AG2004/5839, Transcript of Proceedings [2004] AIRCTrans 4165 (27 October 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 8774

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/5839

TRANSPORT WORKERS'
UNION OF AUSTRALIA

and

ACTION JAMES PTY LTD

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

MELBOURNE

10.00 AM, MONDAY, 18 OCTOBER 2004

Continued from 23.9.04

THIS MATTER WAS CONDUCTED BY VIDEO LINK
AND RECORDED IN MELBOURNE

PN236

THE COMMISSIONER: Good morning. Are there any changes to the appearances, please?

PN237

MR G. UPHILL: Good morning, Commissioner. Geoff Uphill appearing in Perth, on behalf of members of the Chamber of Commerce and Industry of Western Australia.

PN238

THE COMMISSIONER: Thank you, Mr Uphill.

PN239

MR C. HUGHES: Craig Hughes appearing on behalf of Timemaster, trading as Kwik Express.

PN240

THE COMMISSIONER: Thank you, Mr Hughes. Yes, Ms Ryall?

PN241

MS RYALL: If the Commission pleases, we seek today the making of some orders in partial settlement of the dispute before you. Draft orders were forwarded to the parties who are listed on the notice of dispute finding. The draft orders were forwarded on 30 September by registered post and a notice of listing was forwarded to those on - - -

PN242

MR SHEEHAN: Excuse me, Commissioner. Michael Sheehan from Business SA in Adelaide. The Union keeps dropping in and out of the sound.

PN243

THE COMMISSIONER: All right. I think that the reason for that is probably because Ms Ryall is not close enough to the microphone. So we will rectify that. Thank you.

PN244

MR SHEEHAN: Thank you, Commissioner.

PN245

MS RYALL: As I was saying, draft orders were forwarded to the parties listed on the notice of dispute finding on 30 September by registered post, and notices of the listing were sent to those parties on 5 October 2004, and I've got a statement of service and a copy of the draft orders for the Commission's file.

PN246

THE COMMISSIONER: Good. Thank you, Ms Ryall. That's exhibit A3.

EXHIBIT #A3 STATEMENT OF SERVICE AND COPY OF DRAFT ORDERS DATED 30/09/2004

PN247

THE COMMISSIONER: Could I just ask if any of the parties who are appearing did not receive the information that Ms Ryall has just identified?

PN248

MS SARACENI: Sir, in Perth, Maria Saraceni, representing AIMS. I haven't received anything, sir.

PN249

MS RYALL: Commissioner, if I may respond to that? That is because in this hearing, we are seeking orders against those people that a dispute finding was made against. There was no dispute finding against AIMS corporation, who Ms Saraceni represents. We reserve our rights to pursue that at a later date. In relation to Breakaway Concrete Cutting and Drilling South Australia Pty Ltd, trading as Breakaway Waste, which I believe is represented by Mr Howard, we are actually no longer pursuing a dispute finding against this company, so I apologise for any inconvenience caused for those parties that have attended unnecessarily.

PN250

MR HOWARD: Excuse me, Commissioner, Ms Ryall dropped out and I couldn't hear what she said about Breakaway?

PN251

MS RYALL: We are no longer pursuing a dispute finding against that company?

PN252

MR HOWARD: I have received nothing in writing to that effect at this point in time.

PN253

MS RYALL: I apologise for the inconvenience.

PN254

THE COMMISSIONER: But in any event, what Ms Ryall has said - just for the sake of clarity, I will repeat it - is that both in relation to AIMS and Concrete Cutting, it's not proposed that there be any order made, certainly not today, in any event. And that is the reason why no copy of a draft roping-in award order in relation to AIMS or Concrete Cutting was served on those companies. Is that clear?

PN255

MS SARACENI: Yes, sir.

PN256

MR HOWARD: Yes, thank you, sir.

PN257

THE COMMISSIONER: Go ahead, Ms Ryall.

PN258

MS RYALL: Commissioner, we're also not presenting against a number of companies. These are Baz Domingo, trading as Kimberley Freight Lines; Baz Industries Pty Ltd, trading as Kimberley Freight Lines; Damien Peter Baker trading as Colonial Freight Lines, Bold West Corporation Pty Ltd; Armstrong Transport Pty Ltd, Impact Transport Services Pty Ltd, and Kwinana Transport Services Pty Ltd. And we've made every endeavour to contact the parties representing - the person representing those companies to inform them about that. Commissioner, would you like me to go through the draft order now or is it sufficient for you to have them on file?

