C2002/6238, Transcript of Proceedings [2003] AIRCTrans 1173 (1 April 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N VT2159

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2002/6238

MOTELS, ACCOMMODATION AND
RESORTS AWARD 1998

Application under section 113 of the
Act by Avon Grange Pty Ltd to vary
re wages

MELBOURNE

2.02 PM, WEDNESDAY, 5 MARCH 2003

PN1

THE COMMISSIONER: Can I have the appearances please? Yes, your names?

PN2

MR A. SEGMAN: Arie, Arie. A-r-i-e.

PN3

THE COMMISSIONER: Yes.

PN4

MR SEGMAN: And that is my wife, Miriam.

PN5

THE COMMISSIONER: And it is Segman, is it?

PN6

MR SEGMAN: That is right, yes.

PN7

THE COMMISSIONER: Right. Thank you.

PN8

MR N. CAMPBELL: I appear on behalf of the LHMU.

PN9

THE COMMISSIONER: This matter today is an application to vary the Motels, Accommodation and Resorts Award, an application by Avon Grange. I assume you are not familiar, or totally familiar with proceedings in the Commission, Mr Segman?

PN10

MR SEGMAN: No.

PN11

THE COMMISSIONER: What needs to occur now is for reasons to be put forward as to why your organisation should be deleted from the respondency list. Mr Campbell is here today, representing the union, on the basis that they are a respondent to the award, and as such, the normal practice would be that applicants who seek to vary awards should notify all of the other parties to the award. The concern that I had was that you might not have been familiar with that procedure, and we thought it prudent that the Commission should notify the union, as the respondent union to this award, that in fact the application had been made, and that is the reason Mr Campbell is here today. But I should here from you, what you say about the application.

PN12

MR SEGMAN: Basically me and my wife - - -

PN13

THE COMMISSIONER: Would you mind just standing.

PN14

MR SEGMAN: Yes.

PN15

THE COMMISSIONER: No, that is fine.

PN16

MR SEGMAN: Me and my wife have been in this business since 1981.

PN17

THE COMMISSIONER: Yes.

PN18

MR SEGMAN: And I put down in the letter, and we have seen the upside down in the industry for the last 12 years. It is a long time to be in the industry.

PN19

THE COMMISSIONER: Yes.

PN20

MR SEGMAN: We are working seven days a week. We have got three children to support.

PN21

THE COMMISSIONER: Yes.

PN22

MR SEGMAN: And what I don't understand the principle why I have to be under Federal award if I don't have the liquor licence, and I have been given to be Federal award by no choice. No-one came to me and said, "Look, from now on you are Federal award." I went once to the industrial wages, and they said to me in 1998, "The union sent you a letter. Because you didn't respond, from now on you are Federal award. You could have changed it then." I said to them I never received any letter. I never sign anything.

PN23

THE COMMISSIONER: Yes.

PN24

MR SEGMAN: And I don't believe it is much democratic. Something like this you have to send in the registered mail. Like, you send the registered mail to him, that today we are going to change the award.

PN25

THE COMMISSIONER: Yes.

PN26

MR SEGMAN: You can't just send people a letter. If you don't respond, obviously you are happy with it. We don't have a restaurant in the hotel. We don't serve liquors in the hotel, and I want to go under the other award which is called Cafe and Industry Award. As well, what has happened in the market, you have got a lot of website today, what is called "What if?", "Need it now" and I have got some copies here. When I got into that business we were selling a room for $72 a night. Today we are selling a room for $75 a night, through the internet. We are paying $10 commission - - -

PN27

THE COMMISSIONER: Yes.

