C2003/6335, Transcript of Proceedings [2003] AIRCTrans 5478 (10 December 2003)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 5457

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2003/6335

NATIONAL UNION OF WORKERS

and

ACC SERVICES (AUST) PTY LTD
T/AS RAPID PAK

Notification pursuant to section 99 of the Act
of a dispute re right of entry of NUW officers
at the employer's Clayton South premises

MELBOURNE

2.05 PM, TUESDAY, 25 NOVEMBER 2003

PN1

MR A. PORTELLI: I appear on behalf of the NUW.

PN2

MR T. HALLS: I appear for the Australian Industry Group on behalf of ACC Services Trading as Rapid Pak with MR I. FOSTER, the manager of sales and marketing for the company.

PN3

THE DEPUTY PRESIDENT: Yes, Mr Portelli.

PN4

MR PORTELLI: I will try to be brief, Deputy President. The reason why we are here today is that in the last couple of months it has come to the NUWs attention by way of a number of members that we have on site with the respondent that there appears to be a number of award breaches, including but not limited to, failure to pay correct rates of pay, failure to pay overtime and failure to pay correct casual loading. On that basis we have sought on a number of occasions right of entry to the premises of the respondent to inspect time and wage records.

PN5

Up until this point those attempts have not been successful, mainly due to the fact that on the couple of times we have actually attempted to do so one of the directors of the respondent, Ms Ingrid Hsi - I think I have pronounced it correctly - has not been available and apparently Ms Hsi is the only person who is able to access the records, the time and wage records. What we are here today for is, firstly, to request the Commission order the inspection or our ability to inspect those records as soon as possible, and secondly, to see why in fact it is the case that only one person who is employed by the respondent - only one manager - only one person of the management team is actually able to access the records.

PN6

Ms Hsi is actually away in hospital at the moment for the next couple of weeks, we have been informed, so we would be seeing if, firstly, the respondent could demonstrate why it is one, and only one person, that can provide this access to the information, and secondly, we would be seeking that order as soon as possible. We have had discussions - myself and the representative of the employer - about potential dates in the future. The employer has indicated their availability for an inspection on 2 December.

PN7

We are here today because there have been a number of occasions where we have attempted to inspect the documents and that has fallen through and we are seeking something more concrete today; an order or a direction, at least, from the Commission if that were possible.

PN8

THE DEPUTY PRESIDENT: Yes. Thanks, Mr Portelli. It would be my intention after hearing from Mr Halls to go into conference to discuss this matter further. Have you any objection to that course of action?

PN9

MR PORTELLI: No.

PN10

THE DEPUTY PRESIDENT: Good. Thank you. Mr Halls.

PN11

MR HALLS: Thank you, your Honour. Your Honour, perhaps the first issue to address is regarding the one person who is available to address this issue, if you like; that is a lady by the name of Ingrid Hsi, I believe it is actually pronounced. The company make-up essentially engages three full-time people. We have Mr Ian Foster, who is here today. He is the sales and marketing manager. We also have Tony Hsi, who is effectively responsible for engineering management and the functions within that department and there is also Ingrid Hsi, who is the administration/office manager, if you like.

PN12

Ingrid is the only clerical administrative person engaged by the organisation and is the only person who is able to operate the company's computers in terms of putting out the data, if you like, that the NUW is seeking in relation to payroll records, etcetera. It is my instructions that neither Ian Foster, nor Tony Cee have the ability to do that. In relation to the attempts that the NUW has actually made to meet with the company, the initial date that was sought was 17 October 2003 and it was communicated to the union at that time that that was unsuitable due to Ian Foster being away firstly and I understand that Ingrid was not available at that time either. The company had responded to the desire to meet on that date by indicating they would be available on 30 October, 27 October or even 24 October.

PN13

THE DEPUTY PRESIDENT: Yes, Mr Halls, if the union is correct and anomalies exist in the payment of wages to employees that disadvantages them as to their entitlements under the award - and I am not too sure that a court would be overly impressed by the excuse that there is only one person that can access those records and that person just doesn't happen to be available at the time.

