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Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
ABN 76 082 664 220
Level 7, ANZ House 13 Grenfell St ADELAIDE SA 5000
Tel:(08)8211 9077 Fax:(08)8231 6194
TRANSCRIPT OF PROCEEDINGS
AUSTRALIAN INDUSTRIAL O/N 1350
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT HARRISON
C2003/407
TRANSPORT WORKERS (ROPING-IN NO 6)
AWARD 2000
Application under section 113 of the Act
by Adelaide Car Express Pty Limited to vary
the above award
SYDNEY
10.10 AM, FRIDAY, 30 JANUARY 2004
Continued from 28.11.03
THESE PROCEEDINGS WERE CONDUCTED BY
VIDEO CONFERENCE IN SYDNEY
PN62
MR J. HANKIN: I seek leave to appear as a solicitor on behalf of Adelaide Car Express.
PN63
MS J. TISDALE: I appear for the Transport Workers Union.
PN64
THE SENIOR DEPUTY PRESIDENT: Thank you. I can't recall whether leave was previously given to Mr Hankin but in any event is there any difficulty with leave being granted today?
PN65
MS TISDALE: No, your Honour.
PN66
THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Hankin. I thought that I would first identify the documents that have been received by me at a time convenient to each of you. You can make any application you wish in relation to the tender of those documents. You can then let me know if there appears to be anything missing. I have in front of me the applicant's outline of submissions dated 9 January 2004. I have previously received a number of affidavits filed last year. They are the affidavits of Mr Koutsouvelis, Ms Klose, I think that is Mr Labrinidis, and Ms Kellett.
PN67
I have an outline of submissions and an outline of facts received from the TWU on 23 January. I think both of those documents might be dated that same day as well. No, the outline of submissions is dated the previous day, 22 January. There are a number of annexures to the outline of facts - or attachments, some 17 I think. I have all of those documents. Mr Hankin, should I have received anything else from you?
PN68
MR HANKIN: You have lost nothing at all. You have got everything that I have filed, your Honour.
PN69
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale?
PN70
MS TISDALE: Yes, your Honour, it is all there.
PN71
THE SENIOR DEPUTY PRESIDENT: Thanks. All right. Well, at least the two of you have agreed on proceeding some way that is at odds with this. I would have thought that, Mr Hankin, you would go first, but there's probably a few housekeeping matters concerning what, if, anything is going to happen with witnesses - I would like to know about fairly early. There might be some arrangements we need to make. Ms Tisdale, I would assume you will call no witnesses?
PN72
MS TISDALE: That is correct, your Honour.
PN73
THE SENIOR DEPUTY PRESIDENT: Now, Mr Hankin, you have filed statements on behalf of a number of persons. Do you propose to call each of them?
PN74
MR HANKIN: I propose to call each of the witnesses, your Honour, get them to affirm the accuracy of the affidavits that have already been filed. I will then formally seek to have those affidavits marked as exhibits in the proceedings and I will then invite my friend to cross-examine the witnesses.
PN75
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale, do you want to cross-examine any of these deponents?
PN76
MS TISDALE: I do, your Honour. Some will be very short.
PN77
THE SENIOR DEPUTY PRESIDENT: Which ones?
PN78
MS TISDALE: Each of them, your Honour.
PN79
THE SENIOR DEPUTY PRESIDENT: I see. All right.
PN80
MS TISDALE: Some will be very short.
PN81
THE SENIOR DEPUTY PRESIDENT: The ones that will be longer, how much longer?
PN82
MS TISDALE: Not a considerable period. I wouldn't be more than half an hour.
PN83
THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well, we might then just tackle any issues because I, of course, don't at this stage know the matters that you wish to raise in cross-examination, but if there's any issues that arise then I will leave it until your cross-examination of them. Both parties have filed fairly comprehensive submissions. I have read the submissions. I have read all of the annexures to your facts, Ms Tisdale. I have reviewed the Commission file at first instance. There is only one other procedural matter. Mr Hankin, do you have in your possession any affidavit as to service in relation to your compliance with rule 22, namely the requirement when you seek to set aside an award you serve all of the parties to the award.
PN84
MR HANKIN: It hasn't occurred to me to serve all of the parties to this award, your Honour. I filed the application in the Commission and I have served a copy of it on the Transport Workers Union. You have got me there. I didn't realise that all other parties to this award needed to be served.
PN85
THE SENIOR DEPUTY PRESIDENT: Well, that is what the rule requires. What do you want me to do?
PN86
MR HANKIN: I seek leave for you to dispense with that rule, given that the other parties or named parties to the award are not directly involved in the award as such. I view these proceedings as being essentially inter-parties, although it is not quite inter-parties but essentially matters involving the Commission, the union itself and my client.
PN87
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale, do you want to say anything about that?
PN88
MS TISDALE: I wouldn't object to that, your Honour, although I would think that at least one of the other parties would have an interest in this. They are a direct competitor of the applicant but it does not involve them beyond that.
PN89
THE SENIOR DEPUTY PRESIDENT: Yes, all right. Leave to dispense with the requirements of rule 22 for service other than service on the TWU is granted. Mr Hankin?
PN90
MR HANKIN: Your Honour, I thought after I called each of the deponents of the affidavits that I would then formally place and request to be marked as part of these particular proceedings, the various documents which are referred to in the affidavits. I thought once I had done that, that would conclude my case and I could then throw it across to Ms Tisdale, so that perhaps she could present her case.
PN91
THE SENIOR DEPUTY PRESIDENT: Yes.
PN92
PN93
MR HANKIN: Ms Klose, prior to coming to Court today did you swear an affidavit of the evidence that you wish to present to the Court in these proceedings?---Yes.
PN94
Have you got a copy of that affidavit with you?---No, it's in the car.
PN95
Have you read your affidavit shortly before coming to Court today?---Yes.
PN96
Are the contents of your affidavit true and correct to the best of your knowledge and belief?---Yes.
PN97
I seek leave to tender the affidavit of Ms Klose as an exhibit in the proceedings.
PN98
THE SENIOR DEPUTY PRESIDENT: Yes. Ms Tisdale, any issues you want to raise about the affidavit as opposed to any cross-examination?
PN99
PN100
MR HANKIN: I've got no further questions.
PN101
**** TANYA FAYE KLOSE XXN MS TISDALE
PN102
MS TISDALE: Ms Klose, during the period that you were employed at Koutsouvelis and Co how much mail would you say was received on a daily basis?---It varied, but a reasonable amount.
PN103
Is that like half a dozen pieces of mail or 20 pieces of mail or 100 pieces of mail, as a rough - - -?---As a rough - somewhere between 10 to 30.
PN104
How much mail was received by Koutsouvelis and Co to your knowledge that was sent to them as the registered address for their clients?---Again it varied on the time of the year but, you know, there was always something every week that came for a client.
PN105
Something every week?---Yes.
PN106
How often was mail received care of Koutsouvelis and Co for Adelaide Car and Express?---On a regular basis there would have been probably something every week again. It's hard to judge.
PN107
Was it your responsibility as part of your job as receptionist to sign for any registered post that was received by Koutsouvelis and Co?---Yes.
PN108
Was that always done by you?---Unless I was - only the other relieving receptionist would be the other person.
PN109
How was the work organised between yourself and the relieving receptionist?---She did exactly what I did if I wasn't there, and that was just at lunch time.
PN110
Did she work primarily in another capacity?---Yes.
**** TANYA FAYE KLOSE XXN MS TISDALE
PN111
So there was a relieving receptionist that covered for you during lunch times and other times when you were absent from your desk?---Yes.
PN112
You say in your affidavit at clauses 7 to 17 that you had no memory of seeing certain documents that are listed in those clauses. You wouldn't necessarily have seen those documents if they had been delivered, would you?---No.
