C2004/4048, Transcript of Proceedings [2004] AIRCTrans 2306 (22 June 2004)

AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220

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

TRANSCRIPT OF PROCEEDINGS


O/N 7433

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/4048

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

GRANSLAM PTY LIMITED Trading as
FOOD-RITE BAYSWATER

Notification pursuant to section 99 of the Act
of an industrial dispute re security of
employees award entitlements

MELBOURNE

4.01 PM, THURSDAY, 10 JUNE 2004

Continued from 8.6.04

PN60

THE DEPUTY PRESIDENT: Yes, I will take the appearances again, I think.

PN61

MR G. SIVARAMAN: I appear on behalf of the SDA. I appear with MR A. CURTAIN, Industrial Officer with the SDA.

PN62

MR S. JAQUES: I am a solicitor and I appear on behalf of Brendan Andrew Rhodes who is a director of Granslam. Mr Rhodes was served with a subpoena in this matter yesterday afternoon and has come up from Bairnsdale to answer that subpoena. I haven't had an opportunity to formalise any instructions on behalf of Granslam and it is unlikely that I would receive such instructions. I don't practice in this jurisdiction. I have come to support Mr Rhodes in his answering the subpoena to give him such advice as he might need in the short term.

PN63

But it would be unfair to my learned friend to indicate that I have instructions to act on behalf of the company which has other directors; at this stage, I don't.

PN64

THE DEPUTY PRESIDENT: All right, thank you. So, you are seeking leave to appear on behalf of Mr Rhodes only at - - -

PN65

MR JAQUES: Mr Rhodes, Brendan Andrew Rhodes, yes.

PN66

THE DEPUTY PRESIDENT: Yes. There is no objection to leave, is there?

PN67

MR SIVARAMAN: Obviously not.

PN68

THE DEPUTY PRESIDENT: You are not really in a position to object, are you?

PN69

MR SIVARAMAN: No.

PN70

THE DEPUTY PRESIDENT: So leave is granted.

PN71

MR JAQUES: Thank you, your Honour.

PN72

THE DEPUTY PRESIDENT: Look, this matter was before the Commission, a matter of days ago only, and certain witness statements were tendered into evidence and an application was made by the SDA that an award should be made as a settlement or in settlement of a dispute between the parties. We had at the time some discussion in conference and it was resolved that, first of all, the respondent in this matter should be provided with every opportunity to be heard, and secondly, that there was a requirement that certain documentation should be put before the Commission, hence the summons were issued.

PN73

I think in fairness, given that the respondent wasn't present at those proceedings, it might be worthwhile if you start, Mr Sivaraman.

PN74

MR SIVARAMAN: Certainly.

PN75

THE DEPUTY PRESIDENT: I might just before you do, though, just for your information and well, Mr Rhodes particularly, but through your representative, a listing for a matter before the Commission is forwarded to both parties. Any failure to attend a proceeding in front of this Commission runs a risk that there can be a determination made in your absence which is a fully binding determination. The opportunity to provide a further opportunity, if you like, to be here is one that we took, as I said, on the circumstances before the Commission and there was no obligation for the Commission to do so. It was open - - -

PN76

MR JAQUES: Is it suggested that the original listing was served on my - on Granslam, your Honour?

PN77

THE DEPUTY PRESIDENT: Well, the listing was certainly served. It may not have been received but it was certainly served and the Commission would have records from the Commission itself that that hearing date was provided. Look, I don't - I am not going to press the point at this stage, Mr Jaques, I am simply providing the information for your client's benefit in the instance - - -

PN78

MR JAQUES: I understand, your Honour.

PN79

THE DEPUTY PRESIDENT: - - - that there are further proceedings because it is, as I have said, available to the Commission to make a determination in the absence of a respondent who has been properly notified. So I don't intend at this stage to go to when that was served and how it was served, it is simply by way of information at this stage.

PN80

MR JAQUES: Yes, your Honour, I would simply say that the first that my client became aware of these proceedings was after 4 o'clock yesterday and in the intervening time, which is less than 24 hours, he spent five of them driving up here this afternoon. So he has responded extremely quickly when the matter was brought to his attention.

PN81

THE DEPUTY PRESIDENT: All right, thank you. Yes, Mr Sivaraman?

PN82

MR SIVARAMAN: Your Honour, perhaps for the sake of the respondent and hopefully not to take up too much of your time, I might re-assert some of the issues that were raised yesterday, in an abbreviated form. I do understand that Mr Jaques is not actually here to represent the company and the dispute that had been notified is with the company. Now, the heart of this dispute, of course, is the security of entitlements of employees working in the Granslam store in Bayswater on the basis of a number of evidentiary factors which are in the statement that was tendered at the hearing prior. There is grave - - -

PN83

THE DEPUTY PRESIDENT: Have copies of those witness statements been provided to the respondent?

