made a formal record of that finding and directed the parties to confer with the aim of settling the dispute. That ultimately ended up in a roping-in award being made on 22 March 2001, and it clearly has application to your company's operations Australia wide. Now, I can't make it any clearer than that. And all the machinations of what is going on in the NUW or your claims of opportunism aren't worth a hill of beans, frankly.

PN325

MR ALMOND: Commissioner, we are open to talk about it with the union, and to help try and resolve this problem, this travesty amicably with the union.

PN326

THE COMMISSIONER: Well, you have seen a copy of the order they are seeking.

PN327

MR ALMOND: Yes.

PN328

THE COMMISSIONER: What are you - are you going to make any submissions about that?

PN329

MR ALMOND: Not at this point, Commissioner, no.

PN330

THE COMMISSIONER: Well, I suggest you do. I mean, the obligation I have is I have an application before me seeking these orders and I have a duty to either issue them or not, and I want to hear what you have got to say which might convince me whether I should or should not.

PN331

MR ALMOND: Commissioner, as I indicated earlier, if the union wishes to take the matter further, obviously it is a declaration they would need to seek. I say no more other than that, Commissioner.

PN332

THE COMMISSIONER: So you are not opposing it.

PN333

MR ALMOND: I am not making any comment on it, so - - -

PN334

THE COMMISSIONER: Well, I am asking you; are you opposing the issue of that order?

PN335

MR ALMOND: We oppose the award obviously applying, Commissioner, so if the union is obviously seeking that this order be brought down, and it is that the Commission wishes to agree to that order being brought down, then obviously we - - -

PN336

THE COMMISSIONER: Well, no, I have to hear you submissions as to - you have got to convince me one way or the other.

PN337

MR ALMOND: Well, I can't convince you, Commissioner.

PN338

THE COMMISSIONER: You can't.

PN339

MR ALMOND: And I am not going to raise any argument to that effect.

PN340

THE COMMISSIONER: All right.

PN341

MR ALMOND: As I will just repeat what I have said - - -

PN342

THE COMMISSIONER: So do you want a bit of time to consider that?

PN343

MR ALMOND: If it would help the Commission, I am willing to take some time out.

PN344

THE COMMISSIONER: And what are you going to do in the time out?

PN345

MR ALMOND: Probably make a couple of phone calls, Commissioner.

PN346

THE COMMISSIONER: All right. Well, that might be more appropriate. So I will give you till a quarter to 12, and you can come back and tell me what position you want to adopt insofar as these orders are concerned.

PN347

MR ALMOND: Yes, thank you.

PN348

THE COMMISSIONER: So I will adjourn until then.

SHORT ADJOURNMENT [11.33am]

RESUMED [11.51am]

PN349

THE COMMISSIONER: Yes. Thank you, Mr Almond.

PN350

MR ALMOND: Commissioner, I'll just come back to what I indicated earlier, that obviously if we don't apply the award which is what the union seeks, they will obviously seek a declaration from the Commission that we do comply with it. That's obviously a matter of interpretation for the Court at that time.

PN351

THE COMMISSIONER: Well, now, that's about enforcement.

PN352

MR ALMOND: Yes, Commissioner. I understand that.

PN353

THE COMMISSIONER: What I'm being asked to do is find that the award has application.

PN354

MR ALMOND: Yes. I understand that, and I am saying, Commissioner - - -

PN355

THE COMMISSIONER: This Commission doesn't enforce it's own orders or awards.

PN356

MR ALMOND: Yes.

PN357

THE COMMISSIONER: The Federal Court does that.

PN358

MR ALMOND: Yes.

PN359

THE COMMISSIONER: Or a court of competent jurisdiction.

PN360

MR ALMOND: Yes, Commissioner. I can't raise anything, Commissioner, which will persuade you at this point to enforce the order or let it go, other than once again, you know, if it's a Federal Court declaration that the union seeks, then what's where we'll be heading, I guess.

PN361

THE COMMISSIONER: The other issue that I thought you might consider, but obviously it's a double-edged sword. You could obviously apply to Senior Deputy President Acton to have the dispute finding varied and then obviously have the application of the award amended. But to do that, you would then have to acknowledge that it had application. So as I said, it's a bit of a double-edged sword, that one.

PN362

MR ALMOND: Yes, Commissioner, and I understand - - -

PN363

THE COMMISSIONER: And look, you know, clearly this award does apply to your company in all of its outlets throughout Australia. There's no question of that. Now - and you don't, frankly, have the right to not pay the rates of pay and conditions contained within the award. I mean, that's clear. I mean, you know, employers just don't have some unilateral right to refuse to comply with awards. For that matter, neither do unions or the employees.

PN364

MR ALMOND: I understand that, Commissioner.

PN365

THE COMMISSIONER: So, you know - I mean, so in that sense then, it's clear - I mean, I'm not sure what your argument is, frankly. I mean, I don't know what you're trying to achieve. I mean, I understand what you're trying to achieve. You're trying to achieve the ousting of a federal award and apply the terms of a state award and you'll have to overturn about 100 years of industrial history to do it, so I wish you luck in that regard. But on the basis of the order sought by the NUW, which you've had an opportunity to respond to, but in effect you would say and correct me if I get this wrong, but you're not in a position to convince me that those orders shouldn't issue.

PN366

MR ALMOND: No, Commissioner.

