C2002/5122, Transcript of Proceedings [2002] AIRCTrans 5035 (13 December 2002)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER CARGILL

C2002/5122

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

VISY BOARD (WODONGA) PTY LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re wages and conditions
in the printing industry

SYDNEY

10.00 AM, FRIDAY, 29 NOVEMBER 2002

Continued from 14.11.02

Hearing Continuing

PN9

THE COMMISSIONER: Could I have the appearances, please?

PN10

MS K. COTIS: If it please the Commission, I appear on behalf of the Australian Manufacturing Workers Union.

PN11

MR K. BROTHERSON: If the Commission pleases, I seek leave to appear for Visy Board (Wodonga) Pty Limited.

PN12

THE COMMISSIONER: Thank you. Ms Cotis, is there any objection to Mr Brotherson being given leave?

PN13

MS COTIS: Yes, there is, Commissioner. I don't think it's necessary for the company to seek legal representation on a matter which is as basic as this and I think that this matter can well be settled directly between the parties.

PN14

THE COMMISSIONER: Right. Obviously I'll listen to what Mr Brotherson has to say but you realise that if I refuse him leave we won't be proceeding with the matter today?

PN15

MS COTIS: Why is that, Commissioner?

PN16

THE COMMISSIONER: Well, there's no-one else from the company.

PN17

MS COTIS: Oh, sorry. Of course, yes, of course. Thank you.

PN18

THE COMMISSIONER: Mr Brotherson, did you want to put anything?

PN19

MR BROTHERSON: Commissioner, I would submit that it is appropriate in the circumstances that representation be granted. This is a matter that potentially deals with the appropriate regulation of the operations of Visy Board (Wodonga) Pty Limited and, as the Commission as currently constituted is well aware, there has been some history as to that. Indeed, this Commission, again as currently constituted, has made orders against the employees within the broader group over aspects relating to the industrial regulation of employees of Visy Board (Wodonga) Pty Limited.

PN20

It is a matter that, if I am right in thinking that this matter will go the issue of industrial regulation of employees at the operations of Visy Board (Wodonga) Pty Limited, then certainly issues of some legal implication will arise and, indeed, they would be some of the points that I would seek to raise today, subject to what might be put on behalf of the union in relation to its application. I think in all the circumstances that leave should be granted and that it is appropriate in the circumstances.

PN21

THE COMMISSIONER: Thank you. Did you want to put anything else, Ms Cotis?

PN22

MS COTIS: Yes, thank you, Commissioner. We simply say that, based on the assumptions made that there may be some legal issues to be dealt with in further time, that is not, in the union's view, a requirement for leave to be granted on this occasion, Commissioner. Thank you.

PN23

THE COMMISSIONER: May I deal with it on this basis? I'll grant you leave for today, Mr Brotherson, because I really think the practicalities are such that I won't get to hear what your client's position is if I don't give you leave and obviously I don't think we can really go much further without hearing what their position is, in outline.

PN24

If in fact there are going to be legal issues raised which need then to be argued down the track, then certainly you would be given leave for that and the union obviously, if it wanted to be legally represented, would be given leave for those sorts of issues.

PN25

I think today we probably just need to see in large part what your client's position is, so for that purpose I'll give you leave for today. We can re-visit it if the matter needs to come back on at a later time and see what the position is then. Perhaps, just for the record, in case you are unaware of this, Mr Brotherson, I should say that the matter was actually previously listed and there was some difficulty - I think there was a falling-down in the communication process and the company was not notified of the hearing. I don't know whether you have the transcript but - - -

PN26

MR BROTHERSON: I was somewhat surprised when I saw the law list this morning and saw the matter part-heard, but your associate has been good enough to surprise me with a copy of the transcript.

PN27

THE COMMISSIONER: Right. So essentially all that happened was that Ms Cotis, as you probably have read, indicated that there had been some difficulty with the processes and it was just adjourned for today. So in fact nothing of substance has been put as to anything at all.

PN28

MR BROTHERSON: Thank you, Commissioner.

PN29

THE COMMISSIONER: So, if you would like to go ahead today then, Ms Cotis?

PN30

MS COTIS: Thank you, Commissioner. Since this matter was before you on the last occasion I have ensured that the proper service of today's matter has been effected.

PN31

THE COMMISSIONER: I have the statement of facts from Mr Kentish on the file, indicating that they have posted that and I'm also assuming, from Mr Brotherson's presence today, that the company was served.

PN32

MS COTIS: Yes, indeed.

PN33

THE COMMISSIONER: Obviously there are arguments about proper service but at least they have been served for the purposes of today. So, thank you.

PN34

MS COTIS: Commissioner, this matter before you today is an application which has been made by the AMWU for a dispute finding under section 99 of the Workplace Relation Act. On 9 October 2002 the union, by registered mail, served a log of claims on Visy Board (Wodonga) Pty Limited, which is the sole party to today's dispute. You should in fact have copies of the registered mail receipts on the file, Commissioner, as proof of that service. I have copies here for you today if, for any reason, you don't have them.

