C2001/3421, Transcript of Proceedings [2002] AIRCTrans 865 (18 March 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 VT02816

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C2001/3421

TRANSPORT WORKERS UNION OF
AUSTRALIA

and

ATLANTIS RELOCATIONS (AUSTRALIA)
PTY LIMITED AND OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims

MELBOURNE

10.10 AM, MONDAY, 4 MARCH 2002

Continued from 23.12.01

PN106

THE COMMISSIONER: There has been some change in appearances I think.

PN107

DR C. JESSUP QC: Yes, Mr Commissioner, I now seek leave to appear with my learned friend MR M. McDONALD on behalf of Couriers Please Pty Ltd.

PN108

THE COMMISSIONER: Thank you, Dr Jessup. Mr Duffin.

PN109

MR DUFFIN: There is no objection.

PN110

THE COMMISSIONER: Leave is granted.

PN111

DR JESSUP: Mr Commissioner, on the last occasion that this was before the Commission the TWU after the finding of the dispute, at least insofar as outline is concerned, but presumably there were others in the log of claims as well about whom we don't wish to say anything - on that occasion the Commission directed the parties to file submissions and outlines by certain dates and the TWU did that and we haven't done it. And the reason we haven't done it is because our position is a little bit different now from that of last time and we will explain why that is so.

PN112

What the company has decided to do is to accede to the making of a dispute finding in the normal form following the terms of the log of claims. The reason that we have done this, Mr Commissioner, is that when you look at the log of claims and the letter of demand it is quite clearly confined to the terms and conditions of employment of employees. In their outline of argument the TWU pointed out that there are some people who are employed by the company.

PN113

And I am not now talking about the contract couriers but the company is a reasonably substantial organisation that has an administrative staff and it can't be gainsaid that they are employed in the transport industry and would be picked up by the broad terms of the TWUs eligibility rule and the log of claims. Whether the Commission would take the matter any further or whether the TWU would seek to take the matter any further in relation to them is another question.

PN114

But whilst we understand that the TWU contends that the contract couriers are in fact employees, and whilst the position which our client takes is that they are not, it did seem to us to be a little bit pointless to be occupying the Commission's time with that debate at this stage of the procedure if at the end of the day the log of claims is only addressed to employees. One thing which will be beyond argument, and I think on both sides, is that if a dispute is found it can only go to employees. The real question is who are the employees and who are not?

PN115

And it did seem to us, with respect, sir, that that is a debate that is better had on a later day when the union seeks to do something concrete with its dispute finding, either in terms of an award or some other process within the Commission. So we wanted to explain that position to you this morning, sir, so that you were not left in any bewilderment as to why we have acted in the way we did and we don't - we certainly didn't intend any discourtesy to the Commission by not filing an outline and we would hope perhaps that the Commission respects our pragmatic approach to things.

PN116

But in any event we did want to make it clear that that was not only the way we were proceeding, but why we did so and that we do without derogating any way from the strong position which we seek to take about the position of the contract couriers who are actually on the road in their vehicles day by day. And when the proper occasion comes we will be resisting any attempt by the union to have those people brought within the regulatory framework of the Commission.

PN117

But, as I have said, it is probably unnecessary and inappropriate to have that debate now, when at the end of the day the Commission would probably say, well, look, the log only goes to employees anyway so what are we arguing about. And for those reasons we wouldn't object to a finding in terms of the log. If the Commission pleases.

PN118

THE COMMISSIONER: Thank you, Dr Jessup. Yes, Mr Duffin.

PN119

MR DUFFIN: My friend, Mr McDonald, raised this issue with me I think on Thursday of last week, or indicated that that was what they were intending to put. In the light of Dr Jessup's comments we would seek that - or we would seek the dispute finding be made. We too wish to reserve our rights at to what Dr Jessup may or may not be putting in relation to the log of claims, but obviously that fight will be had in some future occasion.

PN120

THE COMMISSIONER: Thank you, Mr Duffin. Is there anything further, Dr Jessup?

PN121

DR JESSUP: Nothing further, Mr Commissioner.

PN122

THE COMMISSIONER: Thank you. Well, in light of those submissions I do propose to make a formal finding of dispute between the Transport Workers Union and Couriers Please Pty Ltd. It will be reflective of the terms of the log of claims and letter of demand. A formal finding will be issued I would expect or anticipate later today. I will just go off the record for the moment.

OFF THE RECORD

PN123

THE COMMISSIONER: This matter is adjourned sine die.

ADJOURNED INDEFINITELY [10.19am]