C2004/6141, Transcript of Proceedings [2004] AIRCTrans 4268 (4 November 2004)

AUSCRIPT AUSTRALASIA PTY LTD
ABN 72 110 028 825

Level 6, 114-120 Castlereagh St SYDNEY NSW 2000
PO Box A2405 SYDNEY SOUTH NSW 1235
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 14531
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LAWSON

C2004/6141

SHOP, DISTRIBUTIVE AND ALLIED
EMPLOYEES ASSOCIATION

and

NEXTT SERVICES t/as KWIK SNAX

Application under section 170LW
of the Act for settlement of a
dispute re alleged refusal to
remove counselling given to
Ms Danielle Page

SYDNEY

1.05 PM, TUESDAY, 26 OCTOBER 2004

PN1

THE COMMISSIONER: Appearances, please?

PN2

MR R. TONKLI: If it please the Commission, I appear for the Shop, Distributive and Allied Employees Association.

PN3

THE COMMISSIONER: Thank you, Mr Tonkli.

PN4

MR R. PEGG: If it please the Commission, solicitor and I seek leave to appear on behalf of Nextt Services Pty Limited, with me is MR S. PEEKE, the Executive Director.

PN5

THE COMMISSIONER: Thank you, Mr Peeke. Any objection to Mr Peeke appearing, Mr Tonkli?

PN6

MR TONKLI: No objection, Commissioner.

PN7

THE COMMISSIONER: Then leave is granted, Mr Pegg.

PN8

MR PEGG: Thank you, Commissioner.

PN9

THE COMMISSIONER: The matter is before the Commission by way of an application filed pursuant to section 170LW of the Workplace Relations Act by the SDA, it notified the registrar of an alleged industrial dispute between the union and the employer, Nextt Services, trading as Kwik Snax concerning the company's refusal to remove a counselling given to an employee. The notified informed the registrar that the parties had applied the dispute settling procedure in the relative Enterprise Agreement, no resolution was achieved, hence, the section 170LW application for Commission assistance.

PN10

However, before turning to anything to do with the merit of the application, the matter is filed under section 170LW, it refers to a dispute settling procedure in the relevant Enterprise Agreement and yet, in the dispute settling procedure at clause 34(d) there is no end point to the issues that are to be referred to the Commission. So before proceeding to deal with any merit issues in relation to the substantive application, it will be necessary for the parties to clarify their intent of any such referral of a question, difficulty or dispute to the Industrial Relations Commission. Mr Tonkli?

PN11

MR TONKLI: Commissioner, the intent from the union's understanding - - -

PN12

THE COMMISSIONER: Do you have any record of anything that was said at the time on transcript when the matter was certified, of the parties intent?

PN13

MR TONKLI: I have not but I have not present with me, that does not exclude the possibility that I can get something to that effect. A note that I wasn't involved - - -

PN14

THE COMMISSIONER: Well, you would have been aware that that challenge is probably likely to be put to you if not by the Commission, then by the other side.

PN15

MR TONKLI: Well, on the face of it, clearly clause 34(d) entitles the parties to refer to the Commission for the purposes of resolution a question, difficulty or dispute.

PN16

THE COMMISSIONER: All right, you have referred it to the Commission, full stop.

PN17

MR TONKLI: Yes.

PN18

THE COMMISSIONER: That seems to me on the face of it, clause 34(d) is so satisfied.

PN19

MR TONKLI: Commissioner, it goes without saying that the purpose of such a clause in an agreement certified by the Federal Commission is to empower the Commission to conciliate and if necessary, arbitrate.

PN20

THE COMMISSIONER: No, Mr Tonkli, that is not the case, that cannot be inferred.

PN21

MR TONKLI: I am aware, I haven't got them with me, I will obtain them, authorities that say something different.

PN22

THE COMMISSIONER: All right.

PN23

MR TONKLI: In any event, Commissioner, whilst that material is obtained, if the parties agree, at the very least, the Commission can conciliate the matter today.

PN24

THE COMMISSIONER: Mr Pegg?

