C2003/5958, Transcript of Proceedings [2003] AIRCTrans 5139 (20 November 2003)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2003/5958

APPLICATION FOR AN AWARD

Application under section 111(1)(b)
of the Act by the Australian Workers
Union for the certification of the
Tenpin Bowling Industry (Roping-in No.1)
Award 2003

SYDNEY

10.07 AM, THURSDAY, 6 NOVEMBER 2003

PN1

THE COMMISSIONER: Could I take appearances please.

PN2

MR G.R. BEARD: If it please the Commission, I appear on behalf of the Australian Workers Union.

PN3

MR J.L. BERWICK: If the Commission pleases, I appear on behalf of the Australian Bowling Proprietors Association.

PN4

THE COMMISSIONER: Leave was granted on a previous occasion, Mr Berwick, was it not?

PN5

MR BERWICK: That's correct, it was. I thought leave was granted in regard to this matter on an earlier occasion.

PN6

MR BEARD: Separate matter.

PN7

THE COMMISSIONER: Mr Berwick, I think that was at the occasion of the finding of dispute. This particular matter is an application for an award to be made, so you will be seeking leave to appear.

PN8

MR BERWICK: Yes, I seek leave to appear.

PN9

THE COMMISSIONER: And you're appearing for, Mr Berwick, or seeking to appear for?

PN10

MR BERWICK: The Australian Bowling Proprietors Association.

PN11

THE COMMISSIONER: Thank you. Mr Beard, do you have a view on that?

PN12

MR BEARD: I do have a problem, Commissioner. I don't oppose Mr Berwick's seeking leave to appear, however the organisation that he represents is not party to the dispute that was found by you on 3 October and is not subject to any of the parties that are listed in the proposed roping-in award. I've been asking the employers for a list of the parties that they represent in the dispute finding matter for quite a while now and it still has not been forthcoming.

PN13

THE COMMISSIONER: I think the issue before me in this particular matter is who is Mr Berwick appearing for in relation to the respondents that you seek to have the award made with.

PN14

MR BEARD: That's correct.

PN15

THE COMMISSIONER: And you say the Australian Bowling Proprietors Association is not a named respondent on your application?

PN16

MR BEARD: That's correct. What I'm seeking from Mr Berwick are the individual names of the parties that he represents, apart from those parties who are AMF. I understand that he does represent the AMF group of companies or tenpin bowling sites associated with AMF and I've got no problems with that. I need to ascertain if he in fact represents parties other than AMF in this particular matter.

PN17

MR BERWICK: I think this issue is being remedied as we speak, Commissioner. I think Mr Beard has been given a list which is the list of respondents or the list of relevant companies that are represented by the Australian Bowling Proprietors Association. Just for the record and for your information, Commissioner, the Australian Bowling Proprietors Association is composed of both the AMF bowling centres, those who trade under the general AMF banner, and a range of independent centres, so it's an industry organisation that is composed as I've just described it. The list that my instructing solicitor has just given to Mr Beard I take it includes both AMF bowling centres and those independent centres which are both categories which come under or are represented in an industry-wide fashion by the Australian Bowling Proprietors Association.

PN18

THE COMMISSIONER: What you're saying is that they're members of the Association.

PN19

MR BERWICK: They're members of the Association, that's right.

PN20

THE COMMISSIONER: If you were seeking leave to appear on behalf of a party to the matter before me, then as I take it the Australian Bowling Proprietors Association are not a party to the matter before me I would need to know who are the parties in the matter before me that you're seeking leave to represent, Mr Berwick.

PN21

MR BERWICK: We've only got one copy, I'm afraid, of that document. I take it that you wouldn't want me to read them out one after the other? There are two or three pages of names there.

PN22

THE COMMISSIONER: No. Can I just make a suggestion. Mr Beard, do you object to Mr Berwick's application of leave to appear before me?

PN23

MR BEARD: No, Commissioner. In fact, what I was after for quite a number of weeks now, I finally received a list of the parties that Mr Berwick will represent apart from AMF. That's what I'm after. I've got no problems, now that I've received this list. I think it would be prudent for us though to have a photocopy of this list for your file so that we know exactly who is - - -

PN24

THE COMMISSIONER: It's going to have to be put before me for the record anyway. This is what I propose to do, gentlemen. I'm going to adjourn for 10 minutes. Mr Berwick, if you would, on level 8 there are photostat facilities I believe. I will require your instructing solicitor to go down and get enough copies for the proceedings before me. When I come back in about 10 minutes I will hear the AWU and if I have any opposing argument then I will hear that as well, or if the matter is to be adjourned to another day then I will hear that application from whomever choses to put it, if that's the way it's going to go. Nothing else, gentlemen? Adjourn for 10 minutes. Let's see how we go.

