C2004/4271, Transcript of Proceedings [2004] AIRCTrans 3769 (24 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)
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TRANSCRIPT OF PROCEEDINGS


O/N 11103

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

DEPUTY PRESIDENT IVES

C2004/4271
C2004/5697

POST FULFILMENT ONLINE PTY LTD

and

NATIONAL UNION OF WORKERS

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

APPLICATION FOR AN AWARD

Application pursuant to section 111(1)(b)
of the Act by the National Union of Workers
for an award

MELBOURNE

10.01 AM, WEDNESDAY, 15 SEPTEMBER 2004

PN74

THE DEPUTY PRESIDENT: Well, look, I now have two matters before me, so I might just dispense with the easy part first and take the appearances for the second matter. I am assuming the appearances are the same in respect of the NUWs application, which is the application for the - the initial application is what I am referring to. So, I will take the appearances in respect of the application under section 99 for a dispute to be found by Post Fulfilment Online.

PN75

MR J. D'ABACO: In respect of matter C5694/2004 I seek leave to appear on behalf of the applicant.

PN76

THE DEPUTY PRESIDENT: Yes. 5697 is it not, Mr D'Abaco?

PN77

MR D'ABACO: It may well be, sir. I had it noted as 4 but it may well be 7, yes.

PN78

THE DEPUTY PRESIDENT: Yes. You probably put the cross through the 7 or something, Mr D'Abaco.

PN79

MR D'ABACO: Yes, sir.

PN80

THE DEPUTY PRESIDENT: Yes.

PN81

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

PN82

THE DEPUTY PRESIDENT: Thank you. Has there been any discussion between the parties at all regarding the matters generally and I guess specifically the progress of the matters before me?

PN83

MR D'ABACO: No, there hasn't, your Honour. There has been some correspondence I understand.

PN84

THE DEPUTY PRESIDENT: Yes.

PN85

MR D'ABACO: From the NUW both to the Commission in relation to the matter. In my submission, the substance of that correspondence is irrelevant to the issues which pertain to the finding of an industrial dispute.

PN86

THE DEPUTY PRESIDENT: Yes. I mean, I concur, Mr D'Abaco, that I don't think that anything - that there is any barrier to finding a dispute, and subject to what Ms Parkes has to say, however, I am not sure where that advances us to, to tell you the truth, and I think it might be worthwhile if we go off the record if the parties are in agreement and have some brief discussions about the progress of this matter. It seems to me that really what is now at issue is the form of any award that the Commission might make, and that seems to be the nub of the issue, but that is something we can discuss off the record.

PN87

MR D'ABACO: Yes, that is correct, your Honour, and I am more than prepared to put PFOs position on the record if the Commission wishes me to do so.

PN88

THE DEPUTY PRESIDENT: Yes.

PN89

MR D'ABACO: In my submission, the Commission as it were has currently before it three applications.

PN90

THE DEPUTY PRESIDENT: Yes.

PN91

MR D'ABACO: The first is the application by the NUW pursuant to section 111(1)(b) of the Act for the making of an award, ie, the roping in application. The second application is that of PFO pursuant to section 111(1)(g)(3) of the Act, that the Commission either dismiss the NUWs application for the roping in or alternatively refrain from further hearing or determining that dispute. The third application is as your Honour has noted the application for the finding of an industrial dispute.

PN92

THE DEPUTY PRESIDENT: Well, sorry, just to interrupt you for a moment, the section 111(1)(g) application is an application, as I understand it, for the Commission to refrain from further hearing of the matter or dismiss the matter, not an application that it should not make an award in the form sought by the union. That is a slightly different matter, Mr D'Abaco. I mean, the Commission is not bound in the form of award that it might make, in any event.

PN93

MR D'ABACO: That is correct. And the application which is put pursuant to section 111(1)(g)(3) is that the Commission should not make the award as sought by the NUW, because you will recall, sir, that that award is sought in very specific terms. It is essentially to rope in my client into the Storage Services Retail Award.

