C2003/5339, Transcript of Proceedings [2003] AIRCTrans 4498 (8 October 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2003/5339

NATIONAL UNION OF WORKERS

and

VIRGINIA FARM PRODUCE and OTHERS

Notification pursuant to Section 99 of the Act
of a dispute re wages and working conditions

MELBOURNE

2.04 PM, TUESDAY, 23 SEPTEMBER 2003

PN1

THE DEPUTY PRESIDENT: Yes, I will take the appearances, please.

PN2

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

PN3

MS D. HARRIS: Thank you, your Honour. I am appearing on behalf of the South Australian Farmers Federation. We represent 10 employees that have been logged. I understand, your Honour would have in front of you a list there starting from Rin-Pra Produce Pty Limited through to Le Mondello & Son trading as Gawler River Produce. And we seek perhaps to tender that as the list of people that we are representing today. Thank you, your Honour.

PN4

MR E. QUIGLEY: If the Commission pleases, I seek leave to appear on behalf of three entities who are the subject of the union's log. They are Virginia Farm Produce, Parilla Premium Produce and BD & MD Nicol & Son.

PN5

THE DEPUTY PRESIDENT: Yes, South Australia.

PN6

MR M. SHEEHAN: If it please the Commission, I appear on behalf of four employers that have served a log of claims. I have identified them in a recent fax to your Honour.

PN7

THE DEPUTY PRESIDENT: Yes, I have a copy of that.

PN8

MR SHEEHAN: And a copy to the union itself. I refer to Freshway Farms, the South Australian Potato Company, Oakville Potatoes and Caurnamont Farms.

PN9

THE DEPUTY PRESIDENT: Yes, thank you. Now, Ms Harris, you wanted to tender this list. I am not sure that that is absolutely necessary, but if you wish.

PN10

MS HARRIS: Just simply for the file records, thank you, your Honour, yes.

PN11

THE DEPUTY PRESIDENT: Yes. I will mark the exhibit SAF1.

EXHIBIT #SAF1 LIST OF 10 EMPLOYEES REPRESENTED BY SOUTH AUSTRALIAN FARMERS FEDERATION STARTING FROM RIN-PRA PRODUCT PTY LIMITED THROUGH TO LE MONDELLO & SON TRADING AS GAWLER RIVER PRODUCE

PN12

MS HARRIS: Thank you.

PN13

THE DEPUTY PRESIDENT: Yes, go ahead, Mr Kennedy.

PN14

MR KENNEDY: Thank you, your Honour. Your Honour, the matter before you this afternoon is a notification of an industrial dispute pursuant to section 99 of the Act which has been filed by the NUW. Your Honour, the union seeks a finding of a dispute pursuant to section 101 of the Act and also a direction from the Commission to the parties that they confer on appropriate part settlement of any dispute so found. If I may take the Commission to the facts of the alleged dispute. The basis of the findings sought by the union is to be found in both a letter of demand and log of claims which was served by the union on the employers on 18 August of this year, and that was served by way of prepaid certified mail.

PN15

The employers concerned are contained in annexure marked A in the affidavit of Greg Sword, sworn on 28 August of this year. So, rather than read all those companies out, I will just refer to that, your Honour. Your Honour, the letter of demand gave those employers seven days to agree to the claims contained in the said of log of claims and letter of demand. There has been no agreement forthcoming from any of the employers.

PN16

The NUW has fielded a number of inquiries from some of the employees about the nature of the log of claims, and also has received correspondence from various parties representing some of the employees, namely, EMA Legal and Business SA. And all, essentially, are saying that they do not accede to the claims made by the union. As a result of that seven days lapsing, your Honour, the Commission was notified of a dispute pursuant to section 99 of the Act on 28 August and also attached to that notification was an affidavit of service of both the letter of demand and log of claims sworn to by the general secretary of the union, Greg Sword, and these affidavits should be on the Commission's files, and it was the affidavit I referred to earlier.

PN17

Subsequent to the notification of the dispute, the union, on 28 August, received from the Commission by facsimile transmission, a notice of today's hearing date. The employees were served with a notice of today's listing, together with the information notices in accordance with form R5 on 29 August. Subsequent to that, your Honour, an amended notice of listing was sent out indicating that there would be a video link-up, and the union also forwarded on that an amended notice of listing on 8 September. And I think the union has filed a further affidavit of service to that effect, sworn on 1 September, I believe.

PN18

In conclusion, your Honour, we submit that there is a dispute in existence between the union and the employees referred to in annexure A of Greg Sword's initial affidavit of service, and that these companies both employ persons eligible to be members of the NUW. The log of claims and the letter of demand contain the subject matter of the dispute and have been served in accordance with the rules of the union. The rejection, or non-acceptance of these claims is prima facie evidence of an industrial dispute between the union and the employees.

