C2003/4236, Transcript of Proceedings [2003] AIRCTrans 2984 (15 July 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 3528

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2003/4236

AUTOMOTIVE, FOOD, METALS,
ENGINEERING, PRINTING AND
KINDRED INDUSTRIES UNION

and

COLES MYER LIMITED

Notification pursuant to section 99 of the Act
of an industrial dispute re log of claims

MELBOURNE

10.27 AM, TUESDAY, 1 JULY 2003

PN1

MR A. SACHINIDIS: I appear on behalf of the Australian Manufacturing Workers Union.

PN2

MR R. WEST: I seek leave to appear on behalf of Coles Myer Limited in this matter; with me is MS A. McKENZIE.

PN3

THE COMMISSIONER: What is the union's view in relation to leave?

PN4

MR SACHINIDIS: The union does not object to leave, Commissioner.

PN5

THE COMMISSIONER: Would object?

PN6

MR SACHINIDIS: No, does not object.

PN7

THE COMMISSIONER: Yes. Thank you. Leave is granted, Mr West.

PN8

MR WEST: Thank you, Commissioner.

PN9

THE COMMISSIONER: Yes, Mr Sachinidis.

PN10

MR SACHINIDIS: Thank you, Commissioner. The matter before you, Commissioner, relates to a letter of demand and log of claims served by the union pursuant to section 99 of the Workplace Relations Act and in that connection, Commissioner, I would like to now table by way of exhibits some correspondence which has been exchanged and served on the company. And there are three distinct pieces of correspondence there which also have, as I understand, Commissioner, been forwarded to the Registrar consistent with the requisite dates. And for convenience, the first document you have, Commissioner, is the actual letter of demand and log of claims, dated 18 June 2003.

EXHIBIT #S1 LETTER OF DEMAND AND LOG OF CLAIMS, DATED 18/6/03

PN11

MR SACHINIDIS: Thank you, Commissioner. The S1 and the second batch of material or documentation, dated 26 June, is a covering letter which sets out the notification to the Registrar, together with the actual form R4 setting out the notification of the alleged industrial dispute, and also the statement of facts which is attached to that material. That batch of documentation, dated 26 June, is the documentation which was forwarded to the Registrar.

EXHIBIT #S2 LETTER AND DOCUMENTATION FORWARDED TO REGISTRAR, DATED 26/6/03

PN12

MR SACHINIDIS: Thank you, Commissioner. The next piece of documentation, Commissioner, you have is dated 30 June and, again, it is material that has been faxed to the Registrar. That contains a number of pieces of correspondence. It contains a letter, dated 30 June, to the company and also attaches the statement of facts as to service and notification of a hearing of an industrial dispute, together with the actual notice of listing issued by the Registrar in respect to the section 99 dispute notification. You have also the original registered post and insurance slip which is appended to that documentation which confirms service has been effected, and also the material contained in 30 June documentation was also faxed to the company on 30 June, as well.

EXHIBIT #S3 BUNDLE OF DOCUMENTS, DATED 30/6/03

PN13

MR SACHINIDIS: Thank you, Commissioner. The exhibits S1, S2, S3 you have now the original versions of that material that has been forwarded to the Registrar. In relation to the material that has been served on the company, I wish to just tender a piece of correspondence from the company in response to that material. I provided an original copy of that correspondence, Commissioner. The correspondence, Commissioner, is dated 24 June to Mr Ian Jones, the national secretary of the AMW vehicle division and it does refer to the material that has been forwarded and now marked as S1.

PN14

The correspondence states that at this stage the company has not transferred its operations in respect of what is likely to occur, as I understand, in terms of their involvement in the petrol outlets throughout Australia, and it indicates that they are prepared to have further discussions in respect to that when that occurs. In our submission, that - - -

EXHIBIT #S4 LETTER TO MR I. JONES, DATED 24/6/03

PN15

MR SACHINIDIS: Thank you, Commissioner. Commissioner, the material marked S1 through to S4, in our submission, relates and confirms the appropriate requirements in relation to a finding of a dispute before this Commission and we submit that, on the basis of that material that has been provided to the Commission, we would respectfully ask that the Commission find a dispute within the meaning of the Act pursuant to section 101 of the Act and records that there is in existence an industrial dispute within the meaning of the Act between the union and Coles Myer, and that these matters which relate to that finding are matters which pertain to the employer/employee relationship, and that the dispute itself extends beyond the limits of any one state in Australia.

PN16

I have had some discussions prior to the matter going before you with Mr Richard West representing the company, and there are some submissions, as I understand, that are going to be put to you concerning that and they relate to matters of entity in terms of company which I will allow Mr West to put forward. However, notwithstanding that, I would submit that on the basis of the material and the submissions made this morning that the Commission can record a finding pursuant to 101 as submitted. If it pleases the Commission.

PN17

THE COMMISSIONER: Yes, thank you. Mr West.