PN28

MR SEGMAN: - - - to the internet, and we are getting $65. Take off $65 GST, we are getting $50, and I am talking about, we employing today about $16/17 an hour. When I went to that business the person was getting about $10 an hour. So basically, all the profits have shrunk. We can't afford to pay the penalty rates any more, and what the most upset me too, there is a lot of service apartment in the city which I, basically, look at some contract with them. They employing people on the - under the cafe motel industry, which doesn't pay - doesn't pay any penalty rates, and they got liquor licences on the bottom. I have got some copies here to show you. As well, what happen it has been a shift in the industry, because everyone is so desperate.

PN29

The service apartment, you couldn't get one night. You have to stay minimum seven night plus. Now they are selling one night as well. They are selling service apartment, two bedroom, one bedroom unit, for $99. They are paying industry award, you know, which has no penalty rates. How can we compete with them. We have got only 36 room. We don't have, like, 100 rooms.

PN30

THE COMMISSIONER: Right.

PN31

MR SEGMAN: So what I am saying to you it has been a big shift in the industry since GST introduced, and since September 11, and as you know, the industry is suffering at the moment from very, very low - low occupancy, and the only way we can boost occupancy, basically, is drop the price down. I mean, we advertise today on the internet, which I have got copy to show you, $75 a night. You know what $75 a night? It is in 1992 we were charging $72. I have to give $10 commission, plus GST. Basically, we can't afford to pay those rates. As well, there is other people in the hotel industry paying normal award. It is called Hotel, Motel, Cafe Industry. It is a different award, you know, and I don't believe really it is fair that a small place like me - I am a very old place, is 25 years old.

PN32

I can't compete as it is with the new building coming up in the city, and they are paying less wages, you know. So I don't believe that I can afford to stay in business the way it is going, and it is getting worse and worse every day. It is getting worse, and I mean, I got some evidence I am happy to show you. Invoices, we invoice, "What", "Need it now". Or "What if", $75, and we getting about $60 a night.

PN33

THE COMMISSIONER: Do you have copies of that information - - -

PN34

MR SEGMAN: Yes, I have got it here. I have got it here.

PN35

THE COMMISSIONER: How many copies do you have?

PN36

MR SEGMAN: Can have it all. Look, you can go on the internet yourself and look at it for yourself.

PN37

THE COMMISSIONER: Yes, don't - - -

PN38

MRS SEGMAN: I have just printed out from the internet, actually, before I came here, some of them. That is just other hotels in our area, to show you how much they are charging.

PN39

MR SEGMAN: So really it is not fair. I don't have - I don't serve liquors in the room. I don't have a restaurant in the place. We are just a small basic motel. We serving a lot of country people who stay because we got car park. They drive in.

PN40

THE COMMISSIONER: Sure.

PN41

MR SEGMAN: And we just can't afford it. That is the bottom line, and you have got - and Spencer Street, we got people serving licence, liquor licence, service apartment, selling room for $80/90 a night, and I am happy for you to look at that.

PN42

THE COMMISSIONER: Okay.

PN43

MRS SEGMAN: And that varies. It changes from day to day.

PN44

MR SEGMAN: And you know what the worst part about that. They book you 14 days in advance, and then when they come to you they go for a walk. "We don't like it here so much. We have to go next door, because next door got a liquor licence and so and so." And next door paying - I mean, down there what they are paying basically, the other award.

PN45

THE COMMISSIONER: Well, look, I will mark this as an exhibit.

PN46

MR SEGMAN: So don't think I am complaining about - - -

PN47

THE COMMISSIONER: No.

PN48

MR SEGMAN: One thing, I was never notified properly about my award, because when I took this business over I was paying Federal award. I didn't know it was Federal award, industry award, and as you can see the climate is getting worse and worse and worse. That internet basically would put a lot of people out of business, because what they do, they book you three month in advance. They book three month in advance with a small place like us, because we powerless, I call it. When they - two weeks before they coming into Melbourne, they go on the internet, they ring up and cancel. That is another way to lose occupancy as well, you know.