PN19

We also submit that, for the record, that the area of the dispute exists beyond the limit of any one state, namely, the states of Victoria and South Australia. Subject to any questions you may have, they are the extent of our submissions today. We would be seeking a formal finding of dispute and a direction to confer, if the Commission pleases.

PN20

THE DEPUTY PRESIDENT: Yes, thanks, Mr Kennedy. I should note, for the record, that I have a correspondence from Northside Produce South Australia signed by Julie Steinet, the company director, which I will read into the record. It says:

PN21

Dear Sir, I'm writing to you regarding the matter of the National Union of Workers versus Virginia Farm Produce, etcetera, as our company is also named in this matter and I am unable to attend the hearing in Melbourne on September 23rd. I wish to put my feelings on the matter forward. We do not wish to be bound by a federal award as we are totally a South Australian company only employing persons for South Australia which is not likely to ever change. As a small company only employing up to people in our busiest period which is seasonal, December to July, I am constantly checking the rates for this type of work and at present are paying between $14 and $15 an hour depending on the actual task performed. All staff receives three breaks each day which includes a 20 minute morning break and, to this date, we have had no complaints by any of our employees. All wages are reviewed before the start of each season to make sure we are up-to-date on any wage increases.

PN22

It goes on to give a contact address. I make no comment about the relevance of any of the material in the correspondence. I merely raise it for the purposes of the record. Yes, Ms Harris.

PN23

MS HARRIS: Thank you, your Honour. On an administrative matter, on 17 September 2003, two of the employers served with a log of claims wrote to the National Union of Workers seeking to be deleted from the list on the basis that they do not employ employees in respect to the log claimed. Those letters, from my understanding, from Mr Kennedy this afternoon, have not been received by the union. We have, subsequently, provided them with that list. There is a dispute as to whether or not they have actually employees, but certainly that correspondence now has been forwarded to the NUW. And, at this stage, I do not think it would be necessary to file it because it is in dispute in terms of its deletion from the list.

PN24

THE DEPUTY PRESIDENT: Sorry, I did not quite follow you there, Ms Harris. Are you saying that there is correspondence from two of the companies, which two companies are they?

PN25

MS HARRIS: They are Cocci and also Caretti Bros Pty Limited. They have sought to be deleted from the list on the basis that there are no employees, and that fact is disputed by the union. As a result, they have denied their deletion and so, therefore, they remain on the list, but we just wanted to raise that to your Honour's attention.

PN26

THE DEPUTY PRESIDENT: Yes, thank you.

PN27

MS HARRIS: Thank you. Your Honour, the South Australian Farmers Federation, on behalf of its 10 members it represents today, is, actually, seeking, in the first instance, that the Commission cease from dealing with this matter and in finding a dispute today in accordance with section 111AAA of the Workplace Relations Act in that all 10 employees that we represent that have been served with a log, actually, comply with a state award or a state agreement.

PN28

Pursuant to rule 21 of the Commission rules, we seek to formally apply to the President, and we have a letter outlining the application to present to the Commission today to forward on to the President. I would like to now provide that to the Commission, both one to his Honour, President Giudice and also one to yourself. My colleague in South Australia has one there to present to Mr Sheehan. Your Honour, this letter outlines our application, pursuant to 111AAA. We base that on the fact that our employers either comply with a state award or a state agreement.

PN29

In respect to the state award, we rely upon the Pastoral Industry South Australian Award. There is a common rule award in South Australia and, specifically, in respect to that Pastoral Industry Award, which is a state industrial instrument, there is no doubt that there may be some contention in respect to the relevance of that particular award. There has been previous state cases where the issue of whether or not the term, "harvesting" within that award includes the provisions of packing. And we believe of a number of decisions of His Honour McCusker J in cases in the late 1990s, actually, conclude that that state award does have precedence in terms of coverage of the incidence of work that is being considered by this dispute today.

PN30

So, in tendering, we seek to provide those two cases that will provide additional information to his Honour when considering our application. The first one is: Interpretation of Award General Store Workers, Packers, Wholesalers, Sellers and Distributors Award, the National Union of Workers and Comet Farm Produce Pty Limited 1997 SAIRC29, 26 June 1997. And the second decision is the National Union of Workers South Australian Branch, the Comet Farms, produce number 2, 1998, SAIRC at 14 on 20 March 1998. I will provide both a copy for your Honour and also his Honour, the President as well for the records.

PN31

Your Honour, in respect to our claim pursuant to section 111AAA, we do understand that there has been some comment - or sorry, a decision made of a Full Bench in respect to the issue of whether a section 111AAA application is heard before or after a dispute is actually found. And we refer your Honour to a decision of the Full Bench in the Australian Workers Union of Employees, Queensland, and the state of Queensland and the Maritime Officers Union in where it was determined that an application pursuant to that section can be made prior to the finding of a dispute. And if such application is made, the Commission needs to cease dealing with that matter until the determination of the section 111A application has been determined. So, we also have a copy of that decision as well, your Honour, in case there is any concerns in respect to the timing of our application.

