C2004/1707, Transcript of Proceedings [2004] AIRCTrans 648 (19 February 2004)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL O/N 9185

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2004/1707
C2004/1708

PASTORAL INDUSTRY AWARD 1998

Application under section 113 of the Act
by Margaret Pocock to vary the above
award re application for postponement of the
2003 safety net review

Application under section 113 of the Act
by Romani Partnership to vary the above
award re application for postponement of the
2003 safety net review

SYDNEY

9.00 AM, MONDAY, 9 FEBRUARY 2004

THESE PROCEEDINGS WERE CONDUCTED BY
VIDEO CONFERENCE IN SYDNEY

PN1

MS M. LAMBERT: I appear for the Australian Workers' Union. With me is MR S. BEECHEY.

PN2

MS D. HARRIS: I appear on behalf of the National Farmers Federation appearing for the two applicants.

PN3

THE VICE PRESIDENT: This matter has been listed for hearing as a result of an objection taken by the AWU to the granting of the two applications for relief. I am advised that Ms Harris has a procedural matter that she wishes to raise at the outset before we turn to deal with the substance of the objection. Ms Harris?

PN4

MS HARRIS: Thank you, your Honour. On late Friday afternoon, we received written instructions from Mrs Pocock to withdraw the application, which did concern us, and we tried to contact her both on Friday afternoon and over the weekend and this morning and haven't been able to do so. We were further advised late on Friday night by Mr Brown, representing Romani Partnership of a visit by the AWU to his property that had been - also, he had received a letter from the AWU earlier that week seeking an inspection of his records in accordance with section 285B of the Act, and I have a copy of that correspondence for your Honour.

PN5

That letter outlines a notice of entry for inspection of employee records and other documents. There is no reference in respect to these matters. We, however, contend that there is a potential breach of section 285B of the Act because as far as we are concerned at this stage in proceedings, that there were no union employees on site and hence, there was no capacity of the employee representative to attend on the premises of Mr Brown.

PN6

THE VICE PRESIDENT: Just spare me for a moment.

PN7

MS HARRIS: Your Honour, we have therefore assumed that a similar process occurred with Mrs Pocock and which may have been as a result of her withdrawal but we cannot confirm that either way until we speak to her. NFF submits that these actions of the AWU were in breach of your decision of PR940769, which outlined the process of filing such applications and the objection and hearing procedure that was outlined in respect to how these matters are dealt with once an application has been filed.

PN8

We are also of the belief, based on evidence to date, that the utilisation of section 285B by the AWU has been breached and we will be ascertaining evidence from both applicants, and if there isn't evidence of a breach, that the conditions of entry pursuant to that section of the Act we will be seeking the permit of the two officers in question to be revoked in accordance with section 285A(3) of the Act.

PN9

THE VICE PRESIDENT: Well, just before we get a little too far ahead of ourselves. In relation to the 285B matter, the simplest way of dealing with that is to notify a dispute and dispute right of entry and I will make a determination of whether or not there is a right to enter. At the moment, it might be a little premature to talk of whipping away permits as they have not actually physically sought to enter the premises or done any conduct as far as other than sending this letter making the assertion.

PN10

MS HARRIS: No, they actually have.

PN11

THE VICE PRESIDENT: They have sought entry?

PN12

MS HARRIS: They have entered. They sought entry and entered.

PN13

THE VICE PRESIDENT: They have entered?

PN14

MS HARRIS: And they had a substantial interview with Mr Brown last week and as a result, he was quite considerably concerned and has raised it with us and was of the position on Friday afternoon that he also wanted to withdraw his application as a result of that entry. We have persuaded him to maintain the application at this stage but we are under the assumption that the same has occurred to Mrs Pocock. I just wanted to flag our considerable concern as to the actions of the union by entering the premises and as a result, we wanted to flag our intention to get the evidence and therefore flag the opportunity that we may seek that revocation.

PN15

THE VICE PRESIDENT: No, that is fine. In fact, you don't need to proceed that matter any further. If the facts are as you have put then I share your concern but I think the best way of dealing with that issue and the allegation is to notify the dispute. It will be listed separately and if you wish to pursue revocation of the relevant permits then make that application also and they would be listed together and the matter can be determined. That way it can be dealt with by the calling of evidence, etcetera. Otherwise, the only reason I'm wanting to short circuit it, Ms Harris at this stage, is, whilst I am not doubting our intent, you are making bar table statements about issues that will go potentially to affect the rights of permit holders.

