C2002/5997, Transcript of Proceedings [2003] AIRCTrans 1016 (21 March 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2002/5997

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

DIAB PTY LIMITED

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and
working conditions

SYDNEY

10.03 AM, THURSDAY, 6 MARCH 2003

Continued from 21.01.03

Hearing continuing

PN76

THE COMMISSIONER: Appearances again, please.

PN77

MR B. SMITH: If the Commission pleases I appear for the Shop Distributive and Allied Employees Association.

PN78

THE COMMISSIONER: Thank you Mr Smith. Mr Smith, are you aware whether any other employers are likely to appear today?

PN79

MR SMITH: I haven't heard from any other employers, Commissioner. I am aware that one of the employers' place of business is closed.

PN80

Otherwise, I haven't heard from anyone else.

PN81

THE COMMISSIONER: We will get to that. I need to note for the record receipt of a letter from Baker & McKenzie, Solicitors, dated 3 March addressed to the Commission on behalf of Diab Services Pty Limited and in that letter Ms Raper, who appeared on behalf of Diab on the last occasion, indicated amongst other things that she would not be appearing in the matter today, did not wish to be heard any further on the issue given that the Commission had already determined a finding of dispute with her client and the SDA. Diab says at the same time and I quote:

PN82

We would note that whilst we have consented to the dispute we do not consent to any other applications or matters raised by the SDA. We reserve our rights in this regard

PN83

I merely record that for the transcript to indicate that Diab Services Pty Limited is still very much an active part of this matter before me. This matter was last dealt with on 21 January 2003 when the Commission found an industrial dispute existed between on the one hand the Shop Distributive and Allied Employees Association and on the other hand two employers, Diab Services Pty Limited and Oceanmaster Seafoods Pty Limited.

PN84

A formal finding for the placement on the file was deferred. That's noted at paragraph 75 of the transcript. Pending receipt of the submission from the SDA concerning the Commission's jurisdiction to include other employers identified only by their trading names in the letter of demand and the log of claims in the formal finding. To that end the SDA filed a formal submission on 29 January 2003.

PN85

This hearing is for the purpose of receiving any reply submissions from the other employers or trading names. Those entities were to be notified by the SDA of its submissions and of the opportunity for them to reply. A new notice of listing was issued on 18 February 2003. The SDA was required to notify all parties of today's proceedings and to that end I would ask you is there evidence of that service, Mr Smith?

PN86

MR SMITH: Yes, Commissioner.

PN87

THE COMMISSIONER: Particularly upon the entities known as "Arnolds Ribs and Pizzas" and "Oceanmaster Seafoods".

PN88

MR SMITH: Yes, Commissioner, I've got two bundles of documents to hand up.

PN89

THE COMMISSIONER: What are these bundles of documents Mr Smith?

PN90

I note that they are both registered mail posting receipts.

PN91

MR SMITH: Yes. The first bundle which is a registered mail posting receipt dated 29 January 2003 contains a sample of a letter sent to all the companies with registered postal receipts attached and a copy of the submissions. Obviously the date they were filed on 29 January, attached and they were posted to all of those entities on 29 January.

PN92

THE COMMISSIONER: That included a copy of your submission did it?

PN93

MR SMITH: Yes, Commissioner, it should be attached to the back.

PN94

THE COMMISSIONER: Yes it is.

PN95

MR SMITH: I note that for purposes of serving Diab Services Pty Limited the material was emailed to Ms Raper at Baker & McKenzie.

PN96

THE COMMISSIONER: Right.

PN97

MR SMITH: For service of the submissions as required.

PN98

THE COMMISSIONER: That package of documents I will mark exhibit S1. I will amend that Mr Smith, I will mark that package of documents as exhibit S2.

EXHIBIT #S2 PACKAGE OF DOCUMENTS

PN99

THE COMMISSIONER: The second package of documents which is also registered mail posting receipt and attachments which you might describe for the purpose of the transcript if you would.

PN100

MR SMITH: Yes, Commissioner, the attachments are letters notifying the various entities of this matter, so it's a letter of service with the listing attached. I think you will find the last page of the bundle of documents is a copy of the listing attached to a copy of the letters sent to the parties.

PN101

THE COMMISSIONER: I will mark that package of documents as exhibit S3.

EXHIBIT #S3 PACKAGE OF DOCUMENTS DESCRIBED ABOVE

PN102

MR SMITH: I think you will note Commissioner that one of the entities wasn't sent the document in S3, that being Arnolds Ribs & Pizzas at Gungalan because in late February we became aware that that particular trading location had closed down and we had a return to sender of the registered mail. When we inquired as to why that was returned we found that that particular business had closed down. That's located at shop 3, Gungalan Marketplace, Gungalan, ACT.

PN103

THE COMMISSIONER: Yes. Is there anything further you wish to place on the public record?

PN104

MR SMITH: No, Commissioner, we rely on the submissions we filed on 29 January.

PN105

THE COMMISSIONER: Thank you Mr Smith. Having regard to the Commission's decision on transcript on 21 January 2003 the formal dispute finding then made is now amended to include those franchisee operations and addresses as spelled out in exhibit S3. Is that the latest list of those franchisee companies?

PN106

MR SMITH: Yes, Commission. That also includes Diab Services in that particular list as well.

PN107

THE COMMISSIONER: I am in the process at the moment of varying the dispute finding earlier made on transcript so as to include the following entities: Arnold Ribs & Pizza in Holt, ACT, Oceanmaster Seafoods in Greenway in the ACT, Arnold Ribs & Pizza at Greenway in the ACT, Oceanmaster Seafood at Mawson in the ACT, Oceanmaster Seafood at Erindale in the ACT.

PN108

The formal dispute finding will now be varied as I have just determined and I will cause a formal finding to be placed on the file. Having so found I would now direct the parties to confer and to report to the Commission of the outcome of any conferences. Mr Smith, how do you see this matter being dealt with from this point on and I raise that in the context of a report back date or merely adjourning these proceedings to a time and date to be fixed.

PN109

MR SMITH: Commissioner, now that the dispute finding has been made we will be in touch with all of the various organisations and I've already noted that once this has been finalised we will get down and have discussions with Diab Services Pty Limited as soon as possible and we will endeavour to engage all the other companies that have had a dispute found against them. I am noting the difficulty we've had in having them at the Commission so far and will endeavour to engage those companies and have meaningful discussions with them and obtain some reasonable sort of agreement or write into an appropriate award if required.

PN110

THE COMMISSIONER: Yes. So to that end if I was merely to adjourn these proceedings to a time and date to be fixed you would be satisfied with that?

PN111

MR SMITH: Yes, Commissioner.

PN112

THE COMMISSIONER: Relisting it at your leisure.

PN113

MR SMITH: Yes, Commissioner.

PN114

THE COMMISSIONER: There is nothing further to do other than to adjourn these proceedings now to a time and date to be fixed. That concludes these proceedings.

ADJOURNED INDEFINITELY [10.12am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S2 PACKAGE OF DOCUMENTS PN99
EXHIBIT #S3 PACKAGE OF DOCUMENTS DESCRIBED ABOVE PN102