C2003/5271, Transcript of Proceedings [2003] AIRCTrans 4681 (23 October 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2003/5271

THE AUSTRALIAN WORKERS' UNION

and

ALBANY TENPIN BOWL and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims - wages and
working conditions

SYDNEY

12.06 PM, FRIDAY, 3 OCTOBER, 2003

Continued from 9.9.03

PN166

THE COMMISSIONER: Can I take the appearances please.

PN167

MR G. R. BEARD: If it please the Commission, I appear on behalf of the Australian Workers Union. On the last occasion when this matter was before you, Commissioner, Ms Piercy from our office represented the union.

PN168

MR J. BERWICK: If the Commission pleases, I appear for the Australian Bowling Proprietors Association.

PN169

THE COMMISSIONER: And leave was granted on the last occasion.

PN170

MR BERWICK: Yes, I think that's right.

PN171

THE COMMISSIONER: And with you, you have?

PN172

MR B. GOTTERSON: I am solicitor instructing Mr Berwick from Pigott Stinson.

PN173

THE COMMISSIONER: Mr Beard, where are we up to?

PN174

MR BEARD: Thank you, Commissioner. When this matter was last before you a dispute was not found between the union and the company subject to the matter as there seemed to be some confusion in regard to who is who in the zoo in regard to representation on behalf of the company served. You directed that the union have discussions with the parties and report back to you by 30 September. I was able to contact and have discussions with Mr Gotterson prior to the 30th and explained the situation that the union sought. I also spoke with Mr Martin Belfield from AIG in Brisbane and essentially he was representing companies who were represented by Mr Sherman at the previous hearing.

PN175

Mr Belfield advised that he was in fact having a meeting yesterday with several of his members and that he would contact me prior to today's hearing to advise me of the outcome of those discussions. Unfortunately Mr Belfield hasn't contacted me at this stage but I made it quite clear to him in discussions earlier in the week that the union was seeking a dispute to be found and for the parties to be directed into conference, that I would then be looking at having a matter listed for about a month's time in regard to the making of a roping-in award.

PN176

So the parties clearly know the goal of the union in regard to this matter. It's a shame that Mr Belfield hasn't taken the opportunity to contact me but as I say, Commissioner, he's under no doubt as to the pursuit of the union in this matter.

PN177

THE COMMISSIONER: Mr Beard, the AWU notified the parties in relation to the matter listing for today?

PN178

MR BEARD: No, Commissioner. As the matter was previously before the Commission - - -

PN179

THE COMMISSIONER: It's all right. Yes, my apologies. I've got the notice of listing. Yes, the parties were advised that the matter would be listed today so Mr Sherman was, and also Vicki, were on notice that it would be further heard in proceedings today.

PN180

MR BEARD: That is correct, Commissioner. The union would rely on the documents that were tendered at the hearing on 9 September in regards to proper service in regards to the letters of demand and logs of claims and also in regard to the notice of hearing.

PN181

The issue at this stage, Commissioner, is that the union believes that the parties are employers who have employees engaged in the ten pin bowling industry throughout Australia, that the AWU has the constitutional coverage of employees covered by this industry. I do have a copy of the rules of the union, there's further evidence of that. I'll have a copy, it will add a bit of weight to your file, Commissioner. I have highlighted the union's coverage at page 41 of its rules.

PN182

THE COMMISSIONER: You seek to tender that?

PN183

MR BEARD: Yes, I will tender that.

PN184

THE COMMISSIONER: I'll mark that AWU5 please.

PN185

MR BERWICK: I have no objection to that.

EXHIBIT #AWU5 RULES OF THE UNION

PN186

THE COMMISSIONER: Mr Berwick, do you have a copy of the rules?

PN187

MR BERWICK: No, I don't.

PN188

MR BEARD: I can supply, I do have an important page in regard to the ten pin bowling industry but I can supply a full copy of our rules to colleagues at the bar table.

PN189

MR BERWICK: As I say I have no objection to the tender.