PN16

No doubt, I would hear from Ms Lambert making similarly bar table statements denying the assertions. I am not going to be much better informed at the end of that process. I think the best way of dealing with that issue is to pursue it through a 99 and call evidence in relation to it and then we will all be clearer as to what took place.

PN17

MS HARRIS: Thank you, your Honour.

PN18

THE VICE PRESIDENT: Do I understand at this stage - or perhaps in relation to Ms Pocock, we will hear briefly the objection from Ms Lambert. Given that you have had a difficulty in contacting her, etcetera, my inclination would be to keep the application on foot.

PN19

MS HARRIS: That is what we were intending to seek, your Honour, simply that the matter of Ms Pocock is actually just adjourned this morning to enable us to seek further instructions and be advised as to whether or not a similar situation arose to her as it had to Mr Brown in terms of union attendance at her property. But also, your Honour, I thank you for your instruction - your advice in respect to the dispute. One thing that we are conscious of as a consequence of these actions, also is the issue of confidentiality of records and while we didn't want to seek a specific order from your Honour in respect to confidentiality as we have previously had the undertaking of the AWU, we would like to specifically under section, I think it is 355, have a provision and an order from your Honour, this morning outlining that all financial records of both applicants are treated on a confidential basis. Thank you, your Honour.

PN20

THE VICE PRESIDENT: All right. Ms Lambert, there is no need for you to respond to the right of entry issue, that will be dealt with separately. Can you state your objection to each application and then deal with the application made by Ms Harris for the relevant financial records to be subject to a confidentiality order under section 355?

PN21

MS LAMBERT: Certainly, your Honour. At the outset, I would like to say that I would be extremely loath to agree to the matter of Pocock being adjourned. I would like that matter dealt with this morning, your Honour. Can you give us some guidance as to whether or not that application is going to be dealt with this morning?

PN22

THE VICE PRESIDENT: Well, you can put - - -

PN23

MS LAMBERT: Because we have prepared substantial submissions in relation to Pocock.

PN24

THE VICE PRESIDENT: Ms Lambert, I will hear your objection. There is no prejudice to the AWU if you put your objection in if the matter is then adjourned and not determined. The relevant business is still subject to the award and obliged to pay the award rate. I can't see any prejudice at all to either the AWU or the employees concerned if the matter is adjourned after you have had the opportunity to put your objection.

PN25

MS LAMBERT: Thank you, your Honour. Your Honour, thank you for listing this matter. I take it that you are advising me not at this stage to answer the matters raised by Ms Harris from the NFF. We certainly would, without going into it, deny the accusations made against the AWU. However, when I go through my submissions you may actually understand the true nature of what has happened.

PN26

In the decision that you handed down in Melbourne on 19 November 2003, your Honour, you laid down clearly the prerequisites for any application sought for incapacity to pay. We have a number of objections to the two applications before us today. The first one being that these applications do not meet the prerequisites laid down by yourself, and the second one being that these two applications are in fact without merit. In paragraph 105 of your decision, your Honour, on 19 November 2003 you said:

PN27

It also needs to be borne in mind that in order to file an application under this process the employer must be in an EC declared area and -

PN28

and "and" was, I believe, in italics, or highlighted -

PN29

be in receipt of ECRP benefits.

PN30

We put forward that both those employers have not complied with paragraph 105.

PN31

THE VICE PRESIDENT: Is that the substance of it, that they are not in receipt of ECRP benefits, or - - -

PN32

MS LAMBERT: Exactly, sir. I'm going to give you a very brief outline and then, if I may, I would in detail go through each of the objections that I have. Is that an appropriate manner to go?

PN33

THE VICE PRESIDENT: Certainly, okay.

PN34

MS LAMBERT: In relation to paragraph 96 of the same decision, your Honour, you talked about a copy - it was the fourth dot point of paragraph 96, has what information should be required. You said:

PN35

A copy of the employer's application for ECRP, including the applicant's financial statements for the last 3 years.

PN36

In fact, your Honour, the two applications are in breach of that.

PN37

THE VICE PRESIDENT: Ms Lambert, I understand what I said in my decision, perhaps if you can particularise where you say each application is not met the requirements laid down in the decision of November 19.

PN38

MS LAMBERT: First, number one, your Honour, we would say that there is no proof that either applicant is currently in receipt of ECRP.