PN113
Because don't you say in your affidavit that mail that was addressed to Koutsouvelis and Co's clients care of the registered address was handed to Mr Koutsouvelis unopened?---Correct.
PN114
So when you say you have no memory of seeing certain documents, that does not have any particular importance in these proceedings.
PN115
MR HANKIN: I object to the question.
PN116
THE SENIOR DEPUTY PRESIDENT: No, I will allow the question, Ms Tisdale.
PN117
MS TISDALE: It wouldn't necessarily have been normal for you to have seen the documents, or not seen the documents? You would have seen the envelopes, or not see the envelopes?---Correct.
PN118
Is there any other responsibility that you had as part of your job that would have led you to ordinarily see the contents of those envelopes?---Only if I was looking through his mail tray and happened to read something, if I was searching for something else.
PN119
So in your affidavit you say that you don't remember receiving a series of envelopes from the Transport Workers' Union or from the Australian Industrial Relations Commission that were addressed to Adelaide Car Express, care of Koutsouvelis and Co, and that is between the period of August 1999 and April 2000. Is that correct?---Correct.
**** TANYA FAYE KLOSE XXN MS TISDALE
PN120
You can't actually say for sure, can you, that those envelopes weren't received, that they weren't delivered, can you?---I didn't sign for anything.
PN121
You didn't sign for anything, or you don't recall signing for anything?---I don't recall signing anything in that period of time.
PN122
Thank you. Nothing further.
PN123
MR HANKIN: I seek leave for the witness to be excused and I will call the next witness which is - - -
PN124
PN125
MR HANKIN: Mr Koutsouvelis, in preparation for this hearing today, did you swear an affidavit?---Yes.
PN126
Does that affidavit contain your evidence in this proceedings?---It does.
PN127
Have you read that affidavit just before the commencement of the hearing today?---Yes, I have.
PN128
Are the contents of that affidavit true and correct to the best of your knowledge and believe?---They are.
PN129
I seek leave to tender the affidavit of Mr Koutsouvelis.
PN130
PN131
THE SENIOR DEPUTY PRESIDENT: No further questions, Mr Hankin?
PN132
MR HANKIN: No further questions, your Honour.
PN133
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale?
PN134
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN135
MS TISDALE: You are an accountant and close business adviser for Adelaide Car Express. Is that correct?---That is correct.
PN136
How long has Adelaide Car Express been your client?---30 years.
PN137
Koutsouvelis and Co is the registered business address for Adelaide Car Express?---The registered office.
PN138
How many other businesses have their registered office care of Koutsouvelis and Co?---Quite a number of others.
PN139
Are we talking a dozen or 50 or 100?---Estimate, 50.
PN140
So how much mail do you receive each week addressed to your clients, care of Koutsouvelis and Co?---It is very difficult to put a number to it, but I do receive mail for my clients just about every day.
PN141
Would you receive mail for Adelaide Car Express every day, or every week, or every month? How often?---The receiving of mail is spasmodic, but I do receive mail for my clients.
PN142
Adelaide Car Express?---Yes.
PN143
Specifically, I'm asking how often would you receive mail on average for them?---I would bet it is three or four times a month. A lot of mail from the ATO. Yes.
PN144
So three or four times a month, a bit under once a week on average, that would be fair?---Maybe.
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN145
Yes, or no. Sorry?---Yes. This would be fair.
PN146
That is fair. That would be the case now, as well as the period between August 1999 and April 2000. Has there been a significant change in the volume of mail you receive for Adelaide Car Express?---No. No significant change.
PN147
Are you a sole practitioner, Mr Koutsouvelis?---Yes.
PN148
In your affidavit you refer to two other accounting practices who are co-located with you. Do any of the employees or principals of those practices do any work for Adelaide Car Express?---No.
PN149
No. If I could show the witness, your Honour - sorry, I'm not able to physically hand a copy to you, your Honour. It is a copy of the ASIC annual return for a company for Adelaide Car Express dated the year 2000. Mr Koutsouvelis, could you turn to the second page of that document?---Yes.
PN150
Can you just read on the second line there the lodging party or agent name?---Yes.
PN151
Could you read that for the Court?---P.C. Koutsouvelis and Co.
PN152
Is Mr Singh an employee of yours?---No.
PN153
What is the relationship of Mr Singh to Adelaide Car Express?---None.
PN154
Is Mr Singh the principal of one of the accounting practices that is co-located with you?---Mr Singh is the principal of his practice.
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN155
How did he come to lodge this company return on behalf of Adelaide Car Express?---He didn't. He didn't.
PN156
He didn't?---We did. I did.
PN157
Is that an error there on the ASIC records where it has his name?---That is just an ASIC record of the parties from which they receive documents, but Mr Singh does not act for Adelaide Car Express. I act - I always act for Adelaide Car Express.
PN158
So despite the fact Mr Singh's name is here, you say that he did not do work for Adelaide Car Express in the form of lodging this annual return for the company?---Never, never.
PN159
Thank you. So it is your evidence, Mr Koutsouvelis, is it, that you do not recall ever receiving any mail related to the roping-in of Adelaide Car Express to various Federal transport awards during the period August 1999 to April 2000? Is that correct? You don't recall receiving that mail?---No.
PN160
You say in your affidavit at clause - commencing from clause 22 that you do not recall ever having seen a document that is marked GK5 and GK6 and attached to your affidavit. Is that correct? You have never seen it before the solicitor showed it to you when you were preparing your affidavit?---Clause?
PN161
The document you are describing from clause 22?---Can you explain that to me again, please?
PN162
Can you see clause 22 of your affidavit?---Right.
PN163
You are talking about a document there. It says:
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN164
I have been shown a copy of a document dated 18 November 1999 headed: Finding of Dispute.
PN165
That document is attached to your affidavit at GK5 and GK6?---GK5?
PN166
Mm?---GK5, GK6. Yes.
PN167
So you say in your affidavit you have no memory of ever seeing those documents before?---No.
PN168
That is your evidence?---Yes.
PN169
Are you aware, Mr Koutsouvelis, that this document was not sent to Adelaide Car Express by the union, but was actually sent to Adelaide Car Express care of Koutsouvelis and Co by ordinary post by the Australian Industrial Relations Commission?---I don't really understand what you are saying.
PN170
That this document was actually sent to your client care of your registered address by Industrial Relations Commission and they sent it not by registered post, but by normal mail. Do you still say you have no memory of receiving it and have never seen it before?---I have never seen this before.
PN171
Just as you had no memory of ever seeing the four sets of documents that were sent by registered post to Adelaide Car Express care of your office by the Transport Workers' Union?
PN172
MR HANKIN: You have to answer. You can't not.
PN173
THE WITNESS: Sorry?
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN174
MR HANKIN: You have to answer. You can't not. You have to say: yes, or no.
PN175
THE WITNESS: I've never seen those documents.
PN176
MS TISDALE: You have never seen them or you don't remember seeing them?---I have no recollection of receiving any documents - any such documents at our - of the address.
PN177
Mr Koutsouvelis, is it part of your adviser role to Adelaide Car Express to give advice to the company in relation to matters to do with Industrial Relations, or the entitlements of the company's employees?---No. That is not part of my role. No.
PN178
So you don't give advice in relation to the employees and their entitlements?---No. I'm their - the external accountant.
PN179
And close business adviser. They were the words used by your client?---Yes. Yes, we are. Yes.
PN180
You say in your affidavit that you only became aware that Adelaide Car Express was made a respondent to Federal Transport Awards when you were informed that the company had been contacted by Workplace Services in relation to an alleged underpayment of wages. Is that correct?---That's correct.
PN181
Who informed you?
