C2003/2041, Transcript of Proceedings [2003] AIRCTrans 2174 (6 June 2003)

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 2748
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C2003/2041

NATIONAL UNION OF WORKERS

and

TIMBERCORP PTY LIMITED
and ANOTHER

Notification pursuant to section 99
of the Act of a dispute re wages and
conditions of employment

MELBOURNE

11.30 AM, WEDNESDAY, 21 MAY 2003

PN1

MR P. RICHARDSON: I appear for the National Union of Workers.

PN2

MS R. LAZARESCU: I appear for Timbercorp.

PN3

THE COMMISSIONER: Thank you. Yes, Mr Richardson.

PN4

MR RICHARDSON: Thank you, Commissioner. Commissioner, this matter concerns a notification of alleged industrial dispute pursuant to section 99 of the Act. By means of registered post on 12 March of this year the union caused a log of claims to be served upon two companies: firstly, Timbercorp Proprietary Limited and, secondly, Olive Corp Processing Facility Proprietary Limited. Attached to each of the logs of claims was a letter of demand, also dated 12 March of this year. That letter of demand stated:

PN5

The National Union of Workers, an organisation registered under the Workplace Relations Act 1996 ...(reads)... the union will seek to determine the matters in dispute immediately.

PN6

I end the quote there, and indicate that both letters of demand were signed by Mr Sword, the General Secretary of the union. An affidavit sworn by Mr Sword on 29 April attesting to the service of both the log of claims and letter of demand was filed with the Melbourne Registry along with the notice of dispute, also dated 29 April, on 5 May this year. Subsequent to receiving a copy of the notice of listing in this matter, the union caused a copy of that notice of listing and the information sheet as required under the rules of the Commission to be served upon both companies. Again that occurred by means of registered post and occurred on 8 May of this year, and a further affidavit sworn by Mr Sword on 12 May attesting to that service was filed with the Melbourne Registry on 14 May.

PN7

Sir, we seek pursuant to section 101 of the Act a formal finding of dispute. We say that the parties in dispute are, on the one hand, the National Union of Workers and, on the other hand, the two companies Timbercorp Proprietary Limited and Olive Corp Processing Facility Proprietary Limited. We say that the matters in dispute are those contained in the log of claims dated the 12th - or attached to the letter of demand, dated 12 March, with the exception of clause or claim 33 which deals with preference of employment. We say that the dispute exists within the State of Victoria. Subject to the formal finding of a dispute, we seek a direction that the parties confer in an attempt to part-settle the matters in dispute. If the Commission pleases.

PN8

THE COMMISSIONER: Thank you, Mr Richardson. Ms Lazarescu.

PN9

MS LAZARESCU: Sir, I appear for Timbercorp. Can I just make one correction. The two parties here that I am appearing for are Timbercorp Limited, a publicly listed company, not Timbercorp Proprietary Limited.

PN10

THE COMMISSIONER: Yes.

PN11

MS LAZARESCU: And also Olive Corp Processing Proprietary Limited.

PN12

THE COMMISSIONER: Sorry, and also?

PN13

MS LAZARESCU: Olive Corp Processing Proprietary Limited, that was correct.

PN14

THE COMMISSIONER: Is it Processing Facility or just - - -

PN15

MS LAZARESCU: Processing Facility, sorry, Proprietary Limited.

PN16

THE COMMISSIONER: Thank you.

PN17

MS LAZARESCU: I have an affidavit sworn by one of our directors. I have got a copy here for you, to hand up.

EXHIBIT #L1 AFFIDAVIT FROM MR S. RABINOWICZ, DIRECTOR OF OLIVE CORP PROCESSING FACILITY PROPRIETARY LIMITED

PN18

MS LAZARESCU: Our contention is that there is no industrial dispute in this matter. And if I can just, first of all, deal with Olive Corp Processing Facility Proprietary Limited; this company, which I have abbreviated in the affidavit is as Olive Corp Processing, is simply a holding company for infrastructure, that being an olive processing facility, an actual plant that is located at Boort. This company has no employees and there is no intention for the company to engage any employees. Its main purpose, its only purpose is to be simply a holding company of that infrastructure. So my submission would be that there is no - there can't be a finding of dispute in relation to a company that has no employees. That is in relation to Olive Corp Processing.