PN94

THE DEPUTY PRESIDENT: Yes.

PN95

MR D'ABACO: And in terms of the progress of the three applications, the way in which in my submission they ought to be dealt with is firstly that the application for the finding of an industrial dispute, matter C number 5697, should be first be determined by the Commission. We are not suggesting that that then concludes today's proceedings by any stretch of the imagination. The dispute may well be found by the Commission and then the customary course of action follows. Then - and there have been my discussions with my learned friend in this regard - in respect of the section 111(1)(g) application by PFO, that is clearly a matter where the onus does lie upon my client, and we would propose to deal with that application.

PN96

And ultimately then the Commission will have to rule upon that. The Commission may well do so at the conclusion of submissions or may well wish to reserve judgment. That is a matter of course for your Honour. At that point in time, sir, it really depends upon the fate, as it were, of the section 111(1)(g)(3) application. If your Honour accedes to the application and decides to refrain from determining the dispute which has been found, this is the dispute found at the instigation of the NUW, it would have before it still my client's application pursuant to section 99 for the finding of an industrial dispute.

PN97

I can indicate to the Commission that my client will be seeking the making of an award with the NUW, albeit in different terms to the terms of an award which are sought by the NUW. In the event that my client's application is not acceded to by the Commission and the Commission determines that it will consider the application for roping in as sought by the NUW the Commission will then have before it two applications. One will be for the making of an award in the terms sought by the NUW and the other presumably will be for the terms of the making of an award in terms sought by PFO, and that could well then be a matter which can be resolved through discussion between the parties, potentially conciliation involving the Commission or alternatively may require an arbitration.

PN98

But they are proceedings really for some future date. In my submission there is nothing to prevent the hearing which was originally scheduled for today from proceeding as planned and as forecast.

PN99

THE DEPUTY PRESIDENT: Yes. Thanks, Mr D'Abaco. Is there anything you want to say while we are on the record at this stage?

PN100

MS PARKES: Yes, your Honour.

PN101

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

PN102

MS PARKES: Your Honour, the NUWs application for a roping in award has been on foot I think for approximately just over three months. It is something that all the parties, including the Commission, have been aware of, and your Honour will recall that directions were issued in relation to this matter, and at the time of the directions it was also noted that the directions were not just about the 111(1)(g) application, and in the event that your Honour decided that your Honour would dismiss that application and continue to hear the matter, that PFO could then to put it colloquially have a second crack at the cherry or second bite of the cherry and then run a different argument, it was agreed by the parties that all the arguments would be there and would be put out and laid out in the directions.

PN103

The NUW has based its case on that way; the NUW has responded to the 111(1)(g) application and its directions, but also put forward an award on the basis that no alternative award and no alternative arguments under section 111(1)(b) had been raised by PFO except for its 111(1)(g)(3) application. Now, had PFO said in the event that our application fails we then seek to run an alternative case, eg, an alternative award etcetera, it was well open for them to advise the Commission and the parties of that course of action, yet we have had a system whereby for many months the parties have been on notice of this matter, submissions have been filed, an inspection has taken place, and at no time prior to the inspection or even during the inspection was either the Commission or the NUW notified that PFO sought to run a very different argument and seek its own dispute-finding and seek an award based on that.

PN104

All the arguments to date have been based on what everyone thought was the arguments for the party, namely a section 111(1)(g) application, and that in the event that that failed, that PFO hadn't advanced any other considerations in relation to the making of the award. And there was a good reason for making those directions, in that the parties you might recall, your Honour, the NUW was anxious that the matter didn't drag out, and I have alarm bells ringing at the prospect of let us negotiate over new awards, and let us have conciliation. I can see this dragging on into the never-never.

PN105

And we would say that PFO has been on notice for a considerable period of time of the course of action. And we say in our submission it is an abuse of process to literally at the last minute when the submissions have been all made, the NUWs case has been done in such a way based on the arguments of PFO which was purely the 111(1)(1)(g), and no substantive arguments that an alternative award should be made to the NUWs in the event that your Honour found against PFO with its application. Now, before you is the issue of the dispute finding.

