C2003/494, Transcript of Proceedings [2003] AIRCTrans 2129 (4 June 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Unit 13-14, Westlane Arcade, Darwin City Mall DARWIN NT 0800
(GPO Box 3544 DARWIN NT 0801) Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOFFMAN

C2003/494

AUSTRALIAN LIQUOR, HOSPITALITY AND
MISCELLANEOUS WORKERS UNION-NORTHERN
TERRITORY BRANCH

and

YBE PROPRIETARY LIMITED

Notification pursuant to section 99
of the Act of an industrial dispute

DARWIN

2.00 PM, MONDAY, 19 MAY 2003

PN1

THE COMMISSIONER: Yes, can we have the appearances thank you.

PN2

MR G. HULL: Sir, if the Commission pleases, I represent the Liquor, Hospitality and Miscellaneous Workers Union.

PN3

THE COMMISSIONER: Thanks, Mr Hull.

PN4

MR G. CLIFT: Commissioner, I am instructed by Messrs Cridlands on behalf of YBE Proprietary Limited. I formerly seek leave to appear. I understand that course is objected to by Mr Hull.

PN5

THE COMMISSIONER: Yes Mr Hull?

PN6

MR HULL: Correct, yes, sir. Under the relevant section 42(3).

PN7

THE COMMISSIONER: Yes. Do you have any other arguments as to why you object to the appearance?

PN8

MR HULL: Sir, I believe that the matter in dispute is a matter which should be handled by the HR Manager. She is a very competent person. I do not see why we need legal representation at this point in time and it is on those grounds under section 42(3) of the Act, or there are three sections, or circumstances where solicitors can represent as you would be well aware, and we oppose the appearance.

PN9

THE COMMISSIONER: Yes, thank you. Yes Mr Clift?

PN10

MR CLIFT: Yes. Just in response to that, Commissioner, I am instructed that there is no office of the company in Darwin and for that reason alone representation via an agent, in this case solicitors and counsel could be expected in the ordinary course.

PN11

Further, we say that this is a matter, potentially of some complexity and it is on that basis, appropriate and useful to the Commission, that legal representation be allowed so that there be proper ventilation of these issues.

PN12

THE COMMISSIONER: Is the HR Manager available to assist if we need it in terms of - - -

PN13

MR CLIFT: Yes, I understand that today at least the HR Manager is not available. The CEO of the company is available but only by phone. The HR Manager is actually in Nhulunbuy today.

PN14

THE COMMISSIONER: Yes. Thank you. In those circumstances the Commission will grant counsel leave to appear in the matter. It is, as a matter of practice, generally preferable, particularly if we are dealing with an agreement between parties, one always has the hope that the parties have someone understanding as to what it is that they agreed in terms of who negotiated it.

PN15

THE COMMISSIONER: It reflects their words.

PN16

MR CLIFT: Yes.

PN17

THE COMMISSIONER: On the basis of the submission I will allow your appearance, Mr Clift. But it may, as I say, depending upon what I hear from the parties, it may of course be necessary to have someone by phone and whether that is the CEO, whether he or she is the appropriate person or whether it is the HRM that is in fact the appropriate person who did the negotiation, we will see. Mr Hull, did you do the negotiations for the union of this agreement?

PN18

MR HULL: No I did not, your Honour.

PN19

THE COMMISSIONER: Who did, for the union, do you know?

PN20

MR HULL: Didge McDonald.

PN21

THE COMMISSIONER: Didge, yes.

PN22

THE COMMISSIONER: He is still - - -

PN23

MR HULL: He is back in town now - - -

PN24

THE COMMISSIONER: He is back in town is he not?

PN25

MR HULL: Yes.

PN26

MR CLIFT: If I might just interject there, Commissioner, that usefully leads on to the first point that I was to make. On our instructions there is, we believe, no real dispute as to what was intended by the parties as regards when the overtime break was to be taken once ordinary hours had been completed, to use a mutual term.

PN27

We believe that if this union does make some further inquiries it may come to that conclusion also. Mr Hull informs me and as he has informed you, that he personally was not involved in the negotiations for this latest work place agreement. It would appear that Mr McDonald, from what Mr Hull has told me, does not remember, particularly, any specific agreement in respect of this particular clause which is the subject of the notice and we believe that it may be the case that other union representatives may be able to shed light on what was the agreement.

