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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 6711
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
DEPUTY PRESIDENT HAMILTON
C2003/6197
NATIONAL UNION OF WORKERS
and
CENTURION FLOUR MILLS and OTHERS
Notification pursuant to section 99 of the Act
of an industrial dispute re wages and conditions
of employment
MELBOURNE
2.34 PM, WEDNESDAY, 7 APRIL 2004
Continued from 12.12.03
THIS HEARING WAS CONDUCTED VIA VIDEO LINK AND RECORDED IN MELBOURNE
PN122
THE DEPUTY PRESIDENT: Right, this is a matter arising out of a log of claims served by the National Union of Workers and industrial dispute found following the last hearing. Any changes to appearances? Well, in fact, I think we had better, given the interstate nature and the technology, enter appearances one by one starting with Victoria. Mr Maas, is it?
PN123
MR MAAS: Maas. Thank you, your Honour.
PN124
THE DEPUTY PRESIDENT: Mr Maas.
PN125
MR G. MAAS: I appear for the National Union of Workers.
PN126
MS K. RICHARDS: I appear for the Victorian Employers Chamber of Commerce and Industry. In the proceedings today, as well as the proceedings on 12 December 2003, I appear on behalf of Jones Stockfeed and Fertiliser and also D and M Stockfeeds.
PN127
THE DEPUTY PRESIDENT: Thank you. Adelaide, who is appearing in Adelaide?
PN128
MR M. SHEEHAN: I appear on behalf of Balco Australia Pty Limited. Thank you, sir.
PN129
THE DEPUTY PRESIDENT: Thank you, Mr Sheehan. Perth?
PN130
MR P.G. ROBERTSON: I continue my appearance on behalf of three organisations. They are, firstly, Gilmak South Australia Pty Limited; secondly, Gilmak Western Australia Pty Limited; and thirdly, Morton Seeds and Grain. May it please, your Honour.
PN131
THE DEPUTY PRESIDENT: Thank you, Mr Robertson, is it? Yes. Sydney?
PN132
MR S. McCARTHY: I appear on this occasion for the same list of companies that I appeared on behalf of when this matter was last before the Commission.
PN133
THE DEPUTY PRESIDENT: Thank you very much. Are those all the appearances?
PN134
MS N. CHAPMAN: No, Commissioner, thank you. If it pleases the Commission, I appear on behalf of the New South Wales Farmers Industrial Association and I'm here on behalf of our members, Amlock Pty Limited, LPC Trading Pty Limited, Puravic Enterprises Pty Limited and D and W Welsh Pty Limited. Thank you.
PN135
THE DEPUTY PRESIDENT: Right. Thank you, Ms Chapman. Is there anybody else in Sydney?
PN136
MR M. COOPER: Yes, your Honour. If the Commission pleases, of Employers First, I'm appearing today on behalf of the Bowral Co-op Trading Limited.
PN137
THE DEPUTY PRESIDENT: I'm sorry, could you give me that name again? Cooper, is it?
PN138
MR COOPER: Cooper, C-o-o-p-e-r.
PN139
THE DEPUTY PRESIDENT: Thank you very much Mr Cooper.
PN140
MR COOPER: Thank you.
PN141
THE DEPUTY PRESIDENT: Excellent, so those are all the appearances. Now in this matter - I think this matter now is listed primarily for the making of a roping-in award. Perhaps we could hear from Maas on that issue.
PN142
MR MAAS: Thank you, your Honour. Today, we would actually like to proceed with the hearing in three parts, if we may. You may recall that there is actually a leave reserve list and we might think it might be effective and efficient if we dealt with that first.
PN143
THE DEPUTY PRESIDENT: All right.
PN144
MR MAAS: The second part of the hearing that we would like to deal with are the apparent anomalies between the companies and some of the sites that are listed on the - on your record of findings dated 26 February and also on the roping-in award, the Schedule A companies which we will re-tender in a moment. There are some differences in the companies names that your associate actually brought to our attention and we believe require clarification. And the third part, and the final part of the proceeding, if we may then proceed to the - to making the submissions for the roping-in award.
PN145
THE DEPUTY PRESIDENT: All right, unless anybody has an objection to that procedure, I propose to follow it. Any objections? No objections?
PN146
MALE SPEAKER: Not yet.
PN147
MALE SPEAKER: No objections.
PN148
THE DEPUTY PRESIDENT: Thank you very much. Go ahead Mr Maas. Let us start off with the reserve list and then we'll go around the table and deal with any submissions from anybody else on that issue first and do it that way.
PN149
MR MAAS: Thank you, your Honour. If I may tender, at this moment, three documents to you. The first is a copy of the leave reserve list that has the companies that we believe that should be on that list noted from the last hearing. The second document is your record of findings dated 26 February and the third document is the proposed roping-in award. All of the parties with the exception of Mr Cooper from Employers First have a copy of those documents.
PN150
PN151
PN152
THE DEPUTY PRESIDENT: Okay, well, we will put aside the roping-in award for a minute. Let us first deal with the reserve list, the NUW2.
PN153
MR MAAS: Thank you, your Honour. You will note that on this reserve list, we have eight companies.
PN154
THE DEPUTY PRESIDENT: Sorry, my document NUW2 has - oh, yes, it has indeed. Yes, go on.
PN155
MR MAAS: Of those eight companies, we seek to press a dispute. This is after we've had discussions with the various representatives of those companies, your Honour, in the last few months. On that basis, today, we seek to press for a dispute finding against only one of those companies.
PN156
THE DEPUTY PRESIDENT: Only one?
PN157
MR MAAS: And that company is Ambos Pty Limited of Young in New South Wales.
PN158
THE DEPUTY PRESIDENT: Right.
PN159
MR MAAS: Our submission is essentially the same as that at the last hearing on 12 December last year in that Ambos Pty Limited were served in the proper manner. We rely on the affidavits, the contents of the subject of the dispute is contained in the log of claims that was forwarded with the letter dated 7 October and unless I am mistaken, I believe we have a consent position from the New South Wales Farmers Industrial Association who are representing Ambos Pty Limited. Rather than consent, they do not oppose the dispute finding, your Honour. If the Commission pleases.
