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Australian Industrial Relations Commission Transcripts |
AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825
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 8142
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT LACY
C2004/5266
UNION OF CHRISTMAS
ISLAND WORKERS
and
FORTE AIRPORT
MANAGEMENT
Notification pursuant to section 99 of the Act
of a dispute re wages and working conditions
MELBOURNE
5.09 PM, TUESDAY, 10 AUGUST 2004
Continued from 6.8.04
THIS HEARING WAS CONDUCTED VIA TELEPHONE HOOK-UP AND RECORDED IN MELBOURNE
PN84
THE SENIOR DEPUTY PRESIDENT: Mr Thomson, are you there?
PN85
MR THOMSON: Yes, your Honour. Good afternoon.
PN86
THE SENIOR DEPUTY PRESIDENT: Do you appear for the Union of Christmas Island Workers?
PN87
MR G. THOMSON: Your Honour, I do.
PN88
THE SENIOR DEPUTY PRESIDENT: Mr McCorry, are you there?
PN89
MR G. McCORRY: Yes, your Honour. And I am appearing for Andrew Forte of Forte Airport Management.
PN90
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. What is the situation there Mr Thomson?
PN91
MR THOMSON: Your Honour, the UCIW has notified the Commission of a dispute under section 99 in respect of their log of claims.
PN92
THE SENIOR DEPUTY PRESIDENT: Yes.
PN93
MR THOMSON: The union has complied with the Commission's rules in providing to the Commission a copy of the log of claims, the statement of service, the statement of authority in respect to the matter.
PN94
THE SENIOR DEPUTY PRESIDENT: Yes.
PN95
MR THOMSON: Service has been effected on the respondent, Forte Airport Management, and that was effected by sending the log of claims and a letter of demand by registered post to the last known address of the respondent at PO Box 63, Guildford, Western Australia. The letter and log were posted in Perth by a previous UCIW President, Mr Cheng Heng. The UCIWs rules as registered by the Australian Industrial Relations Commission in late 1995 have coverage of the airport industry on Christmas Island.
PN96
As Christmas Island is a territory of the Commonwealth the question of an interstate dispute does not arise. Until last week the conditions for airport workers were covered through administration on the island. That is the Christmas Island administration. Within the award the subject of dispute finding at C60621 of 1995 and a roping in award made by the Australian Industrial Relations Commission on 13 December 1995. Their functions have been, at the airport, have been contracted to Forte Airport Management via a transmission of business. Same government to the company.
PN97
As such the UCIW continues to have coverage of the work by its eligibility for membership and coverage of Christmas Island as set out in our rules. In conclusion I submit that the alleged industrial dispute between the parties does exist. The company has not acceded to the letter of demand and we submit the dispute should be found and request that the parties be directed into negotiations. That concludes my opening address, your Honour.
PN98
PN99
THE SENIOR DEPUTY PRESIDENT: Yes, Mr McCorry?
PN100
MR McCORRY: Thank you, your Honour. Your Honour, Mr Forte is not with me. As I indicated to your associate he is still away down at Ravensthorpe Monday through to Wednesday of this week and I have been instructions in relation to this matter. My instructions are to vigorously resist any notification of a dispute. I am instructed to take every technical point to put the unions in strict compliance with the rules and strict proof of everything that it asserts. And to appeal every arguable matter.
PN101
And the basis for these instructions, your Honour, is the conduct of the General Secretary of the union over the past few weeks. To deal firstly with the issue of whether there has been proper service I am instructed that the post office returned the letter or envelope containing the log of claims to the recipient. It was not received. And I have received from Mr Bardmaehle, the Airport Manager, the copy that was provided to him. I note that that copy is not signed and it was not served in accordance with the rules.
PN102
In that it was not at the principle place of business of the employer. I also note that contrary to the rules the purported sending of the log of claims to a post office box does not constitute service in accordance with rule 72. And Forte Management, Forte Airport Management, strongly object to any dispute notification on the basis of non compliance with the rules. Secondly, returning to the issue of whether there is an industrial dispute. The - Forte Management says there is not an industrial dispute.
PN103
While there is no obligation, no requirement, for there to be an interstate industrial dispute in order to give the Commission jurisdiction in the territory it is still subject to the provisions of the Act. And the Act requires that for there to be an industrial dispute that industrial dispute must be in relation to - one moment if I can just find my copy, your Honour. I refer to section 4 of the Act.