PN18

MR WEST: Thank you, Commissioner. Commissioner, I should say just for the sake of the record that I am not sure that I have all the documents which have been exhibited this morning. I don't anticipate that I am likely to take any issue with the prima facie case put forward on the face of those documents but - and I will obtain copies from the associate at the end of the day. But I should just formally reserve the company's position in relation to the admission of those documents.

PN19

THE COMMISSIONER: Yes.

PN20

MR WEST: Commissioner, Mr Sachinidis has put before you the documents which would ordinarily establish a prima facie basis for a finding of dispute but it is well established in the Commission that if other evidence is admitted, that that is not conclusive of the existence of a dispute. And my clients are opposed to a finding of dispute in this matter and would be seeking an opportunity to raise a number of issues concerning the service of the log and the capacity of the union to create a dispute in these circumstances.

PN21

There are two issues which I have raised with Mr Sachinidis this morning which I think are curable but really the matter falls to the union to decide what to do about it. The log of claims has been served on Coles Myer Limited which is the holding company for all of the companies within the Coles Myer group. As such, it does not employ any persons who are - could be the subject of this demand and has no intention of doing so. The application, or the service of the log relates to an announcement by Coles Myer of an alliance with the Shell companies in relation to the operation of service station outlets by Coles Myer under an alliance arrangement with Shell. And the Coles Myer subsidiary that is to conduct those operations is the company known as Eureka Operations Proprietary Limited which will trade as Coles Express. That company has contractual arrangements for the operation of the business but, in fact, has not actually commenced operation and will not do so until after 28 July, and will not employ any employees until after 28 July.

PN22

Now, I note that the letter of demand, which is exhibit S1, is a demand on behalf of the union in relation to persons who are currently engaged by Coles Myer Limited. And if a dispute finding is sought on the basis of the demand already served, we will be taking issue with the identity of the company served and also with the fact that it is a demand in relation to existing employees. I suggested privately to Mr Sachinidis that we would be prepared to accept service of a new letter of demand on the correct employing entity, and that can be done by providing it - we are not quite sure of the registered address of the new entity but we will accept service of it by service on Mr Peter Thompson, T-h-o-m-p-s-o-n, the general manager of human resources, food and convenience, at 800 Toorak Road, Taronga 3146 if the union is minded to re-serve and create a dispute with the - or seek to create a dispute with what we say is the correct entity.

PN23

If it chooses not to, then we will take those points in relation to - but there is a more fundamental objection which will apply whether the union re-serves the log or not, and that relates to the issue of eligibility of the union, and it is a matter that, no doubt, will require - certainly will require some significant evidence on our part, and I am assuming from the union's point of view they will need to make some comprehensive submissions as well.

PN24

The reason that this arises is - perhaps I can briefly sketch out for you to explain it. The union does have members employed in service station operations around the country, and I assume that that coverage arises from the part of their rule which says that they are entitled to engage as members:

PN25

...persons engaged or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repair of...

PN26

a whole range of things including motor vehicles and motor cycles. Now, it may be that in the past, because of service stations operating service and repair bays, that people working in the service station have been said to be in connection with, but this operation that Coles will conduct excises any repair and servicing operations out of it so that we would say that our operation will be a purely retail operation operating a Coles Express store and selling petrol.

PN27

Many of the outlets do not have service bays attached to them where repairs are carried out, but where there are repair facilities they will be operated by separate companies unrelated to the Coles group of companies by way of leasing and outsourcing and whatever other arrangements will apply. So what the Eureka Operations will involve is simply the retail part of the service station. We say that that severs the connection - if, in fact, there is a connection in some cases - severs any connection with the repair of vehicles and takes this employment outside the scope of the union's rule. Now, to properly agitate that argument obviously we will need some evidence about what our operations involve and what the employees do, what the relationship is with the repair of vehicles. And we will also need to put before you material in relation to the history of the union's rule, and we will need some time to do that.

PN28

The other issue about time is, because the company won't actually take over the business until 28 July, we are really not in a position to properly present our case until we are actually in operation of the business, so to speak. So we accept that we have the onus now that the prima facie case is established of satisfying you that there should not be a dispute found, but we would require some time after 28 July to properly present our case. So having said that, the issue really falls I think to the union to determine what it wishes to do about the issues of service; whether it wishes to go back and re-serve and proceed from that point, or whether it is going to rely on the service already effected. And in that event we foreshadow that we will raise this argument and need some time to prepare our case. If it please the Commission.

PN29

THE COMMISSIONER: Yes, thank you, Mr West. Mr Sachinidis.

PN30

MR SACHINIDIS: Yes, thank you, Commissioner. Commissioner, the union, having heard the submissions made on behalf of the company, there clearly are some aspects which the company will obviously oppose in relation to the capacity of the union to cover employees employed by Coles Myer, albeit it Eureka. So I guess it is open to the Commission to have consideration to that position. However, the issue about re-serving the log of claims, in our submission, the service with or to Coles Myer Limited is appropriate because ultimately all companies that operate through Coles Myer are holding companies or subsidiaries of Coles Myer Limited and, as I understand it, the company that will take over the retail petrol outlets will be a subsidiary of Coles Myer Limited.