PN160
THE DEPUTY PRESIDENT: All right, well, thank you very much for that. So who is representing Ambos?
PN161
MS CHAPMAN: I am, Commissioner.
PN162
THE DEPUTY PRESIDENT: Yes, and do you - - -
PN163
MS CHAPMAN: We - sorry?
PN164
THE DEPUTY PRESIDENT: Do you oppose the finding of a dispute in relation to Ambos?
PN165
MS CHAPMAN: Sorry, I missed the first part of that.
PN166
THE DEPUTY PRESIDENT: Do you oppose a finding of dispute being made in the terms proposed by Mr Maas?
PN167
MS CHAPMAN: We do not oppose that, no.
PN168
THE DEPUTY PRESIDENT: Thank you very much. So in - - -
PN169
MS CHAPMAN: Thank you.
PN170
THE DEPUTY PRESIDENT: All right, well I think that - on the basis then of the - on the basis then of the submissions put today and the documents before me, I will find a dispute to exist between Ambos Pty Limited and the National Union of Workers. A finding to that effect will be issued following these proceedings. Is that all I need to do, Mr Maas, in relation to exhibit NUW2?
PN171
MR MAAS: Yes, that is correct. Thank you, your Honour.
PN172
THE DEPUTY PRESIDENT: Right, well, we will put NUW2 aside.
PN173
MR ROBERTSON: Excuse me.
PN174
THE DEPUTY PRESIDENT: I'm sorry?
PN175
MR ROBERTSON: Excuse me, your Honour.
PN176
THE DEPUTY PRESIDENT: Yes.
PN177
MR ROBERTSON: Your Honour, I have had some discussions with Mr Maas earlier on this week in relation to one of the companies that I represent. That is Morton Seed and Grain and Mr Maas had indicated a preliminary view that he may place Morton Seed and Grain on that leave reserve list and he was to contact me prior to today's hearing to confirm or otherwise that particular position and I wondered if Mr Maas was in a position to - to advise of his - of the union's view of having Morton Seed and Grain placed on that leave reserve list today?
PN178
THE DEPUTY PRESIDENT: At the moment I think they are subject - they were included in the record of finding of dispute dated 26 February 2004. Correct me if I am wrong, I will just check that. Well, Mr Maas perhaps you can enlighten us.
PN179
MR MAAS: Thank you, your Honour. Yes, look I believe that they are contained in the - in your record of finding as a company that has had a dispute found against. We are seeking to rope Mortons into the award but perhaps this matter might be better dealt with in the third part of these proceedings if that - - -
PN180
THE DEPUTY PRESIDENT: Well, just a minute. We are dealing with NUW2 at the moment. A suggestion has been made concerning NUW2. Please stand up.
PN181
MR MAAS: I am sorry, your Honour.
PN182
THE DEPUTY PRESIDENT: And I don't think we can leave it at this stage, so just show me - oh, yes, is it Morton Seed and Grain, P.O. Box 1245 of Bibra Lake, WA, 6965? Is that the company we're talking about?
PN183
MR ROBERTSON: That's correct, your Honour.
PN184
THE DEPUTY PRESIDENT: Right. Well they were included in the dispute finding dated 26 February 2004. So a dispute has been found concerning them and for the reasons set out in that dispute finding and based on the documentation. Having regard to that, do you wish - do you have anything to say?
PN185
MR ROBERTSON: Your Honour, given what Mr Maas has said, I have nothing further to say at this point and I think Mr Maas is correct that the issues that we have in relation to Morton Seed and Grain are more properly dealt with under the third stage of the matters today before you.
PN186
THE DEPUTY PRESIDENT: Thank you very much, excellent, so we will move on. We will put aside exhibit NUW2. Right.
PN187
MS CHAPMAN: Your Honour.
PN188
THE DEPUTY PRESIDENT: Yes.
PN189
MS CHAPMAN: I just wanted to clarify the purpose of the leave reserve list and seek for our other members on that list to be deleted as there has been no dispute found with them.
PN190
THE DEPUTY PRESIDENT: Well, as I explained on the last occasion, Ms Chapman, and you will see it on transcript, the purpose of the leave reserve list is to put aside persons, organisations, so that a dispute is not found with them at this stage and discussions are occurring. So that is the purpose of exhibit - of the leave reserve list which is recorded in the form of exhibit NUW2. Now, having regard to that, do you have anything to say about that?
PN191
MS CHAPMAN: Oh, we have had - I believe we've had some discussions with Mr Maas from the union and no dispute has been found with those three companies Lanefield, Welsh and Puravic. We've had discussions and then found not to be with, you know, dispute. So do they just remain on that reserve list or can we have them removed?
PN192
THE DEPUTY PRESIDENT: Mr Maas, what would you like to do with those companies?
PN193
MR MAAS: Thank you, your Honour. Our position is that we are not seeking to find a dispute with - with those other companies that are represented by the New South Wales Farmers Industrial Association and we would just prefer it if the list - those, we don't - - -
PN194
THE DEPUTY PRESIDENT: Yes.
PN195
MR MAAS: - - - really want to get into deleting and so on.
PN196
THE DEPUTY PRESIDENT: Yes. Ms Chapman, exhibit NUW really has no effect beyond just being a list of parties that were originally served and from whom a dispute is not being pressed. Do you have anything more?
PN197
MS CHAPMAN: Okay.
PN198
THE DEPUTY PRESIDENT: Is that sufficient for your purposes?
PN199
MS CHAPMAN: That is sufficient, thank you, your Honour.
PN200
THE DEPUTY PRESIDENT: Thank you very much, Ms Chapman. Are there any other submissions on exhibit NUW2 or can we move on? If there are, now is the time to say it. No, nothing? Good, let us move on then. Mr Maas, next issue.
PN201
MR MAAS: Thank you, your Honour, I would now like to move to part two of the proceedings and in particular your record of findings dated 26 February and the exhibit marked NUW3.
PN202
THE DEPUTY PRESIDENT: Right.