PN39

THE VICE PRESIDENT: Okay.

PN40

MS LAMBERT: They each have only one employee which is casual or part time in both instances and they can easily cover the amount saved by wage reduction in each case by, for example, selling one beast or a number of other easier alternatives which I will go to. The sad thing is all of these applicants are elderly and none were aware of the true nature of their applications. There is no evidence of any steps or actions taken to mitigate the apparent financial difficulties caused by the slight rise in wages from the 2003 National Wage Case decision as per attachment 1, information sheet, on page 25 of your November decision, which was prepared by the Australian Industrial Relations Registry on 30 May 2003. The last dot point under the heading: What Evidence May Be Required, says:

PN41

Information about action taken to reduce the effect of any economic adversity and...

PN42

Etcetera. It then goes on to talk about negotiating an EBA, which we don't think should - we understand it not appropriate in this case. Very briefly, in relation to Pocock, Ms Pocock has other income as evidenced by the amount of interest earned from her bank account each year, for example, the last statement says she received $950. She has actually received slightly in excess of $1000 over recent years from private bank accounts, which indicate savings of approximately $30,000 or more, depending on the rate of interest. Therefore, she has the means to find the $85 that she would save by wage reduction from her own bank account.

PN43

She has indicated to the union that she does not want to reduce the wage she is paying to her employee. She claims that she has notified the New South Wales NFF she wishes to withdraw. In relation to the Romani partnership, the situation is complicated by the existence of Romani Constructions Limited and raises questions such as: who is the employer and who owns the cattle? The application is made in the name of Romani Partnership. There are no financial details currently available for the years 2002, 2003, financial year, I mean.

PN44

Mr Brown claims he is paying in excess of the specified wage, for example, he is paying the excess of travel allowance on top of his employee's wages, which she is not entitled to. The Browns also claim they thought they were claiming a wage subsidy from the government and had no idea that that is what was involved. The application, as I said before, is in the name of Romani Partnership, with compilation reports for 30 June 2000, 30 June 2001 and 30 June 2002. There are no current financial documentations. The application form at point two states:

PN45

The nature of business is beef cattle and cashmere goats.

Romani Partnership owns the following stock, as per the last compilation report for 30 June 2002, four horses, 1192 goats and 12 alpacas.

PN46

It owns no beef cattle. However, Romani Constructions Proprietary Limited which is not an applicant here, for the same period on the last compilation report for 30 June 2002 dated 3 December 2002 have 503 head of cattle, but employed no one and therefore cannot claim incapacity to pay. Interestingly, this company made a gross profit from cattle trading of over $90,000. Related expenses for care of cattle are paid for by Romani Constructions Proprietary Limited. Frank Brown told the AWU that he shares the goats and alpacas himself while his wife does the classing. The employee does not.

PN47

It would not be unreasonable to assume then that the employee spends a large portion of his duties caring for the cattle which have nothing to do with the applicant, Romani Partnership, and it could then be presumed that any shortfall caused by the 2003 National Wage Case safety net adjustment could be made up by the Browns using some money from their company, Romani Constructions Proprietary Limited, which they own.

PN48

In relation to wages and the wage reduction figures, your Honour, I've done some calculations and I base these calculations on the current rates of pay for station hands as from the beginning of the first pay period to commence on or after 31 October 2003 and also on the previous wages. If we do a wage analysis for Margaret Heather Pocock her employee works 1 day per week. Her wage relief or reduction comes out to $3.40 per week. For the period from 9 February, if you were to grant this application today, to 1 August 2004, the savings on wages are $85, that is, the total saving for Ms Pocock is $85.

PN49

If one were to look at the wages that Ms Pocock is paying - and I've done extensive calculations on the individual tax returns she has put in. Her total salary and wages prior to the safety net adjustment on 31 October 2003, for the financial year 2003, is $8670 as per page 6 of 10 for the 2003 individual tax return. Now, the weekly pay of an employee, if she is paying this employee at award rates, is $93.30 if part time, or a maximum of $117.97 if casual, because you have got to remember that we have the casual loading case there and what I've calculated the $117.97 on is the 122.5 per cent increase which is probably a bit generous over the whole period.