PN104
About matters pertaining to the relationship between employers and employees and extending beyond the limits of any one state.
PN105
So the parliament has decided that all industrial disputes other than those specifically provided for in relation to waterside workers, air industry and what not, require an interstate dispute. There is no interstate dispute here and the Commission, we would say, cannot find that there is a dispute because the alleged dispute relates only to one employer and only in one place. Moving on to the other matter. We would say that this is not a genuine dispute, industrial or otherwise.
PN106
Genuine dispute for the purposes of the Workplace Relations Act. Because of the conduct of the General Secretary of the union who, for the record, also happens to be the President of the Shire Council. Now it is a matter of historical fact that the Commonwealth decided some time ago that delivery of or operations at the airport would be better served by persons in the private sector. Initially, they offered the airport employees the first option. To form a company and to take over the operations. There was no response to that.
PN107
That occurred some 18 months ago. There was an expression of interest published and Forte Airport Management and the shire both tendered for that contract. Forte won it. The airport employees offered to subcontract to Forte Management but they lacked the financial ability to do so. And that was not pursued.
PN108
THE SENIOR DEPUTY PRESIDENT: Who offered to subcontract to Forte?
PN109
MR McCORRY: The airport employees offered to.
PN110
THE SENIOR DEPUTY PRESIDENT: Yes.
PN111
MR McCORRY: Now the shire has financed the campaign against the Commonwealth over, first the casino issue, and the market testing of the hospital and the change of operations at the airport. The Shire President has been telling businesses on the island not to provide services to Forte Airport Management Services. The shire has organised demonstrations at the airport against Forte and the airport managers on their arrival.
PN112
And there was a rather ugly scene at the airport when they arrived on Thursday they were subjected to abuse and intimidation by a large crowd. And shouting "Forte Out Forte Out" repeatedly.
PN113
MR THOMSON: Not loud enough.
PN114
MR McCORRY: The Shire President and other members of the shire council barricaded the airport on 2 August to prevent access to the airport by Forte Management. The police were required to remove them and allow access to the airport premises. The shire has made complaints to Air Services Australia who are responsible for air safety alleging safety breaches by the Forte management. The Shire President has procured breaches of section 45(d) of the Trade Practices Act by the Silver Birth restaurant, which your Honour will be familiar with, and by Indian Ocean Group Training Association. And he happens to sit on the board of Indian Ocean Training.
PN115
THE SENIOR DEPUTY PRESIDENT: Say that again for me please. 45(d) what?
PN116
MR McCORRY: The Trade Practices Act.
PN117
THE SENIOR DEPUTY PRESIDENT: Yes.
PN118
MR McCORRY: A secondary boycott.
PN119
THE SENIOR DEPUTY PRESIDENT: Yes. Who secured?
PN120
MR McCORRY: By the Shire President - Mr Thomson. By Silver Birch restaurant and by Indian Ocean Group Training. I have been informed by a number of other business on the island that Mr Thomson has approached them and told them not to provide services to Forte or anybody working for them. I have been informed by the former employees, or I have been informed that the former employees, were instructed by Mr Thomson not to apply for jobs with Forte Management.
PN121
The Islander Newsletter published by the shire and media releases published by the aegis of the shire, copies of which I have provided to the Commission, have all been done in the name of the shire. They make it quite clear that there is a campaign to prevent Forte Airport Management from carrying on business on the island. Now Forte Airport Management says this is not a genuine dispute but an attempt by the shire to get rid of - or to get the airport business for itself through forcing Forte off the island.
PN122
Complaints have been made to the Australian Competition and Consumer Commission and the Office of the Employment Advocate in relation to the conduct of the shire and its members. There is not an industrial dispute as I have previously stated because it does not extend beyond the limits of any one state. And the extended operation of the Workplace Relations Act in section 7 does not give the Commission jurisdiction to find an industrial dispute in the absence of the interstatedness because there are no modifications as prescribed.
PN123
Forte Management also says that the log of claims was not authorised by the union executive and puts the union to strict proof that it was so authorised. We would also say that the serving of the log of claims is contrary to the rules of the union in that the objects of the union are limited to carrying out activities on behalf of its members. And there are no members employed by Forte Management. On that basis - - -
PN124
THE SENIOR DEPUTY PRESIDENT: That - would you agree that people employed by Forte Management are eligible for membership in the union?