PN32

So, in conclusion, your Honour, the South Australian Farmers Federation, on behalf of its 10 employers, object to the finding of a dispute in today's proceedings. We have filed a section 111AAA application pursuant to section 20 of the Commission rules. We believe that, as a consequence of that, a decision cannot be made today until that application has been considered. We, obviously, if that application is rejected by the President, we still reserve our rights of objecting to this dispute finding under section 111(1)(g) of the Act. That concludes my submissions, your Honour, unless you have any particular questions.

PN33

THE DEPUTY PRESIDENT: Yes. What was the basis for the reference to the President, Ms Harris?

PN34

MS HARRIS: Yes. Under rule 20 - 21, it could be, actually, your Honour, I will just find it - sorry, it is rule 21, I do apologise - it states:

PN35

An application under section 111(1)(a) of the Act for the Commission to cease dealing with whole, or in part, an industrial dispute in relation to particular employees must be (a) in writing; and (b) state the grounds and facts upon which an application is made.

PN36

Then it goes on in respect to that reference of that decision. Section 111AAA states that:

PN37

The Commission must cease dealing with an industrial dispute where it is found that a state award or a state agreement applies to the employees concerned in respect to the log of claims.

PN38

THE DEPUTY PRESIDENT: Thanks, Ms Harris.

PN39

MS HARRIS: Thank you.

PN40

THE DEPUTY PRESIDENT: Yes, Mr Quigley.

PN41

MR QUIGLEY: Your Honour, the companies, whom I represent, have no objection to the finding of a dispute as sought by the union.

PN42

THE DEPUTY PRESIDENT: Thank you. Mr Sheehan.

PN43

MR SHEEHAN: Thank you, your Honour. In line with the correspondence that I have for the two unions - with a copy to yourself this afternoon - we also do not oppose via the dispute in relation to the employees we represent here today. If it please the Commission.

PN44

THE DEPUTY PRESIDENT: Thank you. Yes, Mr Kennedy.

PN45

MR KENNEDY: Thank you, your Honour. Your Honour, I am at a bit of a disadvantage in that the NFF had not foreshadowed any of these arguments to the union before presenting them. However, we would point out that the decisions, referred to, in the Adelaide - or South Australian jurisdiction - actually, stand for the proposition that there is no state award that covers the work that we say the employers perform that we have logged. In actual fact, I am a bit surprised in that the South Australian Farmers Federation and EMA Legal, who I also represent here today, were the parties to that litigation. And the fact was that a full bench of the State Commission found that the work that we are seeking to have a dispute found over today, there was no state instrument to cover that work.

PN46

The upshot of that, your Honour, was that the union had a federal award made for that work, in respect of the employees who were logged at that stage. So, we are a bit confused, to the extent, from the NUW's perspective, that a party to those proceedings understanding that they argued that there was no state award that could cover that work, is now seeking to invoke section 111AAA. So, we would a dispute still be found because the decisions referred to, actually, stand for the opposite proposition, your Honour.

PN47

THE DEPUTY PRESIDENT: Just bear with me for one second, if you do not mind. It is my view, in the circumstances, that perhaps the way to go forward with the organisations represented by the National Farmers Federation is to stand the matter over, for the time being, to allow an opportunity for further argument. I note that the submissions put by the National Farmers Federation had not been previously raised with the union prior to today. And I think it may be appropriate, in the circumstances, that I give an opportunity for those submissions to be properly addressed and responded to.

PN48

So, before I do anything, in terms of referring anything to anybody, it is my view that it would be best to hear, more fully, the arguments from the parties, and from you, Ms Harris, if you wish to put further argument, at that point in time, then I would allow that to happen. But it would be my intention to, in the first instance, issue some directions and have those arguments put to the Commission in writing.

PN49

MS HARRIS: Thank you, your Honour, that was certainly our intention. It was not to put the NUW in a difficult position today. This issue has been debated amongst us and only a definite decision was made yesterday. It was thought that we would make formally the application. We had assumed that there would be a process upon which both parties could put formal applications and evidence before the Commission. As we understand, there is quite a complicated history of facts and circumstances surrounding this particular issue that, no doubt, would create the need for additional evidence to be before the Commission. Thank you, your Honour.

PN50

THE DEPUTY PRESIDENT: Yes. Mr Kennedy, is that approach suitable as far as you are concerned?

PN51

MR KENNEDY: Yes, that would allow the matter to be clarified, once and for all, yes, your Honour.

