C2004/1791, Transcript of Proceedings [2004] AIRCTrans 1727 (7 May 2004)

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TRANSCRIPT OF PROCEEDINGS

O/N 10878

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT HARRISON

C2004/1791

STRIPTEASE ARTISTS AUSTRALIA
INCORPORATED

and

BARE AS U DARE

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

SYDNEY

10.40 AM, WEDNESDAY, 28 APRIL 2004

Continued from 2.4.04

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN110

THE SENIOR DEPUTY PRESIDENT: I think the appearances remain the same in this matter. Can you hear me in Melbourne, Mr Lawrence?

PN111

MR LAWRENCE: Yes, your Honour.

PN112

THE SENIOR DEPUTY PRESIDENT: And Mr Wilson in Canberra?

PN113

MR WILSON: I can hear you, your Honour.

PN114

THE SENIOR DEPUTY PRESIDENT: All right. Now, this matter was last before me on 2 April. I recollect that I had received correspondence from you, Mr Wilson or from the union subsequent to 2 April but I'm just trying to identify it. I know there was a matter concerning the identification of the respondents that you wished to obtain a finding of dispute but maybe on reflection it may have been correspondence that I received on the date of the last hearing. We can return to that.

PN115

MR WILSON: Your Honour, perhaps I can assist. My instructions are, and I did have a copy here of a letter that was sent to you by registered post on 14 April 2004 which you're quite correct, in response to matters raised by you on 2 April. Ms Shakin, the National Secretary of my client, set out some businesses that have changed address and their names.

PN116

THE SENIOR DEPUTY PRESIDENT: Yes. Well, obviously I received it and read it at the time but I just regret that it's not immediately before me in this correspondence but we can come back to that again. I have also received correspondence from your instructing solicitors, Mr Lawrence, dated 23 April. It's a letter to me together with a copy of a letter your forwarded to Mr Wilson which contains the submissions concerning the genuineness of the dispute and authorisation and also attaches a document, schedule A, listing the respondents for whom you appear.

PN117

Now, I think we might start with you, Mr Wilson. I'm just anxious that I should have in front me though that correspondence. I'm sorry, for some reason it's not with the correspondence but both my associate and I recall receiving it and I remember reading it, so there might be some matters you wish to address arising out of that. Then you can also let me know what you want to do now being aware of what the nature of the challenges are that the respondents raised to the finding of dispute. Mr Wilson.

PN118

MR WILSON: Thank you, your Honour. The letter of 14 April just simply notified - I think on the last occasion you were interested in finding out the names of the businesses that my client organisation said had changed address, and providing those addresses. Then there was another business called Strut Management which had changed its name to Bombshells and that's all that the letter sets out. I can if you like I can wander down the corridor and get the registry and fax it to you now.

PN119

THE SENIOR DEPUTY PRESIDENT: Don't worry.

PN120

MR WILSON: We would simply ask that the Commission's records be changed according to what the information in this letter is and that those persons who are listed there be recognised as being respondents to that log of claims.

PN121

THE SENIOR DEPUTY PRESIDENT: Yes. In relation to the business now trading as Bombshells, I see that insofar as it has a Queensland address, that is No.12 on the respondents that Mr Lawrence appears for so I can hear him on that, but not having the letter in front of me I don't know whether any other of the businesses address in your letter also find their name on Mr Lawrence's schedule of respondents?

PN122

MR WILSON: I could read them out to you now if that helps, your Honour. The first one is - these are the businesses that haven't changed their name, they've changed their address.

PN123

THE SENIOR DEPUTY PRESIDENT: Yes.

PN124

MR WILSON: The first one is Hot Action Strippers, which I don't think I can see on the list. The other one is Toffeez the Boardroom, which again I can't see on the list and the other one, the third and final one, is one in Western Australia, is called Living Dolls.

PN125

THE SENIOR DEPUTY PRESIDENT: Yes.

PN126

MR WILSON: And I don't think that's there either.

PN127

THE SENIOR DEPUTY PRESIDENT: All right. Well, subject to hearing Mr Lawrence, he might have something to say about Bombshells but we have no appearance for or on behalf of the three that you have nominated as having changed their address. All right. Were they the only two matters addressed in that correspondence, Mr Wilson?

PN128

MR WILSON: That's right. She also attached some minutes in the letter that contains the resolution made by my client's National Executive Committee to post out the log of claims.

