C2002/4285, Transcript of Proceedings [2002] AIRCTrans 4924 (6 December 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

O/N VT892
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LACY

C2002/4285

GECKO FILMS PTY LTD and ANOTHER

and

MEDIA, ENTERTAINMENT AND ARTS
ALLIANCE and ANOTHER

Notification pursuant to section 99 of the
Act of a dispute re appropriate category
of film for "Japanese Story" in accordance
with the Actors Feature Film Agreement 2000

MELBOURNE

9.05 AM, FRIDAY, 22 NOVEMBER 2002

Continued from 7.11.02 in Sydney, Not transcribed

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE
AND RECORDED IN MELBOURNE

PN1

THE SENIOR DEPUTY PRESIDENT: Morning, Mr Baumgartner.

PN2

MR A. BAUMGARTNER: Yes.

PN3

THE SENIOR DEPUTY PRESIDENT: Are you the only one there this morning?

PN4

MR BAUMGARTNER: It seems so.

PN5

THE SENIOR DEPUTY PRESIDENT: Has there been any progress made since the last time we met?

PN6

MR BAUMGARTNER: Not really. I thought my proposal had some legs but was not accepted by the company, so I think we are left in the same position - with no agreement. In that case the only other course is a conciliation conference it seems to me at this point.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes. You haven't heard from the other representative this morning?

PN8

MR BAUMGARTNER: No. Not from him this morning.

PN9

THE SENIOR DEPUTY PRESIDENT: No. Well, how urgent is the need for a conference?

PN10

MR BAUMGARTNER: Well, from our point of view, I don't suggest that you move things around for it, but the next available time I think in Melbourne, I guess.

PN11

THE SENIOR DEPUTY PRESIDENT: In Melbourne, you think.

PN12

MR BAUMGARTNER: Well, the company is in Melbourne so - - -

PN13

THE SENIOR DEPUTY PRESIDENT: Yes.

PN14

MR BAUMGARTNER: - - - it appears - - -

PN15

THE SENIOR DEPUTY PRESIDENT: Where is the union's head office? Is that in Sydney, is it?

PN16

MR BAUMGARTNER: It is in Sydney.

PN17

THE SENIOR DEPUTY PRESIDENT: All right. Well, I will check my diary and - will you come down for it or will some representative in Melbourne be dealing with the matter?

PN18

MR BAUMGARTNER: At this stage I am planning to come to it.

PN19

THE SENIOR DEPUTY PRESIDENT: Yes. Well, perhaps if my associate can let you know some dates, or perhaps I can let you know now.

PN20

MR S. WHIPP: Sorry for our late arrival.

PN21

THE SENIOR DEPUTY PRESIDENT: Okay. Who have I got there now for the union?

PN22

MR WHIPP: Simon Whipp, with MS J. NORTON.

PN23

THE SENIOR DEPUTY PRESIDENT: Yes. I have been discussing with Mr Baumgartner the progress that has been made to date and he informs me that in fact the matter is still in limbo, or in dispute and has suggested the prospect of some conciliation. What do you - - -

PN24

MR WHIPP: Well, my view in relation to that, Senior Deputy President, is that the parties have been seeking to resolve the matter between themselves now for some three months without success, and with all due respect to the abilities of the Commission in relation to conciliation, my view is that I don't think conciliation will be a fruitful exercise and will simply serve to delay the matter further. We have put three propositions to the employer association in an endeavour to resolve the matter, all of a completely different nature, all without prejudice to our in principle but quite different and offer a compromise position to the employer, none of them have been accepted.

PN25

To date the only offer that has been made by the employers association is that we should simply drop the issue, in fact - sorry, that offer has not been made by the employers association. The only offer that has been made by the employer involved is that we should simply drop the issue. There has been nothing forthcoming from the employer in response of a constructive or of a constructive nature, and in our view this indicates that there is little willingness on their part of genuinely seek by agreement to resolve the matter, and therefore it is our view that the matter needs to proceed to arbitration.

PN26

THE SENIOR DEPUTY PRESIDENT: But where do I get the power to arbitrate the matter? What are you suggesting on what basis should I arbitrate?