PN52

THE DEPUTY PRESIDENT: Yes. On that basis, the 10 companies represented by the National Farmers Federation will be stood over, for the time being. And, in the interim, I will issue directions allowing for the filing of submissions by both parties and a convenient hearing date will be set to allow those submissions to be addressed. And I will go off the record shortly so that we can work out when might be a convenient time to do that. I might deal, firstly, with the other companies. Now, aside from the seven organisations which we have represented here today, that is, the seven organisations other than the 10, which the National Farmers Federation represents - what other organisations do we have, Mr Kennedy, without me going fully to the list?

PN53

MR KENNEDY: Yes, your Honour.

PN54

THE DEPUTY PRESIDENT: I know one of them will be Northside Produce South Australia.

PN55

MR KENNEDY: Yes. The other organisations, or employees, are BM Fresh Pty Limited, of 540 Avenue of Honour, Bacchus Marsh, Victoria. I think Northside Produce which - - -

PN56

THE DEPUTY PRESIDENT: Sorry, which one was that again, Mr - - -

PN57

MR KENNEDY: BM Fresh Pty Limited, 540 Avenue of Honour, Bacchus Marsh.

PN58

THE DEPUTY PRESIDENT: Yes.

PN59

MR KENNEDY: There is a - - -

PN60

THE DEPUTY PRESIDENT: Northside Produce was the other one?

PN61

MR KENNEDY: Yes. I think there is also Le Mondello & Son trading as Gawler River Produce.

PN62

MS HARRIS: No, we have got - that is ours.

PN63

MR KENNEDY: You have got - that is yours?

PN64

MS HARRIS: Yes, it is number 10 on my list.

PN65

THE DEPUTY PRESIDENT: Well, I think, you have got one short still.

PN66

MR KENNEDY: Yes, I am just - Northside Produce, Rocci - no, that is covered.

PN67

MS HARRIS: No, they are ours.

PN68

MR KENNEDY: Golden Valley, PO Box 109, Mundulla, South Australia, 5270.

PN69

THE DEPUTY PRESIDENT: Yes, thank you.

PN70

MR KENNEDY: I think there is another one.

PN71

THE DEPUTY PRESIDENT: Now, one of the things that emanates from the letter of Northside Produce, Mr Kennedy, is the issue that the company claims only to operate within South Australia.

PN72

MR KENNEDY: Well, that is what you indicated before. We submit that the dispute operates beyond the limits of any one state, namely, Victoria and South Australia, and the fact that that company only operates within South Australia is not really relevant to your Honour.

PN73

THE DEPUTY PRESIDENT: Yes, thank you. The Commission, pursuant to section 101 of the Act:

PN74

Records, determines and finds that there is in existence an industrial dispute.

PN75

The parties to that dispute are the NUW, on the one hand. And on the other hand, the following employers: Freshway Farms of Old Port Wakefield Road, Virginia, South Australia; the South Australia Potato Company of Alexandrina Road, Mount Barker, South Australia; Oakville Potatoes, PO Box 42, Nildottie, South Australia; Caurnamont Farms, Walkers Flat Road, Bow Hill, South Australia; Golden Valley, PO Box 109, Mundulla, South Australia; BM Fresh Pty Limited, 540 Avenue of Honour, Bacchus Marsh, Victoria; Northside Produce, Box 643, Waikerie, South Australia; Virginia Farm Produce, Taylors Road, Virginia, South Australia; Parilla Premium - now just so that I get this right, I have two different names here - Parilla Premium Potatoes, is the correct company, is it, Mr Quigley?

PN76

MR QUIGLEY: My notes had, "Parilla Premium Produce", your Honour, but it might be that I am in error. I have only written that down.

PN77

MR KENNEDY: Your Honour, we have logged the company under the name, "Parilla Premium Potatoes, PO Box 47, Parilla, South Australia."

PN78

THE DEPUTY PRESIDENT: Thank you. Parilla Premium Potatoes of Box 47, Parilla, South Australia; and BD & MD Nicol & Son of Taylors Road, Virginia, South Australia. The subject matter in dispute is that laid out in the letter of demand and log of claims served by the union on 18 August 2003. I am satisfied that the dispute has the requisite interstatedness. I note, for the purposes of the record only, that the log of claims served by the union contains, at clause 33, a preference of employment clause.

PN79

And I simply note that should such a clause appear in any agreement reached between the party, for which the party sought certification, certification would not be possible as such a clause, in my view, would offend part 10A of the Act. The parties to the dispute are directed to confer in an attempt to reach a settlement of those matters that are in dispute. Now, I might just go off the record at that point.

OFF THE RECORD [2.31pm]

NO FURTHER PROCEEDINGS RECORDED [2.37pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #SAF1 LIST OF 10 EMPLOYEES REPRESENTED BY SOUTH AUSTRALIAN FARMERS FEDERATION STARTING FROM RIN-PRA PRODUCT PTY LIMITED THROUGH TO LE MONDELLO & SON TRADING AS GAWLER RIVER PRODUCE PN12