PN106

Your Honour, there are two things I would wish to say about that. A dispute finding has been predicated on the basis of PFOs store, and the NUW has an issue with the word "store". Leaving that particular issue aside given that the dispute finding is in respect of NUW members at PFO at the address in Clayton we can only presume that the employer means reference to PFOs premises at Clayton where we all had the inspection. Now, leaving aside the issue of store, the NUWs position is this; there is already a dispute between the parties about a large number of subject matters.

PN107

I have a table that I would like to tender to your Honour which is the comparison of the subject matters in PFOs log of claims and various subject matters within the NUWs log of claims, with the numbers in brackets, your Honour, referring to the various clauses within the respective log of claims.

PN108

THE DEPUTY PRESIDENT: Yes. Just so that we don't get confused, I will mark this NUW1 in matter 5697.

PN109

MS PARKES: I think NUW1 was the roping in award. That has already been - - -

PN110

THE DEPUTY PRESIDENT: Yes. I am marking it in respect of matter 5697.

PN111

MS PARKES: Certainly, your Honour.

EXHIBIT #NUW1 DOCUMENT, TABLE OF COMPARISON MATTERS

PN112

THE DEPUTY PRESIDENT: I am assuming that forms part of any submissions that you make in respect of the application for a dispute to be found.

PN113

MS PARKES: Your Honour, PFO cannot have it both ways. On the one hand there is already and has been for quite a few months a dispute finding made by your Honour between the NUW and PFO about a large range of subject matters contained in the NUWs log which was in exhibit NUW1 in C2004/3555. Does your Honour wish me to tender those documents? They are - the record of finding of your Honour is a Commission document.

PN114

THE DEPUTY PRESIDENT: Yes, it is a Commission document. There is no need to tender it. You might hand it up if you have it handy.

PN115

MS PARKES: I certainly do have a copy for you, your Honour. And I also have a copy of exhibit NUW1 which was the NUWs - the affidavit of Mr Charles Donnelly indicating the service of the log of claims and containing the subject matter of the dispute that your Honour refers to in your record of findings. And your Honour will note that in the record of findings of 25 May at point 3 the subject matters which are in dispute are set out in a letter of demand and log of claims from the NUW, and then attached to that is the three employers, one of those being Post Fulfilment Online Pty Limited, 68 Rosebegg Avenue in Clayton, and then attached to that is - exhibit NUW1 is the reference to the letter of demand and log of claims from the NUW.

PN116

What I am saying, your Honour, is there is already a dispute in existence between the parties that covers a broad range of subject matters. All of the issues or subject matters raised by PFO in its log of claims with the possible exception of one, fall within the subject matters that are the subject of the NUWs dispute. We are saying, your Honour, PFO can't have it one way. It can't say to the Commission, we don't want the Commission to deal with these matters and these issues on the one hand, which is its section 111(1)(g)(3) application, but on the other hand say yes, we do want the Commission to deal with this. We want the Commission to find a dispute on these matters that we have said on the other hand we don't want you to deal with, and we want you just to deal with our dispute and make an award and deal with our matters only, but not the same matters that are the subject matter of the current dispute that is in existence.

PN117

Our submission is, you can't have it both ways. PFO either needs to withdraw its section 111(1)(g)(3) application and be upfront and say yes, we do want the Commission to deal with the existing dispute, here is our alternative award, let us get down to arbitrating our award versus the NUWs award, but it can't say on the one hand we don't want the Commission to deal with these topics, yet on the other, we want a dispute about these very topics we say the Commission can't deal with.

PN118

THE DEPUTY PRESIDENT: Yes.

