C2003/2619, Transcript of Proceedings [2003] AIRCTrans 3093 (17 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 3584
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER EAMES

C2003/2619

NATIONAL UNION OF WORKERS

and

INTEGRATED WORKFORCE PTY LIMITED
AND OTHERS

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

MELBOURNE

10.00 AM, FRIDAY, 4 JULY 2003

PN1

MR T. KENNEDY: I appear on behalf of the National Union of Workers.

PN2

MR R. MANUEL: I seek leave to appear as counsel for the recruiting company.

PN3

THE COMMISSIONER: Thank you. Leave is granted, Mr Manuel.

PN4

MR MANUEL: Thank you, your Honour.

PN5

THE COMMISSIONER: Yes, Mr Kennedy.

PN6

MR KENNEDY: Thank you, Commissioner. Excuse me for one very brief moment, Commissioner. Thank you, Commissioner. Commissioner, the union I would just like to confirm that it appears to be that the main issue of contention is the technical issue about whether we have constitutional coverage to cover employees of the recruiting company and to that effect what I might do is hand up the witness statements - or a copy of the witness statements filed by the union in support of its contentions, filed in its outline of submissions.

PN7

THE COMMISSIONER: Very good.

PN8

MR KENNEDY: If I could do that. We have an agreement with the recruiting company and their representatives that there is no real need to cross-examine these statements. These four employees of the recruitment company are engaged from time to time, as I understand it, out at a company called Zarella's which is a vegetable processing operation and what we might do is we would seek to essentially rely on the submissions that we have already filed and discussions with Mr Manuel indicate that he will want to put his case, and we will see how we go from there.

PN9

THE COMMISSIONER: All right. In terms of those witness statements I will mark them as a single exhibit - NUW1.

EXHIBIT #NUW1 COPIES OF WITNESS STATEMENTS

PN10

THE COMMISSIONER: Yes, Mr Manuel.

PN11

MR MANUEL: Thank you, Commissioner. I wonder if I might take a similar approach. There is a statement of Mr Walter Lindsay Davie that has been provided to you previously. I also understand from my learned friend, Mr Kennedy, that there is no need to cross-examine Mr Davie, although I note he is in the Court Room today. What I therefore propose to do is tender that statement as evidence in the matter and then rely on the - I will put some oral submissions to you at that point, if I may.

PN12

THE COMMISSIONER: All right.

EXHIBIT #M1 WITNESS STATEMENT OF WALTER LINDSAY DAVIE

PN13

THE COMMISSIONER: Yes.

PN14

MR MANUEL: Thank you, Commissioner. As a matter of clarity I should confirm the position that Mr Kennedy has put and that is no issue is taken by the recruiting company within any matters of service or the inter-stateness of the log or any of those issues. There is a narrow, but we say important, issue arising from the rules of the National Union of Workers and the case can be fairly simply stated.

PN15

Fundamentally what we say is the recruiting company is a labour hire company. The National Union of Workers rules do not really contemplate a labour hire company. What they contemplate is direct employment by an employer in particular industries or employees directly employed in particular tasks related to those industries. And we say that that is the significant distinction between the decision of her Honour, Senior Deputy President Acton in the matter involving I think it was Comet, Mondello and Zarella v the National Union of Workers, and this case.

PN16

In that case there was absolutely no doubt that those employees were direct employees of Zarella's for instance. They were involved in vegetable packing and the only question then came to be answered was well, was the task of potato and vegetable processing within the scope of the rules, and that was found that it was within the scope. What we say though is that that does not answer the question in this matter because in this matter what we have is a labour hire company - the recruiting company. Its only task is to provide, in this particular instance, unskilled labour to Zarella or whomever.

PN17

It is basically indifferent to what that client does, so long as it is legal. Well sometimes out the north of Adelaide, around the Virginia area, Commissioner, there are some distinctions to be made.

PN18

THE COMMISSIONER: We are not going to go there.

PN19

MR MANUEL: But unlike the direct employees of Zarella, where Zarella employees them to process potatoes and on the decision by Senior Deputy President Acton, upheld on Appeal I might add, that is within the rules of the National Union of Workers. Recruiting company just says, "We are looking for unskilled labour". Now they might be placed at Zarella. They might not. They might be placed all over the place. I should note that the recruiting company also employs persons with higher levels of skill - trades persons and the like, clerical persons, administrative staff who are also placed at different places and in different industries.