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN182
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale? Ms Tisdale, may I just ask you to pause for a moment. I should have indicated at the beginning of these proceedings that the microphones are particularly sensitive and they pick up, amongst other things, the rustling of paper and when paper is rustled a lot of times it will result in me not being able to clearly hear a question or answer. So those of you at the bar table when anyone is in the witness-box, would you bear in mind that when you are giving an answer, if you could attempt not to be turning any papers or that there be any rustling of papers. If I can't hear an answer clearly I will just ask for it to be repeated. Ms Tisdale?
PN183
MS TISDALE: Thank you, your Honour. Who informed you about the alleged underpayment of wages by Adelaide Car Express?---The company.
PN184
How did that happen? What did they say to you?---I was informed that they had received a document regarding that matter.
PN185
Are you acting for the company in relation to that underpayment of wages?---No.
PN186
Mr Koutsouvelis, does it sound credible to you that at least five items of correctly addressed mail - - -
PN187
MR HANKIN: I'm not sure if that is a proper question, your Honour, to ask him.
PN188
THE SENIOR DEPUTY PRESIDENT: Well, let us wait until we've heard it, Mr Hankin. Ms Tisdale?
PN189
MS TISDALE: Thank you, your Honour.
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN190
Does it sound credible to you that at least five items of correctly addressed mail sent to your office over a period of 9 months could somehow have gone astray?---I've renewed my - - -
PN191
THE SENIOR DEPUTY PRESIDENT: Don't answer that yet, Mr Koutsouvelis. Mr Hankin?
PN192
MR HANKIN: The use of the word "credible", your Honour, it is either Mr Koutsouvelis does have a memory of having seen the items in question or he doesn't and the use of an expression "credible" or "incredible", or whatever it might be is simply a valued phrase which, in my submission, it can't really assist.
PN193
THE SENIOR DEPUTY PRESIDENT: I allow the question. Mr Koutsouvelis, would you like it repeated, or do you remember it?---I would like that repeated.
PN194
Yes. Ms Tisdale?
PN195
MS TISDALE: Thank you, your Honour. Mr Koutsouvelis, does it sound credible to you that at least five pieces of correctly addressed mail sent to your office over a 9-month period could have gown astray?---it could be possible. Mail does go astray.
PN196
Would that be of concern to you, Mr Koutsouvelis, as the registered address for in excess of 50 companies, that mail addressed to your clients could somehow go astray? Is that something that you have made representations to the post office about? Called for an inquiry?---I haven't made any representations to the post office but mail does go astray.
PN197
So it does not concern you that your client's mail is somehow, in your submission, going astray?---Concern me? Well, it does concern me.
**** GEORGE KOUTSOUVELIS XXN MS TISDALE
PN198
So what have you done about that concern, Mr Koutsouvelis?---I have not approached the post office but I just accept the fact that sometimes it does go astray. It has happened before.
PN199
Thank you, Mr Koutsouvelis. There is nothing further.
PN200
THE SENIOR DEPUTY PRESIDENT: Any re-examination, Mr Hankin?
PN201
MR HANKIN: No re-examination. I seek the witness to be excused.
PN202
PN203
PN204
THE SENIOR DEPUTY PRESIDENT: Mr Hankin?
PN205
MR HANKIN: Ms Kellett, have you sworn an affidavit which sets out the evidence that you are presenting to the Commission in this matter?---Yes.
PN206
Have you read that affidavit just prior to the commencement of the hearing today?---Yes.
PN207
Are the contents of the affidavit true and correct to the best of your knowledge and belief?---Yes.
PN208
I seek leave for the affidavit of Ms Kellett to be admitted as an exhibit.
PN209
PN210
MR HANKIN: I have got no further questions for Ms Kellett.
PN211
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale?
PN212
**** CAROLYN IVY KELLETT XXN MS TISDALE
PN213
MS TISDALE: Just one question Ms Kellett. The evidence has shown that several items of mail were sent from the union and from the Australian Industrial Relations Commission to Adelaide Car Express care of the company's registered office at Koutsouvelis and Co. You are not able to give any direct evidence of whether that mail was received by Koutsouvelis and Co or not, are you?---No.
PN214
Nothing further.
PN215
MR HANKIN: No re-examination.
PN216
PN217
MR HANKIN: I now call Mr Dimitrios, known as Jim Labrinidis. Mr Labrinidis, his native tongue is Greek. His comprehension of English is fairly good but on occasions he may get stuck and on those occasions I seek leave for Mr Koutsouvelis to be able to assist him in understanding what the questions are.
PN218
THE SENIOR DEPUTY PRESIDENT: Well, we might just tackle that as the questions or the issue may arise because I will assume of course Mr Koutsouvelis would not be qualified to be sworn in as an interpreter.
PN219
MR HANKIN: He is not a qualified interpreter.
PN220
PN221
THE SENIOR DEPUTY PRESIDENT: Mr Hankin?
PN222
MR HANKIN: Mr Labrinidis, have you sworn an affidavit which sets out the evidence that you are presenting to the Commission in this matter?---Yes.
PN223
Have you read that affidavit just prior to the hearing this morning?---Yes. Of course.
PN224
Are the contents of that affidavit true and correct to the best of your knowledge and belief?---Yes.
PN225
I seek leave for the affidavit of Mr Labrinidis to be tendered as an exhibit.
PN226
PN227
MR HANKIN: I have got no further questions for Mr Labrinidis.
PN228
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale?
PN229
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN230
MS TISDALE: Mr Labrinidis, is it correct that you ran the business of Adelaide Car Express together with your brother George before he died in 2002?---Yes.
PN231
It was originally your brother's business. Is that right?---We started together but my brother has worked more than me because I have other business to run.
PN232
I think you say in your affidavit that your brother was running the business mostly and then you became involved actively in about 1997?---Yes.
PN233
Is that correct?---Yes.
PN234
How many drivers does Adelaide Car Express employ?---Today we have about 16 drivers for interstate and we have six locals here, two locals in Melbourne and one in Western Australia.
PN235
16 interstate drivers, six local based in Adelaide, two in Melbourne and one local based in Western Australia?---Yes. We have another three people work in Melbourne, a secretary and a couple people work there, just taking the cars and work in the office there. Then we have another five people in Adelaide work in the office.
PN236
Is that about the same number of employees back in April 1999, that period, or has the company grown since then?---We get few extra drivers like local drivers and a few interstate drivers because we build trailers as well here myself.
PN237
You build trailers as well?---Yes, and I could get some more drivers.
PN238
So the company has grown a little bit?---A little bit. Yes. A little bit.
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN239
Can you describe for the Commission what kind of work Adelaide Car Express does?---Well we carry cars Australia wide. We pick up the cars from here to Melbourne, Sydney, all the states, and the drivers just drive the trucks. Just load the trucks from - from the cars from the trucks and go interstate.
PN240
So a large proportion of the work is interstate? Mostly interstate?---Yes. We carry cars only. You know we never carry anything else.
PN241
When did you become aware that one or some of your employees had gone to Workplace Services about the rates of pay that they had been paid?---I found out when I go to Greece and I come back when my brother was very sick and after come back and I find out some of them has started doing, you know all this investigations. I didn't know nothing about it, you know. I find out after that.
PN242
Roughly when was that?---About 16 months. About 15-16 months ago.
PN243
Do you have any idea how much money is involved?---Not really. Not really. Exactly, I don't know.
PN244
Would it be $100,000?---Maybe, maybe. I don't know. Exactly I don't know because my secretary, I think, is working it, but I don't remember the figures.
PN245
So how do you work out how much to pay your drivers for an interstate trip?---Now we pay by kilometre. We check the awards and we follow the awards now, you know. After I start myself I pay exactly what the awards say, by kilometre and lot award and everything.