PN129

THE SENIOR DEPUTY PRESIDENT: That's probably important for me to have that in court but presumably Mr Lawrence has a copy of that, or you forwarded a copy to Mr Lawrence.

PN130

MR WILSON: I don't think we have, your Honour.

PN131

THE SENIOR DEPUTY PRESIDENT: That'll be important, I imagine, for him to receive.

PN132

MR WILSON: My understanding, and it could be wrong, was that we were going to send them in there and the Commissioner was going to send it to him but if I'm wrong, I do apologise and I will send them to his instructing solicitors today.

PN133

THE SENIOR DEPUTY PRESIDENT: Yes, do. So in this correspondence you have attached a copy of the relevant resolutions that you rely upon to say that the demand and log of claims were authorised in accordance with the rules.

PN134

MR WILSON: Yes, your Honour. It's an extract, of course, because what Janette, I mean Ms Shakin, has done is she's taken out - - -

PN135

THE SENIOR DEPUTY PRESIDENT: I understand.

PN136

MR WILSON: Matters in the minutes that don't relate to these proceedings for confidentiality and privacy reasons.

PN137

THE SENIOR DEPUTY PRESIDENT: All right. Let's assume then what you've then done is one of the things that the respondents have asked for in their letter I referred to earlier, namely, provide the basis upon which you say the claims were authorised. There's probably nothing further you need to do on that at the moment but subject to hearing Mr Lawrence, I'm assuming that what is now sought is an opportunity to put whatever else is wished to be said about the genuineness claims and also the authorisation claims. So, what do you want me now to do with the log?

PN138

MR LAWRENCE: Your Honour, what we propose is that we hope that an opportunity to consider that further material which has been provided to the Commission and which Mr Wilson says will be provided to us. We'll consider that matter in the context of the matters that we raised in the letter concerning authorisation and compliance with the rules. It may be, of course, that we would want the opportunity to cross examine the relevant officer there, the Federal Secretary, sorry, the National Secretary of the Union. We propose that the matter be listed at a further date for that particular aspect.

PN139

We also propose, consistent with the issues that have been raised in the letter setting out the nature of our grounds, to lead some evidence in relation to those matters subsequent to the evidence on behalf of the Union. The evidence that we would propose leading would be evidence in relation to the range of issues that have been put. Of course the evidence need not go into some of the matters - some of the arguments that we've set out in the letter - because any arguments would be based on the log of claims, the terms of the log of claims, but there would be a limited amount of evidence that we would want to put in addition to the log of claims.

PN140

So it would be of a general nature. We would not propose at this stage, adopting a procedure whereby the circumstances of individual respondents would be considered. We think if there are particular issues, as we say there are, in relation to the respondents for whom I act, they're matters which we would usually raise with Mr Wilson and Ms Shakin because it may be that with regard to some of the respondents on some aspects they may have said what we've got to say. Nevertheless there are some general issues that we would want to have an opportunity of addressing by way of evidence.

PN141

THE SENIOR DEPUTY PRESIDENT: Mr Lawrence, maybe I could pursue that a little further with you. It would probably be - let's say that that general evidence goes to the nature of the engagements in this industry and your assertion that they're more in the nature of a contractor engagement rather than an employer/employee relationship. It is unlikely that general evidence about that matter would result in my excluding all or any of the respondents you appear for. I would need to have that sort of challenge addressed on the basis of specific respondents and I may or may not be persuaded therefore to remove them from the list of anyone found to be in dispute.

PN142

You rightly say that much of the genuineness issue about the claims and the fancifulness of the claims in the logs is really just questions of submission addressed to the log. So that matter, I can understand, would be of general application. What else? Authorisations of general application. What else did you have in mind when you said at this stage you won't be intending to address the circumstances of particular respondents?

PN143

MR WILSON: I've had in mind this that, if you take the question of the employment or engagement of bar and waiting staff, as I'm instructed, some of the respondents for whom I act don't engage bar staff at all. They are all waiting staff. Others engage bar and waiting staff and those staff are also performers, or they perform from time to time. Others are engaged as employees. Some of those who are engaged are engaged not to work in circumstances which would enable coverage by the Union. That is that they're not - they're fully clothed - but it'd be those particular circumstances which we would want to address and they would be the sort of circumstances which we'd be quite happy to speak to the Union about and it may be that after spelling out those matters we would resolve some of the dispute but it'd still be more general matters

PN144

THE SENIOR DEPUTY PRESIDENT: Yes. Even being as ambitious as you might about what you might be able to convince the Union of, there are still going to be several, people on your list of respondents presumably.