PN203
MR MAAS: There seems to be some apparent anomalies between the companies and the sites on the record of findings compared with the roping-in award which we have tendered. In particular, the Schedule A of respondency list. There are four separate matters within this part.
PN204
THE DEPUTY PRESIDENT: So there are four companies, are there?
PN205
MR MAAS: That's right, your Honour.
PN206
THE DEPUTY PRESIDENT: Are they all changes of name or what are they?
PN207
MR MAAS: Well, if I might deal with the first one.
PN208
THE DEPUTY PRESIDENT: All right.
PN209
MR MAAS: It is - you will notice on your record of findings there is a company by the name of Colac Stockfeeds.
PN210
THE DEPUTY PRESIDENT: Just bear with me while I find it. Yes, I found it.
PN211
MR MAAS: It is our understanding that Colac Stockfeeds has - had a change of name and although it is the same people involved with that - with that company, the new company name is now Advantage Bluefeeds but that is the registered office of Advantage Bluefeeds and Advantage Bluefeeds also have an additional site. If you will notice on our Schedule A list of the draft roping-in award, which is in alphabetical order.
PN212
THE DEPUTY PRESIDENT: Which is exhibit NUW3, yes.
PN213
MR MAAS: Correct.
PN214
THE DEPUTY PRESIDENT: Yes, I see it.
PN215
MR MAAS: We have Advantage Bluefeeds of Bridgewater of the same address as the Colac Stockfeeds but there is also another site in Camperdown. I believe Mr McCarthy of McCarthy Ausgroup is representing these companies and might be able to add further.
PN216
THE DEPUTY PRESIDENT: Right. Okay, Mr McCarthy, are you representing Advantage Bluefeeds?
PN217
MR McCARTHY: Yes, your Honour, I am. I represent - represented originally Colac Stockfeeds but also Advantage Bluefeeds in this matter and I can confirm the accuracy of Mr Maas' comments to you and that is that based on the original dispute finding that included Colac Stockfeeds, it is - it is correct and an appropriate correction that in fact Schedule A of the - of the draft roping-in award indicates the name of the company as Advantage Bluefeeds at the same address at Bridgewater as well as one of their subsidiary operations under the same name at Camperdown in Victoria.
PN218
THE DEPUTY PRESIDENT: Well, thank you very much for that. So, essentially, in summary then, Advantage Blue - it is the same legal entity, there is no change in the legal entity, it is simply a change of name; is that correct?
PN219
MR McCARTHY: Well, in the sense that that is right but there has been a change of ownership but the legal entity that was served is held by new owners, the legal entity itself continues to exist but under a new operating name.
PN220
THE DEPUTY PRESIDENT: I think that is a round about way of saying what I said but thank you very much for that. Thank you Mr McCarthy.
PN221
MR McCARTHY: .....
PN222
THE DEPUTY PRESIDENT: I beg your pardon?
PN223
MR McCARTHY: I think that's correct, your Honour.
PN224
THE DEPUTY PRESIDENT: Right, excellent, I think we are at furious agreement which doesn't hurt. Thank you for that. Right, Mr Maas, you've heard that, so that's the first issue, what is the next one?
PN225
MR MAAS: Thank you, your Honour. The second issue concerns a company by the name of Allied Mills Pty Limited.
PN226
THE DEPUTY PRESIDENT: Yes.
PN227
MR MAAS: You will notice that they were logged at a Summerhill address in New South Wales.
PN228
THE DEPUTY PRESIDENT: Yes. I notice - yes.
PN229
MR MAAS: If you compare that with our Schedule A companies on the respondency list of the two - exhibit NUW3.
PN230
THE DEPUTY PRESIDENT: Yes.
PN231
MR MAAS: You will notice there are some at seven other sites.
PN232
THE DEPUTY PRESIDENT: Oh, yes.
PN233
MR MAAS: Having been added to this list. What we say, your Honour, is that Allied Mills were logged at their head office and that this should now cover those other seven sites. In addition, we also note that the previous name of Allied Mills was Goodman Fielder who are actually already respondent to the Milling Industry General Award. Again, I might ask if Mr McCarthy would just clarify that. He represents those companies.
PN234
THE DEPUTY PRESIDENT: Does he, all right, thank you. Mr McCarthy, you've heard that, are we in furious agreement again? Or - - -
PN235
MR McCARTHY: We are in furious agreement again, your Honour.
PN236
THE DEPUTY PRESIDENT: Excellent. Well, in that - so you have no opposition to listing the seven sites in the way proposed by Mr Maas in exhibit NUW3?
PN237
MR McCARTHY: None whatsoever. We would - my clients would agree for that to occur with only one minor clarification and that is, in the original dispute finding that nominated the principal company at its head office being Allied Mills (Australia) Pty Limited, I simply note that in the seven named sites in Schedule A to the draft award, the Pty Limited has inadvertently been left off.
PN238
THE DEPUTY PRESIDENT: I see.
PN239
MR McCARTHY: It should say Allied Mills (Australia) Pty Limited on each occasion.
PN240
THE DEPUTY PRESIDENT: Right, okay, well thank you very much for that clarification. Is that correct, Mr Maas?
PN241
MR MAAS: Yes, I believe that to be correct, your Honour.
PN242
THE DEPUTY PRESIDENT: All right, so we add the words, Pty Limited, to each of those, that's fine. Thank you very much. Right, that is that one. Next?
PN243
MR MAAS: If I may just take one moment, your Honour. Thank you, your Honour. The next company that we note that should be added to your record of findings but was not added. They were served in the proper way and it seems to have escaped your record of findings, it is a company known as Western Animal Nutrition.
PN244
THE DEPUTY PRESIDENT: Right.
PN245
MR MAAS: In Tamworth. I believe on that day on the last year on the first hearing on the 12th of the 12th, we had some discussion in relation to Western Animal Nutrition to a Maryland site.
PN246
THE DEPUTY PRESIDENT: Yes.
PN247
MR MAAS: Which had closed down.
PN248
THE DEPUTY PRESIDENT: Yes.