PN246
So that is recently?---Yes.
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN247
How about before that?---Before same thing we pay by kilometre, we pay holidays, we pay different way but the drivers still get good money anyway even before that, you know. And I think we pay less tax now we get a little extra money, pay more taxes get less pocket anyway.
PN248
Is it right you used to pay trip rate, so much for a trip between Melbourne and - - -?---No. always we pay by kilometre and then of course the kilometres all the same. I mean, if you to Melbourne up there, so always same kilometres.
PN249
Okay. So it doesn't matter?---If you go to Sydney, same thing. If you go to Brisbane. If you go to Perth kilometres same, is normal, is no difference. Of course if someone go to the country drops or different place you get different money. Pay extra for that. I always will follow the kilometres.
PN250
Did you have any kind of written agreement with your employees about how much the kilometre rate was?---No. No.
PN251
It was just something that was - - -?---We have the paperwork for the government and then everybody knows the rates, how much you have to get, like a ..... and train and all this.
PN252
Is that now or before?---Before sign the thing, before - and we finalise as well. All when we pay the rates complete with a kilometre. We never pay less than what they say for the kilometres.
PN253
You say in your affidavit, at clause 32, that you prefer to deal directly with your employees?---Well if the employee come, always ask me how much I pay and I explain how much I pay and all this, you know. I give him, you know, exact how much I pay and of course, the driver the first time have to check and get the right money ready. Of course not happy come to work for you because the money is not enough. So, you know. Everyone take how much he gets before he start.
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN254
So do you prefer dealing with your employees directly rather than dealing with them through a union?---Well, no one is through a union anyway because the bad drivers no want to join the union and I believe no one want to join the unions. If you ask the drivers: you want to join the union - - -
PN255
If you ask the drivers?---No, you ask them. No. Me. I got nothing to do with the union. You know? If the drivers supposed to join the union, fine for me, but I believe some of them doesn't want to join the union.
PN256
So have you ever negotiated with the union about how much the rate of pay should be for your drivers?---No. Nobody come to see me, no one in my office to tell me or to tell me you have to pay this, that and thing like that. No one come.
PN257
You say in your affidavit - you talk about - you say any suggestion that the union was seeking to engage your company in discussions would have caused me considerable concern because of the impact on the company not being able to deal directly with its employees. Is that how you feel?---Just you explain to me exactly that question. Can you explain to me?
PN258
Do you want me to try and explain to you - - -?---No, no. George Koutsouvelis explain to me because - - -
PN259
MR HANKIN: Perhaps if my friend could repeat the question and try and say it as clearly as she can?
PN260
THE WITNESS: I didn't understand that question very well. That's exactly you say - - -
PN261
THE SENIOR DEPUTY PRESIDENT: Mr Labrinidis, do you have with you, your affidavit?---Yes.
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN262
Have a look at paragraph 32?---I still don't have a clue - help - George.
PN263
Ms Tisdale, could you ask the question again?
PN264
MS TISDALE: I will try first to explain it simply. The affidavit says, and I'm paraphrasing, that you would have been concerned about getting letters from the union because you prefer to deal directly with your employees and the letters would have caused you concern because it may have made it less - may have lessened your ability to deal directly with your employees. Is that - do you understand that?---Well, as far as I remember, my employees never joined the union and some of them have problems with unions. I believe, for the drivers, if they want to deal with the union then they like to deal with me so that's the problem. You know? I can't force them to join the union or to do anything else. You know what I mean? So that's the reason.
PN265
So it is your belief that none of your current drivers are members of the union?---I know is no one in the union.
PN266
Is that something you can know for sure or is it just what you believe to be true?---No. I just talk to the drivers and all the drivers say no one wants to join with the union, you know.
PN267
Your affidavit says that your brother, George, had the same attitude as you. He preferred to deal with the employees directly, not deal with the union instead?---I don't know what my brother is doing exactly because I'm not there all the time so I don't know. I can't say that. I can't ask - I can't say anything for my brother because I don't know how he was to deal with the union or with the employees. You know?
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN268
You can't be sure, can you, that your brother didn't get the letters from the union? Maybe he just threw them in the bin?---I don't think so because I would have - specially meetings where we talk about the business and for the drivers and then all the stuff and plus my secretary keep all the papers there, right? Because sometime I just come and talk to my secretary because George is not there all the time. I check the books, check everything, you know? Because I want to know where I'm standing, myself, so I never see anything like that because even now, my secretary always gets - come and discuss with me because I don't write very well English, so he come to help me. So he read for me and we discuss the things. Even the other day we receiving another letter for I renew the employees' payments or put it through the computer. We pay the drivers exactly what they say. So always discuss with my secretary, like I said to you before, because I can't read very well.
PN269
But for example, if Mr Koutsouvelis gave the letters to your brother and your brother threw them in the bin, then your secretary wouldn't know?---I don't think so. I don't think so. My brother was very - he never had a problem with a governmental official in many years of business. Me and my brother, we never have any problems like that, you know?
PN270
Mr Koutsouvelis - from one explanation for these letters - you not being able to remember these letters, is that they got lost?---I don't know. I never see any letters like that. I never seen it, you know?
PN271
Would you be concerned if mail sent to your company, care of Mr Koutsouvelis, was getting lost and not coming to you?---I don't know. I can't say. I can't say. I don't know. I can't say I'm not receiving any papers - especially George is a very official person and he is always calling me if he find anything. We discuss together because he knows he have to help me so always call him and we discuss the matter. Whatever is there, you know? I don't think so, he throw away the papers. He have no reason to do that, you know? I mean, somebody belonging to the company have nothing to do with threw away the papers so it should be calling me and my brother to go in. Always, if we have any problems, we call in and discuss the matter, you know?
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN272
Have you spoken to Mr Koutsouvelis about being worried about letters from the union and from the Commission somehow getting lost?---After this paper we have, we discuss, we talk this and that and share. Never received any papers like that or never receive - nobody receive any papers so we're looking. We can't find any papers, nowhere, you know. No really receive any papers.
PN273
Did you suggest maybe he speak to the Post Office about the letters getting lost?---I don't know. I don't know. Never asked him.
PN274
Has, to the best of your knowledge, any other mail addressed to you care of Mr Koutsouvelis, gone missing?---No.
PN275
Tax papers - - -?---No. Nothing.
PN276
- - - gone missing?---No.
PN277
Only these letters?---Everything is in order anyway. We never have any problems with taxation or have any problem with WorkCover or never have any problem with any other things - official papers - never have any problem.
PN278
Just these letters?---Yes. Just those letters.
PN279
Thank you. Nothing further?---Thank you.
PN280
THE SENIOR DEPUTY PRESIDENT: Mr Hankin?
PN281
MR HANKIN: I seek leave for Mr Labrinidis to be excused.
**** DIMITRIOS LABRINIDIS XXN MS TISDALE
PN282
PN283
MR HANKIN: Yes, your Honour. That concludes the witness evidence. The remaining evidence that I wish to formally put before the Commission consists of copies of a number of documents which come directly from the Commission file. I thought that perhaps they should be formally marked and tendered rather than having to request the Commission refer back to the original file and paperwork. I've got copies.
PN284
THE SENIOR DEPUTY PRESIDENT: The only immediate problem arises because I am in Sydney and I won't be able to see and mark documents that you have there, but I suspect all or at least the bulk of them are annexed to Ms Tisdale's outline of facts document.
PN285
MR HANKIN: Yes. I think that is correct, your Honour.
PN286
THE SENIOR DEPUTY PRESIDENT: Yes. You let me know which documents you would have wished to tender and we will see whether there's a need for me to do other than just rely on the lot - Ms Tisdale's bundle.
