C2003/6305, Transcript of Proceedings [2004] AIRCTrans 122 (8 January 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS

O/N 5752
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER FOGGO

C2003/6305

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

QEK GLOBAL SOLUTIONS (AUST) PTY LIMITED

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

MELBOURNE

10.25 AM, WEDNESDAY, 17 DECEMBER 2003

PN1

MS S. SCHLESINGER: I appear for the Australian Manufacturing Workers' Union.

PN2

MR B. LAWRENCE: I seek leave to appear on behalf of QEK Global Solutions Australia Pty Limited.

PN3

THE COMMISSIONER: Is there any opposition to leave?

PN4

MS SCHLESINGER: Commissioner, no.

PN5

THE COMMISSIONER: I see that Mr Lawrence was appearing in previous proceedings. Leave is granted.

PN6

MR LAWRENCE: If the Commission pleases.

PN7

MS SCHLESINGER: Yes, Commissioner, we would hope that today would be a fairly straightforward proceeding from the union's point of view. I think you have become aware that there was a previous attempt by the union to have a dispute found between ourselves and the company and that wasn't found at that point in time in the matter before Commissioner Hingley. The union has subsequently re-served the company with a letter of demand and a log of claims and had that authorised through its various appropriate bodies within our organisation and we would like to put that before the Commission today and we would ask then that a dispute be found.

PN8

MR LAWRENCE: Perhaps I should say while my friend is preparing the documentation for tender, the application for dispute finding is opposed.

PN9

THE COMMISSIONER: Right.

PN10

MS SCHLESINGER: I am missing part of the copies of the exhibit. They are in the office, but I haven't got them with me.

PN11

THE COMMISSIONER: Is that a copy?

PN12

MS SCHLESINGER: That is a copy. I have got part of a copy I can give to Mr Lawrence and I have got the originals I can work with Mr Lawrence, but he is obviously going to want to see our national executive resolution and everything like that.

PN13

THE COMMISSIONER: But do you have one complete copy?

PN14

MS SCHLESINGER: Yes, I do.

PN15

THE COMMISSIONER: Well, perhaps if we could get copies of that.

PN16

MS SCHLESINGER: I apologise for that.

PN17

THE COMMISSIONER: Just while we are getting that, perhaps I could hear from Mr Lawrence. Is there something further you can go through in relation - - -

PN18

MS SCHLESINGER: Commissioner, I am basically going to detail the document that the union has worked on.

PN19

MR LAWRENCE: Commissioner, can I just say something first of all about the letter of demand? This was a letter of demand dated 27 October, 12 days after Commissioner Hingley's decision which was 15 October. The letter of demand recites that the national council had resolved to serve demands, so we would expect that there would be, if everything is technically correct, a resolution of the national council and it was in accordance with a rule that can be identified. Secondly, the letter of demand says that in respect of employees who are eligible for membership and who are engaged in or in connection with the vehicle industry, so it is not simply in relation to those who are eligible to be members. There is that limitation in respect to the vehicle industry and the third thing in the letter of demand is a claim by Ms Taylor that she is authorised to - well, she says she is authorised to receive you reply. She doesn't actually say she is authorised to make the claim, so there is the question in that third aspect, the question of Ms Taylor's capacity to make the claim. Now, the first and third are technical matters, if I can use that term. They are substantive matters, but often referred to as technical matters.

PN20

The second, which is the issue of whether or not QEK is engaged in or in connection with the vehicle industry is a very substantive matter and that was a major issue before Commissioner Hingley and I see the documents are here, Commissioner. Do you wish me to continue just for the moment?

PN21

THE COMMISSIONER: Well, I think it might be useful if we now revert to Ms Schlesinger so that we are aware of all the information that the union is running.

PN22

MR LAWRENCE: Yes.

PN23

THE COMMISSIONER: Yes, Ms Schlesinger.

PN24

MS SCHLESINGER: Yes, Commissioner, I wish to tender a document that will set out the authorisation for the service of the log of claims and I will take the Commission to the relevant pages in that document and also attached to it is the letter of demand that was sent to the company on 27 October 2003.

EXHIBIT #S1 BUNDLE OF DOCUMENTS

PN25

MS SCHLESINGER: Commissioner, I might just take you through each of the documents that are there. The first one is a facsimile dated 15 August 2003 and that goes to our various national councillors and at item 10, that deals with the log of claims and on the following page you see the recommendation that actually came out of the meeting on 18 September 2003 and the recommendation is:

PN26

The national council authorises the service of the AMWU standard log of claims, together with a letter of demand on -

PN27

and the second company listed is QEK Global Solutions Australia Pty Limited, 467 Plummer Street, Port Melbourne, 3207 -

PN28

and thereupon take the required action to secure the demands made, including initiating proceedings in the appropriate industrial tribunal.

PN29

The next is a document dated 7 October 2003 and that is the minutes of a special national council meeting that was held on 18 September and they are the minutes that I had referred to. Sorry, it goes over the page and again you will see under the heading log of claims, at the bottom of what would be the fourth page, there is a reference to QEK Global Solutions Australia Pty Limited and again you will see on the following page the minutes, the people who attended, by whom it was chaired and again the log of claims in that format.

