C2003/6641, Transcript of Proceedings [2003] AIRCTrans 5668 (18 December 2003)

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TRANSCRIPT OF PROCEEDINGS

O/N F8184
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DUNCAN

C2003/6641

THE AUSTRALIAN WORKERS' UNION

and

BALGOWINE ESTATE and ANOTHER

Notification pursuant to section 99 of the Act
of an industrial dispute re log of claims

SYDNEY

10.03 AM, MONDAY, 8 DECEMBER 2003

PN1

MR G. BEARD: I appear on behalf of the Australian Workers' Union.

PN2

MR J. KENNEDY: I appear on behalf of McGuigan Simion Wines Limited.

PN3

MR P. EBERHARD: I am from the Victorian Employees Chamber of Commerce Industry and I appear on behalf of Balgownie Estates Pty Limited.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Eberhard. No difficulty with Mr Kennedy's appearance, Mr Beard, is there?

PN5

MR BEARD: No, your Honour.

PN6

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Well, Mr Beard?

PN7

MR BEARD: Thank you, your Honour. Initially, I would like to advise you that the two parties subject to today's matter were advised of today's hearing through correspondence forwarded by the union on 28 November this year. Obviously the presence of the parties today indicates that the correspondence was properly served and duly received. However, for the fullness of the file, your Honour, I have prepared a statement of service signed by myself and with the statement is the receipt for registered post.

EXHIBIT #AWU1 STATEMENT OF SERVICE

PN8

MR BEARD: Thank you, your Honour. The brief details to the dispute are that on 18 November this year, the union served letters of demand and logs of claims upon the two parties in regard to their employees engaged in the wine industry. The log of claims was a comprehensive document setting out wage rates, allowances and working conditions to be applied to those employees. The parties were asked to inform the union within 7 days that they would agree to apply those demands and as the union did not receive a positive response from those parties, the formal dispute notification was filed on 25 November this year.

PN9

You will note, your Honour, in the notification that was filed, that at schedule A is a list of the parties that were served and that is in fact the registered post receipt showing that the letters of demand and logs of claims were properly served. At schedule B, is a copy of the letter of demand and the log of claims. Schedule C is a statement signed by myself in regard to the service of the letters of demand and logs of claims and schedule D is a statement signed by the national secretary of the union stating that the service was duly authorised in accordance with the union's rules.

PN10

The union, your Honour, believes that it has the constitutional capacity to cover employees in this industry, that in regard to McGuigan Simion Wines, in accordance with the union's rules, we would seek to have a dispute found with that company in respect of its operations, except as to those in South Australia. Due to the non acceptance by the two employers in regard to the log of claims, we ask that you find and record the existence of an interstate industrial dispute in accordance with section 101 of the Act and direct the parties to confer. If it pleases, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: Very well, Mr Beard. Mr Kennedy?

PN12

MR KENNEDY: Yes, your Honour. My instructions are to ask that you not make a formal finding of a dispute on the basis that after receiving the log of claims, my client wrote to the union and requested further time to consider the matters raised in the log of claims. They sought a period of 30 days, given the comprehensive nature of the log of claims that was served upon them. Also, your Honour, I raise this with my friend, it is not entirely clear from the log of claims as to which company entity the log of claims is directed.

PN13

It was certainly served on McGuigan Simion Wines Limited address but there are quite a number of operations that have that company as - sorry, have that address as their registered place of business and those operations are in South Australia, Victoria and New South Wales. So there are quite a number of related entities, so there would be an issue in my submission as to the identity of any parties to the dispute.

PN14

THE SENIOR DEPUTY PRESIDENT: All right, Mr Kennedy. Mr Eberhard?

PN15

MR EBERHARD: Your Honour, with respect to Balgownie Estate, we acknowledge receipt of the log of claims, reject the claims contained therein, however, we would not oppose the finding of an industrial dispute as a result of what Mr Beard has said today. With respect to Balgownie Estate, we would ask that any further proceedings in regards to this be - for Balgownie - joined with the matters in, I think they started at 2003/5105 and I think have now turned into 2003/5706, which is the AWU v Ada River Vineyard/Kelleher Wines Pty Limited matter that has been listed before you and we have represented a significant number of organisations in that.

PN16

And if the Commission was mindful, we would ask that the Commission, with respect to Balgownie, join the proceedings in the Ada River Vineyard/Kelleher Wines Pty Limited matter and also, any further proceedings against Balgownie Estates by the AWU in this matter. If the Commission pleases.

PN17

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Eberhard. Mr Beard, what do you say in response?

PN18

MR BEARD: Thank you, your Honour. We believe that we have served the proper company in regard to McGuigan Simion Wines. Mr Kennedy hasn't stated that the service was incorrect, all he has said is that there are lots of different companies at a particular address: 170 Greenhill Road, Parkside, South Australia. Doing a company search, we have found that that was the registered company's registered office. If Mr Kennedy has further information that can enlighten us, I am only too happy to hear, that but at this stage we believe we have clearly identified the appropriate party and he hasn't said anything to dispute that.