PN287
MR HANKIN: I will treat them all pretty much in chronological order, your Honour. First I seek leave to have marked the notification of industrial dispute which is dated 2 September 1999.
PN288
THE SENIOR DEPUTY PRESIDENT: Yes. I prefer not to mark them if they are in Ms Tisdale's bundle and her bundle of documents will, in due course, be marked and I with therefore for them to remain in the order that they are attached. It will create some confusion if the marking is at odds with the order they are attached. So perhaps go through your whole list and I can - I don't want to return to this matter, but I note that at documents attachment 7 in Ms Tisdale's bundle.
PN289
MR HANKIN: Well perhaps if I work through Ms Tisdale's bundle I could indicate which ones we seek leave to tender and then that may make - I can indicate that by attachment number.
PN290
PN291
THE SENIOR DEPUTY PRESIDENT: I note that the outline of facts has, attached to it, some 17 attachments so now, Mr Hankin, all of those documents are now in as exhibits so perhaps if you want to go through and see if there's something in addition that you would want to tender.
PN292
MR HANKIN: Yes. If you will bear with me, your Honour.
PN293
THE SENIOR DEPUTY PRESIDENT: Of course. In fact, this might be a convenient time then to take a short break. Ms Tisdale, other than the documents that I've now marked, will you be seeking to tender anything else?
PN294
MS TISDALE: I would seek to hand up a decision of the Commission but not to tender any other documents.
PN295
THE SENIOR DEPUTY PRESIDENT: All right. Well, the two of you then, sort out how to proceed. You should both bear in mind that I have read closely the written submissions, so there is no need to repeat what is said, but you may hone in on any particular point you wish and in particular, if they need to be revisited in light of the witness evidence today. Yes. We will now adjourn for a short time.
SHORT ADJOURNMENT [11.07am]
RESUMED [11.25am]
PN296
THE SENIOR DEPUTY PRESIDENT: Mr Hankin?
PN297
MR HANKIN: Thank you for that break, your Honour. During the break my friend and I compared the documents that are annexures to TWU2 with the documents which I propose to formally put before the Commission as exhibits, that has narrowed down considerably the number of documents which may now need to be marked. So with your permission I propose to seek leave to tender the balance of the documents that aren't part of the annexures to TWU2.
PN298
THE SENIOR DEPUTY PRESIDENT: Yes.
PN299
MR HANKIN: The first document I wish to tender is a document from the Commission file dated 19 November 1999. It appears to be a document addressed to the Deputy Industrial Registrar New South Wales. Attached are 37 copies of a finding of a dispute dated 18.11.99 for distribution to the following parties.
PN300
THE SENIOR DEPUTY PRESIDENT: Yes, just pause a moment. Yes, I have that document here in front of me. It is just a one-page document?
PN301
PN302
MR HANKIN: Next, your Honour, is a photocopy of what appears to be an envelope addressed to, "All Staff Industrial Proprietary Limited," and it has got postmarking on it 19.11.99 and it is marked "return to sender," the sender being Australian Industrial Registry.
PN303
THE SENIOR DEPUTY PRESIDENT: That is on this file, is it?
PN304
MR HANKIN: That came out in the Commission file, yes, your Honour.
PN305
THE SENIOR DEPUTY PRESIDENT: Yes. Why has that one been tendered?
PN306
MR HANKIN: I will develop that during the course of the submissions, your Honour.
PN307
THE SENIOR DEPUTY PRESIDENT: All right. Do you want to say anything about that document, Ms Tisdale? Obviously - well, I shouldn't say obviously. I don't know if you have a copy of that or not.
PN308
MS TISDALE: I do have a copy and I've seen it on the file.
PN309
THE SENIOR DEPUTY PRESIDENT: I see. Now, you want both the envelope and its contents marked?
PN310
MR HANKIN: No, I've simply provided my friend with a copy of what I've got which is a photocopy of the front of the envelope. I think that suffices for current purposes. I'm assuming that the envelope contained a copy of the finding of a dispute.
PN311
PN312
MR HANKIN: Next, your Honour, I seek leave to tender a letter dated 21 February 2000 from Mr Allen, Federal Secretary of the Transport Workers Union, to yourself in which he says that as at the date of the letter draft orders have been forwarded to the various companies.
PN313
THE SENIOR DEPUTY PRESIDENT: What was the date of that again?
PN314
MR HANKIN: 21 February 2000.
PN315
PN316
PN317
PN318
MR HANKIN: Thank you, your Honour. That concludes the evidentiary case for Adelaide Car Express. I guess the formal process now is that it is my friend's opportunity to present any further evidence that she wishes and then we go into submissions. So I don't have anything further. My friend - - -
PN319
THE SENIOR DEPUTY PRESIDENT: Yes. I had understood there may be no further evidence but there might be a case that Ms Tisdale relies upon. I think the name of the case has been - I've been informed of it in the break so as to ensure I've got a copy of it here with me and I think I do have that. So I doubt whether I will mark it. It is one of the decisions of the Commission so I wouldn't mark that but am I right, Ms Tisdale, no other documentation you wish to tender?
PN320
MS TISDALE: There was, your Honour, only the document that was put to Mr Koutsouvelis, the ASIC extract, the annual return of the company for the year 2000.
PN321
THE SENIOR DEPUTY PRESIDENT: Yes. Did I mark - did you seek to tender that?
PN322
MS TISDALE: I didn't, no. Can I do that now, your Honour?
PN323
THE SENIOR DEPUTY PRESIDENT: Well, I don't know. Mr Hankin, do you have a view on that?
PN324
MR HANKIN: No objection. If my friend wishes to tender it she can.
PN325
PN326
THE SENIOR DEPUTY PRESIDENT: Well, I doubt that I will need that for the purposes of submission but when we adjourn would you maybe hand it to my associate in Adelaide to bring back here. Yes, Mr Hankin?
PN327
MR HANKIN: Thank you, your Honour. I act in accordance with your intimation that you have read the outline of submissions, so there's obviously no need for me to repeat in boring detail what is in the outline of submissions. At the bottom level my client's case is that the award should be varied to delete it from being named as a respondent to it, simply because it didn't receive any of the relevant correspondence either from the union or from the Commission. Now, in a sense it is difficult to prove a negative - how does one put it?
PN328
THE SENIOR DEPUTY PRESIDENT: That is why the rules relating to service and the presumptions of service exist in this place and every other tribunal or court of this nation, Mr Hankin.
PN329
MR HANKIN: Yes. So the affidavit evidence of the four witnesses who have given evidence on behalf of Adelaide Car Express attests to the fact that they have no positive memory of ever having received any of the documentation concerned. That evidence also attests positively to the fact that from the nature of the documents, once they've been shown them, they are positive that they would have remembered if the documentation actually had arrived either at the premises of Koutsouvelis and Co or alternatively at the premises of Adelaide Car Express, where it conducts its business.
PN330
That evidence in my submission is sufficient to satisfy the relevant rule which is rule 74(2) of the Commission rules which I quote at page 8 of the submissions:
PN331
If service of a document is effected by posting the document to the person to whom it is directed, service of the document must, unless the contrary is proved, be taken to have been effected at the time when the letter containing the document would in the ordinary course of post be delivered at the address to which it is posted.
PN332
Now, the evidence before the Commission establishes that certain documents were probably put into the mail. The evidence from the witnesses for Adelaide Car Express though establishes that irrespective of whether or not those items were put in the mail, they didn't arrive at the destinations to which they were addressed. In my submission the evidence of Mr Koutsouvelis, Ms Klose, Mr Labrinidis and Ms Kellett satisfies the requirement in the rules of unless the contrary is proved. Now, here - - -
PN333
THE SENIOR DEPUTY PRESIDENT: What then should I make of the - yes, go on.
