C2004/5747, Transcript of Proceedings [2004] AIRCTrans 4393 (15 November 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 8959

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT LLOYD

C2004/5747

ENTERPRISE BARGAINING AWARD

Application pursuant to section 111(1)(b)
of the Act by the Australian Municipal,
Clerical and Services Union for making
an interim award

MELBOURNE

3.08 PM, THURSDAY, 4 NOVEMBER 2004

PN1

MR J. NUCIFORA: I appear for the Australian Services Union. I have with me MS L. CARGILL from the Victorian branch of the ASU. If your Honour pleases.

PN2

MR L. HOCKING: I seek leave to appear for Tenix Solutions Pty Limited. Appearing with me is MR R. LAW.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Any objections to leave?

PN4

MR NUCIFORA: No, your Honour.

PN5

THE SENIOR DEPUTY PRESIDENT: Leave is granted. Mr Nucifora.

PN6

MR NUCIFORA: Thank you, your Honour. Your Honour, this is a section 111(1)(b) application for a roping-in award and we have notified the employer of the application. Of course, the employer is present here. There is only the one employer that we are referring to, Tenix Solutions Pty Limited. It does arise from an earlier dispute finding and it relies on an earlier dispute finding by Senior Deputy President Watson in C2002/6101.

PN7

I understand that there is a record of finding on your file, your Honour, in relation to a dispute that was found between the ASU and LMT Australia Pty Limited and others and included Tenix Solutions Pty Limited at 120 Spencer Street in Melbourne and it is that particular employer that we are seeking through this application to rope in, to have this roping-in award made and to have that employer roped in as a respondent ultimately to the Clerical and Administrative Employees Victoria Award 1999. That is AW773032. What I may do, if I could, your Honour, at this point is just hand up a draft order which shows what the intent of the ASU has been in serving this application. Your Honour, if I may tender that as an exhibit.

PN8

THE SENIOR DEPUTY PRESIDENT: Yes.

EXHIBIT #A1 DRAFT ORDER

PN9

MR NUCIFORA: Your Honour, exhibit A1 is a draft order drafted by the ASU. It is not consented to by Tenix Solutions represented today by Mr Hocking and what has occurred, though, your Honour, is there have been discussions earlier this morning and I might come back to that, but I might just briefly cover what exhibit A1 is. It refers to in the preamble, of course, the original dispute finding we would rely on in 2002/6101. It would be the Clerical and Administrative Employees Victoria Roping-In Number 3 Award of 2004, as there have been two other roping-in awards into that award, into the parent award this year. Of course, the parties bound would be the ASU and Tenix Solutions.

PN10

There is a savings provision which goes to, of course, protection of allowable award matters through the making of this award and, of course, a proposed date of operation of today's date. Your Honour, we are not seeking to have this matter determined today. As a result of the discussions we have had this morning, there is much common ground, we believe, between the ASU and Tenix Solutions and in relation to what the appropriate award ought be for the majority of Tenix Solutions employees and we say, your Honour, that as a result of those discussions, it may be that we can reach an agreed position.

PN11

What we would be seeking is some time, we would seek an adjournment and we seek that the adjournment be for the most convenient date to your Honour. The ASU is seeking to have one at least within the next week. I couldn't say how long that would go for. If the matter was to be determined, we would think that that wouldn't require too much time, but dates are important in the scheme of things because what we do have is, of course, the particular award, parent award before you is, of course, the subject of a declaration in Victoria, a common rule declaration as of 1 January 2005 and it is really this interim period that we are seeking to have a position settled with Tenix Solutions and I think we have tried to address all fundamental concerns, both parties have, from both the union's point of view and Tenix's point of view.

PN12

We have got a draft letter that we are seeking a response from Tenix. I won't table that as an exhibit. It is without prejudice that the ASU has drafted. We do believe it does cover most of the essential concerns for both parties and we are seeking a formal response from the head office of Tenix, of the Tenix Group, if you like, and we would seek that we have that response as soon as possible in the next week.