PN259

THE COMMISSIONER: Oh, I think it might be useful if you were to identify for the record, the companies in respect of which you are going to seek a roping-in award, so that everybody here knows whether or not they represent any of those companies, for the sake of clarity on the record.

PN260

MS RYALL: Certainly, in relation to the Transport Workers' Award (1998), we are seeking that the following companies have a roping-in order made in relation to them, that is; Action James Pty Ltd, Action James Training Solutions Pty Ltd, Australian Vehicle Transport Operations Pty Ltd, Compass WA Nominees Pty Ltd trading as Pacific Transport Enterprises, DW and RL Transport Pty Ltd trading as Bone Transport, Keune Transport Pty Ltd, Massena Pty Ltd trading as Star Freightlines, Netline Holdings Pty Ltd trading as Integrated Container Logistics, NR and NJ Gardiner and Sons Pty Ltd trading as Broome Freightlines, and Timemaster Pty Ltd as Kwik Express.

PN261

In relation to the Transport Workers' Distribution Facility's Award (2004), we're seeking that the following companies have a roping-in order against them, that is; Action James Pty Ltd, Action James Training Solution Pty Ltd. In relation to the Transport Workers' Superannuation Consolidated Award (2004), we are seeking an order, including Action James Pty Ltd and Action James Training Solutions Pty Ltd as respondents in that award. In relation to the Transport Workers' Long Distance Driver's Award 2000, we are seeking to have Action James Pty Ltd, Action James Training Solutions Pty Ltd, Australian Vehicle Transport Operations Pty Ltd, Gary Willis Transport Pty Ltd, L and F Nominees Pty Ltd trading as Regional Bulk Haulage, and Keune Transport Pty Ltd, included as a respondents to that award.

PN262

THE COMMISSIONER: Keune Transport?

PN263

MS RYALL: I think it's strictly spelled, K-e-u-n-e, but I think it's pronounced Keune.

PN264

THE COMMISSIONER: To save me checking it, that latter company, that company is on the list of parties identified in dispute, is it?

PN265

MS RYALL: I believe so. It's spelled K-e-u-n-e Transport.

PN266

THE COMMISSIONER: Oh, I see. I beg your pardon.

PN267

MS RYALL: Yes.

PN268

THE COMMISSIONER: I thought you said "Q".

PN269

MS RYALL: Oh, sorry.

PN270

THE COMMISSIONER: No, it's "K". That company is on the dispute list.

PN271

MS RYALL: It is.

PN272

THE COMMISSIONER: I was just checking that as I went through it.

PN273

MS RYALL: In relation to that company, do you have correspondence on the file from Paul Ryan of this morning?

PN274

THE COMMISSIONER: I do. I have correspondence on behalf of that company and Massena, is it? Massena Pty Ltd trading as Star Freightlines - - -

PN275

MS RYALL: Yes.

PN276

THE COMMISSIONER: - - - for Mr Ryan, saying that they have no objection to the orders being made.

PN277

MS RYALL: Thank you. Just continuing on with the draft orders. In relation to the Transport Workers' Refuse Recycling and Waste Management Award (2001), we're seeking a roping-in order to include the following companies; Acquista Investments Pty Ltd trading as Integrated Waste Services, Collex Pty Ltd trading as Integrated Waste Services, Delaine Investments Pty Ltd trading as Malatesta Green Organic Recycling Contractors, South Australian Waste Management Pty Ltd, and C and D Eames Pty Ltd trading as Waste-Away SA.

PN278

In relation to the Transport Workers' LP Gas Industry Award (2002), we seek to have the following companies roped-in to that award; Blue Ribbon Gas Pty Ltd, Linfox Australia Pty Ltd. In relation to the Transport Workers' Armoured Vehicles Award (2004), we seek to have RE Wright Pty Ltd trading as Southcoast Security Services roped-in to that award. And in relation to the Gas Industry Contractors, Mains and Services Award (2003), we are seeking to have Champ Constructions Pty Ltd roped into that award also.