PN125
MR McCORRY: There eligibility is not in question. If the question is the rules relate to members not to persons who are eligible to be members. It is the only one that relates to persons eligible to be members is rule 4(a) and that is:
PN126
To secure the complete representation and effective organisation of all persons eligible for membership of the union.
PN127
And I should point out that Mr Forte wrote to the union and informed them earlier that if any of his employees appointed the union or any member of the union as their representative he would be happy to discuss matters with them. On that basis we would say that this is not a genuine dispute. It is part of the shire's campaign of harassment against Forte Airport Management and the Commission should exercise its discretion under section 111(i)(g) and not deal further with the matter. Thank you, your Honour.
PN128
THE SENIOR DEPUTY PRESIDENT: Just bear with me a moment. Yes, Mr Thomson, what do you say in reply?
PN129
MR THOMSON: I think Mr McCorry doesn't think I know how to walk and chew gum at the same time. I mean we have got to pursue the interests of the people at Christmas Island at the shire. And we are in the industrial commission in my other role as secretary of the union pursuing a dispute finding with Forte Airport Management who have set themselves up in business to manage the airport. And our members used to be employed there.
PN130
Now with regard to so much of what Mr McCorry alleges I do not know that - its better to deal with it. I would accept your directions there, your Honour, if we want to go through point by point. But I am interested in the last statement that Mr McCorry made which contradicts my understanding. He said that Forte wrote to the UCIW to advise Forte's intentions to talk to the UCIW as representative of employees. Could Mr McCorry take us to that letter so that I can properly understand his assertion there?
PN131
I mean there may be something there. If Mr Forte wants to talk to the union obviously he recognises there is a need to talk to the union and the union has a right to talk to Mr Forte on behalf of its members.
PN132
THE SENIOR DEPUTY PRESIDENT: What - - -
PN133
MR THOMSON: Which letter is Mr McCorry talking about?
PN134
THE SENIOR DEPUTY PRESIDENT: Mr McCorry, what is the letter you are talking about there?
PN135
MR McCORRY: Your Honour I am instructed that Mr Forte wrote a letter to the union in response to a letter that the union wrote saying it wanted to have discussions. And Mr Forte said in that letter if any of his employees appointed the union or the secretary of the union to represent them he would be pleased to discuss with the union anything that particular employee wanted to discuss - have discussed.
PN136
MR THOMSON: So are you referring to the letter from Forte to the union on 26 June 2004?
PN137
MR McCORRY: I do not know what the date of the letter was and I have not seen it. So I am merely instructed - - -
PN138
MR THOMSON: It is in front of me.
PN139
THE SENIOR DEPUTY PRESIDENT: Just a moment please. So that is your instructions. And it was a letter that Mr Forte wrote to the union inviting it to have discussions with Mr Forte in respect of any of his employees who are members of the union. Is that right?
PN140
MR McCORRY: No, your Honour, that is not my instruction. My instruction is that Mr Forte wrote to the union saying that if any of his employees - - -
PN141
THE SENIOR DEPUTY PRESIDENT: Yes.
PN142
MR McCORRY: - - - Forte's employees - appointed the General Secretary or someone else from the union to represent them and they wanted to have discussions then he would have those discussions.
PN143
THE SENIOR DEPUTY PRESIDENT: Yes. By the way what is the nature of Mr Forte's business?
PN144
MR McCORRY: I am sorry, your Honour.
PN145
THE SENIOR DEPUTY PRESIDENT: What is the nature of Mr Forte's business?
PN146
MR McCORRY: He runs airport management services in Western Australia in remote localities.
PN147
THE SENIOR DEPUTY PRESIDENT: Right. Yes, all right.
PN148
MR THOMSON: Which localities are they?
PN149
THE SENIOR DEPUTY PRESIDENT: Just a moment. Have you clarified the position about the letter Mr Thomson?
PN150
MR THOMSON: No, your Honour. Mr McCorry has referred to a letter that the union has received and I can assure your Honour that I have received a letter. And the letter is dated 26 June 2004 and I would be happy to read it to you because Mr McCorry does not have a copy.
PN151
THE SENIOR DEPUTY PRESIDENT: Well, perhaps you could read it.