PN30

The next one is an internal memo just reporting on the special national council minutes and then following that is a document dated 27 October 2003 and that is a letter that is sent to QEK Solutions Australia Pty Limited and that is dated 27 October and attached to that is the relevant material in terms of the notification and the statement of fact, the certified mail posting receipt.

PN31

MR LAWRENCE: If I could just interrupt for a moment, Commissioner, the last document I have got in the bundle is the memo of 17 October.

PN32

MS SCHLESINGER: That is just behind it.

PN33

MR LAWRENCE: Thank you.

PN34

THE COMMISSIONER: Can I just ask you a question in relation to the letter of demand?

PN35

MS SCHLESINGER: Yes.

PN36

THE COMMISSIONER: Was the log of claims attached to that?

PN37

MS SCHLESINGER: Yes, it was.

PN38

THE COMMISSIONER: And then schedule B was behind that?

PN39

MS SCHLESINGER: That is correct.

PN40

THE COMMISSIONER: And it was the same log of claims that had been - was it the standard log, the same log that had been earlier sent to the company?

PN41

MS SCHLESINGER: I understand that to be correct, Commissioner. The last two pages of exhibit S1 are some minutes from the union's national council held in March 1987 on the 10th and 12th of that month that authorised the national research co-ordinator to institute proceedings.

PN42

THE COMMISSIONER: No, I don't have that. I have the letter of demand, then a page that says schedule B, then form R4, notification of an alleged industrial dispute, then a statement of facts and then a registered post document.

PN43

MS SCHLESINGER: Well, perhaps I could tender another document, Commissioner, and, Commissioner, as I have indicated, that is the national council minutes in March 1987 and over the page you will see that there is the authorisation for the National Research Centre co-ordinated to institute proceedings in the relevant tribunal.

EXHIBIT #S2 COUNCIL MINUTES WITH ATTACHMENT

PN44

MS SCHLESINGER: Yes, Commissioner, with the information in front of you, we say that the letter of demand and log of claims has been properly served upon the company. We have attached the evidence as to the service of that document and as to today's hearing and obviously the company is represented here today. We submit that that has been properly authorised within the union's rules and we quite simply would ask that a dispute finding be made. We say that that wouldn't prejudice the company in any way should there into the future be any attempts by the union to have a certain type of relationship with the company, that we are able at that time to express their view through discussion or in a forum through the Commission. We say it doesn't prejudice them in any way to have the dispute finding made today. If the Commission pleases.

PN45

THE COMMISSIONER: Yes, thank you. Mr Lawrence.

PN46

MR LAWRENCE: Commissioner, we are not satisfied in relation to the procedural technical matters. There are several points that can be made. The first one is that at the time in which these matters were apparently being dealt with at the national council, that is in September and October, there were proceedings within the Commission before Commissioner Hingley, that is there was a dispute ranging over the same matters as those that have now been raised and we say that that can't be a genuine dispute.

PN47

You can't create a dispute in the same terms as a dispute that is already within the Commission that is being processed as a dispute, so that is the first point. The second point is under what rule was the claim made, the demand made? We haven't been told that. In regard to the position of Ms Taylor, she is according to the letter the co-ordinator at the National Research Centre. We do know from a document that is tendered that apparently the co-ordinator of the National Research Centre was authorised to do certain things, but it is significant that that person was authorised to institute proceedings before an industrial tribunal on behalf of the national council, so clearly if the union wished to institute proceedings in this Commission, that person would have some status, but that doesn't address the question of whether or not that person can make a demand.

PN48

That is a different thing. The making of a demand has to be in accordance with the rules and that is a different function to the function that is adverted to in the minutes from 1987, so we are still at a loss to know under what rule all of this was done, the demand was made and we are still at a loss to know what the authority to make a demand on behalf of the union was in regard to Ms Taylor.

PN49

Now, they are the important matters which need to be addressed and debated. They are matters which on the material are not adequately dealt with by the union, but there is still that fundamental question of whether or not this is a dispute in regard to a company that is in or in connection with the vehicle industry. Now, my friend says let us have a dispute finding now, it won't be prejudicial because something can be sorted out in the future and it may be that she has specifically got in mind the capacity of the Commission to revoke a dispute finding at some stage in the future.

PN50

Now, in my submission, the fact that a Commission can in appropriate circumstances revoke a dispute finding is no licence for the Commission in the first place not to take the dispute finding seriously and to deal with the issues, the substantive and technical issues that are raised by the company that doesn't want the dispute finding. We say we have got very genuine issues in relation to the substantive claim that has been made. We say that this company is not in or in connection with the vehicle industry and in the proceedings before Commissioner Hingley, there was extensive evidence on that.

PN51

Commissioner, you have seen the Commissioner's decision of 15 October. He has summarised the position and he says in the course of it that the company is and he is reciting our argument, is in the fleet management services industry. Now, in support of the submissions that we put to Commissioner Hingley, we had a statement from the managing director of QEK, Ms Jade Carbin and there was extensive cross-examination of her by the representative of the AMWU.