PN279

If there are any objections to these draft orders today, we seek that this matter would be re-listed to deal with that matter at a later day and we would seek directions to be provided as to what evidence needs to be adduced. My understanding is that in relation to Collex Pty Ltd, Mr Szlawski here has not been able to get instructions and we would seek that is able to get some instructions and have the order made, should the company consent at a later date, later this week, or re-listed for a later time should they object.

PN280

THE COMMISSIONER: Are they very difficult contact, Collex, are they?

PN281

MR SZLAWSKI: Yes, they are, Commissioner. Contacting the right people is the difficulty that I have. I have certainly had some discussions concerning this matter, but it's - my understanding is it's a new joint venture and there is only one key individual that I need to be obtaining my instructions from and herein lies the difficulty, Commissioner, so - - -

PN282

THE COMMISSIONER: Yes.

PN283

MR SZLAWSKI: - - - I am, unfortunately, in that position, despite my best efforts, and certainly, what Ms - - -

PN284

THE COMMISSIONER: Well, that's fine, given that - - -

PN285

MR SZLAWSKI: - - - Ryall has indicated, is the accurate position of our discussions.

PN286

THE COMMISSIONER: I understand that and that's fine. I just make the observation that I think the last time we were here was almost a month ago, and at that stage you were having the same problems, and I think you foreshadowed that you expected to be in a position to state instructions within about a week or so. Now, this is dependent upon getting instructions again within a similar time frame, isn't that right?

PN287

MR SZLAWSKI: Yes, the world has moved on.

PN288

THE COMMISSIONER: Well, I'm glad of that. So how do you anticipate I am to know what Collex's position is?

PN289

MR SZLAWSKI: I can provide that information in writing.

PN290

THE COMMISSIONER: All right. And so when should I expect that?

PN291

MR SZLAWSKI: Well, if I could be given a week, I certainly will do that.

PN292

THE COMMISSIONER: So that if I were to issue a direction that you file with the Commission and serve upon the applicant by the close of business on 25 October, the position of Collex in writing, that would fit with your understanding?

PN293

MR SZLAWSKI: Yes. Yes, it would.

PN294

THE COMMISSIONER: All right. Well, I direct accordingly. I should indicate that I will proceed to deal with the application after the 25th. All right, is there any other party that wishes to make any submissions about the applications for the orders that are being sought?

PN295

MR HUGHES: Yes, sir.

PN296

THE COMMISSIONER: Yes?

PN297

MR HUGHES: Craig Hughes on behalf of Timemaster. We have never received a log of claims. They were served on an office, prior to the purchase of Kwik Express and we only received the record of findings and notice of this meeting here.

PN298

THE COMMISSIONER: So you say you've never received the log of claims.

PN299

MR HUGHES: No, they were served on the office that incorporated the company, which was N312 Murray St. The actual company never - as trading as Kwik Express, took over on 1 December and never used the office that the log of claims and letter of demand were served on us in the first place.

PN300

THE COMMISSIONER: All right. Have you seen the letter of demand and the log of claims?

PN301

MR HUGHES: No, sir.

PN302

THE COMMISSIONER: You haven't? How do you know it was served on that address then?

PN303

MR HUGHES: Because I have received - last week, when I got a call from the Chamber of Commerce, I actually went up to the Industrial Magistrate and got a - a copy of the list of where it was served on.

PN304

THE COMMISSIONER: From who?

PN305

MR HUGHES: I got it from the Industrial Registry.

PN306

THE COMMISSIONER: The registry? So who did they say it was served on? What's the - - -

PN307

MR HUGHES: 312 - - -

PN308

THE COMMISSIONER: What document do you have there?

PN309

MR HUGHES: I have the Transport Workers' Union - the two documents you referred to earlier today, and the notice that it was on at eight o'clock this morning.

PN310

THE COMMISSIONER: And what does - what do those two documents tell you, exactly, again? I can't see them, so I just need you to help me a little bit with what you've got.

