C2003/4397, Transcript of Proceedings [2003] AIRCTrans 3317 (6 August 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 10483

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER HOLMES

C2003/4397

NATIONAL UNION OF WORKERS

and

J.R. HAULAGE PTY LTD T/as SYDNEY
WAREHOUSING & DISTRIBUTION SERVICES
and ANOTHER

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

MELBOURNE

9.35 AM, TUESDAY, 22 JULY 2003

PN1

MS A. PARKES: I appear for the National Union of Workers.

PN2

MR L. McLACHLAN: I am the Proprietor of J.R. Haulage.

PN3

THE COMMISSIONER: Thank you, Mr McLachlan. Yes, Ms Parkes.

PN4

MS PARKES: If the Commission pleases. Commissioner, this matter is before you pursuant to a notification of an industrial dispute pursuant to section 99 of the Workplace Relations Act 1996 which has been lodged by the National Union of Workers. The union seeks two things today, Commissioner. First, a finding of dispute pursuant to section 101 of the Workplace Relations Act, and second a direction from the Commission that the parties to the dispute confer. If I could take the Commission to the facts of the alleged dispute.

PN5

The basis of the finding sought is to be found in a letter of demand and a log of claims which was served by the union on J R Haulage Pty Ltd trading as Sydney Warehousing & Distribution Services on 14 May 2003 by pre-paid certified mail. The letter of demand and log of claims gave the employer seven days to respond positively to the demands contained in the letter of demand and the log of claims and the employer has rejected the claim served by the union. Accordingly the Commission was notified of a dispute pursuant to section 99 of the Act and attached to the notification was an affidavit of service of the letter of demand and log of claims sworn by the General Secretary of the National Union of Workers, Mr Greg Sword. This affidavit should be on the file before you, Commissioner.

PN6

THE COMMISSIONER: Yes, that is the one of 4 July, is it?

PN7

MS PARKES: That is correct, Commissioner.

PN8

THE COMMISSIONER: Yes, it is.

PN9

MS PARKES: The union also then received from the Commission via a facsimile notice of today's hearing and there should be a further affidavit on the file before you, Commissioner, sworn on 14 July 2003, also sworn by Mr Greg Sword, General Secretary of the union, attesting to the service of the notice of listing and the information sheet in accordance with form R5 on the employer by pre-paid certified mail. The union submits that there is a dispute in existence between the union on the one hand and the employer on the other hand as J R Haulage Pty Ltd trading as Sydney Warehousing & Distribution Services with the employer in question employing persons eligible to be members of the NUW.

PN10

We would further submit that the process followed has been legitimate with valid service of the log of claims and letter of demand and that the rejection or non-acceptance of the log of claims is prima facie evidence of an industrial dispute between the union and the company. We would also note that the company operates on a national basis so there is no issue of interstateness, Commissioner.

PN11

THE COMMISSIONER: Right, which states, do you know, does it operate?

PN12

MS PARKES: My friend would be able to confirm that, but my understanding is the company operates at least in Victoria, New South Wales and Queensland.

PN13

MR McLACHLAN: In all states.

PN14

MS PARKES: In all states, I have just been corrected. On one final note, Commissioner, and I apologise I do not have the authority with me. It has been brought to my attention the issue of clause 33 preference.

PN15

THE COMMISSIONER: Yes.

PN16

MS PARKES: If I could just make a brief note, and I undertake to provide the relevant authority to your chambers this morning, the Full Bench of the Commission in the SDA v $2 Shop matter, that was the matter, your Honour - sorry, Commissioner, whereby the SDA logged thousands of shops and sought to seek a roping-in award. The issue of preference was before the Full Bench in that particular matter and the Full Bench found that whilst, given the current provisions in the Workplace Relations Act, the parties may not be able to make an award or agreement that referred to preference, nevertheless still could be a matter that could be in dispute between the union and the employers in that particular matter.

PN17

And they allowed such a clause similar to what is in the NUW log to stand. So, Commissioner, I undertake to provide an exact note of that authority, it is just your associate suggested that I address the Commission on that particular point.

PN18

THE COMMISSIONER: Yes. Yes, I - - -

PN19

MS PARKES: If the Commission pleases.

PN20

THE COMMISSIONER: What was the print number? Do you have the print number?

PN21

MS PARKES: I would need to provide that to your chambers, Commissioner. I am afraid I don't have a copy of the authority with me, but I can provide that to your chambers.

PN22

THE COMMISSIONER: Right. Thank you very much, Ms Parkes.

PN23

MS PARKES: On a final note, Commissioner, just to conclude. The union is seeking a finding of dispute pursuant to section 101 of the Act and second a direction from the Commission that the parties to that dispute confer as to partial or full settlement of the dispute. Unless the Commission has any questions, that would conclude our submissions.

PN24

THE COMMISSIONER: Thank you.

PN25

MS PARKES: If the Commission pleases.

PN26

THE COMMISSIONER: Thank you, Ms Parkes. Yes, Mr McLachlan.