PN152
MR THOMSON: Thank you, your Honour.
PN153
THE SENIOR DEPUTY PRESIDENT: How long is it?
PN154
MR THOMSON: It is four paragraphs, five paragraphs, your Honour.
PN155
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, perhaps you can read it.
PN156
MR THOMSON: Shall I do it in quick step or?
PN157
THE SENIOR DEPUTY PRESIDENT: Yes, that is all right.
PN158
MR THOMSON: Yes. It is dated 26 June. It is - the letterhead is Forte Airport Management. PO Box 63, Guildford, WA 6935. It is addressed to Mr G Thomson, General Secretary to the Union of Christmas Island Workers with our address. And it is sent via e-mail.
PN159
Dear Mr Thomson, I am in receipt of your correspondence dated 18 June conveyed by Indian Ocean Group Training Association. Forte Airport Management has entered into ...(reads)... them with the Commonwealth. Yours sincerely, Andrew Forte, Managing Director.
PN160
A copy is addressed to Margaret Robinson, Chairperson of the Board of Directors IOGTA. Your Honour, that letter does not say that Forte will talk to the UCIW.
PN161
THE SENIOR DEPUTY PRESIDENT: Well, have you got a letter that does say that?
PN162
MR THOMSON: No, I do not. I have got a letter that says that they will not talk to us and I have just read it.
PN163
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Well, Mr McCorry, you have heard what Mr Thomson says is a letter that he has got.
PN164
MR McCORRY: Well, your Honour, it quite simply reinforces what I am saying. Mr Forte said that if any of his employees appointed the UCIW or the General Secretary to represent him and talk with him he would be happy to talk with him about the AWA.
PN165
MR THOMSON: He did not say that at all, your Honour. He said he did not see that he should talk to us. He would prefer not to and he will not. And it certainly will not be in the first 12 months at least. Let me restate it:
PN166
The terms of the AWA are not going to be negotiable at least in the first 12 months.
PN167
THE SENIOR DEPUTY PRESIDENT: Well, unless there is another letter. Mr McCorry, is there another letter you think?
PN168
MR McCORRY: I do not know, your Honour. I assume this is the letter. Mr Forte said that he is prepared to talk to the General Secretary or the UCIW if any of his employees appoint him to do so, to represent him.
PN169
THE SENIOR DEPUTY PRESIDENT: I see. All right. Well, there was a paragraph that said something like that wasn't there Mr Thomson. The second last paragraph or the last paragraph you read I think.
PN170
MR THOMSON: Well, the last paragraph, your Honour is; should I have any concerns pertaining to the airport operations in general I should raise them with the Commonwealth.
PN171
THE SENIOR DEPUTY PRESIDENT: Well, what is the second last paragraph?
PN172
MR THOMSON:
PN173
I would be happy to discuss the AW with you should any employee we actually engage elect to appoint you to speak for them.
PN174
THE SENIOR DEPUTY PRESIDENT: Well, that is what Mr McCorry is saying isn't it?
PN175
MR THOMSON:
PN176
But in my view the airport operations in general are not a matter for the discussion with the Union of Christmas Island Workers.
PN177
THE SENIOR DEPUTY PRESIDENT: Well, look, in any event under section 100 of the Workplace Relations Act I have a duty to endeavour to conciliate in any alleged industrial dispute between parties. Here there is an alleged industrial dispute. The duty to conciliate predicates any finding of an industrial dispute and on that basis it is my intention to fix another hearing date in order to endeavour to conciliate between the parties. Mr McCorry, when did you say Mr Forte is available?
PN178
MR McCORRY: He will not be back until late Wednesday night, your Honour.
PN179
THE SENIOR DEPUTY PRESIDENT: That is tomorrow is it?
PN180
MR McCORRY: Yes.
PN181
THE SENIOR DEPUTY PRESIDENT: And what is his availability after that?
PN182
MR McCORRY: I have not asked him about that. In terms of my availability I have a hearing scheduled all day Thursday and a conference in the middle of Friday. For the following week I am in court on Wednesday but the other days are free.
PN183
THE SENIOR DEPUTY PRESIDENT: Yes. What are you doing Friday?
PN184
MR McCORRY: This Friday, your Honour?
PN185
THE SENIOR DEPUTY PRESIDENT: Yes.