PN50

If you multiply that out the wages bill should be in the vicinity of a part timer of around $5000, or for a casual of around $6000, even allowing for the super of 9 per cent and other incidentals without further information it would appear that Ms Pocock is paying well above award wages. Now, it is assumed this employee would need to be paid at grade 3, which is the highest level, as the employee would have to be working unsupervised for most of the time, given the size of the property and that he is on his own.

PN51

If the employee is paid less, then he is on a lower grade, then the likelihood of over-award payment increases substantially. This is an abuse of process by the NFF, this is a waste of the Commission's time and this is not a legitimate use of the decision that you made on 19 November 2003, your Honour. In relation to the Romani Partnership, there is one employee who does not work permanent full time. We do not have the recent or last financial year statements to check the wages paid. In fact, these are not currently available. Mr Brown does not have these, apparently.

PN52

THE VICE PRESIDENT: I don't think, from a tax sense, you are obliged to file them until, from memory, some time in March.

PN53

MS LAMBERT: Well, this makes our application very difficult because I am going on to say the figures we are dealing with are 19 months out of date, 19 months, your Honour.

PN54

THE VICE PRESIDENT: Yes.

PN55

MS LAMBERT: Ms Pocock's figures are a lot closer to the fact. In fact, I believe Mr Brown told the AWU that he didn't have them ready and his accountant was going to be working on them shortly. He was urged to get the figures ready as soon as possible but we will take the figures from 19 months ago, your Honour. The latest salaries and wages figures are in the compilation record dated 27 February 2003, page 6, $11,079.72 for the period ending 30 June 2002. However, there was a book inspection undertaken by the AWU and it appears that the employee working there works fluctuating numbers of days each week, over the last 12 months, from 1-1/2 to 5 days.

PN56

I have calculated out what Mr Brown would get on the basis of 1-1/2 to a full 5 days. His wage relief, $17 per week, if the employee works 5 days. His wage relief is much less if the employee works 1-1/2 days. Taking the period from 9 February to 1 August, for a full 5-day maximum reduction in wages, the Browns will get $425 reduction. The minimum reduction for 1-1/2 days is just over $85, your Honour - I apologise, I don't trust my figures, 24 weeks by $4.50, I will just recalculate that.

PN57

THE VICE PRESIDENT: Have you calculated whether the employee concerned is in receipt of award wages or is he receiving some other award component?

PN58

MS LAMBERT: Your Honour, because of the difficulty with the figures they have provided - I do have problems with the employment data provided - it is difficult to do so but I am actually, your Honour, going to come to the view that the employer, in fact, paid in excess of the rate. The minimum reduction of wages for Mr Brown or Mr and Mrs Brown, is in the vicinity of $112.50. So we know the total saving for the Romani property, because we are not sure what's actually applying at this stage, is between - somewhere between $120 and a figure less than $425.

PN59

Again this is not a legitimate use of the Commission's time. It is an abuse of process by the NFF. Both these employers can recoup their small amounts of money elsewhere rather than through cutting wages. As has been already said, Ms Pocock has interest of, minimum, $950 from a private bank account of approximately value of $30,000 or more. I am sure she can easily withdraw $85 to cover the $85 she is setting.

PN60

Mr and Mrs Brown solely own Romani Constructions Proprietary Limited and made that statement to the AWU. This is another company, which is not part of the application. Given the figures - you look at Romani Construction, as per page 3 of the compilation report, dated 27 February 2003, there was a current liability of $22,124.05 to this company. That is the farm owed in excess of $22,000 to these people in the construction company.

PN61

Playing around with this debt, which they owe themselves, would provide a small amount of money gained through cutting wages. The Browns could recoup this amount through selling just one alpaca at $400, as per page 9 of the compilation report dated 27 February 2003. Now, if you look at the Romani Partnership you can see for the year ended - - -

PN62

THE VICE PRESIDENT: Ms Lambert, just out of interest, the alpaca would only be $400?

PN63

MS LAMBERT: I agree with you, your Honour, but these are the figures that have been put forward to us by the farm so I can only go with what is there but I do have my own personal doubts, but they are not relevant in the Commission, unfortunately. Agistment - the interesting thing about the Romani Partnership is, these are the people that have applied for this, is they pay agistment in excess of $59,000 a year to Romani Constructions Proprietary Limited, that they also own, $59,400 for the year ended 30 June 2001, in their compilation report.