PN31

So in that regard a finding of a dispute, if the Commission sought to do that, could competently be found with Coles Myer Limited specifying that the subsidiary, being Eureka Alliance, would be the company which would employ the relevant employees in respect to that. So that would be the submissions that the union would make in relation to that aspect. And there are many cases before the Commission where findings of dispute have been made with the, if you like, main body company however that company has a number of subsidiaries that operate the businesses as such; trading as or a subsidiary of. So that aspect of the submissions on behalf of the company could clearly be accommodated in any finding of a dispute to specify ultimately that company that would be controlling the businesses associated with petrol outlets. So that would be the submission we would make in relation to that.

PN32

As to the finding of a dispute, it is notwithstanding the submissions made to you, Commissioner, it is open to the Commission prima facie to find a dispute within the meaning of the Act as to what happens post that finding is another matter: in relation to the making of an award, in relation to the making of a roping-in award, and other matters. So those can be appropriately dealt with post the finding. And in that context the issues raised by Mr West as to eligibility or constitutional coverage could be dealt with in those forums or at a later date. If it please the Commission.

PN33

THE COMMISSIONER: Yes, thank you. Mr West.

PN34

MR WEST: Yes, a couple of matters, Commissioner. First of all, the company does wish an opportunity to put proper submissions to you about, first of all, the issues associated with the proper entity. It is true that the Commission has found dispute findings in relation to holding companies but we would say the circumstances in those cases are quite different. There is the Shell case in which companies with control over superannuation issues was found to be in dispute. Some Ansett cases in which companies were in receivership and excess to redundancy benefits were thought to be in the hands of the holding company. But for a dispute finding to be made against a holding company when the employment is clearly with another company is not within that general scope of those decisions. So we would seek that opportunity.

PN35

And the issue, the service of the log of claims and the tendering the paperwork really merely raises a prima facie case, and if no evidence is raised against it, it has been well held that that is sufficient evidence for the Commission to find a dispute. But in circumstances where a party stands up and says, well, there is more to this than just this service of the log, then we would submit that the Commission is required to consider all of the factual matters before reaching a decision, and we seek an opportunity to properly address the Commission about that.

PN36

So if there is no intention on the part of the union to re-serve the log, then we would seek an opportunity to put submissions to you about those other issues as well. And I think the earliest we would be in a position to file material would be the middle of August, given that we don't have a business open until the end of this month. If it pleases the Commission.

PN37

THE COMMISSIONER: Yes, thank you. I am not satisfied, on the basis of the documentation that has been provided to the Commission in this application, that the necessary requirements for finding, pursuant to section 101 that a dispute exists, between the party - that has been logged by the union exists. Contrary to previous experiences I have had when it has been difficult, to say the least, for parties to find the relevant entity on which to serve a letter of demand with a log of claims, Mr West has kindly provided those details. For that reason I think that it would be appropriate for the union to follow its rules and the rules of the Commission in relation to service which adequately meets the technical details associated with the finding of a dispute.

PN38

In relation to matters going to eligibility, the operations of the company, and a number of other issues that have been raised, they are issues that should properly be the subject of submissions before the Commission. If the union chooses to re-serve the documentation, I would hear that at an early date; certainly with much more notice than was provided on this occasion and I partly take responsibility for that. I assumed that the notice of listing would be passed on but there was some delay with the union and, in any case, it was a reasonably tight timeframe. But, as I say, if the union is going to re-serve a letter of demand and log of claims on the appropriate entity, then I would entertain submissions in relation to that at an earlier date than I would concerning the other matters that have been raised for the company.

PN39

Now, Mr West has indicated that he wants to look at the exhibits which have been marked so far; that needs to occur. He has left open his right to question some of those issues. The issue of the finding of a dispute has been well versed in this Commission and, unlike some of my earlier experiences, I do hope that we are not going to go through the clauses clause by clause. I am sure there are enough precedents to rely on so we don't have to go through that painful exercise, but there are some substantial issues that have been raised by the company in relation to this particular application.

PN40

For those reasons, I am not going to make a determination today pursuant to section 101 that a finding of dispute should be made but, as I say, I will await if there are any further applications in relation to this matter. Otherwise, as a second option, I will defer this matter and list it probably towards the end of July or - end of July to the end of August to hear further arguments in relation to any matters in the extant application. There be nothing further, these proceedings are now adjourned.

ADJOURNED INDEFINITELY [10.55am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 LETTER OF DEMAND AND LOG OF CLAIMS, DATED 18/6/03 PN11
EXHIBIT #S2 LETTER AND DOCUMENTATION FORWARDED TO REGISTRAR, DATED 26/6/03 PN12
EXHIBIT #S3 BUNDLE OF DOCUMENTS, DATED 30/6/03 PN13
EXHIBIT #S4 LETTER TO MR I. JONES, DATED 24/6/03 PN15