C2004/5818, Transcript of Proceedings [2004] AIRCTrans 3710 (21 September 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

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

TRANSCRIPT OF PROCEEDINGS


O/N 8458
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT ACTON

C2004/5818

CONSTRUCTION, FORESTRY, MINING
AND ENERGY UNION

and

PELE CURTAINS

Notification pursuant to section 99 of the Act
of a dispute re alleged refusal to allow right
of entry to two CFMEU officials

MELBOURNE

9.45 AM, FRIDAY, 10 SEPTEMBER 2004

THESE PROCEEDINGS WERE CONDUCTED BY VIDEO CONFERENCE AND RECORDED IN MELBOURNE.

PN1

THE SENIOR DEPUTY PRESIDENT: Can I have the appearances, please?

PN2

MR R.A. LOWE: Your Honour, if it pleases the Commission, I appear for the CFMEU in this matter. Appearing with me is MR J. COOKE, an organiser with the union.

PN3

MR G. PELS: If the Commissioner pleases, I appear for the Australian Industry Group on behalf of our member Pele Curtains Proprietary Limited.

PN4

THE SENIOR DEPUTY PRESIDENT: Mr Lowe?

PN5

MR LOWE: Thank you, your Honour. Your Honour, another matter relating to this issue was before you on 24 August 2004 in a section 99 dispute which was lodged by the company. At that hearing the company accused the union of intimidation and harassment by one of our organisers, Mr Julian Cooke. The union vigorously denied such allegations. We also made it clear to the Commission, your Honour, that we expected Mr Cooke to be one of the organisers who would carry out any inspection as sought by the union, and the other organiser being Mr Dennis Evans.

PN6

The union was also accused by the company's representative of going on a fishing expedition and this was also denied by the union with examples being given to the Commission of a number of suspected breaches of the award. The award being the Furnishing Industry National Award 2003. Your Honour, after that hearing and on 25 August 2004 the union sent to the company again another letter seeking to examine the time and wage records on 6 September 2004. The organisers to be Mr Julian Cooke and Mr Dennis Evans. If I can provide with a number of documents, if I may.

PN7

The first one is the letter dated 25 August 2004 and it is to the manager of Pele Curtains Proprietary Limited and it is seeking, in accordance with the provisions of the Act under division 11A section 285D(2), that Julian Cooke and Dennis Evans to enter the premises on 10 am on Monday 6 September 2004 to undertake an investigation of a suspected breach to the Furnishing - of suspected breaches to the Furnishing Industry National Award 2003. And this was sent to the company by facsimile transmission on that date.

PN8

Your Honour, the second that is there, and Mr Pels will be aware of this, was a letter from Australian Industry Group, from Mr Pels and I will read it for the record, your Honour, if I may - and it was addressed to the secretary of the union, Mr Leo Skourdombis:

PN9

I refer to your facsimile message to Pele Curtains Proprietary Limited, dated 25 August 2004 requesting ...(reads)... Pele management. Please do not hesitate me to contact and discuss the above.

PN10

The union wrote back and it is the third letter to Mr Pels on 3 September and on that letter we stated as follows:

PN11

I am responding to your correspondence of 30 August 2004 regarding the above. The union first wrote ...(reads)... I expect the company to comply with the Act by not refusing our organisers entry or unduly delaying entry.

PN12

Commissioner - so those letters were sent, your Honour, and received and sent and on 6 September the organisers attended the premises and were advised that there was no records there for them to inspect. That those records would be made available at the offices of their accountant on the 22, I think it was, September. Commissioner, we find that totally unsatisfactory. The situation is, and provided for in the Act, that we believe that we have the right to have - inspect those documents on the company's premises.

PN13

We believe that we provided the company with adequate time and I would draw the Commission's attention to 285B of the Workplace Relations Act - and I raise these matters with the Commissioner's previously constituted last time but again, for completeness, I will draw the Commission's attention to, first of all, 285B(1). This section applies of a person who holds a permit in force under this division suspects that a breach has occurred or is occurring of a award order of the Commission. And that is the case both of the organisers that were sent out there are holders of permits under the Act and the union suspects that there a number of breaches occurring in respect of the provisions of the Furnishing Industry National Award 2003.

PN14

In 285B(3) states that:

PN15

After entering the premises the persons may, for the purpose of investigating the suspected breach, require the employer of the employees to allow the person during working hours to inspect and if the person wishes to make copies of any of the following that are kept by the employer on the premises and are relevant to the suspected breach; timesheets, any paysheets or any other documents other than an AWA ancillary document or a document that shows all of some of the content of an AWA or an ancillary document.

PN16

And b:

PN17

During working hours inspect or review any work material, machinery or appliance that is relevant to the suspected breach and during working hours interview any employees who are members of the organisation of which the person is an officer, or employee or - and 2, eligible to be a member of that organisation, about the suspected breach.

PN18

Your Honour, also in section 285D(2), that requires that 24 hours notice is required before entering the premises and states:

PN19

A person is only entitled to enter premises and exercise powers under section 285B or 285C if the person has given the occupier of the premises at least 24 hours notice of the person's intention to do so.

PN20

And in 285E:

PN21

Entry must not be refused. The occupier of the premises must not refuse or unduly delay entry to the premises by a person entitled to enter the premises under section 285B or C.