PN311

MR HUGHES: Letter dated 5 October to the proposed respondents is addressed, "Dear Sir/Madam - Action James Pty Ltd and Others", "Number 5839 of 2004", and "Industrial Relations Commission" ..... the Transport Workers' Union of Australia and Action James Pty Ltd and Others. We received that on 12 October.

PN312

THE COMMISSIONER: And what does that say?

PN313

MR HUGHES: "Record of findings".

PN314

THE COMMISSIONER: You received the record of finding?

PN315

MR HUGHES: Yes, we did.

PN316

THE COMMISSIONER: Did that arrive by post or did you obtain that from the Registry?

PN317

MR HUGHES: I don't know, I'm sorry.

PN318

THE COMMISSIONER: Right. And you received the record of finding on 12 October, you say?

PN319

MR HUGHES: That's - that's what's on this document here - that's stamped, "Received 12 October".

PN320

THE COMMISSIONER: Stamped by who?

PN321

MR HUGHES: I don't know, I'm sorry.

PN322

THE COMMISSIONER: Well, how did you get it?

PN323

MR HUGHES: I'm not sure whether I got this one from the Registry or whether it was given to our office. I don't know.

PN324

THE COMMISSIONER: And that's got "received 12 October"? What's the date on the finding?

PN325

MR HUGHES: Melbourne, 23 September.

PN326

THE COMMISSIONER: So you - someone in your office, presumably, put a received stamp on it on the 12th, is that right?

PN327

MR HUGHES: Possibly, yes, sir - possibly. I don't know.

PN328

THE COMMISSIONER: So what is the address of the company?

PN329

MR HUGHES: The registered address is 620 Newcastle St, Leederville. And the primary place of business is 59 Kernel Road, Welshpool.

PN330

THE COMMISSIONER: Newcastle St, Leederville; is that correct?

PN331

MR HUGHES: Yes.

PN332

THE COMMISSIONER: Spelled, L-e-a-d-e-r-v-i-l-e, Western Australia.

PN333

MR HUGHES: No.

PN334

PN335

THE COMMISSIONER: Sorry?

PN336

MR HUGHES: L-e-e-d-e-r-v-i-l-l-e.

PN337

THE COMMISSIONER: Thank you. Now, what's the history of the company again? You've told me that there has been a recent change in the corporate identity?

PN338

MR HUGHES: Yes, the company was - well, Timemaster purchased the business of Kwik Transport on 1 December. Prior to the - - -

PN339

THE COMMISSIONER: I see. Yes, go ahead.

PN340

MR HUGHES: Prior to 1 December, the office - the company was incorporated at a solicitor's office, which was at 312 Murray St, Perth.

PN341

THE COMMISSIONER: All right. Just one moment, please. Yes? Well, possibly the reason that you hadn't heard about this previously, was that the letter of demand and log of claims was served on the company on 18 August 2004. So are you saying that by that time the address at Murray St, Perth, was no longer the address of the company.

PN342

MR HUGHES: Correct. The company vacated those premise on the 1st or the 28th November, 2003.

PN343

THE COMMISSIONER: All right. Good. Thank you. And was the company, Timemaster Pty Ltd, registered at that address?

PN344

MR HUGHES: I believe that that was where the initial registration was as the company was incorporated by the instructing lawyer.

PN345

THE COMMISSIONER: All right. Ms Ryall?

PN346

MR HUGHES: However, it never worked from that address and never conducted any business from that address. It was the temporary office while the office was incorporated.

PN347

THE COMMISSIONER: Ms Ryall?

PN348

MS RYALL: Commissioner, before we set out the log of claims, we do a company search. I've got the company search in front of me and that shows the registered office of Timemaster Pty Ltd at Level 1, 312 Murray St, Perth, WA, and that is why it has been served on that address. I believe the onus is on the company to make sure that the registered office records are up to date.

PN349

THE COMMISSIONER: In any event, what is - I suppose it's a bit difficult to have a position about the log of claims if you haven't seen it, but broadly speaking, what is it that you want, Mr Hughes?

PN350

MR HUGHES: I would like the company not to be roped-in to the award.

PN351

THE COMMISSIONER: And why is that?

PN352

MR HUGHES: Because - well, firstly, I haven't had a chance to see any of the log of claims or the letter of demand, and I don't believe we're in dispute with the TWU.