PN49

THE COMMISSIONER: Okay. Well, look, in - - -

PN50

MR SEGMAN: That is really my concern about it. I never been told properly, having a choice to choose in 1998 to, you know, like a proper letter, that you don't just send the person a letter and presume if it isn't answered he is agreed to it. I never agree to anything. I don't even know why I am on Federal award, why I am not in the industry award. What has happened, when you employ a person, the first thing he do, he ring up Wage Line. Federal award. Bang. You know, that is what I am entitled to.

PN51

THE COMMISSIONER: Okay. Can I just ask you this, Mr Segman? Are you a member of any - of the Hotels Association or - - -

PN52

MR SEGMAN: No, don't believe to be member. You know why? They do nothing for you and they just take from you money.

PN53

THE COMMISSIONER: Okay. All right. That is fine.

PN54

MR SEGMAN: They charge like $900, and basically they do nothing for you.

PN55

THE COMMISSIONER: Okay. Just in terms of the documentation that has been handed up in these proceedings, there are five documents which set out the rates for both the Astoria City Travel Inn and other rates that are applicable.

EXHIBIT #S1 BUNDLE OF DOCUMENTS

PN56

MR SEGMAN: All I am trying to say to you, in principle - - -

PN57

THE COMMISSIONER: Yes.

PN58

MR SEGMAN: - - - that 10 years later we are selling room at $75, and basically, it is $60 net.

PN59

THE COMMISSIONER: Yes.

PN60

MR SEGMAN: How can you survive on $60, paying penalty rates, and so and so and so?

PN61

THE COMMISSIONER: Yes.

PN62

MR SEGMAN: It is no room, and the worst part is there is a lot of hotel in the city paying the Cafe Industry Award.

PN63

THE COMMISSIONER: Yes.

PN64

MR SEGMAN: You know, that is not right too. It can't be, you know, just because someone deciding 1998 - - -

PN65

THE COMMISSIONER: You think you are not covered by the appropriate award.

PN66

MR SEGMAN: Yes, because I don't serve liquor. I don't have restaurant.

PN67

THE COMMISSIONER: All right.

PN68

MR SEGMAN: That is what I am concerned about.

PN69

THE COMMISSIONER: All right.

PN70

MR SEGMAN: Look, if business was good, I don't mind, to be honest to you. I mean, until two years ago was no problems.

PN71

THE COMMISSIONER: Yes.

PN72

MR SEGMAN: I mean, a lot of hotel will come in the city, as you know, and the prices is hell. They are selling in the Southbank, the Travelodge $99 a night. One bedroom apartment. You know, in my book it is a recipe. I don't know what, you know, you just can't survive, you know.

PN73

THE COMMISSIONER: All right.

PN74

MR SEGMAN: And they are not paying the Federal award, because they just open now. They are under Cafe Industry Award.

PN75

THE COMMISSIONER: Yes. Well, I don't know whether that is right or it is not - - -

PN76

MR SEGMAN: No, I am telling you because I have people come - - -

PN77

THE COMMISSIONER: Yes.

PN78

MR SEGMAN: You know, they come for work. I know how is it work, you know.

PN79

THE COMMISSIONER: All right. Well, look, what I might do is - - -

PN80

MR SEGMAN: I don't even know who is supposed to be in the Federal award. Who is belong to Federal award, who is belong to the other award.

PN81

THE COMMISSIONER: Yes.

PN82

MR SEGMAN: It is really - it is no - who say that I am Federal award?

PN83

THE COMMISSIONER: Well that is why - - -

PN84

MR SEGMAN: Who said so?

PN85

THE COMMISSIONER: That is why I - - -

PN86

MR SEGMAN: You know.

PN87

THE COMMISSIONER: That is why I was asking you, Mr Segman, whether you were a member of some employer association, because one of the services that are normally provided by those associations is to provide that sort of information to their members. But if you were not a member, then obviously you weren't privy to information that they would have sent out.

PN88

MR SEGMAN: I don't tell any. I went once to Wage Line in Lonsdale Street.