PN22

Your Honour, the union submits that it has complied with the provisions of the Act that it has given on a number of occasions this employer adequate notice that - not only that, that it has given the employer adequate time to get the material together that is required. To resolve this particular issue, your Honour, the union would request that the Commission provides directions to the company and I have prepared the documentation which has been sent to Mr Pels - because we I found that this was going to be on video conference, on the directions that we are seeking. If I can provide the Commission with a copy of those direction?

PN23

THE SENIOR DEPUTY PRESIDENT: Mr Lowe, I will mark the documentation you have already handed up.

EXHIBIT #L1 LETTER DATED 25/08/04 FROM MR SKOURDOMBIS TO MANAGER OF PELE CURTAINS

EXHIBIT #L2 LETTER DATED 300/8/04 FROM AIG TO MR SKOURDOMBIS

EXHIBIT #L3 LETTER DATED 03/09/04 FROM MR SKOURDOMBIS TO MR PELS

EXHIBIT #L4 DRAFT ORDER PREPARED BY MR LOWE

PN24

MR LOWE: Thank you, your Honour.

PN25

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Lowe. Well, are you going to go to the draft order?

PN26

MR LOWE: Yes, your Honour. If I can take you to exhibit L4 that the union is seeking the Commission to direct us as follows. 1, Pele Curtains provide Julian Cooke and Dennis Evans, organisers with the CFMEU, on Thursday 16 September 2004 at 9 am, access to time and wage records as requested on 25 August 2004. B, that the wage and time records be available at the company premises at Factory 5, 10-12 Thornton Crescent, Mitcham which is the company's premises upon which the work is carried out. C, that the union be able to make copies of any documents it considers to be appropriate, and D, that the union be able to inspect any machinery or equipment and interview any employees related to the suspected breaches.

PN27

Your Honour, the - we would submit that the orders that we are seeking are in compliance with the provisions of the Act in relation to the inspection of time and wage records. In respect of the Commission's ability to make such an order, I would draw the - your Honour's attention to section 111(1)(b) of the Act and that states that:

PN28

The Commission may make an award or order including one by consent of the parties in relation to all or any of the matters in dispute.

PN29

And that includes at 1:

PN30

A provisional award or order, or 2, an interim award or order.

PN31

We believe that the Commission has the powers to make the orders as sought as in settlement of this particular dispute, if the Commission pleases.

PN32

THE SENIOR DEPUTY PRESIDENT: Do we also have power under section 285G?

PN33

MR LOWE: Yes, I would say that in 285G(1) which states that:

PN34

In spite of section 89A the Commission may exercise its power under part 6 of this Act to prevent and settle industrial disputes about the operation of this division but must not make an order for that purpose conferring powers that are additional to or inconsistent with powers exercisable under this division.

PN35

And the union would submit, your Honour, that in the orders directions that are sought in L4, that none of those are inconsistent with that division of the Act, your Honour.

PN36

THE SENIOR DEPUTY PRESIDENT: And do Mr Cooke and Mr Evans both have permits?

PN37

MR LOWE: Mr Cooke and Mr Evans both have current permits, your Honour. If that is required, I can provide you, by facsimile transmission, copies of those permits today, your Honour.

PN38

THE SENIOR DEPUTY PRESIDENT: And what do you suspect are the breaches?

PN39

MR LOWE: They were the breaches that we suspect our breaches in relation to superannuation - payment of correct superannuation payments and the person on behalf of whom superannuation payments are made. Breaches in relation to allowances under the award which are required to be made for people who from time to time work shift work. The payment of overtime to people who work outside or - outside of the hours - set hours of work or in excess of 38 hours a week, 8 hours a day. And matters relating to the classification of employees, your Honour.

PN40

THE SENIOR DEPUTY PRESIDENT: And on what basis do you suspect that those breaches exist?

PN41

MR LOWE: Those breaches through information that has been provided to us by a number of employees in respect of what they have been paid when they have done shift work and what has happened in respect of work which is done relating to overtime where they have been paid a flat rate and from the information we have in respect of superannuation payments which it would appear, on the matters that I have examined, that not all employees have had superannuation payments made on their behalf.

PN42

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Pels?

PN43

MR PELS: Yes, thank you, Senior Deputy President. Senior Deputy President, the AI Group on behalf of Pele Curtains indicated that the union's order or allegation or application that their officials have been denied right of entry, there is no evidence of that whatsoever. In fact, the company has stated on record consistently that right of entry of union officials has never been denied through to Pele Curtains. The only issue, of course, the company has got a problem with brought before you and which is currently tendered to come before the Deputy Industrial Registrar Carroll on Monday morning at 10 am, Senior Deputy President, is that the AIG, on behalf of the company, has made an application to revoke Mr Cooke's right of entry permit because of what the company says is unacceptable, offensive behaviour.

PN44

So on that basis, it is a matter of record now before you when we were last before you and we wish to re-iterate today that we object strongly to Mr Cooke attending Pele Curtains at all until the matter is at best before Deputy Registrar Carroll. Now, your Honour, in effect what is really in dispute here is the company is prepared to provide the documents as requested. The only matter really here is the fact that over what date and what time and at what place as in documents indicated to you - correspondence I sent to you or forwarded to you - or faxed to you, I think it was yesterday.

