C2003/2458, Transcript of Proceedings [2003] AIRCTrans 2822 (2 July 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2003/2458

APPLICATION FOR AN AWARD

Application under section 111(1)(b) of the Act
by Australian Municipal, Administrative,
Clerical and Services Union for the
roping-in of the Community Employment,
Training and Support Services Award 1999

SYDNEY

10.25 AM, WEDNESDAY, 18 JUNE 2003

PN1

THE SENIOR DEPUTY PRESIDENT: Good morning, can I have your appearances, please.

PN2

MR B. O'BRIEN: If the Commission pleases, I appear for the Australian Services Union, and with me is MS K. LEE.

PN3

MR P. MAGUIRE: Your Honour, I seek leave to appear, I am authorised to appear on behalf of the respondent in this matter. I appear today with
MR I. TREVALLION, Director of IPC Employment, and MS K. WALSH, also as Senior Manager with IPC Employment.

PN4

THE SENIOR DEPUTY PRESIDENT: I understand there's no objection to leave?

PN5

MR O'BRIEN: Yes, that's correct, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr O'Brien my associate tells me there are some administrative and housekeeping matters you want to attend to prior to the commencement of the matter. Do you want to speak to me off the record about those matters.

PN7

MR O'BRIEN: What I would prefer to do your Honour is to perhaps put a few things on the record for a start and then maybe have that discussion off the record.

PN8

THE SENIOR DEPUTY PRESIDENT: All right, yes. So would you like to commence?

PN9

MR O'BRIEN: Yes, thank you, your Honour. This matter was last heard for mention on 5 June 2003 together with a separate dispute notification, 2003/2458, and that concerned ASU member Vanessa Conroy in her dispute with her employer IPC Employment. Ms Lee, appearing for the ASU handed up a dispute finding of Senior Deputy President Kaufman in matter 2001/4969, and the log of claims which gave rise to that dispute. The dispute finding included the company IPC Employment as a party to the dispute.

PN10

The employers oppose being roped into the award on that particular day and you issued directions that the ASU and IPC Employment should provide detailed outlines of the respective cases in writing. The ASU provided an outline of its case and witness evidence to the employer and the Commission on Friday, 13 June mid-afternoon. These contentions and outlines of witness evidence were sent by facsimile and I have faxed transmission receipts to prove they were actually received should the Commission require those. I apologise for being one day late in sending those.

PN11

THE SENIOR DEPUTY PRESIDENT: That's not a problem, don't worry about that, Mr O'Brien.

PN12

MR O'BRIEN: They should have been sent on the 12th but we were a bit pressed for time, your Honour. I would like to tender the ASUs contentions and outline of witness evidence as exhibits and have them marked if I could.

PN13

THE SENIOR DEPUTY PRESIDENT: It would be more convenient if I had an associate.

PN14

MR O'BRIEN: I've picked the wrong time to do that, your Honour. I've got other matters too so what about if I put them up here because otherwise you're going to be backwards and forwards.

PN15

THE SENIOR DEPUTY PRESIDENT: All right, thank you.

PN16

MR O'BRIEN: The first document would be ASU1 outline of contentions, if we could mark that, your Honour.

PN17

THE SENIOR DEPUTY PRESIDENT: ASU1.

EXHIBIT #ASU1 OUTLINE OF CONTENTIONS

PN18

MR O'BRIEN: The second document was the outline of witness evidence of the Australian Services Union.

PN19

THE SENIOR DEPUTY PRESIDENT: ASU2.

EXHIBIT #ASU2 OUTLINE OF WITNESS EVIDENCE OF THE AUSTRALIAN SERVICES UNION

PN20

MR O'BRIEN: I have other documents which we will be referring to, your Honour. I have a detailed witness statement of Vanessa Margaret Emberson Conroy.