PN35

THE COMMISSIONER: I have a copy here, thank you.

PN36

MS COTIS: Thank you. Following the failure of the company to accede to the union's demands we notified the Sydney Registry of this Commission of an industrial dispute on 16 October 2002. The original hearing, of course, as you stated earlier, Commissioner, wasn't posted to the company but we have ensured that the re-listing notice of this matter was posted to the company again by registered mail on 15 November 2002. Whilst you have evidence here by the company's representation, Commissioner, I'll just note that you should have proof of that service by registered mail on your file.

PN37

Finally, Commissioner, I just ask at this time, based on the failure of the company to meet the union's demands, that you find and record that an industrial dispute exists pursuant to section 101 of the Workplace Relations Act and the matters that are in dispute, of course, are the matters that are contained in the AMWUs log of claims. I would just say also, Commissioner, given that this company is a Victorian company, that there is no requirement for the usual interstateness. If it please the Commission.

PN38

THE COMMISSIONER: Thank you, Ms Cotis. Yes, Mr Brotherson?

PN39

MR BROTHERSON: Thank you, Commissioner. I think, on the basis of a discussion I had with Ms Cotis prior to the commencement of the hearing, I should indicate that she has advised me she is not sure what the union's intention with this log is in terms of where it might end up, the presumption obviously being that it is a roping-in exercise and that's certainly the basis on which the company proceeds.

PN40

On that basis the company certainly does question whether there would be an industrial dispute within the meaning of the Act and Ms Cotis has referred to the fact that the company is based in Victoria - and section 493 obviously defines an industrial dispute somewhat differently than in the main body of the Act and there is no issue that can be taken on that - but, further than that, it is and remains a log served on a single employer.

PN41

That single employer is unsure of whether there are any members of the applicant union employed at its operations at Wodonga. As the Commission as currently sitting is aware, all the employees at that operation are employed under the terms of Australian Workplace Agreements, which of course, by virtue of section 170VQ of the Act, operate to the exclusion of any award.

PN42

It therefore, Commissioner, would be unclear to my client what, if any, claims could be or are genuinely capable of being pursued by the union by service of this log. Therefore one would question whether an industrial dispute can be found within the meaning of the Act. If the purpose is solely a roping-in exercise then it must fail - and there is certainly authority for that and I note the grounds on which I'm granted leave to appear today so I don't go to that but certainly the Commission would be aware that there is authority.

PN43

In the circumstances in which I've been granted leave today perhaps it's appropriate for Ms Cotis or someone within her organisation to seek to advise my client just what their intention is by the log. As I've indicated, it's questionable what it could be other than a roping-in exercise, given the operation of the Australian Workplace Agreements. I would submit that the appropriate course today is for the matter to be adjourned to allow the union to identify what it might genuinely be seeking by service of the log and that the matter be stood over pending that discussion.

PN44

THE COMMISSIONER: Right. Ms Cotis, have you anything you want to say in response to what Mr Brotherson has put?

PN45

MS COTIS: Thank you, Commissioner. I will just make a few comments. My knowledge of what the union will undertake once a dispute has been found under section 101 of the Workplace Relations Act, Commissioner, I think has no bearing on your decision today. I, just briefly, work in the national office as a national research officer. Part of my role in that capacity as a research officer is to process these kinds of matters and dispute findings and it's not unusual for me not to be aware at this stage what the union's intentions are. So I find it irrelevant for that to have been brought up.

PN46

I would also say that, even though the union didn't provide the company with a notice of listing when the matter was originally set down, we did provide the company with a notice of listing, as I've mentioned in my brief submissions, on 15 November 2002, and since have not had any contact from the company whatsoever in relation to finding out what our intentions are with the dispute that I hope the Commission finds today.

PN47

So, therefore, I would have to question their intentions with their submissions today in relation to having the matter set down for hearing. I believe that if they were genuinely concerned about what the intentions were they would surely have contacted us before today's hearing, Commissioner.

PN48

Also, I think that the company are basing their approach on an assumption that they have made in relation to the matter leading to a roping-in exercise, as I think it was put. I find it quite extraordinary that that kind of assumption is made today and I don't think that assumption is anything that the Commission should consider in its decision in relation to the dispute finding.

PN49

As I have gone to in my brief submissions, Commissioner, I also say that he union has met its statutory obligations in relation to the finding of a dispute today. We have served the company with our log of claims. That log of claims has not been met. We have notified the Commission of a dispute in relation to Visy Board and the union and we have notified the company of the listing for today's hearing.

PN50

Therefore, in the union's view, we have met our requirements for the finding of a dispute, as set out in the Workplace Relations Act. I think I will leave it there. Thank you, Commissioner.

PN51

THE COMMISSIONER: Did you want to ut anything more, Mr Brotherson?

PN52

MR BROTHERSON: I don't think so, at this stage, Commissioner.

PN53

MS COTIS: Commissioner - sorry - may I just say one last thing?

PN54

THE COMMISSIONER: Yes?

PN55

MS COTIS: The company has all its options open to it in relation to any part-settlement of the dispute that you may find today. Therefore, it is open to raise all its objections at a later stage if that's required. Thank you, Commissioner.