PN45

I did indicate that some documentation - it is also found in exhibit L2 is that the reason that there has been a delay in providing the documents or making them available is that Mr Rhonda Higgs has been on leave all this week, hence why she is not available today and that is why we have requested a sufficient time for the accountant to provide six years of back records. Now all the documents, wage records and the like, are kept at the Albert Road, South Melbourne office. Now that, in actual fact, is closer to the CFMEU office in Errol Street, North Melbourne so in actual fact where the documents are available - be made available, would be more convenient to the CFMEU because distance-wise the officers who intend to inspect can easily access those at the Albert Road, South Melbourne premises of the accountant.

PN46

So, on that basis, the company is prepared or has indicated - is prepared to provide the documentation. The only thing that is in dispute is the time. The union are now proposing 16 September. We propose 22 September which is now, in actual fact, only six days difference in what they are proposing. So, in effect, it is - well, time-wise it is not a lot of difference. The only issue, your Honour, is of course that the documents, the company say, can be - is made available at the South Melbourne office. However - and I think it does say in the Act that the document are to be made available at the workplace or some other agreed place.

PN47

And what we are proposing that agreed - that place would be where the accountant is - where all the documents are currently housed and stored. On that basis, your Honour, the - what we say, in effect, is that an order doesn't need to be issued in regard to making the documents - or have the documents produced or made available but I do take note that there are - there is the issue in the order which we obviously object to and that is that Mr Cooke - that the union are seeking in the order of Mr Cooke being allowed to attend. Now the

PN48

I did fax to you a notice of record made by Ms Higgins when the CFMEU visited on Monday 6 September and that I will read into record there that the CFMEU - - -

[10.05am]

PN49

THE SENIOR DEPUTY PRESIDENT: Is she here to attest to this?

PN50

MR PELS: No, no, I am just - I am just saying it is a document - a record that she made.

PN51

THE SENIOR DEPUTY PRESIDENT: What do you say about this, Mr Lowe?

PN52

MR LOWE: Well, this matter was brought up at the last proceedings. Again, that wasn't attested - - -

PN53

THE SENIOR DEPUTY PRESIDENT: This is another statement, as I understand. Have you seen the statement?

PN54

MR LOWE: Only the - - -

PN55

THE SENIOR DEPUTY PRESIDENT: It is a statement dated 24 August 2004.

PN56

MR LOWE: It was - if that is the same statement that was attached to the company's application for the revocation of Mr Cooke's permit then the union has seen that. We understand that was brought to this Commission's attention in the previous matter that was before the Commission on 14th - - -

PN57

THE SENIOR DEPUTY PRESIDENT: No, I am not sure that this is a statement we are talking about, sorry.

PN58

MR PELS: This is dated 6 September, your Honour.

PN59

THE SENIOR DEPUTY PRESIDENT: 6 September, I - - -

PN60

MR PELS: Yes.

PN61

THE SENIOR DEPUTY PRESIDENT: I might have mislead you, Mr Lowe.

PN62

MR LOWE: No, no, I haven't - I can't say that I have seen that, no.

PN63

THE SENIOR DEPUTY PRESIDENT: Have you provided it to the union, Mr Pels?

PN64

MR PELS: No, I haven't, your Honour, no. It is not a statement as such, it is just, I suppose, a record or a document of record of what occurred on 6 September.

PN65

THE SENIOR DEPUTY PRESIDENT: What is the purpose of referring to it, Mr Pels?

PN66

MR PELS: Well, that does indicate - the union allege they didn't receive my letter dated - they were alleging that they didn't receive the notification that I put forward in L2 which was forwarded to Mr Skourdombis. And as a result they rang Mr Lowe who did confirm that the - that I had written to the union saying that the documents would be made available on 22 September. Now, Mr Evans - or the CFMEU turned up on that day and alleged that they were not aware of the document that the AI Group had forwarded to the union, that is, because of the leave requirements of Ms Higgs and the fact the documents were at the accountant's offices in South Melbourne, the union alleged they weren't aware of that notification of documentation.

PN67

They subsequently rang up Mr Lowe who did confirm that the union had received notification because the allegations made by Mr Evans, I understand, to the company, was that they gave the impression that the inspection would take place on 6 September. They did arrive at nine, although, allegedly, the time set was 10 am. But when there was a, I suppose, an exchange or a clarification of what was to be made available, Mr Evans has allegedly indicated and said, well, that they were both on an RDO and that they were going to go off and enjoy their day. So, they simply left the premises after five minutes.

PN68

THE SENIOR DEPUTY PRESIDENT: I will show you this, Mr Lowe.

PN69

MR LOWE: Thank you, your Honour. Your Honour, if I may just make some comments. No, I hadn't seen this, I was thinking about an entirely different document.

PN70

THE SENIOR DEPUTY PRESIDENT: You might want to make - do you want to - are you objecting to it or - - -

PN71

MR LOWE: Well, what I - there is some things in there that I don't believe are accurate.

PN72

THE SENIOR DEPUTY PRESIDENT: Okay, well, you might want to put those in reply.

PN73

MR LOWE: Yes, your Honour, just in respect - - -

PN74

THE SENIOR DEPUTY PRESIDENT: Just hang on a second. Mr Pels, you have got further submissions to make on this matter?

PN75

MR PELS: Yes, yes, your Honour.

PN76

THE SENIOR DEPUTY PRESIDENT: Do you wish me to mark the document?