PN27

MR McLACHLAN: Good morning, Commissioner. I am afraid I am not going to be quite as erudite as my friend or as practiced in the matter of law.

PN28

THE COMMISSIONER: That is fine, Mr Lachlan, we all have our first appearance in this place, just as I had my first day sitting here. I can confess to you that I was extremely nervous and I had no idea what I was to do, so worry not.

PN29

MR McLACHLAN: Well, okay, thank you, I will try to relax.

PN30

THE COMMISSIONER: If it helps and you want to sit down, you could do that. I mean, normally people stand up but if you feel more relaxed sitting down, feel free.

PN31

MR McLACHLAN: No, I am fine.

PN32

THE COMMISSIONER: Okay.

PN33

MR McLACHLAN: I own a business called J R Haulage. It trades under the name State Warehousing & Distribution Services, not Sydney Warehousing. We have operations in all states of Australia including here in Victoria. Here in Victoria we have four people employed who would probably be eligible for membership of the NUW. We are not aware of any of those members being, or any of those employees being members of the NUW, none have come to us and advised us of that. And in fact in speaking with two of them yesterday, they tell me that they are not members so I can't comment on the other two.

PN34

We have certainly not been advised by the union that they are members of the union and nor have we been advised that delegates have been elected or nominated. Certainly none of the employees have approached us with a view to advising us that there is any form of a dispute. We have had discussions on pay. All people are paid above award rates and have been since the day that they started with the company, which I might add is only in April of this year. We have in New South Wales an AWA that has been in place for some 18 months and still has 18 months left to go.

PN35

We have put this AWA before the employees and, whilst they weren't happy with all of the contents, some people, two of them, have indicated their desire to sign the AWA and the other two were talking about what variations they would like to see made in order to sign the AWA. So without understanding the full legal obligations of 101 of the Act or whatever is that I don't see that we do have a dispute. As far as the employees are concerned, and as far as I am concerned, the only awareness that I have of a dispute is receiving a log of claims in the mail and me rejecting that log.

PN36

THE COMMISSIONER: Certainly. Thank you, Mr McLachlan. Well, do you want to respond, Ms Parkes?

PN37

MS PARKES: If the Commission pleases, we would note that it is not a requirement for a dispute to be found that the union must have members. Merely the requirement is that the union - that the employer either must employ persons or a person eligible to be members of the NUW or even further that they must be imminently about to employ someone eligible to be a member of the NUW. And we would submit that that requirement is certainly met. My learned friend has indicated that in relation to Victoria, that there is four employees that would fall within the rules of the NUW. I am not willing to concede that there is necessarily only four, but that there certainly are at least some employees.

PN38

THE COMMISSIONER: Certainly.

PN39

MS PARKES: Also in New South Wales, the employer has referred to employees performing functions there, and we would say that warehousing employees fall squarely within the NUW's eligibility rules and the amalgamation of the old storeman and packers with a range of other unions to form the NUW. And I don't have our rules here, Commissioner, but I can refer you to rule 5B of our eligibility rules which covers all sorts of functions associated with storing and packing of course and merchandisers and activities ancillary and incidental to those.

PN40

So that would be my first point. My second point would be that the union does actually have members at this particular company, and I am not going to say which state. Indeed it is quite possible we may have members in more than one state but to protect the rights of those members, I am not going to name who they are but I can assure the Commission we do have members.

PN41

THE COMMISSIONER: No, that is not required. Yes.

PN42

MS PARKES: Secondly, the very issue of an AWA in itself is certainly an issue for dispute. The union has served the log of claims, we genuinely do wish over time to achieve the matters that we have set out in the log of claims. There has been no aspersions cast on our genuineness, and we would say that the material before the Commission and the rejection or non-acceptance of those claims is certainly prima facie evidence of that industrial dispute. And indeed the comments of my learned friend do indicate that he does employ persons eligible to be members of our union, and that meets the test of the Commission. If the Commission pleases.

PN43

THE COMMISSIONER: Thank you. Is there any - there are some new matters which have been raised that you weren't aware of before, Mr McLachlan. Do you wish to say anything further? It is not a requirement, I mean, it is a matter for you. I am not sort of requiring you to respond, it is a matter for you.

PN44

MR McLACHLAN: Only to reiterate that I don't - I understand that we do have members who are eligible for the union. We have people who are in the union who have signed the AWA in New South Wales. We don't see that there is a dispute, we have never had a dispute. I find that this is totally outside the bounds of - that the log of claims is totally outside the bounds of reality in terms of what has been submitted to us. And I feel that to invoke an instruction that we are required to deal with the union is really only interfering with what is already a very successful negotiation between myself and my employees. So thank you.

PN45

THE COMMISSIONER: Thank you, Mr McLachlan. Well, I will make a few comments just - it is not necessary for employees of a company to be members of a union for a dispute to be found between the union and an employer. The union is in fact a separate body which is registered under the Workplace Relations Act and is a long - and I don't wish to be paternalistic or demeaning, Mr McLachlan, but there is a long legal history - - -

PN46

MR McLACHLAN: Sure.