PN64

Surely they can salvage from that something between 120 and a figure less than $425 to compensate for the wage reduction that they so desperately need, which I would doubt. They can call on a small portion of their investments, as per page 3, top of page under: Investments in the compilation report dated 27 February 2003 or they could hold back their donations, their private donations of $440 as per page 5 in the compilation report, dated 27 February 2003.

PN65

In fact, your Honour, as I said earlier, the construction company made a profit in excess of $90,000 on cattle trading in the last financial report before the Commission. Given the Browns own Romani Partnership and they are the sole owners, according to themselves, of Romani Constructions it seems a little difficult and a little hard for the AWU to swallow that this is a genuine case of people in need, people who are experiencing severe hardship because of the drought and are unable to find a little bit of cash any other way other than cutting the wages of their employee.

PN66

Your Honour, I have extensive notes as to the financial records of each of these applicants but I think that overall you have probably got the gist of what I am saying and intending to say. It is the Australian Workers' Union commitment to the Commission not to come here and frivolously waste the Commission's time. We made a decision not to object for the sake of objecting to every applicant that came forward from the NFF. Your decision was hard for some of our branches to agree with but we took a decision, your Honour, that the Commission had spoken and therefore we would go along with it.

PN67

However, these two cases are a disgrace. They are a waste of the Commission's time. They are a waste of the Australian Workers' Union's time. They are a waste of the applicant's time. Now, I would like to take you, your Honour, to what has actually happened in this matter in this case. On Tuesday 27 January, the NFF filed in the Commission their applications. The paperwork arrived in the office of the AWU in Melbourne on Wednesday 28, extensive paperwork. Danita was most efficient in getting it all to us. The paperwork was then sent to the New South Wales Wagga Wagga office, where it was treated with the most confidence possible and the two relevant organisers from the Tamworth and Grafton offices of the union were notified that they would be going out to check what was going on in these two matters.

PN68

Now, Mr David Lyons spoke - on the New South Wales branch - spoke to Margaret Pocock on the telephone. She actually rang him a couple of times and I have a statement here which I am prepared to submit today from Mr Lyons about his telephone conversation with Ms Pocock. I will read it to the Commission, if you like, and maybe I could fax it up to you, your Honour.

PN69

THE VICE PRESIDENT: Certainly.

PN70

MS LAMBERT: This is a statement from Mr David Lyons.

PN71

THE VICE PRESIDENT: At the moment, we will treat it as a bar table statement, given that Mr Lyons isn't there and Ms Harris won't have an opportunity to cross-examine him.

PN72

MS LAMBERT: Right. Certainly, he is willing to be cross-examined, your Honour, if necessary.

PN73

THE VICE PRESIDENT: Sure. Ms Lambert, I would ask you in relation to the issues and the contact with Ms Pocock to move through that material fairly quickly because as I've indicated - and I cut Mr Harris off for the same reason - - -

PN74

MS LAMBERT: Yes.

PN75

THE VICE PRESIDENT: - - - that may well be the subject of later proceedings.

PN76

MS LAMBERT: Right.

PN77

THE VICE PRESIDENT: It might not be in the interests of either side to go too far into that material at this point.

PN78

MS LAMBERT: Right. Well, I won't go too far into it, your Honour, saying that there was a series of phone calls between Mr Lyons and Ms Pocock, who was horrified to think that she would be cutting the wages of "her dear friend". She said, the person who worked for her in fact owned the farm next to her and a second property in the district. She had nursed him as a baby - Ms Pocock is an elderly lady - he was in his early fifties and was a great friend and asset.

PN79

He helped her out from time to time and she helped him out from time to time, and she said, she did not wish to cut a good friend's wages. She indicated she was not happy with the idea at all of cutting - her expectation was that some kind of grant would come through this, she wasn't totally sure what she thought, to be honest, but she certainly had no idea that she would be cutting her good friend's wages and she had no intention of cutting her good friend's wages. She therefore told Mr Lyons that she would be withdrawing - and in fact she rang him later to say that she had withdrawn because this was not her expectation at all. She had worked with this gentleman for many, many years.

PN80

Then, she also asked Mr Lyons - I will just throw this in for what it is worth - if this gentleman was going to be referred to as an employee, did that mean she had to pay him long service leave? So Mr Lyons out of the goodness of his heart is currently sitting down, calculating for this lady the long service leave that she is going to have to pay this man who has helped her for a long, long time, because if he is going to be classified as an employee well, then, you know, he is probably entitled to long service leave.