PN77

MR PELS: Yes, your Honour.

PN78

THE SENIOR DEPUTY PRESIDENT: Do you have any objection to me marking it, Mr Lowe?

PN79

MR LOWE: No, I have no objection, your Honour.

PN80

THE SENIOR DEPUTY PRESIDENT: Can I have it back for a second, while I mark it.

EXHIBIT #P1 NOTES OF LEONIE HIGGS

PN81

THE SENIOR DEPUTY PRESIDENT: Yes, Mr Pels?

PN82

MR PELS: Yes, thank you, your Honour. So on that basis, your Honour, the reason for providing that document is to explain that there wasn't any attempt to, I suppose, to deceive the union or confuse the union but the fact there may be an overlap or a miscommunication on either side there. But it is quite clear, just to indicate, that the company had not deliberately sought to deceive the union or prevent them from entering or not providing the documentation.

PN83

THE SENIOR DEPUTY PRESIDENT: Had it previously been agreed that the documentation would be provided at another place?

PN84

MR PELS: No, no, your Honour, that is - I think Mr Lowe's submission - well, I will hear from Mr Lowe but I assume Mr Lowe may be objecting to that, I am not sure.

PN85

THE SENIOR DEPUTY PRESIDENT: No, my question is, prior to 6 September 2004 had the union agreed that the documentation would be provided at another place rather than the place of work?

PN86

MR PELS: I don't believe so, no. That was advised after discussions with Ms Rhonda Higgs when she indicated that the time and wages record and the documentation are with the accountant and it probably would be easier for both sides to inspect it at the South Melbourne address. Now, I will - that will be our submission, that - I mean, whether the Commission intends to issue an order or not, we would say that the company has always been provided - or is prepared to provide those records at that place or residence.

PN87

Sorry, I withdraw that, not residence, but the place of business of the accountant's office. Now, is the Commission - we would suggest that the matter go into conference. Whether this matter can be dealt with by conference or by agreement - but I am not - perhaps we might hear what the union is saying as far as their agreeing to the South Melbourne address for the inspection of the records, if I can put that to the Commission.

PN88

MR LOWE: Your Honour, the union will not agree to the records being made available at the accountant's office. One of the - two of the important things that we wish to be able to do during this process - and it may take a little bit of time to deal with records going back over a six year period. But as to view and inspect any of the machinery on site that relates to the suspected breaches and to be able to interview employees who - whether they be union members or just employees who are not union members but who are covered by the terms of the award and eligible to be union members relating to those suspected breaches, the fact that the premises of the accountant may be closer to the union's office, is immaterial in this case.

PN89

We believe that one of the important things for us is to be able to speak to the employees about the suspected breaches and also to view any of the machinery they use in relation to their classifications, your Honour. So, no, there will be no agreement on that and there has been no agreement indicated. And this matter has been before you on a previous occasion and we don't believe that there is any prospect of conciliation dealing with this particular matter and would seek the orders - the directions that we have sought to be made.

PN90

If I can deal with a couple of other matters. In relation to the matter that has been raised by Mr Pels relating to Mr Cooke's permit, there is a matter on before Deputy Registrar Carroll on Monday the 13th and that is simply for mention and directions, your Honour and that may not be heard for some time. And so we would indicate to the Commission that until that matter has been dealt with by the Commission, in whatever way it considers and sees fit, that the union will just proceed with its business as normal. In respect of the matters related to in P1, certainly, in respect of the matters that relate to - in this document - relating to discussions that Mr Cooke had with me on that day, he rang me and said that they were unable to inspect the records; that the records weren't there.

PN91

I just simply indicated to them that they should return to the office immediately. I never raised with them at all the matter about them being relayed at, or kept at, some other premises. And in fact exhibit L3 - it was made very clear to Mr Pels on 3 August that we were going to be intending to continue to - with our visit to the company to see the records there. So the company knew just exactly what the union's position was in that matter, your Honour. I would say that at the time that the two union organisers attended the factory, that I am instructed, that the relationships between the employer and the union were cordial and very pleasant as opposed to what they have been on some other occasions, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Mr Lowe, when Mr Cooke and Mr Evans went to the premises on 6 September the letter that preceded that arrival, which is exhibit L1, indicated that they were also wanting to inspect and view any work material, machinery, etcetera - in the second last paragraph of that letter. Did the - did they undertake any such viewing of work and inspection of machinery, etcetera?

PN93

MR LOWE: On 6 September, no, your Honour. When they found that the records weren't available there was - they didn't proceed to attempt to inspect any of the machinery or speak to any of the employees. They would do that as a matter of course as they were going through the records supplied - copying off what would be required to be copied. And when they had seen things that were considered to be a problem, then they would, with the leave of the employer, go and speak to the various employees or inspect the machinery on site. So they didn't attempt to do that on the 6th.

PN94

THE SENIOR DEPUTY PRESIDENT: Okay, so they weren't denied the right to inspect any machinery or equipment?

PN95

MR LOWE: I don't know that, your Honour, that they asked to do it in the absence of the records being made available.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes, but they were told the records would be made available on the 22nd - - -

PN97

MR LOWE: At their accountant's offices. No, they didn't know that - - -

PN98

THE SENIOR DEPUTY PRESIDENT: Yes and the records weren't there that day?