PN56

THE COMMISSIONER: Thank you. Sorry, Mr Brotherson - did you want to put something?

PN57

MR BROTHERSON: Perhaps, just in light of the last comment, Commissioner: if the proposition I put as to what might be the intention of having served the log is correct, then the argument as to whether a dispute should be found and any roping-in that might occur would most appropriately be dealt with together, in my submission, to save two arguments. I obviously, again, have only limited leave to appear today so I don't press that point but I think logic would suggest the course I first proposed is a sensible one, that if that argument needs to be had it should be had at the one time and dealt with accordingly.

PN58

THE COMMISSIONER: Thank you. I think, despite what you have put, Ms Cotis, that it might be appropriate to adjourn the matter for there to be either discussion or something from the union to the company in writing - I don't mind which way that occurs - to indicate what the union's intention is in having the dispute found because if there is going to be an argument flowing from whatever that intention is, it only means that if I found a dispute today I would have to hear that argument and possibly may have to unfind the dispute - vary the dispute, set it aside under the provisions of the Act. So I think it would probably be preferable at least to go through that step first.

PN59

Now, I don't want this going on for too long so really, I suppose, the ball is in the union's court. If you could undertake either to provide to Mr Brotherson or to the company - and I perhaps leave that to you to have a discussion with Mr Brotherson as to which way that would best be dealt with - some indication to the company of what the intention is.

PN60

It may be that, following that advice, the company's position may be clarified as to whether or not there is going to be any opposition to a dispute finding and, if there is, it will also be clarified as to what the bases to that objection would be. Obviously you are aware, Mr Brotherson, that there are lesser grounds on which objections can be made in view of the fact that it is a Victorian-based employer. So those sorts of arguments go but there still possibly may be arguments about other factors because dispute findings have lots of little legs on them that sometimes start running.

PN61

So I think it would be better to go ahead. For you to do that, for you or the union to provide that information. I'm just wondering whether we should really re-list it for a report-back on that or wait for you perhaps to inform the Commission. It might be preferable for the union to inform the Commission when it wants it re-listed. That can either be on the basis that you've had some response from the company which is not to your liking or, alternatively, if after a reasonable period of time you haven't had a response from the company.

PN62

Perhaps, Mr Brotherson, I could ask that you at least ask the company to make some response to the union so that we're not left hanging in the air. Then you can ask for the matter to be brought back on at that point. if we than have to have argument about the dispute finding we can program that and, if there's no argument, we can proceed on some other basis. So I think I'll just adjourn it generally at the moment. Yes, Ms Cotis?

PN63

MS COTIS: Thank you, Commissioner. The union would prefer to have the matter listed today for a report-back. However, if that's not suitable to you then at least could we ask that you issue some directions about the time-frame for a response from the company?

PN64

THE COMMISSIONER: Well, I can list it for report-back. That's the other alternative.

PN65

MS COTIS: I think that would be preferable to us Thank you, Commissioner.

PN66

THE COMMISSIONER: Before Christmas? Thew reality, I suppose, is, how long is it going to take the union to get something to the company and the company then presumably would want a couple of weeks, I imagine, to formulate some response. I'm just mindful that it's less than four weeks - if it wasn't for Christmas I would have given the union two weeks and the company two weeks but that in fact brings us right after to Christmas. So we either curtail that or list it for report-back some time in January. I'm available - I'm not going on leave - but I'm mindful of the fact that I think you, Ms Cotis, at least have some leave commitments in January and I don't know what Mr Brotherson has. Also people at the company may very well be unavailable for some period.

PN67

MS COTIS: If it's suitable , Commissioner, are you available some time in the week beginning 20 or 21 January 2003?

PN68

THE COMMISSIONER: Yes.

PN69

MS COTIS: Well, at your convenience, Commissioner, if we could list it then?

PN70

THE COMMISSIONER: Mr Brotherson, how are you placed for that time?

PN71

MR BROTHERSON: That week doesn't present me with any problem.

PN72

THE COMMISSIONER: I don't know whether in fact the people you talk to would be on leave. I suspect some of the production might close down at various points but - - -

PN73

MR BROTHERSON: I think I can get instructions in that period of time. Again, a lot of the process we would be discussing is very much dependent on the union getting something to the company in the first instance.

PN74

THE COMMISSIONER: Yes.

PN75

MS COTIS: Commissioner, I would hope actually to have a response, in the way that you've requested, to the company in the next week, well before Christmas, so it should give them plenty of time.

PN76

THE COMMISSIONER: That's good. So Mr Brotherson can ensure he gets instructions from the right people before everyone disappears. Well, I don't really mind. Do you want to make it the morning of the 23rd at 10 am? I'll list it for report-back and then it will just depend on where things are. Obviously if there is still objection on the part of the company then we would probably be looking at some sort of programming. So it might be useful it people came along with diaries at that point. So if there is nothing further we will adjourn until 23 January.

ADJOURNED UNTIL THURSDAY, 23 JANUARY 2003 [10.25am]