PN334
MR HANKIN: Well, I was simply going to say, your Honour, that in the context of the rule the expression, "unless the contrary is proved," surely invites a standard of no more and no less than on the balance of probabilities and in this case there's been no attempt to impugn the honesty of the witnesses concerned. So I think you can accept that all of the witnesses have given evidence honestly. Your Honour inquired as to the relevance of one of the documents I tendered, which is ACE6. The relevance of ACE6 is that we know from the Commission file that at least one item of correspondence was sent to one of the recipients of the log of claims and returned.
PN335
We also know that the statement of service from Ms Payne which is now part of TWU2, states that the union forwarded - this is attachment 15 to TWU2. Ms Payne says in a statement dated 11 April 2000 that she posted a true copy of the notice fixing time and place for the hearing, which eventually took place in April to the companies listed in the attachment to her statement. Now, one of the companies listed in the attachment to her statement is All Staff Industrial Proprietary Limited at Fourth Level, 23 Albert Road, South Melbourne, Victoria 3205. We know from the Commission file that when the Commission attempted to forward a copy of the finding of dispute to All Staff Industrial Proprietary Limited that that copy of the finding of a dispute was returned to the Commission.
PN336
The attachment 15 tells us that Ms Payne on 10 April dispatched a copy of the notice of hearing to amongst others All Staff Industrial Proprietary Limited. We can infer that that notice of hearing which was despatched amongst others to All Staff Industrial Proprietary Limited was returned to the union in the same way that it was returned to the Commission and yet there's no reference to the return of either that item of correspondence nor indeed to any other items of correspondence in the statement from Ms Payne. So in that sense the documentary - - -
PN337
THE SENIOR DEPUTY PRESIDENT: You do not say though that the address that service was effected in relation to each and every one of the occasions that service was undertaken, was to anything other than the correct address?
PN338
MR HANKIN: No, we don't.
PN339
THE SENIOR DEPUTY PRESIDENT: Or that at least the Commission files have not reflected any difficulty with that service but indeed when there is some difficulty, and the history of this file reflects there's been very little, when there is we are alerted to that because of the return of a document. Why in fact shouldn't the inference I would draw from all of that be contrary to the one you ask me to infer?
PN340
MR HANKIN: Because there are four witnesses who have positively given evidence saying that they never received it. Now, the presumption that is established by the rules is simply that, it is a presumption, it is not evidence.
PN341
THE SENIOR DEPUTY PRESIDENT: No, I think it has to be more than that. I think in any event they can't recall receiving is probably as high as some of them their evidence could be. Mr Hankin, you well know in this place and other Courts, that is just not acceptable as being the level of evidence of persuasion that is necessary to establish the contrary presumption.
PN342
As I've said earlier there is very, very good reasons why Evidence Acts - although they don't apply here - Acts Interpretation Acts although in this case might not apply - the rules, the regulations all have within them presumptions as to service, as does the Common Law, and you know the reasons for all of that and I have to say that having read all of your submissions, I really do wonder whether I should - well, you tell me what else you want to put to establish to the contrary, but I really do wonder whether all of the submissions about failure to service, to comply, and my not adequately being satisfied as to service really are entirely lacking in merit.
PN343
MR HANKIN: With respect, your Honour, you have placed the law on its head in relation to the principles of receipt of correspondence.
PN344
THE SENIOR DEPUTY PRESIDENT: Well, tell me perhaps - could you give me reference to any decisions in this place, because Ms Tisdale has given you at least one where I might have mis-interpreted them.
PN345
MR HANKIN: The presumption of receipt of postal is simply that, it is a presumption. Now, if a person receives an item and sees and item - receives it in the mail and reads it - then that person is able to positively attest to the fact that that person has received it and read it. In establishing a non-receipt, the maximum that any person is honestly able to say is that the person has no memory of having received it because by definition if one has not received it, one can't say: I didn't receive it.
PN346
THE SENIOR DEPUTY PRESIDENT: In this case when there were five attempts, are you saying I should be satisfied in all of those five attempts of service, there being no other indication on the file at all that there was attempt to serve, but no other indication at all that any of the otherwise regularly attended to procedures day in, day out by this union is anything irregular or at odds with it? How do I put to one side all of those five occasions someone - that the document not being received?
PN347
MR HANKIN: Simply because the evidence given by Mr Koutsouvelis, the evidence given by Ms Klose, the evidence given by Mr Labrinidis, and the evidence given by Ms Kellett was not attacked in any way in relation to honesty. The evidence of Ms Klose is to the effect that correspondence addressed to Adelaide Car Express was not opened by her, but was placed unopened on the desk of Mr Koutsouvelis.
PN348
She also gave evidence that anything that was addressed as Registered Mail, that she would sign for. Now, we have got no evidence whatsoever from the TWU by way of copies of signed receipts, or originals of the receipts. Now, if correspondence which was sent by Registered Mail was indeed signed for, where are the signatures? Secondly, as I've said there was no evidence on the credibility of Mr Koutsouvelis. Now, it is not a matter of the Adelaide Car Express being required to prove beyond reasonable doubt or anything of that nature. It is a matter of, have the witnesses given evidence honestly and to the best of their memory?
PN349
Now, here, there was no suggestion as I've said to any of the witnesses that they've given evidence anything other than honestly. So in the absence of an attack on the credibility of the witnesses, in my submission, the Commission is obliged to accept that the witnesses are telling the truth and that the things that they have attested to in their affidavits are matters of truth. Now, the simple fact that none of the items of correspondence, if they were returned, simply found their way on to the Commission file, is neither here nor there.
PN350
We certainly know that an item of correspondence addressed to All Staff Industrial Pty Ltd, was almost certainly returned to the union and, yet, the union did not alert the Commission to that fact. The statements given by Ms Payne attest solely to the fact of postage, they don't attest to any other items whatsoever. They don't give any information about items returned, they say nothing about receipt of Registered Post sign off cards and yet, presumably, if they were received they would be there.
PN351
In my submission, the Commission is entitled and indeed obliged to draw an inference, given that some of the items of correspondence were sent by registered post by the TWU. The Commission is obliged to draw the inference that if the registered mail cards aren't produced by the TWU in these proceedings, it is because the items don't exist.
PN352
THE SENIOR DEPUTY PRESIDENT: Do you how long registered post cards are held by Australia Post, Mr Hankin?
PN353
MR HANKIN: No idea.
PN354
THE SENIOR DEPUTY PRESIDENT: Do you know if that system applied at all relevant times in 1999?
PN355
MR HANKIN: I've got no idea.
PN356
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. What else do you want to put about each of these matters that relate to the service issue, if I could categorise it that way?
PN357
MR HANKIN: Quite apart from the non-receipt of all of the various items of correspondence, in my submission, even if all of the various items of correspondence had been received, then the Commission is still in a position where it should grant this application, simply because the various statutory obligations imposed on the Commission in the various sections of the Workplace Relations Act, to which I have alluded in the outline, there is no evidence of any compliance with them at all. For instance, the direction to publish written reasons as to why - - -
PN358
MS TISDALE: Your Honour, I object to these statements.
PN359
THE SENIOR DEPUTY PRESIDENT: Is this one of those matters that you refer to in your outline as "jurisdictional issues", is it, Ms Tisdale?
PN360
MS TISDALE: Yes.
PN361
THE SENIOR DEPUTY PRESIDENT: Yes, I understand. Yes. Now, I have to say that obviously an allegation that I failed to comply, on a number of occasions you say with my requirements under the Act, is one taken particularly seriously by me. I have reviewed each of the actions I have taken, I will be very interested to hear you in relation to any authority at all that you rely upon to make out what you say is the proper interpretation of sections 99 to 105, any at all. I have not been able to find any.