PN99

MR LOWE: No, they didn't know that prior to going out. In fact the letter, which is exhibit L2, to Mr Leo Skourdombis and the response dated 3 September - I was given that letter on Friday the 3rd, and that was the first that I had seen of it, to prepare a response which I did for Mr Skourdombis' signature. I didn't see Mr Evans or Mr Cooke on that day to advise them of that so they were unaware when they went to the premises that the records were going to be somewhere else.

PN100

THE SENIOR DEPUTY PRESIDENT: And you are not agreeing to the inspection of the records at another place?

PN101

MR LOWE: No, your Honour, the union requests that the inspection of the records take place at the company's premises.

PN102

THE SENIOR DEPUTY PRESIDENT: Is there anything else you want to add, Mr Pels?

PN103

MR PELS: Yes, your Honour, if I can. I am a little bit confused about why the union would want to inspect any machinery. I mean, I don't think it has got anything to do with the award breaches, machinery, or whatever. And the point I would make is that the union had six months to interview employees - or have been doing so for the last six months. Before Commissioner Blair in February/March, they were on the record talking about some wage adjustments or supposed under payment of wages which they didn't pursue, they didn't follow up.

PN104

They have had over six months to talk to employees, to advise the company of any alleged under - breach. Had they done that, of course, the company could simply have assisted them, examined that and corrected any mistake and the company has always been prepared to do that. In regard to the allegation that Mr Lowe wants to interview employees whilst they photocopy six years of payment of wages and time records and all the rest, well, it is just simply - it is just - it does not appear to be practicable.

PN105

That, one, that they would simply photocopy six years of records, examine that and then interview employees all at the same time, to say, well, look, we think we have found an underpayment or non payment of overtime or whatever on that day. It would make much more sense if they would simply, as they have done in the past - my experience with the CFMEU - is they would simply take copies that they wanted, go back and examine them and then interview employees and/or the company at the premises and allege or indicate where any shortcomings or any alleged breaches were.

PN106

I mean, that would seem totally logical, but to insist that those time and wages records be made available at the company's site - I assume they would then start commencing and photocopying six years of total records and I am not quite sure how long that would take. I would think that would take hours - many hours. So it would seem a bit strange that - I am not quite sure how long the union would stay there, but in the past, they have certainly done time and wages inspections. The companies have co-operated, they have taken copies and then subsequent to that they would then interview employees and/or the company.

PN107

Now, that - it just seems - I find it hard to believe that the union will want to interview employees at exactly the same time they do the photocopying when they have had six months. Mr Lowe has already indicated today that he is - allegedly had talks with some employees saying where the breaches were in regard to superannuation. The union have pursued an audit through the tax office. The tax office has already done an audit on superannuation, so it is a bit hard to understand why they would then proceed to do that again. Examine machinery. I am at a total loss as to where there will be a breach in award - to inspect machinery.

PN108

THE SENIOR DEPUTY PRESIDENT: Well, machinery may - examination of the machinery may well have to do with the nature of the work and therefore the classifications to which they should be being paid.

PN109

MR PELS: I just - - -

PN110

THE SENIOR DEPUTY PRESIDENT: It doesn't necessarily imply that there is something wrong with the machinery.

PN111

MR PELS: No, no, I know, but, well, with due respect to the union and all concerned, I mean, for six months there has never a dispute or concern about that. I mean, the union have been, as I have indicated and which we will indicate to the Deputy Registrar on Monday, they have probably had about 40 or 50 visits since the start of the year and they have had adequate time to do all those sorts of things. But, notwithstanding that, to address the issues today, it would be our submission that by recommendation or order, that the company make those records available on the 22nd.

PN112

If the Commission believe that the 16th is a more appropriate time, well, so be it, maybe the 16th - maybe the records may be made available. But for them to be made available at the workplace, well, once again, the company then has to make arrangements for those. But, notwithstanding that, in regard to Mr Cooke, to suggest that Monday's discussions with Mr Cooke and the company were cordial, that just defies the whole reason for making the application in the first place. We believe - strongly believe that it is inappropriate for Mr Cooke to visit the site whilst this current application is in place.

PN113

The company is still highly offended by his behaviour. There has been not one acknowledgment of incorrect, inappropriate behaviour. No suggestion he would improve or simply apologise and in fact the union have simply totally rejected that he has acted inappropriately in the first place. So on that basis, we would say, that there is nothing cordial about the correspondence or discussions between Mr Cooke and the company or there is any mending of any bridges at all. The company is very resolute and strong in their belief that Mr Cooke should not visit the workplace at Thornton Crescent again. If the Commission pleases.

PN114

THE SENIOR DEPUTY PRESIDENT: Mr Pels, are you objecting to Mr Cooke and Mr Evans being able to inspect any machinery and equipment and interview any employees on the 16th?

PN115

MR PELS: No, no, sorry, Mr Cooke, yes, but not the CFMEU. If it is in relation to an alleged breach, as you said, if there was a question about a classification, which I don't think there would be, but if there was, then obviously the company would address that. So that - as I have indicated, in the last six months or since the start of this year, there has been no suggestion of it.

[10.29am]

PN116

THE SENIOR DEPUTY PRESIDENT: Mr Pels, you are pursuing the revocation of a permit of the permit for Mr Cooke.

PN117

MR PELS: Yes.