PN27

MR WHIPP: There are a number of bases upon which we would say that arbitration would be appropriate. So under clause 33(g) there is an arbitration mechanism which is envisaged - under the 33(g) of the agreement there is an arbitration which is envisaged for a dispute about this very matter. It provides:

PN28

That if the producer and the MEA do not agree on the category to be applied to a film, both parties shall promptly appoint a person to determine the category by arbitration.

PN29

It doesn't indicate that that person must be a representative of the Industrial Relations Commission. I suppose at this point in time we would be suggesting that it be the Industrial Relations Commission. If that is not acceptable to the employer, then obviously we will - we can agree on another person. And then - yes, so that is where we would say that the power arises.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes. What do you say about that, Mr Baumgartner?

PN31

MR BAUMGARTNER: We don't argue with the suggestion that there is an ability to arbitrate the matter. That is accepted between the parties. Cognisance on that is that the argument of the arbitration would be about - the agreement would be about .....

PN32

THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't quite catch what you said then.

PN33

MR BAUMGARTNER: Based on the fact that the arbitration would be in relation to the particular agreement that we have been the parties.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR BAUMGARTNER: We have no problem with the Commission hearing the matter.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR BAUMGARTNER: And ultimately the Commission would hear the matter. Normally following the process of conciliation, it is really up to you, your Honour, as to whether you feel that that process should be followed before any arbitration is commenced.

PN38

THE SENIOR DEPUTY PRESIDENT: Well, I can set aside some time to deal with it initially by conciliation and if it appears at an early stage that conciliation is not going to result in a resolution of the problem, then we can go straight into arbitration.

PN39

MR BAUMGARTNER: I take no issue with that.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes. Now - - -

PN41

MR WHIPP: The difficulty - can I - I foreshadow a difficulty with that in that if we are to proceed to conciliation prior to arbitration, and this isn't to dissuade you from the course of action which you propose, but it is a practical issue, and that is whether the time frame for the filing and service of witness statements and so on, is conducted prior to the conciliation or after the conciliation. And if, I mean, depending on which of those occurs, well things flow. One is that it delays the conciliation if the witness statements are done prior to. If it is done afterwards, obviously we can't proceed immediately to arbitration because the witness statements would need to be filed and served after the conciliation has occurred.

PN42

THE SENIOR DEPUTY PRESIDENT: Yes. Well I had in mind, given the difficulties you foresee in resolving the matter by conciliation, or proceeding down the course of preparing for arbitration which would in fact provide me with some insight into the issues between the parties and then at the outset of convening that hearing, I would adjourn into conference to see whether or not there is some prospect of resolving the issues.

PN43

MR WHIPP: I think that is a sensible course.

PN44

MR BAUMGARTNER: But we are not - - -

PN45

THE SENIOR DEPUTY PRESIDENT: How much time do you think you might need to prepare your witness statements and contentions, Mr Baumgartner?

PN46

MR BAUMGARTNER: Probably, given the time - yes, probably four weeks.

PN47

THE SENIOR DEPUTY PRESIDENT: Yes. And Mr Whipp, what do you say about the time?

PN48

MR WHIPP: Well, in relation to what is proposed by the employers, our view is that the issue is a confined issue. It is not a broad reaching issue and it is an issue which ..... now some three months we are all familiar with the issue at hand and it relates to five lines in the agreement and the interpretation of those five lines, and my view is it should not take four weeks to do that. We would envisage that it would take no more than two weeks for us to actually undertake the creation of the relevant witness statements.

PN49

I need to ask your Honour a question about how rigidly or otherwise, you would be intending to apply the rules of evidence as to how many witnesses we will be needing to call. I might indicate for you the type of evidence that we will be bringing relates to - there are two types of evidence which at this point of time we would be intending to bring. Those witnesses who can attest to the intention of the parties at the time the agreements were entered into, that would be the first type of evidence which we would be intending to bring.