PN81

In relation to Romani partnership, Mr Glenn Seton visited the property and spoke to Mr Frank Brown, who said he had signed the forms under the expectation that he was going to receive a wage subsidy from the Government. He said that he had no idea this was anything to do with cutting wages. Mind you, he didn't say he was against cutting wages, I will put that in but he was very, very cross with the NFF and he was cross with the AWU because of the implication that he may in fact have not been paying the right wages and been in breach of the award and he wanted the AWU to know that he always paid the award and better than the award.

PN82

Given those situations, your Honour, it is extremely alarming to the AWU that the NFF would have put these applications before the Commission in the first place. It goes to show that there is no demand, or little demand, and sincere or genuine demand from their membership to using the clause. In terms of invoking principle 12 of the National Wage Case Decision, it looks as though that there is not a lot of genuine demand. The AWU contends that the National Farmers Federation were - and I'm not being tactful - less than truthful when making these applications to vary the award, stating that they initially had a lot of applications.

PN83

We went through a very costly and time-consuming process, your Honour, in relation to the original application by the NFF. We sought legal counsel and we did not treat it frivolously. In relation to the matter before us today, it has taken up many, many hours of my time and of other people's time in the AWU and caused some minor heartache and all this for a frivolous, trivial and insincere application by the NFF. I condemn the NFF for putting these applications on the table, your Honour, that is my submissions at this stage.

PN84

THE VICE PRESIDENT: Yes, all right, thank you, Ms Lambert. Look, as I understand it the position is this, that the substance of the AWUs objection is, firstly you say in both cases, the amounts involved in respect of the relief claimed are, in your view, insignificant and can be met from the employer's existing financial resources.

PN85

In relation to the Pocock application, leaving aside for a moment what you say Ms Pocock told one of the AWU officials, the issues seem to come down to the fact that the applicant it is said is paying above award wages at the moment, so financial relief could be obtained by reducing the over award payment to the level of the award rate and, secondly, that there is no proof of ECRP receipt.

PN86

In relation to the Romani - the issues are a little more complex. The same point is raised in relation to proof of ECRP payments. It is not clear whether or not the employee has been paid in excess of the award rate on the material currently available. There is an issue about who is the employer, whether the applicant is in fact the employer of the employee concerned and a related issue of, who owns the cattle?

PN87

There is a question of the relationship between Romani Partnership, the applicant and a company known as Romani Constructions, and in relation to that issue there is the payment of some $59,000 in agistment from the applicant to a related company, being Romani Constructions. Are those the essence of the objections you take to each application, Ms Lambert?

PN88

MS LAMBERT: They are, your Honour, yes, thank you.

PN89

THE VICE PRESIDENT: Right. Ms Harris, just before I come to you - Ms Lambert, what do you say about Ms Harris' application pursuant to section 355 of the Act for an order going to the confidentiality of these financial records. Do you have any objection to that?

PN90

MS LAMBERT: Your Honour, I would like to know in what way the confidentiality of these financial records has been breached, because I do not believe that the confidentiality has in fact been breached. They have sat in my office. I have them here with me today. They have gone up to the Wagga Wagga office of the New South Wales branch of the union where I believe they are. Now, what was sent to the organiser at Tamworth was the 2-page form that Ms Harris faxed to me and I believe initially faxed to the Commission, because we needed to provide people with the name and address of the employer seeking the wage reduction. I believe that there has been no - - -

PN91

THE VICE PRESIDENT: Do I take it from that, that the financial records have not gone out of your control?

PN92

MS LAMBERT: No, I do not believe so, sir. In fact, I do believe that it was made clear to the Wagga Wagga office, both in writing and verbally that confidentiality was of the utmost importance and I believe that they have been aware of that and, in fact, I did undertake when Ms Pocock's accountant rang me to say she was withdrawing on Friday afternoon - which issue I won't get into here - but they did in fact ring me. I said that Ms Pocock can rest assured that her financial records will be shredded by the AWU the moment her application is withdrawn. These have not been made public, they are not in the local paper, they are not on the television, they are not being discussed in the district.

PN93

THE VICE PRESIDENT: Are you prepared to give an undertaking on behalf of the AWU that the financial records in each case will be kept confidential and not used for any other purpose than for use in these proceedings?