PN145

MR WILSON: Yes. I would expect there would be, your Honour.

PN146

THE SENIOR DEPUTY PRESIDENT: All right.

PN147

MR WILSON: Can I just say, quite bluntly, in relation to the list of respondents, there are two respondents that should be added to the list, if I could mention them now.

PN148

THE SENIOR DEPUTY PRESIDENT: Yes.

PN149

MR WILSON: One is ASAP Adult Entertainments. That's the first company in the - the first respondent in the Victorian list and the second one is Goldfingers.

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR WILSON: Again in the Victorian list.

PN152

THE SENIOR DEPUTY PRESIDENT: All right.

PN153

MR WILSON: There are 17 now, your Honour.

PN154

THE SENIOR DEPUTY PRESIDENT: We will add them to the document described as Annexure A to correspondence dated 23 April 2004 from your instructing solicitors. What time are you looking for, Mr Lawrence, to call what evidence you would wish to as well as make any further submissions addressing the issues raised in that correspondence I mentioned.

PN155

MR LAWRENCE: Your Honour, we would like a week or two to have a look at the material from the - - -

PN156

THE SENIOR DEPUTY PRESIDENT: Yes, I understand that. What period of time would you want me to be setting aside for any hearing?

PN157

MR LAWRENCE: We would expect that the evidence could be a day or two at the outside in my view, your Honour, and we would expect to be ready in three or four weeks.

PN158

THE SENIOR DEPUTY PRESIDENT: All right. When do you propose the hearing be, Mr Lawrence? It would not, in my opinion - I have found that taking witness evidence by way of video conference not the best procedure. It of course can be done but it's not the best way in which to receive witness evidence. Similarly with longer submissions and the addressing of any legal principles, it is better that we, if possible, are in the same place.

PN159

MR LAWRENCE: I have the same view in relation to certainly the taking of evidence, that is much better face to face and I think I'd say, your Honour, that obviously we'd have a preference for Melbourne but we appreciate that you're based in Sydney and the Union is based in Canberra, that it's a matter of the various interests being balanced out.

PN160

THE SENIOR DEPUTY PRESIDENT: Yes. I hadn't noticed the addresses of your instructing solicitor's clients, they're in several States I see. Maybe predominantly Victoria, but nonetheless, Queensland, Adelaide, Canberra. Now, Mr Wilson, what do you want to say about Mr Lawrence's proposal?

PN161

MR WILSON: As to venue or otherwise?

PN162

THE SENIOR DEPUTY PRESIDENT: Generally each of the matters he addressed. You can assume, of course, that he's entitled to be heard on the matters that he has raised - his instructing solicitors raised in the letter of 23 April. So the issue then is, what constraints I should place on him in relation to what evidence I need about those matters and how much time I should set aside for submissions on those matters. You've heard what he's had to say about the possible evidence he wants to call as well as he wants to make some submissions, the period of time he might need and his preferred venue but with fallback position, so I think I need to hear you on each of those matters.

PN163

MR WILSON: Thank you, your Honour. I've no objection as to the range of matters he wants to traverse at this stage. Coupling that, I suppose, with the limitations that you placed on it. As to how long? Well, a day or two at the most sounds reasonable to me. Our preference, as strongly as I can put it, would be for the matter to be heard in Canberra for these reasons: the dispute has been generated by my client. My client's a Federal registered organisation whose registered office is in Canberra. As you've observed, respondents are located all around Australia and therefore in the spirit of Federalism, the matter should be heard in Canberra.

PN164

THE SENIOR DEPUTY PRESIDENT: The smallest number of respondents in the logs are in the Northern Territory. The second smallest number are in Canberra. The predominance of respondents are in the States, New South Wales, Victoria and Queensland and, to a lesser extent, Western Australia, Mr Wilson. That's usually, of course, something that I'm obliged to take into account when tackling this issue which, of course, is not an unusual one to arise in relation to national matters.