PN13

Now, I guess timing is more the issue. If we get that quick response in that time, then it is likely that we can settle this matter and there may not need to be - we may not need to pursue an actual roping-in because of the common ruling declaration for the particular award before you. Your Honour, I won't continue any further. I think that covers the issues that are before you. We would seek, subject to what Mr Hocking has to say, that a time be arranged on or off the record so this matter could be listed for further hearing before you within the next week. If your Honour pleases.

PN14

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Hocking.

PN15

MR HOCKING: Yes, your Honour, if I could make a few brief submissions on this matter. I concur with much of what Mr Nucifora has said. There were discussions held this morning and just prior to the hearing, as we were sitting at the bar table, a copy of the draft letter Mr Nucifora referred to has been handed to us for consideration and we are comfortable with the process that has been outlined, save a couple of matters which I will raise, but to step back from that, your Honour, the company is initially perplexed by this application that is being pursued at this time, given the fact that by virtue of division 5 of part VI of the Act and the decision made by the Full Bench with respect to the declaration of common rule awards in Victoria, the company is of the view and happily concedes on the record that we will be bound by the terms of the award in question from 1 January of next year.

PN16

We don't seek to contest that in any way shape or form and we have said as much to the ASU both orally and in writing by letter dated 21 October in which we asked why the union was seeking to create a roping in award in all of those circumstances. We saw that the application was unnecessary and in fact one could argue there is a 111(1)(g) application available to us because of those very circumstances, but I mention that, your Honour, because we generally - our general approach is to see this matter as a little unnecessary in all of those circumstances.

PN17

Nonetheless, as I said, we wrote to the union on 21 October pointing that out and asking why the application was being pursued at this time and I won't seek to put words into Mr Nucifora's mouth, but I don't believe a response that dealt with the substantive issues was received.

PN18

Nonetheless, we had a meeting this morning, talked about some of the matters in question. The draft letter which Mr Nucifora referred to has been put before us. We will have to seek instructions about that. The company in question is a subsidiary of a group of companies and there are certain processes that have to be gone through in order to get approvals for matters of this nature, so we will go down that path.

PN19

However, your Honour, I cannot give an absolute undertaking that we will necessarily give the responses that Mr Nucifora seeks within the next week, so the setting of a date within the next week may well be premature and we would prefer to leave the matter open until such time as we are in a better position to advise when we will be able to respond to the letter in sufficient detail to carry the matter forward. Your Honour, I don't think there is anything else I need put on the record at this point in time. If the Commission pleases.

PN20

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nucifora, I have a fairly full diary coming up on various rosters of the Commission. It is quite feasible if it is a short hearing, it can be fitted in and at fairly short notice late in the day or early in the day, before or after other proceedings and sometimes matters on a roster fall away in any case at short notice. That is the nature of these rosters we go on. Therefore, I would be inclined to adjourn it without setting a specified date, but allowing you to come forward and we will list it expeditiously.

PN21

MR NUCIFORA: Your Honour, we are not certain why it would take any longer than a week. We understand there is one person that we need to seek to hear back from on behalf of the group, the Tenix Group. It is likely that the issues that we raise, although I was reluctant to go to what was in the letter, Mr Hocking did go to the issue of what they were prepared to - prepared to give an undertaking in terms of that particular award, but in relation to other concerns that we have, there may be issues that arise on the job that we are concerned about.

PN22

My understanding and I have just heard now that there have been some concerns about in particular right of entry. Now, it may be that that gives cause to concerns that we have to notify the Commission of a dispute, indeed. We are not wanting to get into all that. Our understanding is that a prompt response here is as important as an agreement in principle. We don't think the hearing need go for long, but in having a particular date set for next week, for example, any time on the Wednesday or Thursday or at least a week of next Thursday, whether it be first up in the morning or later in the day, we don't think a lot of time is required for the hearing at that point.

PN23

THE SENIOR DEPUTY PRESIDENT: I thank the parties for their co-operation and adjourn this matter until 4.30 pm on 11 November 2004. The Commission is adjourned.

ADJOURNED UNTIL THURSDAY, 11 NOVEMBER 2004 [3.32pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 DRAFT ORDER PN9