PN21

MR MAGUIRE: Excuse me, your Honour. I just wonder if we might be able to deal with one matter before those documents are tendered. I am not just strongly objecting but seeking some sort of clarification as to how we might proceed with this matter. There are two C numbers attached to the information and the documents that have been tendered. One relates to the roping-in application and the other one relates to section 99 notification of dispute in regards to an individual employee of IPC Employment. In terms of dealing with this matter I don't believe that the two matters have been formally joined.

PN22

THE SENIOR DEPUTY PRESIDENT: No, they haven't.

PN23

MR MAGUIRE: To that extent I'm just wondering - I'm not adverse to them being filed but if the matters aren't joined and there are matters contained within the documents that don't relate to each other then I would just question as to why we would be proceeding in that way.

PN24

THE SENIOR DEPUTY PRESIDENT: It may be that the statements of Ms Conroy turn out to be irrelevant to the roping-in application and relevant only to the dispute notification in which case I'll disregard them. But the dispute notification in relation to Ms Conroy specifically has been referred to Commissioner Roberts for conciliation and will be dealt with shortly.

PN25

MR MAGUIRE: Okay, thank you, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: So if in this matter they prove to be irrelevant then submissions can be made about that and the matter set aside, for the moment we will just take the tender. You want to tender the witness statement of Vanessa Conroy dated what?

PN27

MR O'BRIEN: It hasn't been dated your Honour, we will put in today's date.

PN28

THE SENIOR DEPUTY PRESIDENT: 18 June 2003, ASU3.

EXHIBIT #ASU3 WITNESS STATEMENT OF VANESSA CONROY DATED 18/06/2003

PN29

MR O'BRIEN: I have a witness statement of Catrina Kate Anne Lee which I will tender.

PN30

THE SENIOR DEPUTY PRESIDENT: What date is that?

PN31

MR O'BRIEN: We will date that today's date too.

PN32

THE SENIOR DEPUTY PRESIDENT: ASU4.

EXHIBIT #ASU4 WITNESS STATEMENT OF CATRINA KATE ANNE LEE DATED 18/06/2003

PN33

MR O'BRIEN: There will be some documents which I will hand up which are actually probably going to be referred to but they are Commission documents, one is award 772299, that's the Community, Employment, Training Support Services Award.

PN34

THE SENIOR DEPUTY PRESIDENT: The CETS Award.

PN35

MR O'BRIEN: Yes.

PN36

THE SENIOR DEPUTY PRESIDENT: I don't think it's necessary to make that an exhibit.

PN37

MR O'BRIEN: No, it's a Commission document. There is a document with the current rates of that award, current rates sets award and there's another document which is the Clerical Administrative Employees State Award and current wages for that award.

PN38

MR MAGUIRE: I apologise, was that just marked as an exhibit your Honour.

PN39

THE SENIOR DEPUTY PRESIDENT: No, I will mark the two documents which summarise the rates, that is the draft order that was submitted to Commissioner Cribb in the Community Employment and Training and Support Award as ASU5 and the summary of rates granted by Justice Glynn on 19 June 2002 in the State Award, the Clerical Administrative Employees State Award as ASU6 but I won't mark the two awards.

EXHIBIT #ASU5 DRAFT ORDER

EXHIBIT #ASU6 SUMMARY OF RATES

PN40

MR O'BRIEN: I think that's all the documents I wish to hand up at this time. I have received, your Honour, the document that was emailed to you by Mr Maguire. Mr Maguire has indicated in that document that he would be seeking if this matter proceeded to make additional applications pursuant to section 111AAA of the Act and would seek that the Commission cease further hearing of this matter. I think I should be seated at this time and Mr Maguire could perhaps outline how he sees proceeding from this point.

PN41

THE SENIOR DEPUTY PRESIDENT: Yes, thank you.

PN42

MR MAGUIRE: Your Honour, you will see from the outline of the respondent's contentions - I am not sure if you wish me to formally tender that to you before going to that.

PN43

THE SENIOR DEPUTY PRESIDENT: I think so, yes, exhibit IPC 1.

