C2004/3623, Transcript of Proceedings [2004] AIRCTrans 2489 (5 July 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 7571

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/3623

NATIONAL UNION OF WORKERS

and

WAREHOUSE SOLUTIONS INTERNATIONAL
PTY LIMITED and OTHERS

Notification pursuant to section 99 of the Act
of an industrial dispute re wages and conditions
of employment

MELBOURNE

10.03 AM, WEDNESDAY, 23 JUNE 2004

PN1

MS A. PARKES: I appear for the National Union of Workers.

PN2

MR P. EBERHARD: I appear from the Victorian Employers Chamber of Commerce and Industry on behalf of ASEAN Warehouse Solutions Pty Limited.

PN3

THE DEPUTY PRESIDENT: Thank you. Yes, go ahead, Ms Parkes.

PN4

MS PARKES: If the Commission pleases. Your Honour, if I could just hand up at the start an affidavit sworn by Mr Charles Donnelly. Sorry, I think I have handed you the copy instead of the original. I do apologise.

PN5

THE DEPUTY PRESIDENT: Do you wish to have that marked, Ms Parkes?

PN6

MS PARKES: Yes, please, your Honour.

EXHIBIT #NUW1 AFFIDAVIT SWORN BY C. DONNELLY

PN7

MS PARKES: Your Honour, if I could just explain the significance of NUW1. You would note that today's matter refers to Warehouse Solutions International Pty Limited and we have subsequently had discussions with the representatives of that company, Mr Eberhard, who is present here today and we are advised that the actual entity in question had a different name and so accordingly the union has served the entity in question, which is actually ASEAN Warehouse Solutions Pty Limited.

PN8

THE DEPUTY PRESIDENT: Yes, Mr Eberhard had me confused there for a moment with who he was appearing on behalf of.

PN9

MS PARKES: So exhibit NUW1, your Honour, we would submit that Warehouse Solutions International Pty Limited can be deleted from this matter and replaced with ASEAN Warehouse Solutions Pty Limited with NUW1 attesting to the service notice, letter of demand and log of claims. Your Honour, if I can just take the Commission to the background to this matter. There should be also an affidavit on the file before you sworn on 24 May by Mr Charles Donnelly, General Secretary of the union, attesting that the union has served a letter of demand and log of claims on six employers, namely Warehouse Solutions International Pty Limited, which we have just explained should be replaced by ASEAN Warehouse Solutions Pty Limited, PDW Management Service, Rupee Investments Pty Limited, SIA Abrasives Australia Pty Limited, Quality Garments Pty Limited and Fine Paper Recyclers Pty Limited and we can advise the Commission that within the seven-day time frame outlined in the letter of demand, there was no response or no agreement to the claims and there has been no response or no agreement to the claims to date either, so accordingly, the union notified the Commission of an industrial dispute. Now, your Honour, there should also be a further affidavit on the file before you also sworn by Mr Charles Donnelly and if I can just take your Honour to that affidavit, because there is a mistake on the front page of the affidavit which I have only just noticed, in that unfortunately that affidavit has the same front page in the affidavit attesting to the notice of the log of claims as opposed to attesting to the service of the notice of listing. Does your Honour have that documentation?

PN10

THE DEPUTY PRESIDENT: Yes, I do.

PN11

MS PARKES: But I can, however, advise the Commission that the notice of listing and the required information sheet in accordance with R5 was served on the parties on 31 May of this year and if your Honour looks at that affidavit, there should be a postal receipt with 31 May 2004 identified at the bottom of that receipt and I do actually have the original here, should your Honour require that.

PN12

THE DEPUTY PRESIDENT: Yes, perhaps you could hand up the original.

PN13

MS PARKES: Certainly, your Honour. At the same time, your Honour, I will just hand up another document which can attest that it went out on the 31st. In relation to Rupee Investments, we received return mail indicating that they have not received the notice of listing and you will note that the envelope on the Rupee Investments is stamped 31 May.