PN20

As you will see is clear from the affidavit of Mr Davie, or the statement of Mr Davie, this is just one aspect. Zarella's is one aspect and you will see from my learned friend's statements that he has got four people out of about 150 to 200 who say, "Well, I have worked regularly at Zarella's. Now firstly we say that that does not change the nature of the argument but I should, just so that it is clear for the Commission, note that we are not trying to put a Jones v Dunkell submission against Mr Kennedy to say, well, "Where are the other 146 to 196?". That would be unreasonable.

PN21

But what we are saying is when you look at the evidence together - you have the evidence of Mr Davie, we employ 150 to 200 on an ongoing basis, they are in all sorts of industries, doing all sorts of duties, the Zarella part is just a bit of what they do. I do not think that there is much dispute between us on the law. In fact I do not think there is any dispute between us on the law. It is the application of these particular facts of the law. Fundamentally, I think it is straight forward to note that if a union does not have rules or constitutional coverage of employees, then it is incapable of creating an industrial dispute.

PN22

I do not think that that is a matter of great argument. To determine the issue it is therefore necessary to interpret the rules of the National Union of Workers. There are a whole range of cases which I will not bother to sight you because I am sure, Commissioner, you are more than familiar with the notion of a liberal construction being given to the rules - in other words, not a technical construction that you might give for instance to a tax law, which is imposing obligations on people, but rather a fairly broad brush approach. But even if you provide a broad brush approach it cannot be to the point where it stretches or alters the rules. In other words, they still need to bear their fair, ordinary meaning if that is possible.

PN23

If the rules are ambiguous, as we say they are in this particular matter, for reasons I will come to briefly in a moment - sorry, I will withdraw that - the normal approach, as you look at the eligibility rule. You only look at the industry rule if there is an ambiguity and the industry rule may then assist you to give some flavour or context to the eligibility rule. Now what we say in this matter is that there is an ambiguity here and it is not unexpected. Most union rules have been amended for whatever reason a number of times - different drafts persons. There is this notion that you give them some latitude because they are not drafted by lawyers.

PN24

I think as his Honour, Senior Deputy President Polites, said in Court the other day, "Well, what does that actually mean?" and we would say, "Well, not an awful lot". It doesn't really change the rules of interpretation and that is plain ordinary meaning. If there is an ambiguity, refer to the industry rule. And there may be extraneous materials. There are not in this particular case, but in some cases there may be extraneous materials that would be of assistance to him. Now it seems to us then that our first task is to establish to you that there is an ambiguity within the rules of the National Union of Workers.

PN25

I am not trying to avoid my task by saying to you that a mere reading of the first four sections, and in particular section 3, which relates to the industry - sorry, section 4 which relates to the industry and 5 Conditions of Eligibility show that ambiguity is just all of the place. You know, it does not mesh properly. What I would particularly draw your attention to though, is in rule 5 which is Conditions of Eligibility it is introduced at (b) and, for reasons which I do not understand, there is no sub-rule (a) but at (b):

PN26

The union shall consist of a unlimited number of employees engaged in or assisting...

PN27

and then it lists out what the other tasks would be that they would be engaged in or assisting. Under the same paragraph, but as a subparagraph, further down at (b) again it then talks about:

PN28

All persons engaged in the process trade, business or production activity...

PN29

Now with respect, an employee cannot be involved in a trade or business as an employee. They might be involved in it in their own right, outside of work. So they are inherently uncertain terms. When you read it together how it should read which is:

PN30

The union shall consist of an unlimited number of employees engaged in or assisting all persons engaged in the process trade, business or production activity of -

PN31

and then -

PN32

preparing horse hair.

PN33

It borders on nonsensical. Not only is the English strained to say the least and the grammatical structure is very difficult to follow, but the conceptual issues of being engaged or assisting as compared again to being engaged in the trade business etcetera, are inherently uncertain. At - sorry, Commissioner - - -

PN34

THE COMMISSIONER: That is all right.

PN35

MR MANUEL: At (c) under 5 - so, again, it is B, sub-para (c) it talks about, "all persons engaged in or in connection with the business of". now we do not take any particular issue with the meaning of that clause because that is a well understood piece of terminology but you again have to refer it back and compare it to all the other different terminologies that are being used within the rules, ostensibly to achieve the same thing. I mean they are under the same rule, they are to deal with eligibility but all these different notions are going left, right and centre. And, again without wishing to belabour the point if you read that in - how it is meant to be read from B at the top. It says

PN36

The Union shall consist of an unlimited number of employees engaged in or assisting all person engaged in or in connection with the business of a wholesale and manufacturing chemist.