PN119

MS PARKES: The next point, your Honour, we would say that there is already a dispute finding between the parties, and I have referred to, leaving aside the issue of store, which we would say is not a neutral term and which we would say is prejudicial to the NUWs arguments in relation to the making of an award, but if we take it that the employer's log of claims is sought in respect of employees of the NUW - at PFOs premises, which is a neutral term, at the address in Clayton, we would say that the table indicates that the subject matters raised in the PFO log of claims in exhibit NUW1 do fall within the ambit of the existing dispute between the parties with the possible exception of labour agency, and without conceding that labour agency can necessarily be contained in an award, I do note that there is High Court authority that potentially it can be included in the subject of a dispute, and what we would say, your Honour, is your Honour has two options.

PN120

Your Honour can either vary the NUWs dispute finding that is already in existence, and your Honour has that power pursuant to section 101 of the Act to include in additional matter, namely the labour hire, which is clause 6 of the PFO log of claims, or alternatively your Honour can make a separate dispute finding for PFO, but purely in relation to labour agency, given that all the other topics that they have raised are within the NUWs log of claims which is already found by the Commission. There is no purpose in two disputes on the same set of claims. You are either in dispute or you are not, and the Commission has found that the parties are in dispute.

PN121

So, in summary, our point is PFO can't have it both ways. It can't say on the one hand we don't want the Commission to deal with these subject matters, but on the other hand, yes, we do.

PN122

THE DEPUTY PRESIDENT: Yes. Let us not go too much further at this stage, Ms Parkes, unless there is something critical - - -

PN123

MS PARKES: I was going to refer to a High Court authority.

PN124

THE DEPUTY PRESIDENT: No, let us leave that at this point in time. If we need to go further, I think it would be preferable if we went off the record briefly.

PN125

MS PARKES: Yes, certainly, your Honour.

PN126

THE DEPUTY PRESIDENT: Is there anything that you - - -

PN127

MR D'ABACO: Given your Honour's indication that you wish to get off the record, I won't press any further issues, sir.

PN128

THE DEPUTY PRESIDENT: Yes. Thank you.

SHORT ADJOURNMENT [10.16am]

RESUMED [11.05am]

PN129

THE DEPUTY PRESIDENT: Yes. Well, we have had some discussions in conference about the progress of matters, and I think I will let Mr D'Abaco summarise from PFOs point of view what it is prepared to do in the circumstances.

PN130

MR D'ABACO: Thank you, your Honour. Firstly, your Honour, in relation to matter C number 5697 of 2004 my client does not at this point in time press for the finding of a dispute in respect of that matter. I do, however, seek leave to file a small affidavit of service of Ms Hawking in relation to the service of the appropriate letter of demand and log of claims. I have provided a copy to my learned friend. We don't seek that the Commission find a dispute.

PN131

THE DEPUTY PRESIDENT: Yes.

PN132

MR D'ABACO: In relation to that matter today.

PN133

THE DEPUTY PRESIDENT: I won't mark this at this point in time. I will just simply put it on the file.

PN134

MR D'ABACO: In relation to matter C4271 of 2004, I am instructed to put the following, sir. Firstly, we do not - we withdraw for the present moment the application pursuant to section 111(1)(g)(3) so as to facilitate discussions between the parties which hopefully will resolve the issues between us. In the event that those discussions are not successful, however, we do reserve our rights to reinstate the 111(1)(g)(3) application and in particular to raise the arguments which have already been flagged in the submissions as filed.

PN135

THE DEPUTY PRESIDENT: Yes. All right, thanks, Mr D'Abaco. Anything that you wish to say, Ms Parkes?

PN136

MS PARKES: No, your Honour.

PN137

THE DEPUTY PRESIDENT: Yes. All right. There is nothing further for the Commission at this point in time other than to say that I will list the matter for report back on Tuesday, 5 October at 9.30 am. That report back will be for the purposes of the parties to apprise the Commission of the status of discussions that have taken place, and also if necessary for the setting of further directions in this matter. On that basis I will adjourn, thank you.

ADJOURNED UNTIL TUESDAY, 5 OCTOBER 2004 [11.08am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #NUW1 DOCUMENT, TABLE OF COMPARISON MATTERS PN112