PN84

MR SIVARAMAN: I should say I attempted to, however, for Mr Jaques' sake - I don't want to speak for him - but he stated that it may not be - he didn't wish to receive them at this stage as he wasn't actually acting for the company.

PN85

THE DEPUTY PRESIDENT: Yes.

PN86

MR SIVARAMAN: I might let him corroborate on that if he wishes to.

PN87

THE DEPUTY PRESIDENT: Yes.

PN88

MR JAQUES: It is undoubtedly true that my learned friend offered me copies of the witness statements, your Honour and when I indicated to him that I wasn't at this stage acting on behalf of Granslam, we agreed that perhaps he shouldn't be, sort of, serving documents on me at this stage. However, he - if it is possible for him to give a very brief summary of what the witness statements say, it would be of assistance to me.

PN89

THE DEPUTY PRESIDENT: Yes, I don't know that anything is lost from your point of view, Mr Jaques, by the receipt of those witness statements - - -

PN90

MR JAQUES: No, I think that is probably correct.

PN91

THE DEPUTY PRESIDENT: - - - in any event and at least it would provide you with information as to what the union is putting. It would be my intention, simply, as far as formal proceedings go this afternoon, to hear briefly again from Mr Sivaraman as to the position of the union to give you an opportunity to respond to that on behalf of Mr Rhodes, Mr Jaques. And then to see whether we can come to some sort of resolution of the matter in private conference.

PN92

MR JAQUES: Certainly.

PN93

THE DEPUTY PRESIDENT: So, yes.

PN94

MR SIVARAMAN: Thank you, your Honour. The position of the union is that there is a grave risk that entitlements rightfully owed to the employees at the Bayswater store will not be met. That the store is on the precipice and it appears to be liable to close at any point. A number of different facts which are in Ms Studak's statement go to show that the purpose of making an award - and I should state to you, your Honour, that I actually have an amended form of that award to hand up to you today, partly due to the fact that the date has changed - is to ensure that in the event that the company does close that the entitlements of the employees are met.

PN95

We state that there is jurisdiction to make the award. We distinguish it - well, firstly, on the basis that the entitlements referred to are within the scope of allowable award matters. Secondly, pursuant to 89A(6) that the making of a trust fund in this case is a matter incidental to the provision of allowable matters. Thirdly, we distinguish this from an application for a breach of award or agreement, which on the last occasion you rightfully pointed out, your Honour, is something that needs to be commenced in the Federal Court.

PN96

There is no breach as of yet here - or I am not instructed on the specifics of any breach as of yet, here. What the purpose of creating this trust fund, is to ensure that in the future - in the near future, most likely, there is a security for the entitlements of the employees based on underlying - an agreement and underlying award and statutory instruments. If I could hand up to you the amended form of the award. Your Honour, you would note there are two changes to the form of award that was handed up to you on Tuesday.

PN97

Firstly, the date for payment has been changed to today. Finally, clause 4 has been inserted into the award stating that if the award is made and Granslam Pty Ltd has not acted in accordance with clauses 1 to 3 of the award, then for every day it fails to make payments in accordance with those clauses, it will be deemed to have committed a breach of clauses 1 to 3 of the award. That insertion is pursuant to section 111(1)(e) of the Act and again, really, the purpose of this is to address another one of your concerns, that is, you - as you stated in the earlier hearing, your Honour, there is an award in place and agreement in place and you did raise the issue, well, what is the purpose of another award.

PN98

And I think that particular clause certainly gives much more purpose to this award and gives it much more pertinence than the ones that are in existence. So it is on that basis we also push for the making of this award. Your Honour, do you wish for me to address the issue of the summons at this stage?

PN99

THE DEPUTY PRESIDENT: Yes, you probably should do that at this point in time, Mr Sivaraman.

PN100

MR SIVARAMAN: The summons, we state, your Honour, is necessary and relevant to the issues in dispute. It will assist in ascertaining, you, your Honour, in deciding whether this award should be made and certainly will assist in determining the extent to the issues in dispute. We state it is certainly not too onerous and should be within simple grasp of the company if it has kept proper records. I would hand up to you, your Honour, a decision of Senior Deputy President Williams in the matter of the Australian Building Construction Demolition Employees v Builders Labourers Federation, a decision of 27 January 2000 where his Honour, Senior Deputy President Williams discussed the matters pertinent to the making of a summons.

PN101

Now, if we were to go to page 3 of that case, his Honour summarises the principles in relation to making a summons. His Honour, firstly outlines the nature of the power of the Commission to issue the summons. I don't think that is in question here. Secondly, his Honour, points out that it is discretionary and we accept that. It should be addressed to the proper officer; that did happen:

PN102

It must specify with reasonable particularly the documents required to be produced.