PN19

In relation to Timbercorp Limited, the notice of listing of a matter had attached to it - I don't actually know what you would call it but it is a document entitled: Notice fixing time and date and place for hearing of an alleged industrial dispute. And that explained that Timbercorp was alleged to be a party to an industrial dispute about wages and conditions of employment (log of claims) in the storage services initially. I have since had discussions with Antonia Parks, is it, of the National Union of Workers and she has explained to me: well, no that shouldn't be there, the storage service reference shouldn't be there. She has directed me to the rules for the union, particularly rules 4 and 5 relating to eligibility.

PN20

I have had a look at those and discussed this with the director of Timbercorp, Sol Rabinowicz, whose affidavit you have before you. Timbercorp is not engaged in any of those industries that are listed in those particular rules. So while Timbercorp Limited has employees, it is not engaged in any of the industries of which - you know, which relate to the union. So based on that, I would say that there can't be a finding of an industrial dispute in relation to Timbercorp either.

PN21

THE COMMISSIONER: Thank you.

PN22

MS LAZARESCU: Thank you.

PN23

THE COMMISSIONER: Mr Richardson.

PN24

MR RICHARDSON: Commissioner, I note that Ms Lazarescu is a legal practitioner. I would seek at this stage that we adjourn into conference rather than I respond to those submissions at this point, if the Commission pleases.

PN25

THE COMMISSIONER: Certainly. Yes, we will adjourn into conference.

SHORT ADJOURNMENT [11.38am]

RESUMED [11.56am]

PN26

THE COMMISSIONER: Thank you for the benefit of those discussions in conference. I should have dealt with the question of leave, Ms Lazarescu. Leave is granted. The course of action I propose is to relist this matter for hearing on July 22 this year at 9.30 am which will deal with the substantive issues and involve a development of the contentions in relation to Timbercorp, or the statement in Timbercorp contained in the affidavit of Mr Sol Rabinowicz. I direct that the company lodge an outline of its contentions in relation to law and fact, and provide any witness statements that it proposes to rely upon to be lodged by close of business with the Victoria Registry of this Commission, by close of business on June 20. Contemporaneously a copy is to be provided to the NUW. And that similarly the National Union of Workers is directed to prepare - to lodge by close of business on 16 July its outline of contentions in relation to law and fact, and any witness statements it proposes to rely on in relation to this matter.

PN27

I would direct that if either party has any difficulty in relation to meeting those deadlines, that they contact my office prior to the deadline and I will deal with the matter then. And obviously in the light of that documentation matters will proceed on 22 July, subject of course to any further consideration that the union might - will obviously - I don't know what the right verb is - have on receipt of the documentation from the company. Yes.

PN28

MS LAZARESCU: Commissioner, may I ask in relation to Olive Corp Processing Facility, is there - our submission was that there was no - there could not be a finding of an industrial dispute.

PN29

THE COMMISSIONER: The union has withdrawn, as I understand it, its claim in relation to Olive Corp. Is that correct?

PN30

MR RICHARDSON: I believe that the concession as to Olive Corp was made in conference.

PN31

THE COMMISSIONER: Right.

PN32

MR RICHARDSON: But it does seem to me that, in light of the affidavit tendered, that the union could indicate at this stage that it would not be seeking or pressing for a dispute in respect of Olive Corp Processing. Certainly our understanding of the directions that the Commission has just issued are that they relate to the other entity, that is Timbercorp. If the Commission pleases. So I would confirm that, if the Commission pleases.

PN33

THE COMMISSIONER: That is the correct understanding, yes.

PN34

MS LAZARESCU: Thank you.

PN35

THE COMMISSIONER: It is Timbercorp Limited, Level 8, 461 Bourke Street, Melbourne, Victoria 3000, as advised by Ms Lazarescu. This matter is adjourned.

ADJOURNED UNTIL TUESDAY, 22 JULY 2003 [12noon]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L1 AFFIDAVIT FROM MR S. RABINOWICZ, DIRECTOR OF OLIVE CORP PROCESSING FACILITY PROPRIETARY LIMITED PN18