PN353

THE COMMISSIONER: All right. Well, why is it that you don't think you're in dispute with the TWU? If the letter of demand and log of claims was served on the registered office of the company, as Ms Ryall says it is the case, there may be just some difficulty with the arrangements that have been made by the company in relation to its operations for the purpose of receipt of the service of documents for the purpose of legal proceedings. Is it simply because you haven't been served with the log of claims, that you think you shouldn't be a respondent to the award, is it?

PN354

MR HUGHES: Yes, sir.

PN355

THE COMMISSIONER: Do you have any other reason why you wouldn't want to be a respondent to the award?

PN356

MR HUGHES: We just would prefer to be able to do our Australian workplace agreements, and not be a respondent to the award.

PN357

THE COMMISSIONER: If you were to be a respondent to the award, do you think that would be - that would prevent you from making Australian workplace agreements?

PN358

MR HUGHES: Sir, I am not sure. I haven't even had time to go and seek advice that - - -

PN359

THE COMMISSIONER: All right. Well, if being a respondent to the award would not prevent you being able to make Australian workplace agreements, would that affect your thinking?

PN360

MR HUGHES: I would still like to go and seek proper advice. I am just the general manager of the company, and it was - we only found out about this late last week that there was a conference on today.

PN361

THE COMMISSIONER: Right. Are there any other concerns, apart from the capacity to make Australian workplace agreements?

PN362

MR HUGHES: Off the top of my head, no, I don't have any that I can name at the moment.

PN363

THE COMMISSIONER: Do you know about the award?

PN364

MR HUGHES: Yes, I do.

PN365

THE COMMISSIONER: Have you ever read the award?

PN366

MR HUGHES: The standard - yes, I have.

PN367

THE COMMISSIONER: You have read the terms of the award?

PN368

MR HUGHES: Yes.

PN369

THE COMMISSIONER: Would the making of the award affect what you pay your employees?

PN370

MR HUGHES: Generally speaking, no.

PN371

THE COMMISSIONER: Would it affect any of the terms and conditions of employment that you apply to them?

PN372

MR HUGHES: We would have to go and do it and make sure that we are not - there is no disadvantage.

PN373

THE COMMISSIONER: Yes. Well, can you imagine, having regard to the terms of the award, knowing the operations of the company as the general manager, that there would be any disadvantage?

PN374

MR HUGHES: I don't believe there would be.

PN375

THE COMMISSIONER: All right. Thank you. Ms Ryall, it might be convenient if the company was served. Where - have you got a fax number for the purpose of service?

PN376

MR HUGHES: Yes. 0893512112.

PN377

THE COMMISSIONER: All right. Now, I must say I anticipate it is unlikely that you will agree to all of the demands in the log of claims. Because on my reading of the log of claims, it seems to have some ambit in it. And I think you should be advised by any competent adviser that being a respondent to an award does not prevent the making of Australian workplace agreements under the Workplace Relations Act. In fact, I think that is a notorious and well-known fact.

PN378

And I gather that the terms and conditions of employment of your work force are not inferior to the terms of the award. So the economic impact on the company is likely to be zero, or negligible. Under those circumstances, there is a fairly strong public interest consideration on what is before me for the making of an award, as the safety net of fair wages and conditions of employment.

PN379

Notwithstanding the fact that your company has been served at the registered address, which no doubt was obtained by virtue of a company search conducted through the Australian Securities and Investments Commission, I will provide a short time for you to familiarise yourself with the log of claims, and the issues that arise. But I suggest that perhaps we could list this matter at a convenient time on Wednesday, at which you could respond.

PN380

MR HUGHES: Thank you.

PN381

THE COMMISSIONER: Very well. Is there anybody else who wishes to make a submission in relation to this matter?

PN382

MS SARASCENI: Sir, Sarasceni, in Perth. Given what I heard Ms Ryall say, that in relation to my client aims, the union wants to preserve the rights to proceed at a later date. I query whether perhaps I might be excused, sir.

PN383

THE COMMISSIONER: Yes, you may be.

PN384

MS SARASCENI: Thank you, sir.

PN385

THE COMMISSIONER: And you will be notified of any hearing affecting your client.