EXHIBIT #IPC1 OUTLINE OF RESPONDENT'S CONTENTIONS

PN44

MR MAGUIRE: Thank you, your Honour. The respondent's contentions in this matter go to full basic arguments. The first and primary submission I make to your Honour on this particular application, the application for roping into the award, is firstly that the opportunity for conciliation involving discussions and conferences with the parties in order for them to be able to explore opportunities for reaching agreement on terms of settlement in our view have not been fully exhausted nor has there been a reasonable opportunity for them to explore those opportunities.

PN45

To that end, what we would be seeking as our primary argument is a direction from yourself and consent of the applicant in this matter that the parties be directed into conference for the purpose of discussion about all of the issues relating to the industrial dispute, the terms of any proposed award being sought by the union, also addressing the employer's attitude to those, that we report back to you in due course as to the progress of that, and that ought to be done as a first step prior to exercising the discretion to proceed to arbitration.

PN46

Your Honour, the proposition I am putting to you is one which is supported by the objects of the Act itself and in particular section 102 provides the principal object and the process for dealing with conciliation which, I suppose, gives colour and movement to the general objects under section 3 of the Act which emphasises or encourages parties to reach agreement on the terms for the settlement of disputes.

PN47

The facts of this particular matter are that the application for roping in was only lodged I think on 4 or 5 June, there were in fact no discussions, no conferences held between the parties at all on the union's application and what it was seeking and at the conciliation hearing convened by your Honour last week, on 5 or 6 June, the opportunity at that stage was not available for the matter to be conciliated by the Commission in any substantive sense, so to that end we would say it is not unreasonable at this point - - -

PN48

THE SENIOR DEPUTY PRESIDENT: Mr Maguire, I haven't reviewed the transcript but I got the distinct impression that negotiations were not contemplated by the respondent. That position may have changed, I am just saying to you that the impression I got was that the employer's position was a fixed position of opposition to the application.

PN49

MR MAGUIRE: Yes, I read the transcript myself, your Honour, and I must say I was surprised at the position taken but I think in conferring with the employers in this particular matter, they are firmly of the view that they want to seek to genuinely enter into discussions with the union on this matter and take that opportunity.

PN50

The respondent in this matter might have felt a bit intimidated about the application, believing they might have needed to actually say, yes, we will proceed to arbitration quickly and yes, if you are asking us, we are opposed to it. Nevertheless, the position is that we would like to confer with the union, that is, of course, reserving rights in respect of dealing with the application if and when it got to arbitration.

PN51

That is our primary submission to you this morning, your Honour, but secondly, I thought it was consistent with the directions from the hearing last time to outline our position, second, third and fourth.

PN52

THE SENIOR DEPUTY PRESIDENT: I have read your submissions.

PN53

MR MAGUIRE: Yes, your Honour. Simply for the record, we have reserved a right to make application under 111AAA in that there is a state award which does govern the wages and conditions of employment of employees who are the target of this industrial dispute. There may in fact be other employees within the respondent's business which are the target of this industrial dispute. We don't know which employees the union are particularly interested in at the moment, certainly the application talks about all of the employees but we don't know until we have some discussion as to who the actual target is.

PN54

THE SENIOR DEPUTY PRESIDENT: What do you mean, Mr Maguire, when you say you reserve your position? If the matter is not successfully conciliated and agreement reached between the parties, is that a matter you intend to press, is that what you mean?

PN55

MR MAGUIRE: Yes.

PN56

THE SENIOR DEPUTY PRESIDENT: All right, you intend to press it subject to the Act on conciliation.

PN57

MR MAGUIRE: Yes. Your Honour, you may not necessarily want me to go to authorities and the like on that particular matter at this stage.

PN58

THE SENIOR DEPUTY PRESIDENT: No.