PN50

And then we would be intending to bring evidence of similar production and the basis upon which they have contracted performers. Now, obviously we intend to bring oral evidence in relation to the first class of evidence, but in relation to the second class of evidence, we are able to bring oral evidence but our view is that if the parties are constructively minded, there is no necessity to inconvenience people with respect to that. We have, you know, relevant contracts and correspondence between relevant parties which can be adduced and the question is that is all obviously hearsay without it being attested to in the witness box.

PN51

And the question is how rigorously the hearsay rule might be being enforced. My view is I don't think it should be necessary for witnesses to be inconvenienced. If we can adduce contractual evidence about how - and correspondence which goes to the issue of how performers have been contracted on similar productions, then in my view, that should be sufficient and we can exchange that obviously with advance notice and though - - -

PN52

THE SENIOR DEPUTY PRESIDENT: Well, I mean, is there any real dispute about the facts in the matter?

PN53

MR WHIPP: About the fact?

PN54

THE SENIOR DEPUTY PRESIDENT: Yes, about the facts associated with the issue that you are asking me to determine? I mean - - -

PN55

MR WHIPP: There is no dispute about the facts. The dispute is about the agreement and how the agreement should be applied to the facts. And then the question is that from our perspective, we would be wanting to bring evidence about how the agreement has been applied to the facts in similar circumstances.

PN56

THE SENIOR DEPUTY PRESIDENT: Well, if it is really a question of the interpretation, how would I be assisted by how the agreement has been applied in similar circumstances?

PN57

MR WHIPP: It relates to what the intention of the parties was in entering into the agreement. It reflects upon in the past, has the intention of the parties which we are asserting in that first class of evidence that I have referred to, is that intention of the parties accepted by the parties in similar circumstances which occurred subsequent to the agreement being entered into.

PN58

THE SENIOR DEPUTY PRESIDENT: But when you say the parties, are you referring to this party, or these parties, in particular and therefore - - -

PN59

MR WHIPP: I am referring to the Media, Entertainment and Arts Alliance and members of the Screen Producers Association.

PN60

THE SENIOR DEPUTY PRESIDENT: I know, but has this company previously had dealings or agreements of the same nature?

PN61

MR WHIPP: This company has not, but the reason why that wouldn't necessarily be instructive, your Honour, is that for each film or television production which is entered, or which is produced, a new company is established and then is wound up once the production has been finalised, so that is - to ask the question which you have asked, while relevant, is not necessarily helpful in determining whether the answer is the right one about the type of evidence which we are wanting to lead.

PN62

THE SENIOR DEPUTY PRESIDENT: All right. And where would your witnesses come from?

PN63

MR WHIPP: Well, the witnesses which we would be intending to bring in relation to the first class of evidence would be Michael Crosby, who was the Assistant Federal - sorry, the Federal Secretary of the union until 1991, and Ann Britton, who was the joint - Federal Secretary of the union from 1992 until 1999.

PN64

THE SENIOR DEPUTY PRESIDENT: Where are they located?

PN65

MR WHIPP: Sydney.

PN66

THE SENIOR DEPUTY PRESIDENT: And, Mr Baumgartner, where would you witnesses be coming from?

PN67

MR BAUMGARTNER: Probably only two witnesses that I foresee, would be Mr Jeff Brown, who is our current executive director, and probably Sue Maslin, who is a producer of film. I have no issue with Mr Whipp in relation to the production of evidence. The issue is whether some of that evidence is admissible, in our view, but I guess when we see that evidence, we will be able to form an opinion. As far as our case is concerned, we would be wanting to file a draft order of interpretation, or probably in the - of the provision, and forwarding grounds and reasons for our assertion as to this meeting. And in the event that that meeting is not accepted, we would - in the alternative, would - an order of variation to the agreement to give effect to the meeting that our side is intended - and was intended by the parties. That having been said, arising from that we would be arguing that ..... has merit. The construction that is put on the clause by the Media, Entertainment and Arts Alliance is inappropriate and should not prevail in the event that their interpretation is bound to be .....