PN25

MR PEGG: May it please the Commission. With respect the Commission has correctly anticipated a submission I wish to make about the jurisdiction of the Commission in this matter. The matter comes before the Commission pursuant to the disputes procedure, to which you have already drawn notice and I understand you have a copy of that agreement. The procedure sets out graduated steps of discussion which are resolved may be referred to the Commission.

PN26

This type of provision was considered in a Full Bench decision of this Commission under the predecessor to section 170LW, it was a matter of the Australian Broadcasting Corporation v MEAA which it's not been reported, print M3463 delivered on 11 July 1995, I have provided a copy to my friend and hand a copy up.

PN27

THE COMMISSIONER: And what is this authority for, Mr Pegg?

PN28

MR PEGG: In short, Commissioner, that this Commission faced with a dispute resolution provision in almost identical terms to that contained in that applying to the company, cannot as stated on the last page of the judgment:

PN29

Empower the Commission to settle the dispute by way of an arbitrator decision or recommendation without the agreement of the parties.

PN30

THE COMMISSIONER: Where does it say that, on the final page?

PN31

MR PEGG: The last page.

PN32

THE COMMISSIONER: Page 4 or 5 of the copy of the decision you handed up?

PN33

MR PEGG: Yes, Commissioner.

PN34

THE COMMISSIONER: And where does it say that?

PN35

MR PEGG: The third-last paragraph. The consideration of the clause in detail commences at about two-thirds down the previous page however, the Commission did say three paragraphs before the paragraph to which I have just referred you, Commissioner, that was inconceivable that the dispute resolution clause didn't have some operation and that the purpose of that clause was to attempt to settle by conciliation short of recommendation or arbitrated decision.

PN36

I have searched for the transcript of the certification of this agreement to no avail and I cannot assist the Commission in relation to any express intent on transcript at the time of certification of this agreement, in the absence of which I would rely, as in point on this decision which has been approved in a subsequent decision which I can just give you the reference to, of Vice President Lawler on 2 July 2003 in print PR933892, the relevant consideration taking place at paragraphs 38 to 43.

PN37

THE COMMISSIONER: What did the Vice President say in those circumstances?

PN38

MR PEGG: I hand up a copy of that and provide a copy to my friend. I think relevantly, Commissioner, going straight to the heart of the matter at paragraph 42 having recited two approaches in earlier cases about the matter and in paragraph 41 having expressed his inclination to prefer the reasoning in the ABC Journalists case, the case which I've handed up this afternoon already he says in the second sentence:

PN39

This is because to the extent that section 170LW ...(reads)... by the agreement of the parties.

PN40

THE COMMISSIONER: I don't know what the parties intended.

PN41

MR PEGG: There's certainly no agreement.

PN42

THE COMMISSIONER: And there's no power conferred upon anybody in the existing dispute settling procedure. That's my very point.

PN43

MR PEGG: Indeed. In the ABC case, Commissioner, the dispute settlement clause was set out on page 2 of the judgment and to all intents and purposes is identical to that contained in the agreement the subject of this dispute and I refer particularly to the first sentence.

PN44

THE COMMISSIONER: Sorry, you've lost me completely. You got me to page 2 in the ABC case.

PN45

MR PEGG: In the middle of the page do you see the heading "Matter remains unresolved"?

PN46

THE COMMISSIONER: Yes.

PN47

MR PEGG: There the Commission sets out the dispute resolution procedure and the first sentence is in our submission to all intents and purposes in the same form as that contained in clause 34(d) of the disputes procedure before the Commission this afternoon.

PN48

THE COMMISSIONER: Well now that we've had this delightful technical debate, Mr Pegg, what is the view of your client as to what, if any, powers the Commission might exercise to endeavour to assist the parties to resolve the dispute about the application of the agreement?

PN49

MR PEGG: My client is prepared to confer today with the assistance of the Commission but does not consent to the matter proceeding any further and submits that the Commission in any event has not been clothed by the parties with authority to take the matter further.

PN50

THE COMMISSIONER: So you've used the words effectively you have no consent to the Commission acting beyond conferring with the parties.