PN186
MR McCORRY: I have a conference from 11 till probably about 1.
PN187
THE SENIOR DEPUTY PRESIDENT: Well, I think what I will do is I will list the matter around 1 o'clock your time. Perth that is, is it?
PN188
MR McCORRY: 11 to 1, I will be in the Commission at that time, your Honour.
PN189
THE SENIOR DEPUTY PRESIDENT: In Perth?
PN190
MR McCORRY: Yes.
PN191
THE SENIOR DEPUTY PRESIDENT: Yes. So that can be finished at 3 o'clock?
PN192
MR McCORRY: I am sorry, your Honour, are you talking Melbourne time or Perth time.
PN193
THE SENIOR DEPUTY PRESIDENT: Well, sorry, you will be finished 3 o'clock Perth time - Melbourne time. Melbourne time.
PN194
MR McCORRY: Yes, your Honour. I should be finished. Yes.
PN195
THE SENIOR DEPUTY PRESIDENT: Well, I think what I will do - Mr McCorry are you available 3.30, sorry at 1.30, sorry 12.30 Christmas Island time on Friday.
PN196
MR McCORRY: That will be - I should be, your Honour. I will be in the Commission at the time. Probably about 1 o'clock but I can - - -
PN197
THE SENIOR DEPUTY PRESIDENT: Well, we can perhaps hook up by video to the Commission.
PN198
MR McCORRY: Yes, your Honour, that could be possible. Yes.
PN199
THE SENIOR DEPUTY PRESIDENT: And - - -
PN200
MR McCORRY: I would need to find out whether Mr Forte is available. I could get back to you or to your associate later on with that information.
PN201
THE SENIOR DEPUTY PRESIDENT: And Mr Thomson are you available at 12.30 Christmas Island time on Friday?
PN202
MR THOMSON: Always at your disposal, your Honour. 12.30 sounds good.
PN203
THE SENIOR DEPUTY PRESIDENT: That will be for conciliation. In the event that we are unable to reach any sort of resolution of the issues or matters on Friday, on that day, I would propose listing the matter on Monday, the following Monday, for further hearing on this issue of the finding of a dispute. Perhaps in those circumstances there may be - you can make your submissions in full Mr McCorry in relation to the rules upon which you rely and the evidence that you rely on to support what you are saying.
PN204
Also, any authorities that you have on the propositions that you have deposited. And, similarly, Mr Thomson if we cannot resolve anything by conciliation and we have to go to hearing on this issue you should be prepared for that event on the Monday as well. That is Monday 16 August.
PN205
MR THOMSON: Yes, your Honour.
PN206
MR McCORRY: Yes, your Honour.
PN207
THE SENIOR DEPUTY PRESIDENT: Well, I do not suppose there is much we can do at the moment without Mr Forte there is there Mr McCorry?
PN208
MR McCORRY: Not at all, your Honour, as far as I know.
PN209
THE SENIOR DEPUTY PRESIDENT: Yes. Well, could you then - - -
PN210
MR THOMSON: Your Honour, is this matter on transcript or will it be on transcript?
PN211
THE SENIOR DEPUTY PRESIDENT: It is on transcript. Yes. Why is that?
PN212
MR THOMSON: I was wondering when that transcript might be available.
SHORT ADJOURNMENT [5.36pm]
RESUMED [5.37pm]
PN213
THE SENIOR DEPUTY PRESIDENT: Mr McCorry, would you endeavour to let my associate know as early as possible if there are any difficulties with that time because we will have to fix another time?
PN214
MR McCORRY: Yes, your Honour, I will do that.
PN215
THE SENIOR DEPUTY PRESIDENT: The Act also imposes on me an obligation to deal with the matter as quickly as possible.
PN216
MR McCORRY: Yes, I will get back to your associate as soon as I can, your Honour.
PN217
THE SENIOR DEPUTY PRESIDENT: All right. Anything else?
PN218
MR McCORRY: No, your Honour.
PN219
THE SENIOR DEPUTY PRESIDENT: Mr Thomson?
PN220
MR THOMSON: No, thank you, your Honour.
PN221
THE SENIOR DEPUTY PRESIDENT: Thank you. The matter is now adjourned.
ADJOURNED INDEFINITELY [5.38pm]
INDEX
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