PN89

THE COMMISSIONER: Yes.

PN90

MR SEGMAN: And they said to me in 1998, "You received a letter from the union. Obviously you didn't answer. You are Federal award. Bad luck. That is it." And that is what it is.

PN91

THE COMMISSIONER: Well, look, perhaps we can hear from Mr Campbell, as he is here representing the union. He might be able to provide some information about all of that, and then, depending on what we hear from Mr Campbell it may be that there is some value in us having a private conference off the record in relation to this matter. But I will wait and see what Mr Campbell has to say. Mr Campbell?

PN92

MR CAMPBELL: Yes, thank you, Commissioner. Commissioner, there seems to be a wide range of issues raised by Mr Segman. If this matter does proceed there is two jurisdictional matters - - -

PN93

THE COMMISSIONER: Yes.

PN94

MR CAMPBELL: - - - that will need to be dealt with, or at least two - - -

PN95

THE COMMISSIONER: Yes.

PN96

MR CAMPBELL: - - - I should say, at this stage. I don't know whether you want me to go into that now. What I - - -

PN97

THE COMMISSIONER: Well, perhaps you can flag that anyway, so that they are on the record.

PN98

MR CAMPBELL: Yes. Okay.

PN99

THE COMMISSIONER: Yes.

PN100

MR CAMPBELL: The two jurisdictional matters, Commissioner, are these, and the first is that it appears that the grounds that the motel is relying on in this application is that they don't want to, or they can't pay the - allegedly can't pay the - - -

PN101

THE COMMISSIONER: The rates, yes.

PN102

MR CAMPBELL: - - - award rates, the Federal award rates, and in our submission, the Commission doesn't have the power under those circumstances to delete a party from the respondency list of the award.

PN103

THE COMMISSIONER: Yes.

PN104

MR CAMPBELL: There is various case law matters, as undoubtedly you are familiar with, Commissioner.

PN105

THE COMMISSIONER: Yes.

PN106

MR CAMPBELL: The second issue is, the second jurisdictional issue is that this is an application that will reduce the terms and conditions of employees.

PN107

THE COMMISSIONER: Yes, that is right.

PN108

MR CAMPBELL: And so, therefore, if it was to go to hearing it would need to be referred to the President - - -

PN109

THE COMMISSIONER: Yes.

PN110

MR CAMPBELL: - - - before that was - - -

PN111

THE COMMISSIONER: Good, thank you. Well, it is on the record anyway.

PN112

MR CAMPBELL: And I put them in that order because possibly it is best to deal with them in that order as well, because if we were - - -

PN113

THE COMMISSIONER: Yes.

PN114

MR CAMPBELL: - - - successful in the first then it would need to be referred - - -

PN115

THE COMMISSIONER: Yes.

PN116

MR SEGMAN: But what about the choice, you know. Like, I don't - the choice that - - -

PN117

THE COMMISSIONER: Yes, it is all right. I will give you a chance in a moment, Mr Segman.

PN118

MR CAMPBELL: Yes. So they are the two jurisdictional issues.

PN119

THE COMMISSIONER: Yes.

PN120

MR CAMPBELL: The motel was properly roped-in to the award. The appropriate notices were served.

PN121

THE COMMISSIONER: Yes, you have checked all that, I take it?

PN122

MR CAMPBELL: It is named - yes. Yes.

PN123

THE COMMISSIONER: Yes.

PN124

MR CAMPBELL: It is named in the respondency list of the award from that roping-in, and there doesn't seem to be any irregularity there. I mean, it does happen from time to time that people don't remember getting letters, but there was certainly a - I think it is certified mail - - -

PN125

MR SEGMAN: Yes, you can have signatures, you know.

PN126

THE COMMISSIONER: It is okay.

PN127

MR CAMPBELL: I think it is a certified mail, or whichever is the rules of the Commission. Certified or the other mechanism.