PN249
MR MAAS: But the Tamworth site is still in operation and we believe that a dispute finding should have been noted on that list and it hasn't been at this stage, your Honour.
PN250
THE DEPUTY PRESIDENT: All right, well, just take - let us look at the original log of claims and letter of demand. That was served on Western - - -
PN251
MR SHEEHAN: Excuse me, your Honour, we seem to be missing some sound in Adelaide.
PN252
MS CHAPMAN: And in Sydney, too.
PN253
THE DEPUTY PRESIDENT: Can you hear me now?
PN254
MR SHEEHAN: Thank you, sir.
PN255
MR CHAPMAN: Thank you.
PN256
THE DEPUTY PRESIDENT: Excellent, I think we will have to speak up. Thank you for that.
PN257
MR MAAS: Again, your Honour, I think Mr McCarthy might be able to clarify this situation for you, he is representing Western Animal Nutrition.
PN258
THE DEPUTY PRESIDENT: Right. Well, I am just looking at the original log of claims just to see if the body was addressed. Yes, here we are. Attached to the notification of an industrial dispute - attached by the National Union of Workers, is a list which includes Animal and Nutrition, P.O. Box 580, Tamworth, New South Wales, 2340 and the various affidavits and so on of Greg Sword refer to that. Mr McCarthy, you have heard the proposal, what do you think about it?
PN259
MR McCARTHY: Your Honour, we would agree that it is appropriate that Western Animal Nutrition at Tamworth both be added to the list of parties to the original dispute finding by the Commission and therefore as an extension of that also appropriately appear on the list of parties named of respondents in the draft award.
PN260
THE DEPUTY PRESIDENT: Excellent, well thank you very much. Mr Maas, anything further? I think that - well, on that, on the basis then of the submissions put to me today and the affidavits and other material filed, I will first of all find a dispute with that particular body, Western Animal Nutrition, and secondly, I will deal with the roping-in award when we come to that which I think is next. Right, Mr Maas.
PN261
MR MAAS: I am sorry, your Honour, there is one last matter to be dealt with in this part and if I might tender a letter dated 5 April 2004 from Mr Cooper of Employers First who is representing Bowral Co-operative Trading Limited.
PN262
PN263
THE DEPUTY PRESIDENT: Thank you. Mr Maas.
PN264
MR MAAS: Thank you, your Honour. We would just like to note again for the record and if this correct could be made to the respondency list in that the company which was logged was Bowral Co-op Trading Limited and should actually be Bowral - sorry, yes, should be Bowral Co-op Trading Limited but we have logged Bowral Co-operative Trading Limited but I believe Mr Cooper is in attendance and might be able to clarify this further for your Honour.
PN265
THE DEPUTY PRESIDENT: Right, Mr Cooper, you've heard that, what do you think about it?
PN266
MR COOPER: Your Honour, we would say that it is appropriate that the record of findings and the proposed roping-in award be varied in those terms to reflect the Bowral Co-op Limited or Bowral Co-op Trading Limited.
PN267
THE DEPUTY PRESIDENT: So instead of Bowral Co-operative Trading Limited it is Bowral Co-op Trading Limited; is that the difference?
PN268
MR COOPER: That is correct, your Honour.
PN269
THE DEPUTY PRESIDENT: Right, thank you very much. Now Mr Maas I think you are in agreement again so that change will be made for the reasons given.
PN270
MR SHEEHAN: Your Honour, if I can just make a comment on your dispute finding - - -
PN271
THE DEPUTY PRESIDENT: Yes.
PN272
MR SHEEHAN: - - - in relation to Schedule A of that particular dispute finding.
PN273
THE DEPUTY PRESIDENT: And you are representing which company, Mr Sheehan?
PN274
MR SHEEHAN: Balco Australia, sir.
PN275
THE DEPUTY PRESIDENT: Yes, I have it.
PN276
MR SHEEHAN: The minor change we are suggesting after conferring with the employer is that the address should read 27 Edith Terrace and delete the word "Road", Balaclava.
PN277
THE DEPUTY PRESIDENT: Thank you, Mr Sheehan.
PN278
MR SHEEHAN: And the corresponding change needs to be made, obviously, to the draft roping-in award as well, sir. Thank you.
PN279
THE DEPUTY PRESIDENT: Thank you. So the proposal is that at present Schedule A of the dispute finding reads 27 Edith Road Terrace, Balaclava, SA, 5461. The proposal is that we simply delete the word "Road" both in the dispute finding and in the proposed roping-in award in exhibit NUW3. Mr Maas, do you agree, disagree?
PN280
MR MAAS: We agree with that, your Honour.
PN281
THE DEPUTY PRESIDENT: Excellent, well that amendment will be made to the dispute finding. Thank you very much for that Mr Sheehan. Right, where are we? I think that leads us to NUW3, does it?
PN282
MR MAAS: Yes, it does, your Honour, and to the third part of the hearing which is putting forward our submissions for the roping-in award, NUW Draft Roping-in Award, NUW3.
PN283
THE DEPUTY PRESIDENT: Right.
PN284
MR MAAS: In essence, we seek that the roping-in award be made on the terms as set out in the draft order NUW3. Just for record, you found the existence of a dispute pursuant to section 101 on 12 December last year between the NUW on the one part and those companies listed in your record of finding. In addition, of course, in that today with Western Animal Nutrition and Ambos Pty Limited.
PN285
The union forwarded correspondence to these companies and/or their representatives on about 30 January of this year and proposed the tender roping-in award as part settlement to the dispute. On 19 February 2004, the union sought a relisting of this matter for the purpose of making the draft roping-in award. On 17 March of this year we were forwarded a notice of listing by the Commission informing us of today's hearing. The notice of listing was forwarded by the union by registered post on 19 March to those respondents whose representatives were not informed by the Commission. I have an affidavit swearing to that by the General Secretary of the union at that time, Mr Greg Sword.
PN286
THE DEPUTY PRESIDENT: Yes.
PN287
MR MAAS: Which is dated 23 March and should appear on the Commission's files.