PN118

THE SENIOR DEPUTY PRESIDENT: Through your application under section 285A, are you?

PN119

MR PELS: Yes, that is correct, your Honour, yes. As I have indicated before you at the previous hearing.

PN120

THE SENIOR DEPUTY PRESIDENT: Well, at the previous hearing there wasn't any 285A application, was there?

PN121

MR PELS: No, but we discussed on the record - or off the record that we were seeking to have the matter conciliated and reach agreement with the union. They point blankly refused or even acknowledged that there was any inappropriate behaviour, so as a result of that the company had no option but to make that application.

PN122

THE SENIOR DEPUTY PRESIDENT: So in light of that they have made the 285A application?

PN123

MR PELS: Yes, yes, your Honour.

PN124

THE SENIOR DEPUTY PRESIDENT: Is there anything else you want to say, Mr Lowe, at this point?

PN125

MR LOWE: Yes, if I may, your Honour. I think that in respect of the inspection of machinery and the interviewing of employees, there are a number of provisions under the Furnishings Trades Award and the classifications where the classification depends on whether the person, for instance, is using one or two types of sewing machines. Whether they are involved in putting programs into computerised and numerically controlled machines and that can only be ascertained by actually viewing the work that is done as it is being done and talking to the employees.

PN126

Mr Pels has raised the issue that the union on - over a period of six months has had adequate time to deal with that. When you are actually looking at breaches of the award then it is really a one on one basis. We have only been able to meet with employees during their lunch break. They are from a range of different ethnic backgrounds and Mr Cooke has taken great pains to ensure that people understand what the union's position is, the business that they are trying to relay and that takes some time.

PN127

There has been, I guess, moves by the company to try and make it as difficult as possible for the union to actually meet with employees by trying to segregate, so-called union members away from other employees so that the company would be able to find out who are the ones who are interested and talking to the union opposed to general discussions and what we would consider to be harassment. Mr Pels said that the union had pursued an audit with the tax office. I must say that, on the record, that is totally untrue.

PN128

Whatever the tax office has done in respect of the company's records in relation to superannuation was not done at the behest of the union or any information that was provided to the tax office by the union. So I want to make that very clear and I also want to make it clear that I am instructed both by Mr Cooke and by Mr Evans that, when they met with the company on the 6th that the relationships between them were cordial, regardless of what Mr Pels says. There was no disputation of any kind between the parties and it was - well, I am advised it was extremely cordial. So I can say no more than that.

PN129

In relation to the matters that are before Deputy Registrar Carroll, as I say, is up for mention and programming only, and I am not too sure how long that is going to take, your Honour but we would seek the orders as sought.

PN130

THE SENIOR DEPUTY PRESIDENT: What I propose to do is adjourn this matter until 11 o'clock during which time, between now and then, I direct the parties to confer with the aim of trying to resolve the dispute between them. I will now adjourn.

SHORT ADJOURNMENT [10.37am]

RESUMED [11.15am]

PN131

THE SENIOR DEPUTY PRESIDENT: I have given you an attempt to try and resolve your differences. Has there been any resolution?

PN132

MR LOWE: No, look, your Honour, we have made some progress and in some respects have run into some stumbling blocks that we hadn't considered in the first instance. The union has indicated, your Honour, that we are prepared to be flexible on the dates that the time and wage records made available at the company premises and inspected. I have been in touch with the union office and spoke to Mr Evans to check on his diary and he would be available and Mr Cooke is available on either the 23rd or the 24th.

PN133

But the discussion with Mr Pels, we appear to have come into another problem and that is that we are now being advised that the records in relation to the pay slips are only available on computer record. And if I see that there was a delay sought because the management of Pele Curtains were away on leave and there needed to be some time to get the records together, it seems to me that the computer records, they were available probably all the time. But we require the records to be available in hard form.

PN134

Our organisers aren't experts on computers. We don't want to be in a situation where we have to go into a computer and then something happens to that equipment and we are in a problem over that. We believe that the Act requires that time sheets and pay sheets be made available and section 285B(4) provides for, at sub section (a) to produce documents of a kind mentioned in sub paragraphs (3)(a)(i) to (ii) at the premises at which the employees work or some other agreed place. So we would say that documents are, in fact, documents, they are not putting a computer in front of us and saying, look, you get in there and then tell us what you want to look at and we will print something off or you can have a copy made of it.

PN135

So we are making it very clear that it is hard records that we are seeking and there has been no agreement in respect of Julian Cooke's attendance and those records being made available at the company's premises and in (c) and (d). So, we haven't made any progress on those matters, your Honour.

PN136

THE SENIOR DEPUTY PRESIDENT: Sorry, which other matters, sorry, I just missed it.

PN137

MR LOWE: I beg your pardon?

PN138

THE SENIOR DEPUTY PRESIDENT: You said we haven't made any progress on those other matters which - - -

PN139

MR LOWE: No.

PN140

THE SENIOR DEPUTY PRESIDENT: Which are the other matters?

PN141

MR LOWE: The matters that are in - in respect of what we sought in the order, we are prepared - and the date is not going to be a problem, whatever date - the 23rd or the 24th, I understand that is not a problem with Mr Pels. We have indicated to them that if in fact the company has to get hard records printed off the computer - and that means they wouldn't be available on the 23rd or 24th, we would be flexible on those dates, but would suggest that it should be too long. The remainder of the matters that we sought in exhibit L4, we are still seeking and there is no agreement.