PN52

It was cross-examination that started on 11 August and continued on Friday, 3 October. On that day there were submissions put which again took a substantial period of time. What I am proposing, Commissioner, is that in this matter, that QEK have leave to tender Ms Carbin's statement and the transcript of the proceedings so that the evidentiary material upon which you will need to make a decision as to whether or not my client is engaged in or in connection with the building industry can be before the Commission as presently constituted.

PN53

If my friend wishes to cross-examine further on Ms Carbin's evidence, then the AMWU should give notice and an appropriate date can be fixed. In regard to the substantive submissions, that is the characterisation of the business and addressing the question of whether or not it is in or in connection with the vehicle building industry be the subject of submissions at some later stage after the Commission, after you, Commissioner, have had an opportunity to read the material and further cross-examination if that is decided upon is undertaken.

PN54

THE COMMISSIONER: Well, there are several things that worry me about this. Thank you, Mr Lawrence. Commissioner Hingley is the one who has heard all the submissions in relation to eligibility. He refers to it in his decision which was issued on 15 October and it would make sense for this matter to be heard by Commissioner Hingley because he has the substantial background in it. I can't understand why, in fact, the files have - he has been allocated one and I have been allocated another, when they pertain to the same company. It seems a duplication of effort for me then to go through all the information which is put before Commissioner Hingley, but obviously the information will be important in determining whether a record of findings is issued by the Commission. I think in the circumstances where we have only had half an hour here, it might be useful to discuss this with Commissioner Hingley and to let the parties know.

PN55

MS SCHLESINGER: Commissioner, I guess we saw that Commissioner Hingley made a decision about the service of our log and that that service has been rectified and as I have indicated, in our view that becomes, I guess, similar to a number of other matters we bring before the Commission in terms of dispute findings.

PN56

THE COMMISSIONER: That may well be the case.

PN57

MS SCHLESINGER: But there obviously is a history in this particular matter.

PN58

THE COMMISSIONER: Well, in paragraph 33 of his decision, he says:

PN59

It follows therefore that I am now not required to determine questions related to eligibility for award coverage.

PN60

Having found the way he did, he didn't need to go to that other issue and it was obviously a matter that was important, given what you have told me about the scope of the proceedings. In any case, I do not intend to issue a record of findings today and then leave it open to the company to have to revoke that. Having not heard anything in relation to the eligibility, it would be premature in the extreme for me to follow that course.

PN61

MS SCHLESINGER: Yes, Commissioner, in respect of the matters that were before Commissioner Hingley, obviously the union led evidence and appropriate witnesses and we thought we had a sound case there, so if you were to be looking at the matter further, well, we would want to put various of that material before you.

PN62

THE COMMISSIONER: Yes, I fully understand that from both parties. Mr Lawrence.

PN63

MR LAWRENCE: Commissioner, could I just say one thing which you may not be aware of and perhaps I should have mentioned it before. Some time after Commissioner Hingley's decision was handed down, the AMWU appealed that decision and I can pass this up, the notice of appeal. It was dated 5 November so it just came in within the time and you will see from the grounds of appeal that there was an issue raised about the dispute finding, but the appeal was withdrawn, even before my client found out about it or at about the time my client found out about it and I think it is paragraph 3 or ground number 3 of the appeal, there is reference there to dispute finding which would have, as I understand it, raised the question before a Full Bench of whether or not there was a proper basis for a dispute finding.

PN64

That is the substantive question of whether or not my company is in or in connection with the vehicle industry. Now, the AMWU withdrew the appeal as is their right and they have relied on this other claim which is obviously allocated within the Commission in a way that we have no comment on, but there is the question for the Commission to determine how it should be allocated and we are quite happy with any member of the Commission, Commissioner. If it is done in the ordinary way or with consultation, it is not for us to comment on. I didn't make the submission at the start of the day that the matter should go to Commissioner Hingley or anybody else because we deal with the matters as they come to us.

PN65

THE COMMISSIONER: Yes, I think probably all of us have enough work to do without duplicating.

PN66

MS SCHLESINGER: Commissioner, I would just confirm that a notice of appeal was lodged, but it was withdrawn.

PN67

THE COMMISSIONER: Can you recall when it was withdrawn?

PN68

MR LAWRENCE: I can say that we have got a copy of a letter to the registrar from Mr Sachinidis dated 17 November indicating that the union was withdrawing the appeal. We found out, I think it was only five days before that, of the existence of the appeal after being contacted by the Commission. Apparently it hadn't been served on us, so within five days it had come and gone as far as we were concerned.

PN69

THE COMMISSIONER: Yes, I am going to adjourn these proceedings now. I am going to discuss this matter with Commissioner Hingley and the parties will be advised of how we intend to proceed with this matter. Suffice to say that there are still two major issues to be resolved and that is the authorisation of the second letter of demand and log of claims and the issue of eligibility. These proceedings are now adjourned.

ADJOURNED INDEFINITELY [10.54am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #S1 BUNDLE OF DOCUMENTS PN25
EXHIBIT #S2 COUNCIL MINUTES WITH ATTACHMENT PN44