C2003/6638, Transcript of Proceedings [2004] AIRCTrans 40 (8 January 2004)

AUSCRIPT PTY LTD
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 5691

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2003/6638
C2003/6551

AUSTRALIAN LIQUOR,
HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

and

COMMUNITY SECURITY MONITORING
PTY LTD

Notification pursuant to section 99 of the Act
of a dispute re wages and working conditions

APPLICATION FOR AWARD

Application pursuant to section 111(1)(b)
of the Act by Australian Liquor, Hospitality and
Miscellaneous Workers Union for an award

MELBOURNE

12.40 PM, FRIDAY, 12 DECEMBER 2003

PN1

MS R. FRENZEL: I appear in both matters on behalf of the LHMWU.

PN2

THE COMMISSIONER: Yes, thank you, Ms Frenzel. I called both matters on - of course, they are connected. We are running a little bit later this morning so I thought it was far better that we call both matters on. There is no appearance on behalf of the employer but, of course, I do have material on the file. So I will hear your submissions, Ms Frenzel, whenever you are ready.

PN3

MS FRENZEL: Thank you, Commissioner. Commissioner, this is an - firstly, this is a section 99 notification of dispute arising out of the service of a letter of demand and log of claims by the LHMWU on the respondent employer, Community Security Monitoring Proprietary Limited, trading as Hume Protection Group, on 6 November 2003. The notification of industrial dispute was signed by Joanne Schofield, Assistant National Secretary of the union and dated 13 November 2003. In support of that material the LHMWU also filed with the registry a statement as to service and as to authority to act in support of the notification, and that was also dated 13 November 2003.

PN4

THE COMMISSIONER: They were dated - you are talking about the two statements of service?

PN5

MS FRENZEL: I am talking about the notification - - -

PN6

THE COMMISSIONER: Yes.

PN7

MS FRENZEL: - - - and the statement as to service and as to authority to act. I do have spare copies that I could tender, if you wish.

PN8

THE COMMISSIONER: No, I have another statement of service from a Mr Brian Daley.

PN9

MS FRENZEL: I was going to come to that.

PN10

THE COMMISSIONER: That is all right, it is almost like erring on the side of caution but, yes, whenever you are ready, yes.

PN11

MS FRENZEL: Well there is actually a good reason for that and I will go into a little bit of the background with this company and that is, the employer liquidated one company and left a number of our members without entitlements and a couple of members with now questionable unfair dismissal claims, and we were able to, if you like, sniff out the new name of the new company and that is what these proceedings are all about. So when it comes to serving companies like these we do tend to err on the side of abundant caution and not just caution.

PN12

But, in any event, we filed the notification of industrial dispute and the statement as to service. We show that service has been properly effected on the employer. I am able to provide, if the Commission requires it, an extract from the Australian Securities and Investments Commission showing that the proper registered address has been served with respect to this particular employer. I might tender that, in any event, I think.

PN13

THE COMMISSIONER: Yes.

EXHIBIT #A1 EXTRACT FROM AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

PN14

THE COMMISSIONER: In regards to the statement as to service, do you seek to - well, I don't suppose it is required to be tendered, it is the material before me in the file. Did you seek to tender that, at all, Ms Frenzel?

PN15

MS FRENZEL: Yes, I do, thank you, Commissioner.

PN16

THE COMMISSIONER: All right. Both statement as to service?

PN17

MS FRENZEL: The one with respect to Joanne Schofield at this point, thank you, Commissioner.

PN18

THE COMMISSIONER: Yes.

PN19

MS FRENZEL: Thank you.

EXHIBIT #A2 STATEMENT AS TO SERVICE IN RESPECT TO JOANNE SCHOFIELD

PN20

MS FRENZEL: Arising out of the receipt of the Notice of Hearing by the Commission, we then served on the employer which is the Statement of Service signed by Joanne Schofield at 3 December, the Notice of Hearing, the information sheet which is required and - by registered mail and that, as I understand it, now forms exhibit A2. Arising out of that service we would say that the rules of the Commission with respect to service have been complied with the LHMWU, that the service of the log of claims and the non-acquiescence by the employer - non reply by the employer, constitutes a dispute between the parties with respect to the content of the log of claims.