PN288
THE DEPUTY PRESIDENT: I don't seem to have a copy of that, I don't think. I'm sorry, yes, I do. Right, thank you.
PN289
MR MAAS: Your Honour, I would just like to go through the proposed draft roping-in award.
PN290
THE DEPUTY PRESIDENT: Yes.
PN291
MR MAAS: It is drafted as follows: clause 1 gives the title of the award, clause 2 gives the arrangement of the award. Clause 3 states that the union is seeking that the award comes into effect from the first pay period to commence on or after today's date and that the award remain in force for a period of six months. Clause 4 identifies the parties to be bound by the award in conjunction with that of Schedule A, of course. Clause 5, your Honour, there has been some discussion between the parties as to the wording of clause 5 and unless I am mistaken, the parties are now in agreeance as to the wording of the savings provision at clause 5. Clause 6 provides that the provisions of the - - -
PN292
THE DEPUTY PRESIDENT: So, just to get that straight, so the existing clause 5 remains, does it? As you propose or have you got a different version?
PN293
MR MAAS: As I have tendered to you today as NUW3. Perhaps for the record should I just read through the - - -
PN294
THE DEPUTY PRESIDENT: If it is contained in NUW3 and everybody has it, then I don't think there is a difficulty.
PN295
MR MAAS: Okay, your Honour. And lastly, clause 6 provides that the provisions of the relevant award as varied from time to time should be applied - of course that award being the Milling Industry General Award 1999. Your Honour, we seek the making of the award on the terms detailed and exhibited in NUW3. We submit that the making of this award by the Commission will partially settle the dispute found by the Commission will serve to ensure that a safety net of minimum wages and conditions is established and maintained and subject to any questions you might have, your Honour, that completes my submission.
PN296
THE DEPUTY PRESIDENT: All right. I have one question which is this: a body entitled Goulburn Valley Stockfeeds has apparently - apparently closed two years ago. We were advised in a telephone message by Ms Jenny Sim stating that she had been a director of Goulburn Valley Stockfeeds some time ago but the company had closed two years ago. The company is apparently - - -
[3.04pm]
PN297
MR ROBERTSON: Your Honour, Peter Robertson from Western Australia, we seem to have lost sound over here.
PN298
THE DEPUTY PRESIDENT: Right. Can you hear me now? Hello.
PN299
MR ROBERTSON: Yes, thank you, your Honour.
PN300
THE DEPUTY PRESIDENT: Right, we obviously have to speak up. Thank you for reminding me, Mr Robertson. If anybody else has trouble hearing, please feel free to let us know. I will start again.
PN301
Essentially, that Goulburn Valley Stockfeeds, we are advised by a former director, no longer exists as an entity and closed two years ago. In those circumstances, Mr Maas, do you press for its inclusion in the roping-in award?
PN302
MR MAAS: Thank you for bringing that matter up, your Honour. Your associate did alert me to some correspondence that you had had with Goulburn Valley Stockfeeds. May I just say for the record that we have not been contacted by Miss Sims or by any former or any other directors of Goulburn Valley Stockfeeds. We have, however, conducted a surge on the ASIC website, and if I might tender this document.
PN303
PN304
THE DEPUTY PRESIDENT: Go on.
PN305
MR MAAS: Thank you, your Honour. You will note that the first listing on that first page has Goulburn Valley Stockfeeds as a registered name - business name in Victoria. Below that is the company name which is known as Goulburn Valley Stockfeeds Victoria Pty Limited. That company, the company itself, is still in existence but if you turn the page to the final page there, you will notice that the company has had a change in name to K.E. and J.G. Sim Pty Limited. It is our submission, your Honour, although the company name had been changed - and we've only become aware of this in the last day or two - but the directors are still the same and we would therefore believe that the operations were still the same.
PN306
So, to answer your question, your Honour, we say that the - that the company as - should maintain as on the record of finding of dispute and should also be - - -
PN307
MR SHEEHAN: We've lost sound again in Adelaide, sorry, your Honour.
PN308
MR MAAS: - - - and should also be roped-in to the award.
PN309
THE DEPUTY PRESIDENT: All right. So, in essence, then you say exhibit NUW4 shows that the company is still in existence but has changed its name and we should use the new name in the roping-in award and you press for its inclusion in the roping-in award; is that correct?
PN310
MR MAAS: That's correct, your Honour, thank you.
PN311
THE DEPUTY PRESIDENT: All right, thank you. Any opposition to that from anybody appearing? Anybody appearing on behalf of that entity? No. That's fine. All right, so we are now dealing with exhibit NUW3 so what I propose to do is to go around the table to enable each - each party appearing to put submissions in response to those of Mr Maas in relation to exhibit NUW3. Starting, I think, in Victoria. Ms Richards, what do you have to say?
PN312
MS RICHARDS: Thank you, your Honour. I have instructions that we do not oppose NUW3 in the terms sought by the NUW here today. However, your Honour, I would like to request from the Commission that the date of operation of this roping-in award because that clause 3 of NUW3 be a prospective date of operation rather than today's date purely on the basis - - -
PN313
MR ROBERTSON: We have lost sound in WA.
PN314
THE DEPUTY PRESIDENT: You will have to speak up. Speak into the microphone, if you could, Ms Richards. I think we all have to do that.
PN315
MS RICHARDS: Thank you. Today, your Honour, we seek that the operation of NUW3 be a prospective date of operation rather than the date of the hearing being today's date, 7 April, as NUW3 has set out at clause - clause 3 of the exhibit. We would seek that the prospective date of operation be granted by the Commission purely on the basis that as your Honour would be aware school holidays are currently on, at least in Victoria, and also as your Honour would be aware, Easter is just around the corner and therefore there is a four day weekend coming up in Victoria - as I imagine it would be also in other states.
PN316
We say, as a result of this, that in order for VECCI to notify the employers who they represent here today, it's quite possible that the relevant people at the companies may even be on holidays or may not receive this information until after Easter and therefore a prospective date of operation will be the most appropriate course of action. If it pleases the Commission.