PN362
I'm familiar with the practice in this place for all the years that I have appeared in here, for all the years that I've been a Deputy President, I'm familiar with the practice undertaken by many of my colleagues. I would be interested to know if you can point to the practice of any other person who you have appeared before and you are able to take me to some transcript, some documents, some reasons for decision issued by them, who has acted in a way other than the way I have acted on this occasion, Mr Hankin. Ms Tisdale, I won't rule on your objection yet. I just want to know if there is anything in these points other than novel argument that Mr Hankin may or may not succeed on, but he may as well run all the arguments. Mr Hankin?
PN363
MR HANKIN: With respect, your Honour, the practice of yourself or of any of your colleagues does not establish the interpretation of the relevant sections of the - - -
PN364
THE SENIOR DEPUTY PRESIDENT: I well know that. I well know that. It is just that sometimes it is of assistance in relation to that practice, which as I mentioned to you I would like to know that it is supported by any documentation or reasons for decisions, that might assist me in coming to grips with the interpretation placed on the Act. That is at odds with that I have always understood to be the manner in which this place has carried out its obligations daily under section 99 to 104 or 105.
PN365
I don't for one moment, elevate practice of myself or anyone else above the words of the section, but because the submission is one I have never heard before and your outline of submissions does not support it by reference to any reasons for decision at all, I thought I would try and quickly get to the question of just how long I really should allow you to develop these arguments over and above what you have put in your outline. Your outline is comprehensive. I have read it, I'm sure Ms Tisdale may have something to say about it, but what more would you wish to say in addition and, in particular, what other decisions or reasons for decision can you assist me with to better understand what you assert?
PN366
MR HANKIN: I don't take the Commission to any decisions other than the wording of the statute itself. The wording itself is in my submission fairly plain.
PN367
THE SENIOR DEPUTY PRESIDENT: Can you show me anywhere, where there is any obligation to issue reasons for decision?
PN368
MR HANKIN: Section 100.
PN369
THE SENIOR DEPUTY PRESIDENT: Yes.
PN370
MR HANKIN: Section 100, subsection (2).
PN371
THE SENIOR DEPUTY PRESIDENT: Yes.
PN372
MR HANKIN:
PN373
If the Presidential Member does not refer the alleged industrial dispute for conciliation, the Presidential Member must publish reasons for not doing so.
PN374
THE SENIOR DEPUTY PRESIDENT: Do you say that there wasn't a direction that the parties confer in relation to this matter and that subsequently there be no attempt to either ask for the Commission to assist? It is not open to the Commission to assume that conciliation is at an end, particularly in light of the fact that the employers have not at the earlier stage and at the stage of seeking of the award, sought to be heard, that the Commission cannot - and then those circumstances properly proceed to exercise any arbitration powers?
PN375
MR HANKIN: I simply revert to the wording of the section.
PN376
THE SENIOR DEPUTY PRESIDENT: Yes, all right. What is your next point?
PN377
MR HANKIN: Your Honour appears to perhaps have formed a view that I'm making a personal attack on yourself or the Commission as such.
PN378
THE SENIOR DEPUTY PRESIDENT: Well, of course it is - - -
PN379
MR HANKIN: If you form that view - - -
PN380
THE SENIOR DEPUTY PRESIDENT: It is personal only to this extent, you say that in relation to a number of procedural steps required under the Act - on your interpretation of the Act - I have failed to undertake them? I don't know if that is personal or not. It is personal insofar as you assert that it was my failure. It is not personal insofar as - it is personal to that extent, but I don't feel uncomfortable with the term "personal".
PN381
Any assertion that a Member has failed to comply with the Act is one taken very seriously and I cannot in your reasons for decision ascertain how - other than your interpretation of the section - how you say I have fallen into error and I have been trying to find out if there is anything more than what you have put in your outline of submissions to support what you assert.
PN382
MR HANKIN: I will rest on my outline.
PN383
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Anything further?
PN384
MR HANKIN: Nothing further.
PN385
THE SENIOR DEPUTY PRESIDENT: Yes, Ms Tisdale.
PN386
MS TISDALE: Thank you, your Honour. Your Honour, we would say that matters referred to in ACE9, that I would characterise of a jurisdictional - or matters to do with the Commission's jurisdiction are not properly relevant to the company's application here today, that that application be an application to vary the award. It is not an appeal, and it is not an application for a revocation of the award under which heads those arguments could properly be made, that option was open to the company and not taken up, so I would say that those arguments should not be entertained as proper or valid arguments in support of the company's application.
PN387
The only arguments that can be properly entertained in my submission are those to do with service and the alleged failure of service by the union. On that matter, we would seek to rely on the decision of the Full Bench in the $2 And Under and Others decision, which is Print S5116. If I could take the Commission to clauses 61 and 62 of that decision. At clause 61, it reads:
PN388
At Common Law proof that a letter has been posted and that it was pre-paid, properly addressed and not returned undelivered is evidence of its delivery in the ordinary course of the post.
PN389
Part way through clause 62, it sets out that:
PN390
This presumption is rebuttable by proper evidence to the contrary. Evidence which would show on the balance of probabilities that delivery did not occur.
PN391
In relation to this proceeding we would say that there are a number of circumstances which give rise to the presumption that delivery did occur and they include the stamped posting receipts which show that Registered Mail was sent to Adelaide Car Express and that that Registered Mail was sent to the correct address. The original of those posting receipts bearing the stamp of the Carlton South Post Office are on the Commission's files. The presumption is also supported by the contemporary statements of service of Melissa Payne and they are supported by the fact that no mail was returned undelivered to the TWU.
PN392
MR HANKIN: There is no evidence of that, your Honour.
PN393
MS TISDALE: Mr Hankin has made much of the return of an envelope addressed to All Staff Industry Pty Ltd. Mr Hankin is not required to be familiar with the processes of the union, but I'm happy to spell them out for him, in case he has any doubt. It is our experience when we are seeking to make companies a respondent to various awards of ours that mail is often returned - Registered Mail is often returned, refused by the employer. People seem to think if they send it back, or refuse to accept it that, somehow, they will be immune from the various consequences that may flow.
PN394
It is our procedure when mail is returned that that mail is - that the address is checked with contemporary ASIC records to see if the address is correct. If the address is not correct there's been a failure of service on our part and we will take attempts to rectify that and we will make mention of that in our statements of service or in our submissions to the Commission. There is no mention of any returned mail in the statements of service or the submissions of the officers of union to the Commission in this case because there was no failure based on a piece of registered mail being returned undelivered. Mail is returned refused or ignored sometimes, sometimes with rude comments.
PN395
We do not consider it our responsibility to continue to attempt to reserve those same pieces of correspondence. There is also no evidence that mail sent by the Industrial Relations Commission to Adelaide Car Express was returned. So we are talking about four pieces of mail sent by the Transport Workers Union each by registered post and one or two pieces of mail sent by the Commission. We say it is simply not of an appropriate standard in terms of evidence, given the large volumes of mail received at Mr Koutsouvelis's offices, given his large number of clients.
PN396
We say it is simply not reliable for 3 or 4 years after the fact for members of his staff or he himself to be saying that they can't recall this or that letter arriving on a particular day. We say that no matter how honestly the witnesses attempt to recall receiving such mail some 3 or 4 years after the fact, it is simply not credible to maintain that delivery failed in each of these five to six occasions. There is no evidence of failed delivery, there is no attempt to investigate or explain either at the time or subsequently what may have happened to this allegedly missing mail.
PN397
In relation to the processes of Australia Post for registered post, the union made inquiries after becoming aware of the company's application about whether signed receipts were in the custody of Australia Post and they informed us that those registers are not kept for longer than one year after the mail was delivered.