PN142

THE SENIOR DEPUTY PRESIDENT: Mr Pels?

PN143

MR PELS: Yes, your Honour, that is right, the date is probably not really a problem here. What I have indicated to Mr Lowe is that under 285B(3) that the company will allow the union to come in and to inspect the time and wages record. Now, the time sheets are in hard copy or original copy and that is relatively easy to inspect those and make copies. The payroll is in electronic form going back six years. Now, the union can go and look at the electronic copy and make copies of that, or if they are not comfortable about that, I did indicate that the company will simply print off a hard copy of those six years, if the union is prepared to accept that.

PN144

Now, that seems fairly logical to me if the union has a problem about having to go into computers. Maybe that the union - we can do the best of both worlds. The union can go and look at the electronic copy, satisfy that they are genuine and original and then seek to print copies off of that. I am happy to do that or if the union prefer the company will print off copies of the last six years and copies of the time sheets and then present those to the union to peruse at their leisure. They can then go and interview and talk to employees about any alleged breach or suspected breach after that, once they have perused the six years of documents, which of course, will take some time.

PN145

That seems to be a fairly practical outcome. I am not sure if the union are prepared to agree to that. That seems to be fairly practical. On the issue of Mr Cooke, we haven't reached agreement. The company have instructed me in the break that they strongly object to him being present at the workplace.

PN146

THE SENIOR DEPUTY PRESIDENT: So you can make the pay sheets available in a hard copy form?

PN147

MR PELS: Yes, your Honour, the ladies themselves fill out those time sheets and they are in hard - they are hard copy.

PN148

THE SENIOR DEPUTY PRESIDENT: No, no, that wasn't my question, the pay sheets?

PN149

MR PELS: The pay sheets are in electronic form, I understand and - - -

PN150

THE SENIOR DEPUTY PRESIDENT: Yes.

PN151

MR PELS: - - - they would have to be printed off.

PN152

THE SENIOR DEPUTY PRESIDENT: Yes.

PN153

MR PELS: Now, it is up to the union whether they accept the company just prints off and accept it as original copies or the union want to sight those computer records and then be satisfied of what is being printed off is the original copies. I am in the hands of the union as - - -

PN154

THE SENIOR DEPUTY PRESIDENT: What do you say about that, Mr Lowe?

PN155

MR LOWE: Your Honour, if it is on some form of disk or some form of computer record, what would be printed off by way of hard copy, would really be the original. So we are prepared to - - -

PN156

THE SENIOR DEPUTY PRESIDENT: So you are happy for them just to provide the hard copy?

PN157

MR LOWE: Yes, we are prepared for them, you know, to print it off.

PN158

THE SENIOR DEPUTY PRESIDENT: Yes.

PN159

MR LOWE: If there is something, obviously - if, for instance, there was a gap in the records as you go through them we would talk to them about it.

PN160

THE SENIOR DEPUTY PRESIDENT: Yes.

PN161

MR LOWE: But we are prepared to accept that.

PN162

THE SENIOR DEPUTY PRESIDENT: All right. So, Mr Pels, are you content for Mr Evans to go at 9 am on 23 September to the company's premises in Thornton Crescent, Mitcham and you will produce for the last six years pay sheets, time sheets, superannuation records and records of overtime worked under clause 31 of the Furnishing Industry National Award 2003 and for him to be able to make copies of those documents and to inspect any machinery, appliances and interview any employees in regard to suspected breaches to which those documents relate?

PN163

MR PELS: Yes, your Honour, rather than make copies they would be - we would provide him with the copy. He wouldn't have to make duplicates again. We would provide him with the copies of time sheets and pay sheets.

PN164

THE SENIOR DEPUTY PRESIDENT: And super records?

PN165

MR PELS: That will be in the time sheets - pay sheets, your Honour, yes.

PN166

THE SENIOR DEPUTY PRESIDENT: Right, okay, so you are just going to give him the whole - all of the documentation, but you don't agree to that matter - all of those matters in respect of Mr Cooke?

PN167

MR PELS: That is right. Mr Cooke, we say, that is still a matter before the Deputy Registrar and that should be determined before - about Mr Cooke - any suggestion of Mr Cooke returning to the site. My instructions are the company doesn't want Mr Cooke to attend the Thornton Crescent site at all.

PN168

THE SENIOR DEPUTY PRESIDENT: So I continue to have a dispute over the operation of division 11A of Part IX of the Act in respect of Mr Cooke?

PN169

MR PELS: Yes, yes, your Honour, I think that is fair to say, yes. The rest I think we can agree on, I think.

PN170

THE SENIOR DEPUTY PRESIDENT: I don't have any dispute in respect of Mr Evans with respect to all those things?

PN171

MR PELS: No, that is right, your Honour.

PN172

THE SENIOR DEPUTY PRESIDENT: So if I issue an order in respect of Mr Cooke and Mr Evans comes with him, there won't be any problem with respect to Mr Evans?

PN173

MR PELS: There is no problem with Mr Evans at all coming along. He has to do his duty and he has got a valid permit, we assume, and his right of entry, that is right.

PN174

THE SENIOR DEPUTY PRESIDENT: All right, is there anything else you want to say?