PN37

So who are they assisting? Are they assisting the persons engaged in or in connection with the business? I mean that - just from ordinary industry parlance that makes no sense. I think it is possible that we could all come up with a cogent explanation of that. But the very fact is that if there is that ambiguity then you need to then, we say, refer back to the industry rule. And if you refer back to the industry rule it is clear, in our submission that there is nothing in the industry rule which would give any support for the industry of labour hire.

PN38

I should say that I have tried to find some authority for you as to what labour hire actually is, apart from dictionary definitions of the two words and although it gets an occasional mention in cases, there is almost with respect - almost no - - -

PN39

THE COMMISSIONER: There is not a lot, yes.

PN40

MR MANUEL: Yes, there is almost an assumption as to what it means. But we would say to you that the ordinary industrial meaning of labour hire is a company which is not involved in the business of selling things, and I do not wish to say selling people - selling things, buying things, manufacturing things, growing things, picking things. All they do is provide labour to facilitate other people engaging in that activity. And that labour is used, as I said, largely as a matter of indifference to my client, apart from safety and the like it does not mind whether the people are sweeping the yard or whether the people are cleaning trucks or cleaning production lines or actually processing goods. It is of no interest to it. So long as it is safe. So long as it is legal. That is what it does.

PN41

And so what we say is that if you look at the description of industry there is nothing in there which would indicate labour hire and what we would say it does actually indicate is a focus of the union,and we say quite properly, on direct employment. In other words, the industry is looking to describe industries where the direct employer employs these people to do tasks within the following tasks. And I might say, if you look at it on that basis it is still a very broad rule. You have not interpreted it down. What we say is being asked for you to do is, in effect, to broaden the description of industry to include labour hire and that could be done.

PN42

There is no argument. An application to the Commission could be made and it could be an application any person engaged by a labour hire firm who assists or is used for the purposes elsewhere in the industry - that would be quite appropriate. But what we say is without that, is that there is not any coverage from the NUW. Now I realise that that is a fairly shortened prompt and I hope that that does not tend to indicate that we are not arguing the point seriously, but this is very much a narrow point but a very important point in our respectful submission and we would say that the NUW just does not have rules coverage in this matter, may it please the Commission.

PN43

THE COMMISSIONER: All right. I follow all that. Mr Kennedy.

PN44

MR KENNEDY: Thank you, Commissioner. The union's submission is this, Commissioner, we essentially rely on our outline of submissions. However, we would note that the primary issue for the Commission to determine is, in our submission, is that the issue is "What is the work that is performed by the employees of the employer in this matter". That is the focus to which the Commission should turn its attention. To accept the argument raised today on behalf of the employer would have the effect of, or may have the effect of excluding labour hire employees from any form of regulation under the current scheme of the Act and we say that is not the intention.

PN45

We would refer to the fact that the recruiting company does employ people who perform work and we say that has been uncontested and that is eligible to be covered by the union and that it has been upheld in recent decisions that we referred to, namely the National Union of Workers v D Vallion Pty Limited and Others - a decision of Senior Deputy President Acton, upheld on Appeal. And should you require a copy of those decisions I have them.

PN46

THE COMMISSIONER: No, that is fine.

PN47

MR KENNEDY: We simply say that it is appropriate and well understood in the Commission that in determining the applicability of the NUW rules it is the activities of the employees in question that is relevant to the eligibility to the NUW and not the character of the employer's business, if you like, or undertaking. We say that the employer's business if it can be characterised as one of labour hire industry does not preclude the coverage - or does not preclude the NUW enrolling its employees.

PN48

The company indicate that it does supply its employees to a range of industries which include potato and vegetable packing sheds and also a range of other industries that may include workers that we could cover whether it be in general manufacturing or warehousing or a number - a range of industries but we have a number of members of the union who actually undertake work in vegetable packing sheds, namely, Zarella Holding Pty Limited, which is respondent to an award of this union or which this union is party to.

PN49

So we make those points. We think that to adopt - or fundamentally we just think to adopt the approach outlined by the company today would be contrary to - to well known authority and, subject to any questions you may have, we would seek to rely on the submissions that we have - we have tabled with the Commission.

PN50

THE COMMISSIONER: All right. Thank you. Anything further?

PN51

MR MANUEL: Nothing in reply. Thank you, sir.

PN52

THE COMMISSIONER: All right. I intend to reserve my decision in relation to this matter to give some thought to the expanded submissions that have been put this morning, but I undertake to get that decision out fairly promptly. The Commission stands adjourned.

ADJOURNED INDEFINITELY [10.21am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 COPIES OF WITNESS STATEMENTS PN10
EXHIBIT #M1 WITNESS STATEMENT OF WALTER LINDSAY DAVIE PN13