PN317
THE DEPUTY PRESIDENT: On that issue, Ms Richards, I note that section 146 subsection (ii) provides that, I quote:
PN318
Unless the Commission is satisfied that there are exceptional circumstances, the days specified in an award for the purposes of subsection (i) shall not be earlier than the date of the award.
PN319
MS RICHARDS: That's correct. I understand that particular subsection of the Act to relate to retrospective operation - - -
PN320
THE DEPUTY PRESIDENT: Yes.
PN321
MS RICHARDS: - - - of awards.
PN322
THE DEPUTY PRESIDENT: It doesn't prevent prospective operation.
PN323
MS RICHARDS: That's correct.
PN324
THE DEPUTY PRESIDENT: So what date would you propose?
PN325
MS RICHARDS: I would be seeking that the order come into effect some two to three weeks time.
PN326
THE DEPUTY PRESIDENT: Well, let's see, the holidays conclude what, on the - there's Easter Monday, that's a public holiday isn't it?
PN327
MS RICHARDS: And I understand - - -
PN328
THE DEPUTY PRESIDENT: Then work resumes, what - on what date, the 13th of April in most work places?
PN329
MS RICHARDS: I believe so, your Honour, but I don't have a calendar with me. However, I believe school holidays are still in operation for the week commencing with Easter Monday. So, if possible, perhaps the following week might be the most appropriate.
PN330
THE DEPUTY PRESIDENT: So you suggest - the following week commences - - -
PN331
MS RICHARDS: The week commencing - - -
PN332
THE DEPUTY PRESIDENT: - - - the 19 April?
PN333
MS RICHARDS: That's correct.
PN334
THE DEPUTY PRESIDENT: That's the Monday, the 19th, is that what you are suggesting?
PN335
MS RICHARDS: That's correct, your Honour. Thank you.
PN336
THE DEPUTY PRESIDENT: All right, thank you for that. Thank you, Ms Richards.
PN337
THE DEPUTY PRESIDENT: Right. Let's go through in the same order as before, if I could. Adelaide, that's Mr Sheehan, I think.
PN338
MR SHEEHAN: Thank you, your Honour. Can you hear me, firstly?
PN339
THE DEPUTY PRESIDENT: I can.
PN340
MR SHEEHAN: Sir, we do not oppose the submissions made by the NUW today and we would certainly support the submissions by VECCI a little earlier in relation to the prospective operative date, we would also support an operative of 19 April for the same reasons that VECCI has espoused earlier. I've got nothing further to add, sir.
PN341
THE DEPUTY PRESIDENT: Thank you very much. Mr Robertson?
PN342
MR ROBERTSON: Thank you, your Honour. As I've prematurely indicated, there have been some discussions between myself and the union in relation to Morton Seed and Grain and more particularly in relation to the operative date of the award. I would firstly like to know whether Mr Maas wishes to pursue the roping-in award today against Morton Seed and Grain or whether his position is that as we discussed this matter by agreement in relation to Morton Seed and Grain should be adjourned so that affidavits can be sought to provide evidential - an evidential basis for the proposition that we put in relation to the operative date.
PN343
THE DEPUTY PRESIDENT: Mr Maas, what do you say about Morton Seed and Grain?
PN344
MR MAAS: Thank you, your Honour. With respect to Morton Seed and Grain and the discussions that I have had with Mr Robertson, at this stage an upon further instructions from the relevant branch, the Western Australian branch of the National Union of Workers, we would be seeking a roping-in of Morton Seed and Grain today along with all of the other companies.
PN345
THE DEPUTY PRESIDENT: All right. Thank you very much, Mr Maas. You've heard that Mr Robertson?
PN346
MR ROBERTSON: I have.
PN347
THE DEPUTY PRESIDENT: Do you have anything to say?
PN348
MR ROBERTSON: I do, your Honour. Your Honour, I would seek an adjournment of the roping-in award in relation to Morton Seed and Grain and I would seek an adjournment on the basis that Morton Seed and Grain were - seek an operative date some months prospectively from today's date. The reason for that is because of Morton Seed and Grain's situation here in Western Australia.
PN349
Partly the basis of the application is that Morton Seed and Grain has - is not familiar with the Milling Industry Award, it's a medium sized organisation, it has around 35 or so employees who work in Perth and indeed, out in the country. They are not familiar with the terms of the award, they are not familiar with how their employees are going to be classified within the classification structure of the Milling Industry Award, they are not familiar indeed with - with the remuneration structures within the award.
PN350
The reason we would seek an adjournment is for Morton Seed and Grain to provide other affidavit or a witness statement to support their application for a prospective date in relation to them. I was - we had - I had discussed with Mr Maas that perhaps a week would be sufficient time for us to provide Mr Maas with a witness statement in relation to Morton Seed and Grain. Mr Maas could then decide whether he wished to cross-examine the providers of those witness statements, if so, then the matter could be programmed so that you could hear in full our submissions in relation to the operative date for Morton Seed and Grain.
PN351
So on that basis, your Honour, today we would be seeking an adjournment of a making of a roping-in award against Morton Seed and Grain and we would seek the issuance from yourself, your Honour, along the lines I just outlined that Morton Seed and Grain provide either an affidavit or a witness statement to the National Union Workers. Given it's Easter time, probably by the end of next week and then for the National Union of Workers to advise whether, as I indicated, it wishes to cross-examine. If it does then we would have a video link up whereby the witnesses would be here in Perth and would be available for cross-examination.
PN352
If the National Union of Workers didn't seek to cross-examine on the witness statements or affidavits, then we would simply have submissions by a video link and that could take place one or two weeks after the union had responded about its nature of requirements in terms of cross-examination.
PN353
THE DEPUTY PRESIDENT: Right, so just let me get this straight. So that would be on the basis - first of all, you are seeking to lead evidence or at least to give Mr Maas to firstly look at evidence and then, if necessary, argue the matter out having regard to the evidence. Secondly, you would be aware that if your application wasn't successful, you might well end up with the same operative date as everybody else.
PN354
MR ROBERTSON: Yes, I recognise that.