PN175

MR PELS: Just maybe if the union can clarify that they will be satisfied with that outcome. We will make all those documents available. They would accept that the hard copy of the pay sheets are actually the original from the computer - electronic and the time sheets, we will make copies as well but they can view the originals as well, if necessary. If the union understands that and I think they can clarify that.

PN176

MR LOWE: Your Honour, the union understands that and are prepared to accept that as being the copy off the electronic record as being the original. If there is an obvious error in that something has been missed then we would talk to the company about it and would only come back to the Commission if there was a problem in respect of that. But, no, that is not a problem to us.

PN177

THE SENIOR DEPUTY PRESIDENT: And I understand from the draft order where you talk about - in (c) and (d) the union being able to make copies and the union being able to inspect. You in fact mean Mr Cooke and Mr Evans in those two areas?

PN178

MR LOWE: If the company has provided us with the copies then (c) would be probably redundant in the order although it does have:

PN179

Any documents it considers to be appropriate.

PN180

If the company has provided us with the copies then it wouldn't be appropriate for us to have to make any copies. It would be a matter of us, maybe, starting an examination there and if there was anything that showed up that it was necessary to interview people about, we could start that process, your Honour.

PN181

THE SENIOR DEPUTY PRESIDENT: But in terms of - okay, so you think (c) is probably unnecessary. In terms of (d), the inspection of the machinery, appliances and interviewing of employees, you have got there that the union - indeed, where the dispute seems to be over is Mr Cooke being able to do those things.

PN182

MR LOWE: Well, okay, yes, your Honour, look, really, probably that is an error on my part. It probably should be that Mr Cooke and Mr Evans be able to inspect any machinery and interview any employees related to the suspected breaches and I would be happy - - -

PN183

THE SENIOR DEPUTY PRESIDENT: Well, it seems that there is no dispute in respect of Mr Evans.

PN184

MR LOWE: Mr Evans, no.

PN185

THE SENIOR DEPUTY PRESIDENT: It is only in regard to Mr Cooke.

PN186

MR LOWE: Well, okay, well, I would be happy - if the Commission was so disposed to make the orders as sought, to provide the Commission with a draft order in an electronic form, if required, which related to simply to Mr Cooke on the basis that it is understood here that if Mr Evans attends with him - if the Commission made the order as sought, Mr Evans attends, that there is not going to be a problem because the order doesn't cover both.

PN187

THE SENIOR DEPUTY PRESIDENT: I think Mr Pels has indicated they don't have any trouble with Mr Evans going there on 23 September at the company's premises in Richmond to obtain copies of the documents that have been outlined and inspect the machinery and appliances and interview employees. It is only in respect of Mr Cooke. Is there anything else you want to add, Mr Pels?

PN188

MR PELS: No, your Honour, that pretty much sums up our position.

PN189

THE SENIOR DEPUTY PRESIDENT: Well, in this matter I am satisfied that Mr Cooke holds a permit under section 285A of the Act. That he suspects there are breaches of the Furnishing Industry National Award 2003 by Pele Curtains Pty Ltd in respect of provisions of that award concerning superannuation, allowances for shift work, overtime payments and classifications of employees. I am also satisfied that there is a dispute between the relevant parties concerning Mr Cooke entering the premises of Pele at Thornton Crescent in Mitcham for the purpose of inspecting time sheets, pay sheets, superannuation records and records of overtime worked and the making of copies of those documents and his inspection of any machinery, appliances and interviewing of employees relating to the breaches that he suspects.

PN190

Accordingly, I am satisfied in respect of those matters having regard to the submissions put to me by both advocates in this matter and the documentations produced. I am satisfied that in light of my findings there is a dispute of the nature outlined in section 285G of the Act. Accordingly, I will issue an order along the lines of exhibit L4 which provides that Pele Curtains from 9 am until the cessation of work on 23 September 2004 is to produce, for the last six years, to Mr Cooke, time sheets, pay sheet, superannuation records and records of overtime worked under clause 31 of the award.

PN191

That Mr Cooke be allowed to make copies of those documents and he be able to inspect any machinery or appliance and interview any employees in relation to the suspected breaches who are eligible to be members of the CFMEU or who are members of the CFMEU. The order will come into force from today's date and remain in force for a period of one month. I note that the company has an application under section 285 to revoke the permit of Mr Cooke, however, as the matter stands today Mr Cooke still has a permit and there is a dispute of the requisite kind under 285G about the matters I have indicated.

PN192

Of course, in the event that Mr Cooke's permit is revoked prior to 23 September 2004 then the effect of my order would be that - would be, essentially void, because my order is reliant upon Mr Cooke having a permit. I will issue the order that I have indicated in due course. I will now adjourn.

ADJOURNED INDEFINITELY [11.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #L1 LETTER DATED 25/08/04 FROM MR SKOURDOMBIS TO MANAGER OF PELE CURTAINS PN24
EXHIBIT #L2 LETTER DATED 300/8/04 FROM AIG TO MR SKOURDOMBIS PN24
EXHIBIT #L3 LETTER DATED 03/09/04 FROM MR SKOURDOMBIS TO MR PELS PN24
EXHIBIT #L4 DRAFT ORDER PREPARED BY MR LOWE PN24
EXHIBIT #P1 NOTES OF LEONIE HIGGS PN81