PN94

MS LAMBERT: I am, your Honour, and in fact I do recall that on a telephone hook-up with yourself in December, I did give that original undertaking as well, your Honour, so I'm prepared to give that. I do not think there is any evidence that these records are not public - and also Mr Beechey, who was in-charge of the organisers nationally has given - he has just given me a note to say, he has given instructions across Australia that anything to do with this should remain highly confidential and no details of any applicants are to be made public.

PN95

THE VICE PRESIDENT: All right. Ms Harris, two broad issues. The first is in relation to the application pursuant to section 355. Perhaps if you can give some consideration in the light of what Ms Lambert said and I will give you an opportunity to discuss it with each of the applicants, the extent to which you want to press that application. If you do, the matter can be re-listed to deal with it.

PN96

MS HARRIS: Thank you, your Honour.

PN97

THE VICE PRESIDENT: The second broad issue is you have heard - I don't want - I understand that - well no doubt, because these sorts of applications tend to polarise parties, I don't want you to reply all that Ms Lambert has put or how she has characterised her application. You can take it that I accept that you disagree with the characterisation. There are a number of issues that have been raised. You have indicated that you haven't had the opportunity to talk to Ms Pocock about those. There are also a number of issues in relation to the Romanis. These are issues the AWU has raised but I also have some concern with - in the material filed there were statements indicating when the applicants had received ECRP but each of those periods had expired. I think the - - -

PN98

MS HARRIS: There is a difficulty, your Honour, in that they receive an initial letter when they first have ECRP granted and with both of the applicants, from what we are aware of, that was at least 12 months ago. So what we asked for them was to provide us with the most recent statement from Centrelink that identified that they had been ongoingly receiving it. We have asked them to contact Centrelink, to provide some form of evidence to show that it is an ongoing obligation of Centrelink to pay that. Now, that obviously - we weren't aware of the objection until Thursday so that does take some time in respect of that particular piece of evidence.

PN99

THE VICE PRESIDENT: No. No. Certainly. Well, there are two ways of dealing with it: either something from Centrelink or we amend the statutory declarations to indicate - and this is for the future - if there is a problem; if it is not as simple as getting a letter from Centrelink, if that can't be done expeditiously then the statutory declaration that is filed as the application ought to be amended to have another sentence which indicates, "I am currently in receipt of ECRP." Given that it is a statutory declaration and the applicant has sworn to it, it is probably more cogent evidence than a letter from Centrelink, in any event, that - - -

PN100

MS HARRIS: Which a Centrelink letter will always be dated effectively by the time it gets to the Commission.

PN101

THE VICE PRESIDENT: Yes. Well there are two issues in relation to Ms Pocock, leaving aside whether or not she wishes to pursue the application for the moment. There's the paying of above award wages. That raises an issue of whether the application needs to be granted in circumstances where she has a ready means of reducing her wage cost - well not ready means, but she is paying in excess of the award obligation now so that is an issue you would have to answer or address as well as the ECRP proof. In relation to the Romani application, there's the ECRP issue. There's a question of - it is not clear what the current rates are.

PN102

What is the employee receiving and is the employee receiving above the award or not? If the employee is, then that raises a similar issue for Ms Pocock. The other broad issue relates to the relationship between the Romani partnership and Romani Constructions. Now, that raises: who is the employer of this employee. Related to that is who owns the cattle. For one purpose, I'm not interested in who owns the cattle other than the extent to which it relates to, who is the employer of the employee and you would need to address the question of the relationship between Romani partnership and Romani Constructions and the accounts do disclose a payment for agistment fees from one to the other.

PN103

If, in fact, the entities are owned and controlled by the same people, then it raises an argument that the level of agistment paid can be manipulated to reduce the earnings of one or the other company. That might be a question that you would need to give some thought to. At this stage, obviously you have just been told what the issues are. Unless you wish to say anything at this point, I wasn't proposing to finalise the matter in the sense that hear what you have got to say and then rule on the applications. You obviously need to seek some instructions from each of the applicants, but is there anything you wish to say in response, at this point?

PN104

MS HARRIS: Yes, I would, your Honour. There's obviously a number of statements made by the AWU that I think would be important for the NFF to put on the record.

PN105

THE VICE PRESIDENT: Certainly.

PN106

MS HARRIS: We sent out quite detailed information to our members in respect to the nature of the application and the decision of your Honour last year. The form that has been filled out specifies it is an application for the postponement of the 2003 National Wage Case decision. It spelt out quite clearly the intention of the applicant, of which each of these applicants have signed those documents, aware of what they were seeking. Further, the applicants, by evidence in front of your Honour, both in EC declared areas - they have evidence of their EC receipts and they also have evidence that they have at least, historically, been in receipt of ECRP.