PN59

MR MAGUIRE: Simply just to flag that is what we are doing. Thirdly, your Honour, we would also reserve the right subject to the outcome of without prejudice conciliation to put arguments to your Honour about the appropriateness of going to a roping-in award under section 111(1)(g), that is, that it is not in the public interest that an award be made.

PN60

Now, there's a couple of bows to that which would need to be explored and I think explored fairly thoroughly by the Commission at that stage. What we contend is that the application for roping-in to the Community Employment Training Support Services Award, the SETS award, by the ASU is not in the public interest because (1), the state award already applies to those performing clerical and administrative duties.

PN61

THE SENIOR DEPUTY PRESIDENT: As a common rule award.

PN62

MR MAGUIRE: A common rule award, state award, absolutely, and that adequately covers the terms and conditions of employment of those employees, a substantive number of the employees of IPC Employment. Secondly, that those employees who may not be performing clerical and administrative duties and are the subject of that application, well, the SETS award applies only to employees who are eligible to join the ASU and what we contend is that such employees would not be eligible to join the ASU, that the rules of eligibility of the Australian Services Union would not extend to cover those employees engaged in work which goes beyond that clerical administrative area.

PN63

Further, the SETS award which has been the target or parent award which the applicant seeks to rope the respondents into also applies only to employees the dominant function of which is labour market assistance programmes. Now, what we contend is that IPC Employment's dominant function is not labour market assistance programmes. That would be a matter of going into quite detailed and serious evidence about what is the definition of labour market assistance programmes on the one hand and then looking at the nature of the business, the dominant function of IPC Employment. Suffice to say, for the purpose of outlining our contentions, we contend that we have substantive grounds to argue that it is not in the public interest to rope an employer into a business to which the general award would not otherwise be applicable.

PN64

Your Honour, really in the alternative is that if we get to the point of having dealt with all those matters and the Commission was of a mind to rope in this employment into the Community Employment Training and Support Services Award, then we would say that there are provisions, clauses within that particular award, that it is inappropriate and also not applicable to the business. Your Honour would be mindful of the fact that there is a discretion that the Commission has in determining in a roping-in exercise as to whether it includes or excludes certain provisions of the parent award which the applicant is seeking to - - -

PN65

THE SENIOR DEPUTY PRESIDENT: Would you have an alternative proposition to put to me, do you have an enterprise award as an alternative?

PN66

MR MAGUIRE: Not at this stage, no.

PN67

THE SENIOR DEPUTY PRESIDENT: Your proposition is that should the Commission be persuaded to rope in the employer, it should be roped in with amendments?

PN68

MR MAGUIRE: Yes. Yes, indeed, your Honour. As I said, it is well established by the Full Bench that the Commission has a very broad discretion in being able to determine what clause it might include or make amendments in any roping-in exercise, so we would certainly, if we got to that point, seek to run arguments on the appropriateness or the applicability of certain provisions. I think I have referred to some in particular within there.

PN69

Just in summary, your Honour, the options for resolving the dispute, certainly in our humble submission, go a lot further than simply making a roping-in award and certainly the options are a lot further than making a roping-in award of the nature the ASU are seeking to make. To that end we genuinely would seek the opportunity prior to arbitration of these matters to confer and discuss the matter with the ASU and utilise the time today to do so. If that's not acceptable or your Honour rules against that then we would be seeking further and more specific directions as to the manner in which the 111AAA cases to be put and also our objections in respect of 111(1)(g).

PN70

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Maguire, I can deal with that matter in a very straightforward fashion. Should the matter proceed to hearing you put your objections pursuant to 111(1)(a) first and deal with it and in relation to all other matters should the matter then proceed you would call your evidence. I don't see any need to order an exchange, you and Mr O'Brien are sufficiently experienced in these matters to exchange material, as long as you have got it in time to prepare for these things I don't see any need for specific directions, unless you agree a timetable or there's some issue that arises, but I think we will deal with the question of conciliation first. Mr O'Brien, do you have a position on conciliation?