PN367

THE COMMISSIONER: On that basis, then, it seems to me that in the interests of both parties that I should make clear to you what I've said on the record: that the award has application; the union, in my view, have complied with the Act in terms of the application, the way it went about it and having the dispute found, which was interstate in nature and having an award apply to all of the outlets of your company; and that the union's entitled to have that award enforced in terms of the recognition of the rates of pay and conditions contained within it, the orders that it seeks today are consistent with section 111(1)(e) of the Act - that's the Workplace Relations Act - are, in my view, correct and it may be helpful to both parties to get this matter resolved if the Commission did issue those orders as sought. Now, Mr Kennedy?

PN368

MR KENNEDY: Well, Commissioner, based on submissions made by Mr Almond today, the union thinks that - or the union's submission is this: is that the orders sought under NUWT is both appropriate and, in fact, is necessary based on those submissions. The union will seek to continue to have discussions with the company to try and resolve this matter so that - - -

PN369

THE COMMISSIONER: Yes.

PN370

MR KENNEDY: - - - common sense prevails, if I could put it that way. But based on the submissions today, the union is of the firm view that the orders being sought on NUWT should be made. We would refer to Kidd v Rosella Foods of the Federal Court in that it supports the position of the union in that these orders should be made to ensure that there is no non-observance of award conditions. It is the union's hope that discussions with the company will resolve the matter in a more efficient manner. However, based on the submissions today, we believe the Commission has no alternative, and neither does the union, in seeking the orders sought. We think they are appropriate in the context of what has transpired in the making of the award by SDP Acton on 21 March 2001 and based on the submissions the parties have made today. So, subject to any questions you may have, that would be the extent of our submissions at this stage.

PN371

THE COMMISSIONER: Yes.

PN372

MR KENNEDY: We would note just one other thing. The Commission would have noticed that the name of the company has changed since the Roping In Award was made.

PN373

THE COMMISSIONER: Yes. Well, that's taken care of in terms of the orders because there's been no transmission of business, as I understand it.

PN374

MR KENNEDY: That's right. It's the same. It's just the new name.

PN375

THE COMMISSIONER: Just a new name, yes.

PN376

MR KENNEDY: So there is no real issue - - -

PN377

THE COMMISSIONER: So the orders you seek today are against the Warehouse Group Australia Pty Ltd, formerly Colonel Clint's Crazy Bargain Stores Pty Ltd - - -

PN378

MR KENNEDY: That's right.

PN379

THE COMMISSIONER: - - - at the same address?

PN380

MR KENNEDY: That's right, Commissioner.

PN381

THE COMMISSIONER: There's no estoppel on that - - -

PN382

MR KENNEDY: Yes.

PN383

THE COMMISSIONER: - - - in that regard.

PN384

MR KENNEDY: It may be worthwhile, in the fullness of time, seeking a variation to the Roping In Number 1 Award to reflect the fact that the company has changed its name.

PN385

THE COMMISSIONER: Well, that's a matter that should go before Senior Deputy President Acton - - -

PN386

MR KENNEDY: And that's - - -

PN387

THE COMMISSIONER: - - - in any event.

PN388

MR KENNEDY: We may deal with it at that time.

PN389

THE COMMISSIONER: Yes.

PN390

MR KENNEDY: Maybe that could be dealt with on the papers, even.

PN391

THE COMMISSIONER: Yes.

PN392

MR KENNEDY: That would be the extent of our submissions, if the Commission pleases.

PN393

THE COMMISSIONER: Very well. Did you wish to say anything further, Mr Almond?

PN394

MR ALMOND: No, Commissioner, other than we do commit to talking with the NUW to resolve it.

PN395

THE COMMISSIONER: Okay. All right. Well, on the basis of what the Commission has heard today and the submissions of both parties, the Commission will issue the order sought by the NUW consistent with the powers of the Commission under section 111(1)(e) of the Workplace Relations Act, and this order shall be known as the Warehouse Group Australia Proprietary Limited Observance of Award Order. This award shall be binding upon the National Union of Workers, the union, its officers and members and (b) the Warehouse Group Australia Proprietary Limited, formerly Colonel Clint's Crazy Bargains Stores Proprietary Limited, Head Office, 11-21 Ford Street, Blacktown, New South Wales, in respect of persons employed who are eligible to be members of the union, whether members or not.

PN396

Observance of Storage Services General Roping In Number 1 Award 2001:

PN397

(a) the Warehouse Group Australia of 11-21 Ford Street, Blacktown, New South Wales, and any director or officer of the company shall not, whether directly or indirectly, be a party to or be concerned in conduct which hinders, prevents or discourages the observance of clause 3, application of the Storage Services General Roping In Number 1 Award 2001. In respect of all persons employed by the Warehouse Group Australia Proprietary Limited who are eligible to be members of the National Union of Workers, whether members or not; and

PN398

(b) the company and any director or officer shall commit a new and separate breach of this clause on each and every day on which the company and any director or officer is, or are, directly or indirectly concerned in or is party to conduct described in subclause (a) above.

PN399

This order shall operate from the beginning of the first full pay period to commence on or after 11 November 2002 and shall remain in force for a period of six months. On that basis, I shall adjourn these proceedings.

ADJOURNED INDEFINITELY [12.00pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW 1 CORRESPONDENCE OF NATIONAL UNION OF WORKERS DATED 08/10/2002 IN REPLY TO CORRESPONDENCE FROM MR ALMOND FOR RESPONDENT DATED 04/10/2002 PN133
EXHIBIT #NUW2 PROPOSED ORDERS PN147