PN107

It is obviously difficult for the NFF to respond in detail to the factual circumstances that the AWU have raised today. We are, however, disappointed that it has been raised today. We asked the AWU last week if there were any specific issues that they wanted to raise on Monday that we could perhaps ascertain from the applicants prior to today's proceedings. We were advised that something would potentially come in writing. We had something in writing but simply saying that an objection had been lodged. So that did not enable us to talk to our applicants and members prior to today's proceedings. That may have assisted your Honour.

PN108

Obviously there are some concerns from the submissions of Ms Lambert, in respect to the discussions that have occurred between the AWU and both of our applicants that obviously will be subject to a section 99 dispute, that we say that may have prejudiced the applicant's case and certainly the NFF was not aware that any such discussions had occurred and we say that this has pre-empted the hearing process that your Honour had set out in the decision. The AWU raised the issue of the huge number of applications that we had raised and your Honour, look, to be quite frank, we are aware there are a lot of our members that are seeking the application but, to be honest, they didn't want to be the first guinea pigs to go through this process.

PN109

These two particular applicants filed and made their applications in the Commission to test the water, so to speak, on behalf of a number of other members that are hoping to utilise this process. The main concerns were the ramifications of any union backlash. We are certainly concerned that the process that has occurred to date has only strengthened those concerns of our members. That may ensure that we have a limited number of applicants before you but obviously that will be evidence in respect to the section 99 dispute. We did want to put that on record, your Honour, because we were accused - there were a number of accusations against us in Ms Lambert's submission and certainly this has been an exceptionally major issue for the NFF over a considerable amount of time.

PN110

Our members have been urging us to put in a provision to assist them with applications such as these, under very difficult financial circumstances. This has obviously made things even more difficult in terms of encouraging others to come forward. However we will go back to our applicants and members, your Honour, and ascertain further information in respect to the issues raised by the AWU this morning, and also seek further instructions from Mrs Pocock in respect to her application. Thank you.

PN111

THE VICE PRESIDENT: All right. In relation to the timing, I think I bear some responsibility for that inasmuch as the 10 days expired on Friday and the matter was listed on today. In the future, to deal with the timing issue and to ensure that you have got notice of the objection, I will probably, on receipt of the objection, list the matter and attach a direction that the AWU provide an outline of its grounds for objection to the application, so that you are on notice as to what it is and the matter can be dealt with at the one hearing. There would be a slight delay for that purpose.

PN112

For example, had I chosen that course last week, then it is likely the hearing would have been on Wednesday or Thursday, to provide the AWU with sufficient time to say, provide the information to you today - by close of business today - but then giving you a couple of days to examine the objection and being in a position to respond to it. I will take that on board but I don't think the fault lies in relation to that, with the AWU. It was really a function, on this occasion, of the fact that the matter was listed shortly after the objection but I will take that on board and ensure that we put in place a process to address that.

PN113

As to the two applications, the course I propose to take is to adjourn each matter. They will be re-listed at your request, Ms Harris, when you are ready to proceed in relation to them. If there is some material which addresses the issues I've raised, I would ask that that be provided to the AWU prior to any further hearing in relation to the matter. Is there anything else at this stage? No? Ms Lambert?

PN114

MS LAMBERT: No, your Honour.

PN115

THE VICE PRESIDENT: All right. Thank you. If there's nothing further, I will adjourn and the matter will be re-listed at the applicant's request.

PN116

MS LAMBERT: Thank you, your Honour. Excuse me, your Honour, could I just quickly ask you one question of clarification?

PN117

THE VICE PRESIDENT: Sure.

PN118

MS LAMBERT: You said you wanted some material was to be provided to the AWU. Is that via the Commission or via the NFF, your Honour. I'm sorry.

PN119

THE VICE PRESIDENT: No. It is by the NFF. If the NFF is going to rely on material to reply to the issues that have been raised - for example, proof of ECRP - then that - whatever documentation that the NFF wants to rely on, it should be provided to the AWU prior to the hearing.

PN120

MS LAMBERT: Thank you, your Honour.

PN121

THE VICE PRESIDENT: All right. Nothing further? We will adjourn.

ADJOURNED INDEFINITELY [9.49am]