PN47

THE COMMISSIONER: - - - where matters have been to the High Court and other courts on numerous occasions and a dispute certainly can be found between a union and an employer even though there are no employees who are members of the union. It is a question of whether any of those employees fall within the scope of the eligibility rules of the union. So the dispute is between the union and you and it is a question over time as to whether your employees choose to belong to the union or not. Similarly, the nature of the log, and I am not surprised at your reaction, people who have not been involved in this arena, when they receive a log, are surprised at its scope.

PN48

But one of the reasons for demands which on their face are quite, how to put it, surprising. The purpose of that is that that provides the scope between your position in relation to wages, salaries and other conditions and the union's over time. And so it might take 50 years for all of these demands to be met, it might take 25 years, but this Commission only has power to settle disputes within the scope or the ambit of the dispute between the parties. And so rather than a union every year having to send out a log of claims to all the employers or parties to awards, sends out a log in those terms and it provides a basis for matters to be the subject of dispute, for quite a long time. And that is why it is cast in those terms.

PN49

And that has it genesis in the constitution and the way the legislation is drafted. So it is probably not proper for me to go beyond that, but just to indicate and give you some understanding of why that is the situation. I will indicate that I do intend and I do believe on the facts that have been put to me that, in accordance with the provisions of the Act, there is a dispute between the National Union of Workers and J R Haulage Pty Ltd. In relation to the scope of the dispute, at this stage I am not prepared to indicate its scope because I wish to see the authority that Ms Parkes has referred to because certainly it has been my approach in fact in relation to this particular log to find a dispute but to exclude clause 33 which deals with preference in employment because such matters, I have taken a view, cannot be in any way resolved between the parties and included in an award or in an agreement for certification, or for that matter in an AWA.

PN50

And so I have made quite a number of findings, which Ms Parkes would be well aware of, excluding clause 33. Given that a Full Bench, in Ms Parkes submission, has taken a contrary view, then I need to examine that decision because I am bound to follow the decision of a Full Bench. A Full Bench takes - it is an authority which single members of the Commission are bound to follow if the circumstances before the single member fall within the scope of the matters which were before that Full Bench. So at this stage, I will do no more than indicate that I will find an industrial dispute and that it exists in New South Wales and Victoria and throughout the Commonwealth.

PN51

But I won't formally record that finding until I have considered that Full Bench decision in relation to clause 33. Certainly in relation to all of the other clauses of the log of claims, I find that they certainly would be part of the dispute. So what I will do is once I have come to a view about that Full Bench and your submissions, Ms Parkes, I will make a finding and I will also make a direction that the parties have discussions in relation to that log. Mr McLachlan, whilst I make a direction, it is a matter for you what approach you take to those discussions.

PN52

So I say no more than that, but I would assume, and I will just - it is an observation that usually the step after the finding of a dispute is that the union will seek the making in of a roping-in award and what that does is make that particular employer subject to the conditions of the particular award that is in existence and that sets the minimum safety net. And what it does is if for example there was further negotiations about AWAs, or there was negotiations in relation to an enterprise agreement either with the union or just between you and the employees, that award would be the basis against which the conditions which are contained in any of those particular instruments are judged.

PN53

Whether they meet, you know, whether in general terms what would be offered is equal to or better than what is in the award. But that is simply - please, I am not in any way trying to suggest that you go down a particular path, I am just observing, given your remarks at the start to Mr McLachlan, some observations which might help just understand the processes which may take place in the future. And I thank you for your submissions, and thank you, Ms Parkes. This matter - - -

PN54

MR McLACHLAN: May I ask a question, if the Commission pleases?

PN55

THE COMMISSIONER: Yes, certainly.

PN56

MR McLACHLAN: I understand the pre-eminence of the award. Does this prevent me from going ahead and establishing an AWA with my members?

PN57

THE COMMISSIONER: No.

PN58

MR McLACHLAN: It doesn't?

PN59

THE COMMISSIONER: No.

PN60

MR McLACHLAN: With my members, gosh, with my employees?

PN61

THE COMMISSIONER: Have you become a member of the union?

PN62

MS PARKES: Providing the employee agrees to the AWA.

PN63

MR McLACHLAN: Yes.

PN64

THE COMMISSIONER: Yes, I mean you - - -

PN65

MS PARKES: If they don't, they would come under the award.

PN66

MR McLACHLAN: Well, no, I understand that.

PN67

MS PARKES: Yes.

PN68

MR McLACHLAN: I understand that, that doesn't prevent me from - - -

PN69

THE COMMISSIONER: Yes, no, that the - and the fact that you have got agreements in place normally would not in any way affect an application by the union for an award to be made.

PN70

MR McLACHLAN: Okay.

PN71

THE COMMISSIONER: So I think I had better leave my comments there at this stage.

PN72

MR McLACHLAN: Fine, thank you.

PN73

THE COMMISSIONER: And thank you both. This matter is adjourned.

PN74

MR McLACHLAN: Thank you.

ADJOURNED INDEFINITELY [9.56am]