PN28

We note also that another union is mentioned on the front cover of the work place agreement, the Transport Workers Union for instance and the Australian Workers Union, neither of which unions are currently parties to this proceeding. In the circumstances, you may consider it useful and appropriate that: (1) those unions be added to the parties and that there be some suitable adjournment to allow this particular aspect of the matter to be further investigated.

PN29

We of course understand that any adjournment is discretionary and it may be that Mr Hull, contrary to my understanding, is clear that what he contends for was actually agreed rather than merely relying on an interpretation of the clause as it exists.

PN30

I think the nub of our submission is that the Commission's time should not be wasted on matters which perhaps are not in dispute.

PN31

THE COMMISSIONER: Yes. Thank you. Mr Hull, does that hold any sense to you? Does that make sense to you?

PN32

MR HULL: I understand where the gentleman is coming from but I think the matter should be dealt with today, sir.

PN33

THE COMMISSIONER: When is Mr McDonald actually in Darwin?

PN34

MR HULL: He is in Darwin now: he is in the office.

PN35

THE COMMISSIONER: He is in Darwin today?

PN36

MR HULL: Yes, right now. I can have him here in a few minutes if you want.

PN37

THE COMMISSIONER: Yes. Do you see any benefit in that, Mr Clift? In having Mr McDonald here, or do you still think there is a need for Mr McDonald and the HRM or other people that were involved?

PN38

MR CLIFT: It may be that after discussion with Mr McDonald the matter could be resolved: I do not know. Certainly from our point of view the more persons who were actually involved in the negotiations are contacted, the clearer the issue may become. But certainly our instructions by the CEO of the company are that, and he was involved I understand, in the majority if not all of the discussions and negotiations in connection with the agreement, his understanding was that there was to be no change with the previous practice and agreement which was that no issue of overtime breaks occurred until after ordinary hours were completed. That is, after eight hours of work had been undertaken, and not the situation which I understand is contended for now by the union which is that a 20 minute break is to be taken prior to the end of ordinary hours thus effectively shortening the ordinary working day.

PN39

THE COMMISSIONER: Look, I think in the circumstances Mr Hull, I would like Mr McDonald to come down. I think I will adjourn briefly. Do not be concerned simply because I have got another, presumably, reasonably lengthy matter at 3 o'clock. If the parties are not able to conclude their discussions between now and then, there is more room obviously available and I can re-list the matter. Do not worry, I will not leave town until we address the matter. I am here all week so I mean, if need be, I can become involved later.

PN40

I think we will see if Mr McDonald can help and if he cannot, perhaps in the end the CEO, by telephone. If you need a telephone link for somebody, I would try to organise that so that you can all hear what the CEO has to say. Perhaps if you can let me know as soon as you may need that telephone link. Yes. Thank you. Do you anticipate that we are going to need the reporter this afternoon?

PN41

MR CLIFT: Possibly, Commissioner.

PN42

THE COMMISSIONER: Well I might let him go for a while and if we need him later he can come back. The Commission stands adjourned for a short time.

SHORT ADJOURNMENT [2.20pm]

RESUMED [2.58pm]

PN43

THE COMMISSIONER: Mr McDonald, how are you?

PN44

MR D. McDONALD: Good, how are you?

PN45

THE COMMISSIONER: Good thanks. Yes Mr Clift?

PN46

MR CLIFT: I believe we have reached an agreement that for the moment this matter be adjourned. We would hope that you might be available on Wednesday at some point so that the matter can be mentioned at least, before you, if we cannot resolve matters between now and then.

PN47

THE COMMISSIONER: Yes. I have a matter starting at 10 so we can do it before that if that suits the parties, if it is necessary as you say. So if we put it on the basis that even if it was necessary, would you think an hour would do? Or an hour and a half?

PN48

MR CLIFT: I think an hour and a half to two hours would be closer to the mark. Well look, at this stage we will pencil it in for 8.30 on Wednesday and parties might be able to resolve it in the mean time. If you have, if perhaps you can just let us know, notify us and that will avoid you coming in here and spending your time unnecessarily. All right. Thank you. Commission stands adjourned until 80.30 am on Wednesday 21 May.

ADJOURNED TO WEDNESDAY, 21 MAY 2003 AT 8.30 AM