PN355
THE DEPUTY PRESIDENT: All right, thank you. Mr Maas, what do you think about that? I mean, one option - it is difficult for us, of course, to refuse a party the opportunity to lead evidence and argue a matter on the basis of evidence. That doesn't mean, of course, their application will be successful nor does it mean that, you know, you may find their evidence persuasive or come to some arrangement with them, having regard to the evidence they propose to give you. So what do you think about that as an approach? We are not precluding - - -
PN356
MR MAAS: Certainly.
PN357
THE DEPUTY PRESIDENT: - - - of course an operative date of today for that body. However, they have asked for the opportunity to put a case.
PN358
MR MAAS: Yes.
PN359
THE DEPUTY PRESIDENT: And on natural justice grounds it is very difficult for you and perhaps myself to refuse such an application.
PN360
MR MAAS: I'm very well familiar with the grounds of natural justice, your Honour, however, I would just like to say that Mr Robertson and all of the other parties have been party to what our proposed roping-in award would be and that was put forward back in January some time. Even after the hearing of the 12th last year I might have even had some telephone discussions with all of the parties alluding to that a way of settling this dispute might well be to be roped-in to an award.
PN361
I have had several discussions with Mr Robertson, particularly in the last few days and it has only really been in the last 24 hours that a discussion concerning the timetable some months down the track that he would like to implement the award. Given that he has had this amount of time, and given that he's had about a month's notice of today's hearing date, we say that he should be - that the company he represents Morton's should be roped-in today.
PN362
THE DEPUTY PRESIDENT: Mr Robertson, what do you say about that?
PN363
MR ROBERTSON: Your Honour, Mr Maas is correct in that we've had a number of discussions in relation to the union's application to rope Morton Seed and Grain into this award and Mr Maas would be well aware that our original position from Morton's pending further investigation was that we were going to dispute the making of a dispute finding let alone a roping-in award.
PN364
The material that I've required from my member in relation to Morton's operations was forthcoming maybe two weeks ago and I conveyed that to Mr Maas and then upon receiving Mr Maas' most recent - not the amended NUW3, but the NUW - the precursor to that - early this week or late last week, it was then that Morton Seed and Grain instructed me of their situation and consequently I had discussions with Mr Maas on that topic. So in terms of delay or rather us being prepared - or should be prepared - - -
PN365
THE DEPUTY PRESIDENT: All right, Mr Robertson, how long would it take you to provide Mr Maas with this information?
PN366
MR ROBERTSON: Given that Easter - - -
PN367
THE DEPUTY PRESIDENT: Say, is two days too - I mean, can you provide it - can you provide it, say, by close of business Easter Tuesday?
PN368
MR ROBERTSON: No, your Honour.
PN369
THE DEPUTY PRESIDENT: Why not?
PN370
MR ROBERTSON: Because we have one working day before Easter and then we have one working day after Easter. The persons that - as I indicated, Morton Seed and Grain - - -
PN371
THE DEPUTY PRESIDENT: All right, how long will you need then?
PN372
MR ROBERTSON: By close of business on the Friday of that - next week.
PN373
THE DEPUTY PRESIDENT: And that would be, what? This would be your full evidentiary case?
PN374
MR ROBERTSON: This should be witness statements to support our case, yes,
PN375
THE DEPUTY PRESIDENT: Well is that the same things as what I said or different? Is it your full evidentiary case?
PN376
MR ROBERTSON: Yes, your Honour.
PN377
THE DEPUTY PRESIDENT: Thank you. Mr Maas, do you have anything else to say?
PN378
MR MAAS: No, your Honour.
PN379
THE DEPUTY PRESIDENT: Thank you very much. All right. Mr Maas, say I was disposed to grant Mr Robertson's application, how long would you need to consider that material? You wouldn't need long at all, would you?
PN380
MR MAAS: No.
PN381
THE DEPUTY PRESIDENT: It's up to you, if you ask for a week you can have it but - - -
PN382
MR MAAS: If we're provided with that material on the close of business at the end of that Friday, whatever date that might be - - -
PN383
THE DEPUTY PRESIDENT: Yes. I think - hang on, that would be 23 April.
PN384
MR MAAS: The 16th, your Honour.
PN385
THE DEPUTY PRESIDENT: I'm sorry, where am I? Yes, sorry, that will be the 16th, close of business the 16th, yes.
PN386
MR MAAS: If we were provided with that material by the 16th, any time starting the following week of business that your Honour would be able to hear the matter.
PN387
THE DEPUTY PRESIDENT: Right, so, would you want to respond?
PN388
MALE SPEAKER: Sorry, we've lost sound again, your Honour.
PN389
THE DEPUTY PRESIDENT: Would you wish to respond with any evidence, Mr Maas?
PN390
MR MAAS: We would look to respond with some evidence. The point I am making, your Honour, is that we would like to move this process along if that is - - -
PN391
THE DEPUTY PRESIDENT: No, I understand. All right, well, what I propose to do then is this: I have heard the parties, I propose to give Mr Robertson until close of business on 16 April to provide full - his full evidentiary is how I describe it, which is any witness statements, other evidentiary material to Mr Maas. Mr Maas will respond by close of business on the following Monday which is 19 April as to what he proposes to do. I will now go off the record very briefly to discuss programming, if I could.
OFF THE RECORD [3.24pm]
RESUMED [3.28pm]
PN392
THE DEPUTY PRESIDENT: Right. We've had a procedural discussion and I will set out directions as follows: Mr Robertson, on behalf of the employer, will provide Mr Maas and the Commission with witness statements and other evidentiary material in support of his case by close of business 16 April 2004. Mr Maas will dissent or make what other response he wishes to by the close of business on 19 April 2004.
PN393
If the matter proceeds other than by way of agreement and requires arbitration, Mr Robertson - having regard to that response from Mr Maas, Mr Robertson will respond on the close of business on 20 April with an outline of submissions. Mr Maas, should the matter proceed to arbitration, will respond by the close of business 23 April with a written submission, witness statements and other evidentiary material and finally, the matter will be set down and heard at 12 noon Melbourne time, which is, as I understand it, 10.00 am Perth time on 28 April 2004 which is a Wednesday, subject to confirmation from Mr Robertson when he gains access to his diary. Is there anything else? I think we've done that.