SHORT ADJOURNMENT [10.16am]

RESUMES [10.39am]

PN25

THE COMMISSIONER: Did I grant leave to appear, Mr Berwick?

PN26

MR BERWICK: I think we got up to a stage where Mr Beard said that he didn't have any objection to me appearing. His problem was who I was appearing for. So insofar as that amounts to consent to a grant of leave, I think we've got at least that far.

PN27

THE COMMISSIONER: All right, well, leave to appear is granted, Mr Berwick. Now you will have to tell me who you are appearing for.

PN28

MR BERWICK: My instructions have changed somewhat and they are now these, Commissioner: I only appear for and those at the table with me, my instructing solicitor and Mr Pengly, only appear for the AMF Bowling Centres and I won't name them individually, but they are there clearly identified.

PN29

THE COMMISSIONER: But you will have a document which will identify them for me?

PN30

MR BERWICK: That's right, Commissioner. The position in regard to the AMF Bowling Centres is that they have no objection to a roping-in award being made. So things have become a little bit simpler, Commissioner.

PN31

THE COMMISSIONER: Are you going to tender a document which will show me who those centres are?

PN32

MR BERWICK: Yes, if I can just tender a document that designates the list of AMF Bowling Centres, Commissioner. I'm just showing it to Mr Beard.

PN33

MR BEARD: I said before, Commissioner, I have no problems with Mr Berwick's representation for AMF.

PN34

THE COMMISSIONER: Thank you, Mr Beard. We'll mark the list as B1, thank you.

EXHIBIT #B1 LIST OF AMF BOWLING CENTRES

PN35

THE COMMISSIONER: All right, anything further, Mr Berwick?

PN36

MR BERWICK: Not from us, Commissioner.

PN37

THE COMMISSIONER: Mr Beard?

PN38

MR BEARD: First of all, Commissioner, thank you for the small adjournment, it certainly made a difference to the parties being able to clearly understand who was part of the proceedings to continue. I can advise you, Commissioner, that this matter arises out of a dispute that you found on 3 October this year. Following the dispute finding, the union forwarded correspondence to each of the parties found in dispute. The correspondence included a covering letter explaining the history of the matter on the initial service of the letter of demand and log of claims through to the dispute finding. Also the union's pursuit of having those parties become respondent to the AWU Ten Pin Bowling Industry Award 2003.

PN39

The letter also advised that a copy of the award could be obtained from the Industrial Registry in the capital city of a particular party or on the internet site for the Federal Commission. I also explained how they could have access to that award. Attached to the covering letter was a copy of the draft roping-in award and also included in the letter, Commissioner, was advice with regards to today's hearing and the letter also explained that the hearing today would be for the purpose of ratifying the draft award.

PN40

The correspondence, Commissioner, was forwarded by registered post and a statement to that effect, together with a copy of the receipt for registered post, has been prepared for your file. So I'll take the opportunity to hand to you a copy of the forwarding letter, the statement of service and the draft roping-in award.

PN41

MR GOTTERSON: Have we got a copy of that?

PN42

MR BEARD: Well, that's a letter that was forwarded to all the parties, so the people you represent should have forwarded a copy through to you.

PN43

THE COMMISSIONER: Would you like to address me in any way? Is there something that you require?

PN44

MR GOTTERSON: I would just like access to that letter and have a look at it.

PN45

THE COMMISSIONER: Yes.

PN46

MR GOTTERSON: Thank you.

PN47

MR BERWICK: Yes, we have no objection to that.

PN48

THE COMMISSIONER: Thank you, Mr Berwick. This letter was forwarded to all parties as listed in schedule A to your application, Mr Beard? Was that the submission?

PN49

MR BEARD: That's correct, Commissioner. In fact it was forwarded to all the parties who are found in dispute.

PN50

THE COMMISSIONER: Not just the parties that you - - -

PN51

MR BEARD: Not just these particular parties, so that all parties found in dispute were advised of the pursuit of the Union and today's hearing, that's correct.

PN52

THE COMMISSIONER: We'll mark the letter from the AWU to named parties of the finding of a dispute dated 13 October 2003 as A1 in the proceedings before me. The statement as to service we will mark as A2. The draft order for the roping-in award we will mark as A3.