PN165

MR WILSON: Sure, but that, of course - and no disrespect, of course, to you, your Honour - is that's not surprising given the population in the States, compared with the Northern Territory and the ACT. I can only repeat what I've said before about where we're located, where the log of claims were sent out. The fact that people are all around the place and Canberra, since I think 1901, or certainly 1924, has been the central location for matters involving every State and Territory.

PN166

THE SENIOR DEPUTY PRESIDENT: Yes. Anything more?

PN167

MR WILSON: Nothing further, your Honour.

PN168

THE SENIOR DEPUTY PRESIDENT: All right. Well, Mr Lawrence, I think the issue then that needs to be decided upon first is venue. It would be of some significance to me as to whether or not you wanted to cross examine the Secretary of the Union. Are you in a position - I know you haven't seen the resolution that's relied upon but are you in any position to say what sort of level of certainty you have as to your desire to do so?

PN169

MR LAWRENCE: I'm fairly confident that I would want to cross examine the Secretary.

PN170

THE SENIOR DEPUTY PRESIDENT: Yes. I can understand that in relation to authorisation and may be some of the other matters you raised in your letter of the 23rd so, well, that might weigh in favour of a Canberra hearing. How do you react to that?

PN171

MR LAWRENCE: Your Honour, perhaps I could react in this way. I had in mind, and perhaps I didn't make it clear enough when I spoke earlier but segmenting the next two steps -

PN172

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I'll interrupt you. Yes, you made it clear, Mr Lawrence. I probably didn't make myself clear. I'm not going to split this case up into parts.

PN173

MR LAWRENCE: Yes.

PN174

THE SENIOR DEPUTY PRESIDENT: Let's hear all the evidence as to authorisation and the challenge to genuineness of the log and submissions. Let's hear them all on the same day or two days.

PN175

MR LAWRENCE: Yes.

PN176

THE SENIOR DEPUTY PRESIDENT: So I should - and you did make yourself clear, I should have made my inclination clear.

PN177

MR LAWRENCE: Yes. I certainly see a logic in having submissions following our evidence and I understand what your Honour says about having everything together. The only doubt that I've got, your Honour, is that if it turns out it's a matter of prudence, even if not necessity, we would want to have more than one witness, or even two witnesses.

PN178

THE SENIOR DEPUTY PRESIDENT: Yes. That's the other issue. On the one hand, the Secretary would persuade - the cross examination of the Secretary would persuade me that we'd have the hearing in Canberra but I'd like to know fairly soon whether there would be witnesses called from any of your respondents. When are you going to know that, Mr Lawrence.

PN179

MR LAWRENCE: I think I would be in a position to know that within 48 hours.

PN180

THE SENIOR DEPUTY PRESIDENT: All right. Good. Because you see -

PN181

MR LAWRENCE: We'll move on that quick.

PN182

THE SENIOR DEPUTY PRESIDENT: Sorry?

PN183

MR LAWRENCE: We'll move on that quickly.

PN184

THE SENIOR DEPUTY PRESIDENT: That would be useful because really the setting and identification of days really hangs off that, I must say.

PN185

MR LAWRENCE: Your Honour, I wouldn't see the number of witnesses being related to the length of the case in the sense that -

PN186

THE SENIOR DEPUTY PRESIDENT: No. It's more I must say, from my point of view, it then allows me to look at my diary as to where I'm going to be already.

PN187

MR LAWRENCE: Yes.

PN188

THE SENIOR DEPUTY PRESIDENT: That was really what was behind it. Let's go off transcript for a short time.

OFF THE RECORD [11.05am]

RESUMED [11.14am]

PN189

THE SENIOR DEPUTY PRESIDENT: This matter is now to be listed for hearing at some time in the week commencing 5 July. Two consecutive days will be set aside. A decision has not yet been made in relation to where that hearing will be. That's a matter that I will make a decision about soon after I have received notice from those instructing Mr Lawrence as to which respondents they might be calling and confirmation as to whether or not they wish to cross examine the Secretary of the Union. I have indicated earlier that I will have my associates prepare a short note and send by email to you just to confirm what I think the parties are both going to do over the next few days in relation to identifying and narrowing the matters that might need to go to a hearing.

PN190

I think it's wise that there is liberty to apply at short notice to call the matter on again should there be some other matters that need to be addressed and that might result in narrowing the matters that need to be the subject of a decision. I think that's as far as we need to go today. The Commission now adjourns.

ADJOURNED INDEFINITELY [11.15am]