PN128

THE COMMISSIONER: Yes.

PN129

MR CAMPBELL: On the substantive application, we obviously oppose the substantive application, if it does get to that point. We are not sure what principle of the Commission would be relied upon. It certainly doesn't fit into the economic incapacity principle as part of the last safety net adjustment case.

PN130

THE COMMISSIONER: Yes.

PN131

MR CAMPBELL: That is a very specific economic incapacity principle in relation to specific applications to vary, and it wouldn't apply to this matter. If the matter was to go forward of course there would need to be - on whatever principle is relied on there would need to be a substantial amount of evidence from the - - -

PN132

THE COMMISSIONER: Yes.

PN133

MR CAMPBELL: And we would be looking to also call evidence. There has been a number of assertions made from the Bar table that we don't accept, and particularly in relation to the industry and what has been happening in the industry. The industry has been examined on the economic incapacity a number of years ago by a Full Bench of the Commission, where they looked into a number of these issues also.

PN134

THE COMMISSIONER: Yes. All right.

PN135

MR CAMPBELL: Okay?

PN136

THE COMMISSIONER: Thank you, yes. That is right. Thank you. In the light of those submissions, and I thought it was important that the union at least outlined essentially what its objections should be on the record, I think there would be some value in us having a discussion off the record, in a conference setting, and then depending on the outcome of those discussions, if there was a need for any more formal submissions we can go back on the record. Would both parties be happy if we do that, for the time being?

PN137

MR CAMPBELL: Yes, Commissioner.

PN138

MR SEGMAN: What do you mean? I don't understand.

PN139

THE COMMISSIONER: Well, what I am suggesting is that we have a discussion off the record.

PN140

MR SEGMAN: Which record?

PN141

THE COMMISSIONER: We are on that - transcript is being taken of these proceedings now.

PN142

MR SEGMAN: The copy I gave you.

PN143

THE COMMISSIONER: No, no, no. These proceedings are being recorded.

PN144

MR SEGMAN: Okay.

PN145

THE COMMISSIONER: Officially, on transcript. So it is an official sitting of the Commission that I am currently involved in. I think there could be some value in us having an unofficial discussion off the record, so there is no record of the discussion, to see where we might go with all of this, and if need be we can then come back on the record to hear any formal submissions that either you or Mr Campbell might want to put to the Commission.

PN146

MR SEGMAN: So it is not going to be resolved today?

PN147

THE COMMISSIONER: It won't be resolved today, no.

PN148

MR SEGMAN: Why not?

PN149

THE COMMISSIONER: Well, I would like to talk to you about that.

PN150

MR SEGMAN: Personally.

PN151

THE COMMISSIONER: Yes. Off the record.

PN152

MR SEGMAN: Without recording that.

PN153

THE COMMISSIONER: Without a recording being taken. If you don't want to do that, that is fine, and we can deal with it on the record. But Mr Campbell has just raised a number of significant issues and hurdles which you would need to overcome.

PN154

MR SEGMAN: Well, what he was saying basically, that we here, we are wasting time here today, because - - -

PN155

THE COMMISSIONER: Well, what he is saying is that, for a start, that you will not be able to get a decision today in relation to this application, and that if the matter goes on, and you want to press further with it, then there is a number of jurisdictional questions that have to be dealt with first, and even if they are overcome, there is a need for a further hearing to get evidence about some of the assertions that you have made.

PN156

MR SEGMAN: I gave evidence.

PN157

THE COMMISSIONER: Well, it is not evidence as - not yet.

PN158

MR SEGMAN: What other evidence I have to bring?

PN159

THE COMMISSIONER: Well, that is what I want to have a talk to you about, but I think it would be better to do that off the record.

PN160

MR SEGMAN: Okay. We will go off the record.

PN161

THE COMMISSIONER: Okay. I adjourn these proceedings into conference.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 BUNDLE OF DOCUMENTS PN56