PN386

MS SARASCENI: Thank you, sir.

PN387

THE COMMISSIONER: Thank you.

PN388

MR UPHILL: Commissioner, Geoff Uphill, in Perth.

PN389

THE COMMISSIONER: Yes, Mr Uphill.

PN390

MR UPHILL: Can I indicate that when last I was before you, we indicated an interest in representing two members of the CCI. Can I indicate to you that that interest has grown now to five companies. But the union has indicated they don't wish to proceed against three of the companies that we now represent.

PN391

THE COMMISSIONER: Very well.

PN392

MR UPHILL: There is however, one company that the union has indicated they do wish to proceed against, and which we are opposed to that company being roped in. The company is Delaine Investments, trading as Malatesta Green Organic Recycling Contractors.

PN393

THE COMMISSIONER: Yes.

PN394

MR UPHILL: the union has indicated they wish to have that company roped in to the Transport Workers Refuse, Recycling and Waste Management Award. We oppose that, and would seek either some further discussions with the union. Or alternatively, programming the matter for a hearing at a later date.

PN395

THE COMMISSIONER: Could you just give us some idea of the basis of the opposition please?

PN396

MR UPHILL: Yes, certainly. This company is covered by the terms of the State Transport Workers Award, and we would wish to put argument and call evidence with respect to section 111(1)(g) of the Workplace Relations Act.

PN397

THE COMMISSIONER: Very well. Ms Ryall?

PN398

MS RYALL: Commissioner, my understanding is that the award to which Mr Uphill refers is a general one. And we are seeking to have this company roped into a more specific and appropriate award for workers doing refuse and recycling work. So we would seek that this matter also be programmed for hearing at a later date.

PN399

THE COMMISSIONER: Very well, thank you. Is there any other party in either Adelaide or Perth who wishes to make a submission?

PN400

MR SHEEHAN: Michael Sheehan, Business SA, Commissioner. In relation to the two companies that we represent, which is SA Waste Management and Waste Away SA. We don't oppose the making of an order today. If it please the Commission.

PN401

THE COMMISSIONER: Thank you, Mr Sheehan. Well, I think that covers everybody in that case. Well, this is a dispute concerning a number of transport companies operating in different fields, in respect of which the TWU has made application for awards of the Commission. Roping some of the parties to a dispute found by the Commission on the notification in the matter at Melbourne on 23 September 2004, to various awards.

PN402

Draft orders have been furnished to the Commission. And with the exception of three companies, which are Collex Pty Limited trading as Integrated Waste Services, Timemaster Pty Limited trading as Kwik Express, and Delaine Investments trading as Malatesta Green Organic Recycling Contractors, there is no opposition to the making of the orders sought by the union.

PN403

Under these circumstances I consider it is consistent with the objects of the Workplace Relations Act and in the public interest, to make awards providing for a fair safety net of wages and conditions pursuant to the relevant provisions of the Workplace Relations Act (1996), and orders will issue accordingly. Those orders will come into force from today's date and remain in force for a period of six months thereafter.

PN404

As for the three companies identified, I have already issued directions for the filing of a position either in opposition to, or support of, the making of an award binding Collex Pty Limited. And I will reserve my decision in relation to that matter, pending the filing of that material. In the event that the company opposes the making of the awards sought, I will issue further directions for the purposes of the determination of the matter.

PN405

As for Timemaster Pty Limited trading as Kwik Express, that matter will be listed for further hearing on Wednesday of this week, at a time which will be advised by the Commission. And as for Delaine Investments Pty Limited, I direct that the company's representatives, in particular Mr Uphill, and the TWU, in particular Ms Ryall, confer with a view to a timetable for the hearing and determination of the company's application that the Commission refrain from further determining that matter, pursuant to section 111(1)(g) of the Workplace Relations Act (1996). And in particular, I direct Ms Ryall to inform my associate of the proposed procedure for the purposes of determining that application.

PN406

In all other respects, I will issue the orders making the award sought by the union, in due course. Thank you.

ADJOURNED UNTIL WEDNESDAY, 20 OCTOBER 2004 [10.40am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A3 STATEMENT OF SERVICE AND COPY OF DRAFT ORDERS DATED 30/09/2004 PN247