PN21

We say that the content of the log of claims goes to matters - goes to industrial matters between the parties and, accordingly, under section 101 of the Act, I would commend the finding of a dispute between the LHMWU and the employer, accordingly. I would also rely upon section 492 of the Act given that the matter relates to a Victorian employer and there are special provisions in the Act with respect to employers in Victoria.

PN22

THE COMMISSIONER: Yes. It is 493(1) I think, Ms Frenzel, is it? Additional effect of the Act industrial dispute. Yes.

PN23

MS FRENZEL: So we would ask the Commission find a dispute under section 101 between the LHMWU and the respondent employer, accordingly.

PN24

THE COMMISSIONER: All right. Well, we might deal with that particular application, at the moment, which concerns of course a log of claims served by the Australian Liquor, Hospitality and Miscellaneous Workers Union on Community Security Monitoring Proprietary Limited, trading as Hume Protection Group. The details of the service is set out in the papers on the Commission's files and the ALHMWU now submits that a finding of dispute made pursuant to section 101 of the Act be found to exist.

PN25

Having considered the documents which form the basis of the notification of the dispute, under section 99 of the Act, and having heard Ms Frenzel in proceedings today, I will make a finding of an industrial dispute within the meaning of the Act in relation to the log of claims and letter of demand served by the union on 6 November 2003.

PN26

The parties to that dispute are, on the one hand, the Australian Liquor, Hospital, Hospitality and Miscellaneous Workers Union and on the other hand, the Community Security Monitoring Proprietary Limited trading as Hume Protection Group. The matters in dispute are contained in the log of claims and letter of demand dated 6 November 2002 which are attached in the notification of the alleged industrial dispute. A finding will be made to give effect to this decision. Would you like to address the second application that I have, Ms Frenzel?

PN27

MS FRENZEL: Thank you, Commissioner. Commissioner, upon receipt of the Hearing notice with respect to the section 99 matter, the LHMWU - Victorian branch, in actual fact, of the LHMWU is authorised to do these things under our rules, wrote to the employer and wrote to the Commission indicating, that subject to a dispute being found by the Commission, today, that we make an application under section 111(1)(b) of the Act for a roping-in award. We were careful to attach a copy of that roping-in award to the letter to the employer and we served that by registered mail. And that is the Statement as to Service which is dated 9 December 2003 and filed with the registry on 10 December 2003.

PN28

THE COMMISSIONER: Yes. You seek that I take tender of that, Ms Frenzel?

PN29

MS FRENZEL: Yes, please, Commissioner.

EXHIBIT #A1 STATEMENT AS TO SERVICE

PN30

MS FRENZEL: Thank you. That Statement as to Service clearly sets out that the employer was served both by facsimile and also by registered post. The employer, I might indicate, has not contacted the LHMWU or anybody in the LHMWU that I am aware of, although he or she was invited to do so. We say that with respect to the draft order which is attached to the Statement as to Service, that the draft order complies with the first award principles of this Commission, it also complies with section 89A(2) of the Act with respect to allowable matters and that the employer has been on notice for some time of our intention to rope them in to the Security Employees (Victoria) Award 1998. In addition, we say that the roping-in award should apply from the first pay period on or after today's date, being 12 December, and on that basis we would commend the application to the Commission.

PN31

THE COMMISSIONER: Yes, thank you, Ms Frenzel. Well, based on the material before me and the submissions that I have heard this morning and having viewed the award the union seeks to be made in the form of a roping-in award, there is nothing before me that persuades me that the requirements of the legislation and the rules and the Commission principles have not been complied with nor satisfied by the application and the documentation before. I will make the award as sought by the application by the union, under section 111(1)(b), and that award shall be known as the Security Employees (Victoria) (Roping-in number 6) Award 2003.

PN32

This award will be binding upon the union and Community Security Monitoring Proprietary Limited, trading as Hume Protection Group, for their employees whether members of the union or not. The operative date for this award shall be the first pay period on or after 12 December 2003 and it shall remain in force for a period of six months. If there is nothing further, Ms Frenzel, I thank you for your attendance. The Commission stands adjourned.

ADJOURNED INDEFINITELY [12.52pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 EXTRACT FROM AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION PN14
EXHIBIT #A2 STATEMENT AS TO SERVICE IN RESPECT TO JOANNE SCHOFIELD PN20
EXHIBIT #A1 STATEMENT AS TO SERVICE PN30