PN68

MR WHIPP: Well, can I just make two points in relation to that, those two orders - - -

PN69

THE SENIOR DEPUTY PRESIDENT: Yes - sorry, Mr Whipp, just before you do, Mr Baumgartner, where are Mr Brown and Ms Maslin located? In Sydney or Melbourne?

PN70

MR BAUMGARTNER: .....

PN71

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN72

MR BAUMGARTNER: Sue Maslin is Melbourne.

PN73

THE SENIOR DEPUTY PRESIDENT: Yes.

PN74

MR BAUMGARTNER: And Jeff Brown is .....

PN75

THE SENIOR DEPUTY PRESIDENT: I see. Yes, sorry, Mr Whipp.

PN76

MR WHIPP: Can I just raise two points in relation to those orders sought at this point in time because I think it needs to be - the point needs to be made and that is that the ability to make those orders, in my view, relates to the - under the Workplace Relations Act, to agreements which are certified. This is not a certified agreement and therefore in our view, if the Commission arbitrates pursuant to the relevant provision of the uncertified agreement, it is able only to make an arbitration in relation to the particular circumstances of this matter and not a more general order - an order of variation or order of interpretation.

PN77

In relation to the issue of the - in relation to what Mr Baumgartner has said about it being our interpretation of the agreement, I come back to what we have - what I have mentioned before and why we are wanting to adduce evidence in relation to other productions and that is, that it is not only our interpretation of the agreement, it is an interpretation accepted by members of the Screen Producers Association of Australia and other producers in that they have in all cases which we will be giving evidence, accepted that where a performer is imported to appear in a production, an Australian feature film and whether that person is imported for ethnic or other reasons that the production falls within category B of the agreement.

PN78

MR BAUMGARTNER: Can I just expand on that. It is our view the ability of the Commission to arbitrate this is that basically the parties have accepted - almost accepted that the Commission uses its full powers in any arbitration. We don't accept that there is - if we are accepting an arbitration, we don't accept that there is any limit on jurisdiction about the ability of the Commission to make a variation to an agreement between the parties. From our point of view, if Mr Whipp wants to limit the jurisdiction then the point of having the matter heard is not appropriate in this jurisdiction, and we would have to review our position as to whether we are happy for the matter to be heard here.

PN79

I just put that on the record now, that certainly from our point of view we will progress along the lines that the Commission has its full jurisdiction available to it to hear and determine the matter as agreed between the parties, and essentially, from our point of view, the parties agree to allow the Commission to hear the matter, because it is an uncertified agreement, in which case it is really up to the parties to establish the date of the proceedings and the jurisdiction that essentially is being afforded to the Commission. If there is a challenge as to jurisdiction then we would have to review our position as to whether this is the proper forum.

PN80

THE SENIOR DEPUTY PRESIDENT: Well, look, is it possible for you, Mr Baumgartner, first of all to come to Melbourne on the afternoon or for the afternoon of 9 December for the purpose of determining the scope of the arbitration and the issues relating to evidentiary material and the program for any arbitration that might flow as a result of those matters being resolved on that day?

PN81

MR BAUMGARTNER: At this stage, yes.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes. Mr Whipp, what about you?

PN83

MR WHIPP: Afternoon of 9 December, yes that is free.

PN84

THE SENIOR DEPUTY PRESIDENT: Say 3 pm?

PN85

MR WHIPP: Yes.

PN86

THE SENIOR DEPUTY PRESIDENT: Very well. I will set the matter down for a conference on that day at 3 pm and I will first of all see if we can, in conference, work out the parameters of the arbitration and the issues of evidence. If not then, I will hear the parties and make a determination about those matters. So I will adjourn the matter now until 3 pm on 9 December. If either parties wishes prior to that date to - or if the parties can have some discussions and work out between themselves a process for dealing with the arbitration then that will make it a lot simpler, but in the event that they can't, we will see what we can do on that afternoon. Is there anything else?

PN87

MR WHIPP: Nothing else.

PN88

THE SENIOR DEPUTY PRESIDENT: No. Thank you. The matter is adjourned to 3 pm, 9 December.

ADJOURNED UNTIL MONDAY, 9 DECEMBER 2002 [9.29am]