PN51

MR PEGG: If it please the Commission.

PN52

THE COMMISSIONER: Thank you, Mr Pegg. Any responses, Mr Tonkli?

PN53

MR TONKLI: Commissioner, at the very least, and again I'm hamstrung by the fact that I don't have the authorities with me, but at the very least - - -

PN54

THE COMMISSIONER: You can make an application for this matter to be adjourned so that you can get the necessary authorities. What you have is a response from the employer, a not unpredictable response from the employer to the wording of the current dispute settlement procedure and effectively an offer that the employer will participate in a conference and has no objection to the Commission conferring with the parties.

PN55

MR TONKLI: Yes, I heard that, Commissioner. The fact is that the parties are present today at some expense to the company. We have two of its employees present today who are prepared to give evidence. The company is represented at some expense I would guess and obviously the company have officials here. I want to ask my friend a question. When he says the word confer does he mean conciliate or does he mean something else?

PN56

THE COMMISSIONER: Do you wish to put that to him on the record or off the record, Mr Tonkli?

PN57

MR TONKLI: Off the record, Commissioner.

PN58

THE COMMISSIONER: Do you wish to respond on the record?

PN59

MR PEGG: No.

PN60

THE COMMISSIONER: The question is being put to you and it will be put to you off the record and I'm prepared to give you the opportunity to answer the question off the record. Are you happy for that to occur, Mr Pegg?

PN61

MR PEGG: Yes.

PN62

THE COMMISSIONER: All right, we'll go off the record for the moment.

OFF THE RECORD [1.20pm]Y

RESUMED [1.22pm]

PN63

THE COMMISSIONER: Whilst off the record Mr Pegg has responded to Mr Tonkli's question. Each of the parties are aware of that response. Neither of the parties wish that response to be formally put on the public record. Can I say whilst we're all dancing around the subject one wonders why we're all here if it is merely for the Commission to confer with the parties? One wonders whether the parties have conferred before coming to the Commission. Mr Tonkli?

PN64

MR TONKLI: Commissioner, the parties have conferred in accordance with the agreement's dispute settling procedure. We're only here because we've been unable to resolve the issue at hand.

PN65

THE COMMISSIONER: You're only here because the union is not satisfied with the responses it has received from the employer, is that correct?

PN66

MR TONKLI: The union has notified the company of a dispute and in accordance with the grievance procedure of the agreement we have escalated that dispute through the appropriate steps. The agreement entitles us to come before the Commission.

PN67

THE COMMISSIONER: The only reason that you're here is because the company hasn't responded favourably to whatever propositions you've put to the company.

PN68

MR TONKLI: The company have chosen not to remove the warning from Ms Danielle Paige's file in respect of stocktake variances.

PN69

THE COMMISSIONER: Under what head of power do you see that the Commission could deal with that matter? Presumably you expect the Commission to enforce some direction upon the employer to remove something from the employee's record, is that correct?

PN70

MR TONKLI: Ultimately, yes. That will obviously involve a further argument at some later stage in relation to the technical issue that my friend has spoken about this afternoon but at first instance we were hopeful off the record of inviting yourself to confer, to use my friend's word, although we would put it stronger, at least conciliation in attempts to - - -

PN71

THE COMMISSIONER: Mr Pegg has clearly indicated what his client's position is. You've now placed on the public record what it is. I wasn't prepared to do so because the parties wanted to ask and answer the question off the record.

PN72

MR TONKLI: No, Mr Pegg said confer on the record and I am putting the union's view that at the very least we're asking the Commission to exercise a power of conciliation. That's the union's view. I didn't say it was Mr Pegg's view, Commissioner.

PN73

THE COMMISSIONER: All right. Do you have anything further to say, Mr Pegg?

PN74

MR PEGG: I don't think so at this stage, Commissioner.

PN75

THE COMMISSIONER: I note the position being taken by the parties, I merely adjourn these proceedings now into private conference.

OFF THE RECORD [1.15pm]

NO FURTHER PROCEEDINGS REPORTED