PN14

MR HALLS: Well, your Honour, with all due respect that is the way the company is structured at this point in time.

PN15

THE DEPUTY PRESIDENT: Yes.

PN16

MR HALLS: Whether or not that changes in the future I am not sure, but the fact is that that person has not been available on the only two specific dates that the union has requested entry to the premises.

PN17

THE DEPUTY PRESIDENT: Well, that is true. I am simply making the point that if there could be shown to be the anomalies that the union alleges exist, and they were proven to exist, then I am not sure the court would have too much tolerance for excuses that went to a lack of availability of particular employees, when there are employees who hadn't been paid their rightful entitlements.

PN18

MR HALLS: I appreciate that.

PN19

THE DEPUTY PRESIDENT: I am simply making the point that if it goes to that point that those employees haven't been paid their rightful entitlement, and I have no way of knowing that one way or the other, then that is a matter that the court may have to consider and I doubt that standing on your feet in front of the court with the same sort of arguments that you are putting to me will carry too much weight, Mr Halls.

PN20

MR HALLS: Certainly, your Honour. What I would emphasise though, your Honour, is that the company has no objection whatsoever in meeting with the union. They are not trying to hide from the union in any regard. Unfortunately the request to meet with the company, circumstances just haven't permitted that. Unfortunately the person that we are referring to, Ingrid, has been - has had a recent dental operation which has precluded the company from meeting with the union on the first occasion, being 17 October. The union then sought another meeting during November around the same date and unfortunately, as you are aware, Ingrid is now in hospital undergoing an operation in relation to eye surgery.

PN21

So the company has no objection whatsoever; we need to make that very clear on the record, your Honour, in terms of meeting with the union. We are more than happy to do that. We would give an undertaking today on the record on transcript to meet with the union on 2 December and I think the time specifically set was 11.30 am and we are prepared to provide that undertaking. We would submit that we think on that basis that the issuing of any direction or order may be a little premature and we would ask the Commission and the union to at least see what happens on 2 December and should we not adhere to our undertaking, then the union is at liberty to address the matter appropriately.

PN22

THE DEPUTY PRESIDENT: Yes. Okay, thanks, Mr Halls. Mr Portelli, is there anything further you wish to say on the record?

PN23

MR PORTELLI: Deputy President, I think we would feel more comfortable with something more concrete in the way of a direction or order. However, if in your Honour's discretion you find that is not appropriate so be it. I would simply restate that we would be looking for an inspection as soon as possible. If that date is 2 December so be it.

PN24

THE DEPUTY PRESIDENT: All right, good. Thanks, Mr Portelli. I might go off the record if the parties have no objection.

OFF THE RECORD

PN25

THE DEPUTY PRESIDENT: Yes, we have had some brief discussion in conference about this particular matter. The Commission is of the view that it would be better to enable the parties to go further with a proposed meeting on 2 December, at which time the employer has undertaken to have such documentation as the union require made available to it. For the Commission's part I will list the matter for 10 am on Thursday, 4 December for report back and for consideration and a decision on the issue of an order in the form sought by the union, should that be necessary.

PN26

In the circumstances, I trust that it won't be necessary given the undertakings that I have had from the employer about the meeting and the availability of that documentation. I would ask the parties, and particularly the union, if the union determine that they are satisfied with the outcome of the meeting on Tuesday the 2nd, that they should notify my chambers directly and I will abandon the listing on Thursday the 4th. Are there any other matters that either of the parties wanted to raise at this stage?

PN27

MR PORTELLI: No, Deputy President.

PN28

MR HALLS: No, your Honour.

PN29

THE DEPUTY PRESIDENT: On that basis, I will adjourn. Thank you.

ADJOURNED UNTIL THURSDAY, 4 DECEMBER 2003 [2.19pm]