PN103

We state that we were very precise in the nature of the documents we wanted to be produced both in terms of the type of documents and the times - a frame within which those documents or the matters which they are to relate to:

PN104

The documents sought must be of a nature capable of being relevant to an issue which might legitimately arise on the hearing of the substantive matter.

PN105

We state that these documents that we seek to be produced are exactly relevant to the issue of the security of entitlements, that is to say, the ability of the - the position of the company and its ability to pay. So, we say, they are precisely on the point - they are precisely relevant to the issue. They are not being sought for any spurious or private purpose, and in these particular circumstances, they should be produced. Those are my submissions in relation to the summons.

PN106

THE DEPUTY PRESIDENT: Thank you. Mr Jaques?

PN107

MR JAQUES: Yes, your Honour, as I have indicated, your Honour, I appear here at the request of Mr Rhodes who received this summons to attend - the subpoena. Mr Rhodes is a director of Granslam Pty Ltd and he doesn't dispute that he is a proper officer of the company. He was unaware of these proceedings until he received this document when it was served upon him some time after 4 pm yesterday afternoon. He made contact with the Commission and was advised that, if it wasn't possible for him to attend with those papers which are referred to in the summons to witness, that he should nevertheless appear himself, which he has done, as a demonstration of good faith and to answer the summons.

PN108

He is not in possession of these records although they do exist. The company has maintained its financial records in a substantially compliant manner. The documents are presently in the possession of the other director of the company which is a gentleman by the name of Mr Gamze in Wangaratta. But it is not - the production of the documents is not resisted, it simply was not possible to do so this afternoon.

PN109

THE DEPUTY PRESIDENT: Yes, what sort of timeframe would you be suggesting would be feasible, Mr Jaques.

PN110

MR JAQUES: I might take instructions, your Honour.

PN111

THE DEPUTY PRESIDENT: Yes.

PN112

MR JAQUES: Within seven days from today's date, your Honour, however, it may well be that we can provide information today which would assist the progress of the matter in conference without the necessity for these documents to be produced. In very general terms, and without having taken specific instructions, I have skimmed the statement, as has my client, to the extent that the statement of Ms Studak indicates that the company is, in her perception, in financial difficulty. That would not be disputed and we would not be seeking to adduce evidence which contradicted that conclusion.

PN113

THE DEPUTY PRESIDENT: Yes.

PN114

MR JAQUES: This company is in very serious financial difficulty. And we may well, without producing documents to support the view, be able to give at least a thumbnail sketch this afternoon of the company's position, of the steps which have been taken by the directors in terms of the conduct of the company's affairs and at least give information to my learned friend which would assist him in advancing the matter. I am very hesitant, however, your Honour, to embark upon either a conference or an appearance where it seems that I am representing the company.

PN115

I have no experience whatsoever in this jurisdiction. I don't know the legislation which has been referred to by my learned friend and it would be improper of me now to be volunteering settlements on the discussion of this award on behalf of the company without it having the opportunity to seek properly qualified advice in relation to the matter. But we are here to help as far as we can in terms of the concerns that the employees have.

PN116

THE DEPUTY PRESIDENT: Yes, thanks, Mr Jaques. Is there anything you want to say in response to that, Mr Sivaraman, before we go off the record?

PN117

MR SIVARAMAN: No, your Honour.

PN118

THE DEPUTY PRESIDENT: I think I will go off the record, thank you.

OFF THE RECORD [4.18pm]

RESUMED [5.12pm]

PN119

THE DEPUTY PRESIDENT: Yes, thank you. Yes, we have had some discussion in conference about this matter. I have taken into account the company's circumstances with regard to complying with the summons and I intend to grant an extension of the time allowed for compliance until close of business on Wednesday 16 June. Is that a satisfactory period of time, Mr - - -

PN120

MR JAQUES: That is satisfactory, your Honour.

PN121

THE DEPUTY PRESIDENT: Thank you. I have also taken into account the company's current circumstance with regard to representation in this matter and in an effort to ensure that the company has adequate opportunity to put whatever it wishes to put in respect to the union's application that an award should be made, and that would include any arguments regarding the jurisdiction of the Commission to make such an award, as well as arguments that go to the merits of an award being made. And having considered those matters, I intend to set this matter down for further hearing at 2 pm on Friday the 18th.

PN122

Now, at that time I would expect the company to be in a position to put whatever arguments that it has to put with respect to the union's application. And it is my expectation that a determination would flow out of proceedings on that day. Mr Sivaraman, is there anything you wanted to say further at this point?

PN123

MR SIVARAMAN: No, your Honour.

PN124

THE DEPUTY PRESIDENT: Yes. Mr Jaques?

PN125

MR JAQUES: No, your Honour.

PN126

THE DEPUTY PRESIDENT: On that basis, I will adjourn until Friday, the 18th at 2 pm.

ADJOURNED UNTIL FRIDAY, 18 JUNE 2004 [5.14pm]