PN398
THE SENIOR DEPUTY PRESIDENT: Might I just interpose now, Ms Tisdale, to indicate that the fact of them holding those receipts for a limited period of time was what was behind my questions to Mr Hankin about that matter, your union being a party frequently involved in these matters, as well as other unions, have from time to time when issues arise been able to obtain those statements, but in the context of those proceedings it has come to my attention that there was only a limited window of time when they were available and that submission is contrary with my understanding and practice. Yes, continue.
PN399
MS TISDALE: Thank you, your Honour. Mr Hankin said that one can't prove a negative or at least it is very difficult to prove a negative. We would say that the evidence of the witnesses presented on behalf of the company may have more credibility, or more weight, if their evidence was supported by documentary evidence. For example, a register of all incoming correspondence that had no reference to the mail being received from the union and the Commission or a vigorous investigation of alternative explanations for what had happened to the missing mail. There's been no independent evidence that would back up the testimony given by the witnesses on behalf of the company.
PN400
So we would say that the evidence of the union should be preferred. That includes the documentary evidence which proves that the material was sent to the company and the contemporary statements of service of Melissa Payne that these should be preferred over the evidence of Mr Koutsouvelis who was the only relevant witness who was in a position to reasonably say that he would have seen or should have seen the correspondence if it came in front of him, or if it was delivered. None of the other witnesses were in a position to say that they would have seen the documents had they been delivered or not.
PN401
So we would say that the contemporary evidence, the evidence of the union should be preferred over Mr Koutsouvelis and that his evidence cannot carry the same weight as the union, if the Commission pleases.
PN402
THE SENIOR DEPUTY PRESIDENT: Yes. Now, Ms Tisdale, do you want to say anything about the submissions made in relation to the failure of the Commission to comply with the requirements of sections 101 to I think 104 or 5?
PN403
MS TISDALE: Your Honour, I would say firstly that I don't think they are matters that need to be entertained by the Commission in this proceeding, but if they are matters that your Honour wishes to hear from us in relation to, we would say that every opportunity was given to the company to attend the hearing and put their position to the Commission. They made no attempt to access the conciliation powers of the Commission. We wrote and invited them subsequent to your direction that we confer, invited them to discuss the remedy that we were seeking and they failed to avail themselves of that opportunity.
PN404
So we say that there was no reason why the Commission should not have considered that conciliation was at an end and properly went on to make the safety net orders which would ensure or should have ensured that the employees of this company were paid proper minimum wages in terms of conditions. There was certainly no failure to exercise jurisdiction or to act in accordance with the Act in our view, your Honour.
PN405
THE SENIOR DEPUTY PRESIDENT: Yes. What about the submission about the operative date given to the award?
PN406
MS TISDALE: Your Honour, we say that there's no issue of retrospectivity involved in that, that the decision to make the award was clearly made at the time of the hearing. That is clear from the transcript and the fact that the written version of the formal award took some time to be issued is neither here nor there and completely in accordance with the section and as it is practised by most members of the Commission in our experience, your Honour.
PN407
THE SENIOR DEPUTY PRESIDENT: Well, that might be the only issue that I need to hear you further on, Ms Tisdale. It seems to me on my reading of the Act, section 145, the date of the award is the day it is signed and then 146, unless there's exceptional circumstances the date of the award shall not be - sorry, the day specified for the purposes of it coming into force shall not be earlier than the date of the award. Now, in those circumstances I understand the argument that I should therefore have considered - sorry, I assume the argument I should have announced and published reasons why I considered I was satisfied there were exceptional circumstances when I signed it in November. What do you want to say about that?
PN408
MR HANKIN: If your Honour felt that there were exceptional circumstances in November when you signed the order then in my submission at that point the Commission should have made known that it felt there were exceptional circumstances. In the absence of the Commission having made known that there were exceptional circumstances, in my submission the presumption is that there wasn't and - - -
PN409
THE SENIOR DEPUTY PRESIDENT: Ms Tisdale, what do you want to say about that submission contained in - about that matter, that is, more fully developed in Mr Hankin's submissions, paragraphs 69 to 72?
PN410
MS TISDALE: Yes, your Honour. We would say that there's no requirement in the Act to publish specific reasons in relation to exceptional circumstances. If there a requirement for exceptional circumstances they are more than met by the circumstances set out in the transcript, the fact that the decision was made, many of the parties were present, all had been given an opportunity to be present to understand the obligations that may be placed upon them, all were warned that such an outcome could likely occur through the service of the information sheet as required under the Commission's rules, the fact that during the course of that hearing it was clear to all who took an interest in the matter that their obligations would commence from the pay period on or after the date of the hearing was made clear, and that there's no reason why the subsequent order can't refer to that date.
PN411
THE SENIOR DEPUTY PRESIDENT: Yes. I don't need to hear you on any of the matters raised in Mr Hankin's submission. Anything in reply, Mr Hankin?
PN412
MR HANKIN: Just that my friend alludes to - asserts that there is no evidence that any of the correspondence was returned to the union. That is not so. There is no evidence whatsoever that the evidence could have been put forward by the union regarding return of correspondence to the union. It has failed to do so.
PN413
THE SENIOR DEPUTY PRESIDENT: That is all?
PN414
MR HANKIN: That is all.
PN415
THE SENIOR DEPUTY PRESIDENT: Yes, all right. I intend to reserve my decision in this matter. The Commission now adjourns.
ADJOURNED INDEFINITELY [12.10pm]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
TANYA FAYE KLOSE, SWORN PN93
EXAMINATION-IN-CHIEF BY MR HANKIN PN93
EXHIBIT #ACE1 AFFIDAVIT OF TANYA FAYE KLOSE DATED 25/08/2003 PN100
CROSS-EXAMINATION BY MS TISDALE PN102
WITNESS WITHDREW PN125
GEORGE KOUTSOUVELIS, SWORN PN125
EXAMINATION-IN-CHIEF BY MR HANKIN PN125
EXHIBIT #ACE2 AFFIDAVIT OF GEORGE KOUTSOUVELIS DATED 25/08/2003 PN131
CROSS-EXAMINATION BY MS TISDALE PN135
WITNESS WITHDREW PN203
CAROLYN IVY KELLETT, SWORN PN204
EXAMINATION-IN-CHIEF BY MR HANKIN PN204
EXHIBIT #ACE3 AFFIDAVIT OF CAROLYN IVY KELLETT DATED 25/08/2003 PN210
CROSS-EXAMINATION BY MS TISDALE PN213
WITNESS WITHDREW PN217
DIMITRIOS LABRINIDIS, SWORN PN221
EXAMINATION-IN-CHIEF BY MR HANKIN PN221
EXHIBIT #ACE4 AFFIDAVIT OF DIMITRIOS LABRINIDIS DATED 25/08/2003 PN227
CROSS-EXAMINATION BY MS TISDALE PN230
WITNESS WITHDREW PN283
EXHIBIT #TW1 OUTLINE OF SUBMISSIONS PN291
EXHIBIT #TW2 OUTLINE OF FACTS PN291
EXHIBIT #ACE5 DOCUMENT ADDRESSED TO DEPUTY INDUSTRIAL REGISTRAR NEW SOUTH WALES AND ATTACHMENTS PN302
EXHIBIT #ACE6 ENVELOPE ADDRESSED TO ALL STAFF INDUSTRIAL PROPRIETARY LIMITED AND CONTENTS PN312
EXHIBIT #ACE7 LETTER DATED 21/02/2000 FROM TRANSPORT WORKERS UNION PN316
EXHIBIT #ACE8 NOTICE OF LISTING DATED 16/03/2000 PN317
EXHIBIT #ACE9 OUTLINE OF SUBMISSIONS PN318
EXHIBIT #TW3 ASIC EXTRACT, ANNUAL RETURN OF COMPANY FOR YEAR 2000 PN326
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