EXHIBIT #A1 LETTER FROM AWU TO NAMED PARTIES OF FINDING OF DISPUTE DATED 12/10/2003

EXHIBIT #A2 STATEMENT AS TO SERVICE

EXHIBIT #A3 DRAFT ORDER FOR ROPING-IN AWARD

PN53

MR BEARD: Thank you, Commissioner. Following service of the correspondence I was contacted by Mr Martin Belfield who is the Queensland manager industrial relations for the Australian Industry Group. We've had some discussions and those discussions have meant that the parties represented by the Australian Industry Group have no objection to being part of the roping-in award. I will hand to you a copy of the letter that Mr Belfield has forwarded through to the Union. It doesn't have a CC through to your office, Commissioner, so it will have to be marked.

PN54

THE COMMISSIONER: Do we know what respondents they represent?

PN55

MR BEARD: He has them listed on the letter, Commissioner, so I'll hand that to you.

PN56

THE COMMISSIONER: Do you have a copy for Mr Berwick as well?

PN57

MR BERWICK: We've seen that letter, thank you, Commissioner. We would like a copy though.

PN58

MR BEARD: I'll provide a copy following the hearing.

PN59

MR BERWICK: Yes. If Mr Beard would do that, please.

PN60

THE COMMISSIONER: Thank you. We will mark the letter A4.

EXHIBIT #A4 COPY LETTER FROM MR BELFIELD OF AUSTRALIAN INDUSTRY GROUP TO AWU

PN61

THE COMMISSIONER: Yes, when you're ready, Mr Beard.

PN62

MR BEARD: Thank you, Commissioner. Turning to A3, which is the draft roping-in award, the application clause relates to the AWU Tenpin Bowling Industry Award 2003. It will bind the union, it's members and employees who are eligible to become members of the Australian Workers Union and the parties listed in the accompanying schedule A. There is savings provision and you will note that the operative date sought is to come into force on and from today's date, 6 November 2003, and to remain in force for a period of six months.

PN63

In summary, Commissioner, the union believes that it has properly advised all of the parties who are listed in schedule A of today's hearing. They have had ample opportunity to contact the union or the Commission in regard to any objections that they may have had in regards to being part of exhibit A3. On that basis we would ask that the award in terms of A3 be issued in due course. If it please the Commission.

PN64

THE COMMISSIONER: Thank you for those submissions, Mr Beard. Mr Berwick, anything at all?

PN65

MR BERWICK: No, we have nothing to add.

PN66

THE COMMISSIONER: Thank you. Based on the material filed with the application, material tendered by Mr Beard in proceedings today, and submissions made by Mr Beard and also by Mr Berwick representing AMF bowling centres and advising there is on objection, I am satisfied that the award sought to be made by the AWU in proceedings before me, being the AWU Tenpin Bowling Industry (Roping-in No 1) Award 2003 will be made in the terms outlined in exhibit A3. This award shall come into force on and from the first full pay period after 6 November?

PN67

MR BEARD: I have no objection to the draft being amended in that way, Commissioner.

PN68

THE COMMISSIONER: I'm just thinking that it normally is that way.

PN69

MR BEARD: From an administrative point of view I think it does make sense, so as I say I have no objection to exhibit A3 being amended to reflect coming into force from the beginning of the first pay period commencing on or after today's date. The draft that I forwarded through to your office by email will in fact have that amendment.

PN70

THE COMMISSIONER: Yes. Nothing else, Mr Beard?

PN71

MR BEARD: No, Commissioner.

PN72

THE COMMISSIONER: As I say, the award shall come into force on and from the first full pay period after 6 November 2003 and shall remain in force for a period of six months. Mr Beard, you will forward in a draft order to my associate.

PN73

MR BEARD: I will.

PN74

THE COMMISSIONER: If there is nothing further, gentlemen, I thank you for your attendance this morning. The Commission stands adjourned.

ADJOURNED INDEFINITELY [10.50am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 LIST OF AMF BOWLING CENTRES PN35
EXHIBIT #A1 LETTER FROM AWU TO NAMED PARTIES OF FINDING OF DISPUTE DATED 12/10/2003 PN53
EXHIBIT #A2 STATEMENT AS TO SERVICE PN53
EXHIBIT #A3 DRAFT ORDER FOR ROPING-IN AWARD PN53
EXHIBIT #A4 COPY LETTER FROM MR BELFIELD OF AUSTRALIAN INDUSTRY GROUP TO AWU PN61