PN190

MR BEARD: The employers who have been served with the letter of demand and log of claims, Commissioner, have not agreed to apply those demands to their employees and therefore the union will ask that you find and record the existence of interstate industrial dispute in accordance with section 101 of the Act and direct the parties to confer. In regard to this particular matter, Commissioner, because there are quite a number of parties who have been served I have prepared another exhibit which is titled, Employers to be found in dispute, and this may I say rather than referring to previous documents in regards to lists of employers regarding the dispute finding I'll hand to you this document.

PN191

THE COMMISSIONER: I'll mark that document AWU6.

EXHIBIT #AWU6 EMPLOYERS TO BE FOUND IN DISPUTE

PN192

THE COMMISSIONER: And this the same entity that was served with the letter of demand and log on 8 August, Mr Beard?

PN193

MR BEARD: Essentially, Commissioner, Mrs Piercy would have explained to you that one of the parties that was served on 8 August being Crown Casino were in fact deleted from the exercise. They did contact me to explain that whilst they did in fact have a ten pin bowling alley on their premises, Crown Casino in Melbourne, they were not the employer. In fact the employer was then forwarded a separate letter of demand and log of claims, that employer being Group Entertainment. I understand that Mr Eberhardt from VECCI has forwarded correspondence through to your office stating that VECCI represents the company and that they do not in fact have an objection to a dispute being found.

PN194

THE COMMISSIONER: Yes, I think that was, I think I would have mentioned that in proceedings. I think I received that correspondence prior to the previous proceedings on 9 September.

PN195

MR BEARD: Further, Commissioner, we would seek to have a dispute found between the union and the parties listed in - did you mark that last document?

PN196

THE COMMISSIONER: Yes, AWU6.

PN197

MR BEARD: If it please the Commission.

PN198

THE COMMISSIONER: Thank you, Mr Beard. Mr Berwick?

PN199

MR BERWICK: Yes, if the Commission pleases. The position of the Australian Bowling Proprietors Association is that it does not object to the finding of an interstate industrial dispute. The only issue that thereafter arises as far as the Association is concerned is that there may be some issues - and I emphasise may be some issues - in regard to section 111AAA there being a number of members of the Association who are currently covered by state awards. Logistically, Commissioner, we take instructions from Mr Stephen Pengly, the Executive Director of the Association, the Australian Bowling Proprietors Association. Mr Pengly is currently on leave for another week or so. When he returns we intend to finalise our instructions as to whether any issue does arise in regard to section 111AAA.

PN200

THE COMMISSIONER: For the purposes of today's proceedings though the application is not objected to but what you're putting on the record is that issues may arise, those issues may arise at the time that the union seeks to rope in or create an award, or an agreement, or whatever, instrument and also you'd be aware that an application to revoke a dispute finding is open to a party anyway but for the purposes of today I don't have an objection.

PN201

MR BERWICK: That's right.

PN202

THE COMMISSIONER: Thank you, Mr Berwick. Mr Beard, anything further?

PN203

MR BEARD: I have nothing further.

PN204

THE COMMISSIONER: Thank you, gentlemen, for your submissions. Having heard the union in relation to its application for a finding of dispute and having been advised by Mr Berwick that the application to find a dispute at this point is not objected to, there's no other party before me in relation to an objection to a finding of dispute, I've determined that I will so find that a dispute exists between the AWU on the one hand and the companies served with the letter of demand and log of claims on 8 August, 2003 which are represented in exhibit AWU6.

PN205

I am satisfied that this finding, that the finding of dispute is within the meaning of the Act and in making this finding I'll cause a record of such finding to be issued and I'll attach it to the file in accordance with the requirements of section 101 of the Act. The matters in dispute, issues in dispute are those reflected in the letter of demand and log of claims which forms part of the Commission's file and having so found a dispute does exist I now direct the parties to confer and leave this open to relist the matter to advise the outcome of such conferences by any party to the dispute.

PN206

If there is nothing further, the Commission is adjourned, thank you.

ADJOURNED INDEFINITELY [12.19pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU5 RULES OF THE UNION PN186
EXHIBIT #AWU6 EMPLOYERS TO BE FOUND IN DISPUTE PN192