PN71

MR O'BRIEN: Your Honour, I acknowledge the Commission's functions under the Act in terms of conciliation. I think if conciliation were to occur today to make good use of the time, it could be fruitful, but I would like it done in a particular way that will help with the primary issue that we brought to the Commission and that was the section 99 dispute notification. That is not listed here today, but the purpose that we brought the 99 dispute to the Commission was to seek a remedy for a particular employee in part and in part to obtain proper award coverage with the employer.

PN72

The remedy would have been the roping-in to the SETS award. Now, it is fairly obvious that Mr Maguire has got a torturous path, you could say the Way of the Cross, in front of us with his proposals. There's no way that we could get the remedy in time for - - -

PN73

THE SENIOR DEPUTY PRESIDENT: What is the date again?

PN74

MR O'BRIEN: 30 June, your Honour.

PN75

THE SENIOR DEPUTY PRESIDENT: This is the matter that is listed before Commissioner Roberts; on my conferring with Commissioner Roberts' chambers, I don't know if a notice has been listed but he has been away on leave so I have been chasing his associate to get dates and times when he might deal with the matter and I have had an indication that it would be early next week.

PN76

MR O'BRIEN: Your Honour, I had a discussion with Mr Maguire prior to going on the record and we agreed that perhaps there could be some progress made today in respect of Ms Conroy's problems if we were to deal with these issues in conference before you and if conciliation were to occur I would welcome it on that issue because the way things are going, the way I understand, Mr Trevallion did indicate to me this morning that he is going to make a job offer to Ms Conroy. There's nothing in writing that Ms Conroy has received, she is in the dark in terms of any formal offer of employment. There's a range of issues that perhaps the Commission may be prepared to issue a recommendation on which may go to assisting us.

PN77

THE SENIOR DEPUTY PRESIDENT: Yes. My difficulty with that is that the matter of the application for roping-in has been set down before me and I don't want to jeopardise my availability to hear that matter, there's three members of the panel in Sydney, Senior Deputy President Marsh is at the moment unavailable through extensive Full Bench and MX applications for a long time, so there's really Commissioner Roberts and myself. I don't want to become in a position where a 105 application is made, that sort of thing. Thinking of that as you are putting it to me, would it be satisfactory to you if there was another member before whom conciliation could take place today and I simply hold myself available should there be some failure to settle?

PN78

MR O'BRIEN: Certainly we would like to make use of the time. Ms Conroy is here and has taken time off work and the purpose of her being here is largely for that.

PN79

THE SENIOR DEPUTY PRESIDENT: All right, thank you. We will go off the record.

OFF THE RECORD [10.50am]

RESUMES [11.26am]

PN80

THE SENIOR DEPUTY PRESIDENT: This matter before me, C2003/2458, I intend to refer for conciliation to Commissioner Roberts. The conciliation will commence at 12.30 today in conjunction with the section 99 notification involving Ms Conroy which will also be conciliated at that time.

PN81

This does not involve vacating the date already set down for conciliation of Ms Conroy's matter on the 24th, which is next week. The parties may not have seen that notification, I am told it only went out this morning and you would have already been here when it was received in your offices. I will go off the record, thank you.

NO FURTHER PROCEEDINGS RECORDED [11.27am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 OUTLINE OF CONTENTIONS PN18
EXHIBIT #ASU2 OUTLINE OF WITNESS EVIDENCE OF THE AUSTRALIAN SERVICES UNION PN20
EXHIBIT #ASU3 WITNESS STATEMENT OF VANESSA CONROY DATED 18/06/2003 PN29
EXHIBIT #ASU4 WITNESS STATEMENT OF CATRINA KATE ANNE LEE DATED 18/06/2003 PN33
EXHIBIT #ASU5 DRAFT ORDER PN40
EXHIBIT #ASU6 SUMMARY OF RATES PN40
EXHIBIT #IPC1 OUTLINE OF RESPONDENT'S CONTENTIONS PN44