PN19FF

In regards to correspondence that has taken place between the parties, I can advise that on 2 December the union did receive a letter from Mr Andrew White, who is the group business manager of McGuigan Simion Wines, and he sought some further information in regards to the union's position in this matter. I wrote to Mr White on 3 December setting out the situation, especially in regard to a dispute finding where we believe that a dispute finding only attracts at this stage, the attention of the Commission's jurisdiction.

PN20

It is not binding on the parties in regards to any future award or whatever the outcome of our discussions evolve, and therefore, we would continue to press with a dispute finding today on the basis that sections 101, 111AAA and also, 111(1)(g) of the Act mean that a dispute finding will not prejudice the company in any way. The union is more than happy to, obviously, have further discussions with the company in regard to the part-settlement of the dispute.

PN21

At this stage we see that an adjournment in regards to the dispute finding is not going to be of any benefit to any of the parties. In regard to Mr Eberhard's position, your Honour, we think that is a good idea that in regard to Balgownie Estate, that they in fact be part of matter C2003/5706 which is the current proposal in regard to the AWU roping-in award in that matter.

PN22

THE SENIOR DEPUTY PRESIDENT: 5706?

PN23

MR BEARD: That is how I understand it.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes. I don't have the file.

PN25

MR BEARD: The previous C number that Mr Eberhard gave you, in fact, was the dispute finding between those parties.

PN26

THE SENIOR DEPUTY PRESIDENT: I see, and 5706 is the 111(v) application?

PN27

MR BEARD: Yes, well, that is correct. Yes. If it please the Commission.

PN28

THE SENIOR DEPUTY PRESIDENT: Anything else you want to say, Mr Kennedy?

PN29

MR KENNEDY: Your Honour, could I just direct you to, and I think this is attached to my friend's notification of a dispute, the letter from the AWU and the addressee on that letter is to the manager, as addressed, so it does not specify which company. As I understand it, and my instructions aren't 100 per cent clear on this, but from the address on which the log of claims was served, there are at least five or six wine companies that operate in association with McGuigan Simions and they include Simion Wines Ltd, Bittners Australia Pty Limited, Brian McGuigan Wines Limited, Miranda Wines Limited and as I understand it, there are quite a number of small vineyards in New South Wales which are owned by separate companies which also fall under the same corporate structure of the McGuigan Simion label. So, my submission would be that it is not entirely clear which of those vineyards my friend is seeking to have a dispute finding against.

PN30

SENIOR DEPUTY PRESIDENT: Yes. That finishes you, Mr Kennedy, does it?

PN31

MR KENNEDY: Yes.

PN32

MR BEARD: The correspondence was addressed to McGuigan Simion Wines and the address was the address, as I said - is listed as the company's registered office. Again, Mr Kennedy hasn't said that McGuigan Simion Wines is not the employer in regards to these particular situation of employees engaged in the wine industry. That is the bottom line. If he was saying: well, McGuigan Simion Wines is not the employer well, you know, we would have to sort of delve further into whether service has been duly effected on the correct party, but at this stage, I would say I believe that he hasn't put forward a situation where a dispute finding should not be made against McGuigan Simion Wines, your Honour.

PN33

THE SENIOR DEPUTY PRESIDENT: In this matter, the AWU notifies the Commission of an alleged industrial dispute between itself and two employers it alleges are in the wine industry, Belgowine Estate and McGuigan Simion Wines. On 18 November 2003, the union served upon those two parties a letter of demand and a log of claims setting out rates of pay and conditions of employment that the union demanded should apply to employees engaged by the said employers. Nothing has been put which entitles me to believe that the claim is accepted and consequently, subject to what I go on to say, a dispute will exist.

PN34

The position is that as far as Belgowine Estates are concerned, service is acknowledged and receipt of the various documents required for the creation of an interstate industrial dispute have been received. There is no opposition to the finding of a dispute being made and Balgownie Estate asks through its representative, VECCI that the dispute in which it is involved be joined - insofar as it is involved - be joined to matter C2003/5706, which is an application by the AWU for a section 111(1)(b) award. So far as McGuigan Simion Wines are concerned, Mr Kennedy, on behalf of that organisation, submits that no finding should be made as it is not clear whether or not that body I have referred to is the appropriate body.

PN35

Particulars have been sought and as yet have not been supplied. I am satisfied that a dispute has effectively been created between the AWU and McGuigan Simion Wines. What that entails is a matter for the future but I am prepared to make a finding of dispute using that name and, of course, if circumstances show that that is either not an operating company or is in some way not relevant to the dispute, the appropriate application for a variation of any dispute finding I might issue can be made.

PN36

For those reasons, I do find that a dispute has been created pursuant to section 99 of the Act and the rules and regulations of the Commission and a finding, as required by section 101, will issue in due course. I note for the record that at the request of Mr Beard, the finding against McGuigan Simion Wines will be for operations except in South Australia. Otherwise, I direct the parties to confer and I adjourn this matter indefinitely. I adjourn the Commission indefinitely.

ADJOURNED INDEFINITELY [10.18am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #AWU1 STATEMENT OF SERVICE PN8