PN14

THE DEPUTY PRESIDENT: Yes.

PN15

MS PARKES: So we would submit that whilst we would very much like to press a dispute with Rupee Investments, given that they haven't been served or we haven't been able to effect service on the address, that we are not in a situation today to press a dispute finding and that they haven't been properly advised of today's proceedings.

PN16

THE DEPUTY PRESIDENT: Yes.

PN17

MS PARKES: We would submit, your Honour, though, that the remaining five entities have been properly notified of today's proceedings via certified mail on 31 May of this year and that in their absence, except for the company represented by Mr Eberhard, it is appropriate that a dispute finding be made. We would submit that the persons in question or the companies in question all hire people that are eligible to be members of the National Union of Workers and we would finally submit, your Honour, that the area of the dispute is limited to the State of Victoria and we would rely on section 493 of the Act in support of that, your Honour, so just to conclude, your Honour, the union would seek a dispute finding today in relation to ASEAN Warehouse Solutions Pty Limited, PDW Management Services, SIA Abrasives Australia Pty Limited, Quality Garments Pty Limited and Fine Paper Recyclers Pty Limited and we would also seek a direction from the Commission that the parties to such dispute confer in relation to settling the dispute. If the Commission pleases.

PN18

THE DEPUTY PRESIDENT: Yes, thanks, Ms Parkes. Mr Eberhard.

PN19

MR EBERHARD: Your Honour, there is a fairly lengthy history with regards to the client that I represent in these proceedings and I don't really wish to traverse all of that, apart from saying that Ms Parkes and I have had discussions to ensure that when the NUW have served their log of claims, they have served it on the appropriate employer because previous logs of claims have been served on similarly named organisations, but they haven't been the employer with respect to the Victorian operations of that particular company, so with respect to that, we would certainly not oppose the Commission varying the dispute with respect to the way Ms Parkes has intimated and that it is a reference to ASEAN Warehouse Solutions Pty Limited, not to Warehouse Solutions International, I think as the Commission's notice of listing originally talked about, but with respect to the company, certainly they acknowledge the log claims and reject the claims that are contained therein, reserve their rights, but would agree that there should be a dispute finding found under the Act. If the Commission pleases.

PN20

THE DEPUTY PRESIDENT: Good, thanks, Mr Eberhard. Is there anything further, Ms Parkes?

PN21

MS PARKES: No, your Honour.

PN22

THE DEPUTY PRESIDENT: Pursuant to section 101 of the Act, I determine that there is in existence an industrial dispute within the meaning of the Act. The parties to the industrial dispute are the National Union of Workers on the one hand and the following employers, ASEAN Warehouse Solutions Pty Limited, PDW Management Services, SIA Abrasives Australia Pty Limited, Quality Garments Pty Limited and Fine Paper Recyclers Pty Limited. The subject matters that are in dispute insofar as they are industrial matters within the Act are set out in the letter of demand and log of claims from the National Union of Workers dated - help me, Ms Parkes.

PN23

MS PARKES: Dated 24 May 2004.

PN24

THE DEPUTY PRESIDENT: Yes, that is in respect of all bar ASEAN Warehouse Solutions and that dating would be - - -

PN25

MS PARKES: Sorry, your Honour, the log of claims has the date of 14 May 2004 and the affidavit was sworn on 24 May 2004.

PN26

THE DEPUTY PRESIDENT: Yes, thank you. Well, I will ensure that those dates are correct when I issue the written determination. I make my normal comment, Ms Parkes, just so that I don't disappoint you about clause 33 of the log of claims, being a preference of employment clause and not being able to be included in any application for certification of an agreement or any award of this Commission on the basis that, in my view, it would contravene part XIA of the Act. The dispute found exists within the State of Victoria and I direct the parties to the dispute into discussions with an aim of settlement or partial settlement of that dispute. On that basis, the matter is adjourned. Thank you.

ADJOURNED INDEFINITELY [10.13am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 AFFIDAVIT SWORN BY C. DONNELLY PN7