C2004/232, Transcript of Proceedings [2004] AIRCTrans 4949 (17 December 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 15532

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LARKIN

C2004/232

MEDIA, ENTERTAINMENT AND ARTS ALLIANCE

and

McCANN ERIKSON NY

Notification pursuant to section 99 of the Act
of an industrial dispute re alleged non payment
of release fee for offshore television commercial

SYDNEY

11.40 AM, TUESDAY, 7 DECEMBER 2004

Continued from 8.11.04

PN57

THE COMMISSIONER: Could I take appearances, please?

PN58

MR S. WHIPP: Thank you, Commissioner, I appear for the Media, entertainment and Arts Alliance, and with me is MS C. MONTGOMERY.

PN59

THE COMMISSIONER: Thank you Mr Whipp.

PN60

MR G. BARTELS: I appear for Encore Accounting Services who is a third party that is being served with notices.

PN61

THE COMMISSIONER: Thank you, Mr Bartels. Mr Whipp, what is actually happening with this matter?

PN62

MR WHIPP: Thank you Commissioner. We are indebted to the Commission for its assistance in terms of raising the issue of the identity of the employer in this instance which the Commission did raise at the last time the matter was before the Commission and some investigation has been undertaken by the Alliance in terms of notifying all of the potential parties who might arguably be construed as employers of our member, Mr Nottle, in this instance, and they included McCann Erikson New York, Encore Accounting Services who are represented here before you today, Window Production and RSA USA Incorporated and the Commission has involved all or notified all of them of today's proceedings.

PN63

THE COMMISSIONER: At the request of the Commissioner.

PN64

MR WHIPP: At our request. Since that time, Mr Bartels has contacted us and he indicated that his client was providing - I should go back one step. The payroll information was provided to our member, Mr Nottle, was that the name of his employer was Encore Accounting Services Proprietary Limited and that, at first instance, is an indication that Encore Accounting Services is therefore the employer and obliged to comply with the obligations under any contracting to which Mr Nottle enters. The information that we have however from Mr Bartels on behalf of Encore Accounting Services is that they were providing a payroll service for McCann, Erikson New York.

PN65

He has confirmed that both in an email to me yesterday and also by providing a letter of understanding between McCann of New York and his client, and therefore we are satisfied that Encore Accounting Services is indeed not the employer and was never the employer of Mr Nottle, but rather standing in the shoes of the employer which was McCann Erikson New York. In addition to that I can indicate to the Commission that we have been contacted separately by a Mr William Crosby on behalf of McCann Erikson New York is an attorney on behalf McCann Erikson New York and has indicated that he is now representing McCann Erikson New York.

PN66

He is an attorney in New York and discussions with regard to settling this matter have commenced between the union and Mr Crosby and he has indicated that an offer will be made prior to the end of this week, so that is where the matter is at. Obviously - we have indicated to him that if settlement is not possible that we will be continuing to press this matter to its conclusion and asking the Commission to arbitrate on the matters as set out in the contract, but at this point in time, things look as though they may be progressing fruitfully to an agreed settlement and it is clear, at least at this point in time, that McCann Erikson is not disputing now that they were and are the employer, that they are the employer of Mr Nottle for the purpose of this contract. Thank you, Commissioner.

PN67

THE COMMISSIONER: Thank you, Mr Whipp. Mr Bartels, is there anything you wish to add?

PN68

MR BARTELS: Commissioner, I just for the purpose of the record, hand up for your information, a copy of that of which my friend has been talking about. The only other matter which we would like to address, Commissioner, is the question of costs in this matter. We would put it to you - and I haven't raised this with my friend I must say - we would put it to you that a simple phone call would have adduced from our client their position as a payroll agent only. There's none of the indicium - notwithstanding what my friend said - there's none of the indicium of appointment in relation to this matter. There was no control. There's no tendering for employment interviews. There's nothing that would have indicated that Encore Accounting Services, which clearly calls itself an accounting service, was an employer of talent in this particular industry.

PN69

In those circumstances we would say that it is proper for the Tribunal to exercise its discretion and make an order of the costs of this appearance which was made necessary by receiving - the first notification at all that our client had that they were involved in this was a notification listing the matter with their name appearing on it.

PN70

THE COMMISSIONER: Two things you raised, Mr Bartels. The first issue was it would have been prudent to pick up the phone, I don't dispute that and I whole-heartedly agree with you. I've had this matter now since - I think, the first time was 19 August, so I would definitely agree a phone call might have saved, not only yourself, but a number of us in considering the issue. The second point is that I doubt that I have jurisdiction to award costs, Mr Bartels, under the Work Place Relations Act, the only jurisdiction that I have in relation to costs is to deal with termination files that are lodged.

PN71

Now, if you can - of course there is a capacity for the Court under section 347, but unless you can find me some decent authority to follow, I'm afraid that at this point I couldn't entertain your application, but if you do come across something that you think is relevant and you would like to make that application again, by all means make it to the Commission, copy it to me and we will see where we go.

PN72

MR BARTELS: If it please the Commission.

PN73

THE COMMISSIONER: The letter that you have just handed to me is a letter from Encore Accounting Services Proprietary Limited to Miss Pat Zodoc of McCann Advertising and it is dated 31 May 2000 and I shall mark that document B1 in proceedings.

EXHIBIT #B1 LETTER FROM ENCORE ACCOUNTING SERVICES PROPRIETARY LIMITED TO MISS PAT ZODOC DATED 31/05/2000

PN74

THE COMMISSIONER: Mr Whipp, is there anything at all?

PN75

MR WHIPP: Yes, Commissioner, I should indicate that given the issue of costs was raised, I should indicate that after the telephone conversation with Mr Bartels yesterday, I indicated to him that we were prepared to inform the Commission of the situation as I have done this morning and offered him the opportunity not to attend today's proceedings so any costs which have been incurred as a result of his attendance today have been in our view, unnecessary and not required, given that we indicated we were prepared to inform the Commissioner of the situation and the position of his client. Thank you, Commissioner.

PN76

MR BARTELS: That is true.

PN77

THE COMMISSIONER: Yes, thank you for that, Mr Bartels. The file will be stood over generally, Mr Whipp, for me to advise no later than 30 December, the status of the file.

PN78

MR BARTELS: Thank you, Commissioner.

PN79

THE COMMISSIONER: Thank you. Commission is adjourned.

ADJOURNED ACCORDINGLY [11.49pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #B1 LETTER FROM ENCORE ACCOUNTING SERVICES PROPRIETARY LIMITED TO MISS PAT ZODOC DATED 31/05/2000 PN74