PN394
MR ROBERTSON: No, thank you, your Honour.
PN395
THE DEPUTY PRESIDENT: Excellent. Mr Maas, is that acceptable?
PN396
MR MAAS: That's acceptable, your Honour, thank you.
PN397
THE DEPUTY PRESIDENT: Terrific. So I think we can leave Morton Seed and Grain and proceed on. Where did we get to?
PN398
MS RICHARDS: Excuse me, your Honour, can I please be excused, I have a meeting to attend? I apologise, I didn't expect today's proceedings to go quite as long as they did.
PN399
THE DEPUTY PRESIDENT: Thank you very much, Ms Richards, you are excused.
PN400
MS RICHARDS: Thank you, your Honour.
PN401
THE DEPUTY PRESIDENT: Right, Mr Robertson, any other issues to raise or is that it from you?
PN402
MR ROBERTSON: That is all from Western Australia, your Honour.
PN403
THE DEPUTY PRESIDENT: Thank you very much. Right, Sydney, who would like to start there?
PN404
MR McCARTHY: Your Honour, Stephen McCarthy speaking.
PN405
THE DEPUTY PRESIDENT: Right.
PN406
MR McCARTHY: In relation - on behalf of the parties that we represent in this matter, whose names appear in Schedule A to the union's draft award which is exhibit NUW3, we would consent to the making of the roping-in award in the terms of the exhibit.
PN407
THE DEPUTY PRESIDENT: Thank you very much. Anybody else in Sydney?
PN408
MS CHAPMAN: Yes, your Honour, the New South Wales Farmers Association does not oppose the submissions provided by the NUW and we also wouldn't oppose the alteration to the operative date submitted by Ms Richards.
PN409
THE DEPUTY PRESIDENT: Thank you very much.
PN410
MS CHAPMAN: Thank you.
PN411
THE DEPUTY PRESIDENT: Mr Cooper.
PN412
MR COOPER: Your Honour, my member, Bowral Co-op Trading Limited does not object to the making of the roping-in award in the terms sought in NUW3. We also would support the variation of date by VECCI.
PN413
THE DEPUTY PRESIDENT: Thank you very much, Mr Cooper. Right, I think that leaves - I think we've done all the - is there anybody else we've left off? No? I think we've covered everybody. Yes, good. Mr Maas, you have heard all of that. I think the outstanding issue essentially then is operative date; is that correct?
PN414
MR MAAS: That's correct, your Honour.
PN415
THE DEPUTY PRESIDENT: How do you propose to deal with that?
PN416
MR MAAS: If we have an operative date of 19 April, and given my understanding - - -
PN417
THE DEPUTY PRESIDENT: It would solve a lot of - - -
PN418
MR MAAS: Given my understanding is that there are so many parties involved and the various representatives all seem to be supportive of the 19th, although I did note Mr McCarthy was happy with the terms as they appear on our draft. On that basis, for simplicity reasons, we would consent to the 19th as being the operative date. I would also just make mention at the risk of sounding like a broken record, your Honour, that if Morton Seed and Grain found to be respondent - to be roped-in, then that 19 April would be the operative date.
PN419
THE DEPUTY PRESIDENT: All right.
PN420
MR MAAS: If the Commission pleases.
PN421
THE DEPUTY PRESIDENT: Point taken. Well, then, I think we are in agreement that putting aside the issue of Morton Seed and Grain which is aware that it may be subject to the operative date applied to other employers but that is still to be determined, of course, I think then we are in agreement that the operative for the making of - for the application of exhibit NUW3 will be 19 April 2004. I think that's correct, isn't it? No opposition? No. Well thank you very much for that. Anything else from anybody? Have we covered everything? I think we have. Good, nothing else?
PN422
MR SHEEHAN: Sir, is that the first pay period commencing on or after 19 April?
PN423
THE DEPUTY PRESIDENT: Yes, I think that's right. Yes, it is indeed.
PN424
MR SHEEHAN: Thank you, sir.
PN425
THE DEPUTY PRESIDENT: Yes, you just put the words 19 April in place of 7 April in that - in clause 3 of exhibit NUW3.
PN426
MR SHEEHAN: Thank you, sir.
PN427
THE DEPUTY PRESIDENT: Right, well based on the submissions put and the material before me, I propose to make an award in terms of exhibit NUW3 subject to consideration of any technical issues that may arise. The parties will be those advised and contained in exhibit NUW3 with the exception of Morton Seed and Grain. The operative date will be that provided in clause 3 of exhibit NUW3 with the substitution of 19 April for the date there 7 April.
PN428
A document - the issue of Morton Seed and Grain has been dealt with separately, they are aware that they may be subject to the general operative date, if I could call it that, for other parties to NUW3 but that depends on the outcome of proceedings which we have - separate proceedings which we've set aside to deal with that issue.
PN429
A final issue I would like to ask Mr Maas and others about is: should I make an award in the form of exhibit NUW3 before the issue of Morton Seed and Grain is finalised or should I await that issue? What is your view on that? I am interested in your views?
PN430
MR MAAS: Okay. Our view, your Honour, is that as soon as you can make the roping-in award that would be the best thing.
PN431
THE DEPUTY PRESIDENT: All right. Well, unless there is some particular issue raised by anybody else on that issue, no? I propose then to follow that and an award in the form of NUW3 with the exception of Morton Seed and Grain then will be made as soon as possible.
PN432
Right, is there anything else? Nothing. Well, I thank the parties for their submissions. It is made more difficult by the need to have teleconferencing in a number of states but I think that is done for the convenience of the parties and nevertheless, thank you for your co-operation with the difficulties and overcoming the difficulties. I wait with interest the material from Morton Seed and Grain and directions in that matter will be sent out and an award will be made in the terms described in exhibit NUW3. Thank you very much, this matter stands adjourned.
ADJOURNED ACCORDINGLY [3.36pm]
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