C2004/1981, Transcript of Proceedings [2004] AIRCTrans 947 (17 March 2004)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6277

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2004/1981

IMG LIVE PTY LTD/DAVID ATKINS
ENTERPRISES PTY LTD

and

AUSTRALIAN ENTERTAINMENT
INDUSTRY ASSOCIATION

Application under section 170LW of the Act
for settlement of dispute re alleged failure
to resolve dispute concerning the production
of "The Full Monty"

MELBOURNE

10.41 AM, FRIDAY, 27 FEBRUARY 2004

THIS HEARING WAS CONDUCTED BY VIDEO LINK AND RECORDED IN MELBOURNE

PN1

MR B. POUND: I appear for the Media Entertainment and Arts Alliance.

PN2

MR D. HAMILTON: I am from the Australian Industry Association. I appear for IMG Live and David Atkins Enterprises.

PN3

THE COMMISSIONER: Yes, thank you, Mr Hamilton. Look, I think in the circumstances you may both remain seated for the video link.

PN4

MR HAMILTON: Thank you.

PN5

THE COMMISSIONER: Yes, Mr Pound.

PN6

MR POUND: Commissioner, we would submit that the award clause 11.4 in the associated agreements will provide powers including the power of private arbitration to the Commission to settle disputes under section 170LW and that the award and agreement cited and our notice of application include a disputes clause that gives that power. We would be proposing in terms of the processes to seek disclosure of material, in particular all contracts for performers engaged by the employer respondent for all actual or proposed productions or contracts for The Full Monty and any subsequent offers of notice payments due to the, what we would call, cancellations. We believe that - - -

PN7

THE COMMISSIONER: I think you probably need to explain the situation a little bit more on the record, Mr Pound. I think a lot of - what happened when the section 99 notification in relation to the subject matter of this notification was dealt with by the Commission there was a conference at which a lot of the circumstance of the factual background was explained and it wasn't recorded. I think for the purposes of the section 170LW notification, if you are seeking a determination by the Commission, it is probably necessary to put some background on the record.

PN8

MR POUND: Thank you, Commissioner. This dispute relates to a production of a theatrical performance called The Full Monty. It relates to the performers who are members of our union. That production closed early in Melbourne. The performers were contracted for, what is known in the industrial agreements, as a run of the play contract; that is, the contract expires, essentially, when the producer closes the show and sometimes shows close earlier than anticipated due to - unfortunately, due to insufficient box office sales and that was the case for the first production of The Full Monty which commenced in Melbourne and will close this Sunday.

PN9

A number, but not all of those cast members, were to go to Sydney under the one run of the play contract and a number, but not all of those people currently engaged in, let us call it, the Melbourne contract, and some other members of our union, were contracted for another contract for a production of The Full Monty which was to commence in Perth, again on a run of the play contract. The dispute relates to the inability, despite the best endeavours certainly, of the Alliance and indeed negotiations with the producers and the Producers Association who are represented by our colleague today, David Hamilton, to endeavour to resolve, what we believe, is a correct application of the agreement and they dispute that.

PN10

We believe that the agreements/award, which have reflecting clauses for notices, that the applicable clause would mean that the performers for the cancelled, let us call them, second contracts should receive four weeks of notice at their prescribed rate of pay.

PN11

THE COMMISSIONER: So that is the way in which you say that the agreement cited in the notification should apply?

PN12

MR POUND: Yes, Commissioner. The - and so that is by way of background and what - - -

PN13

THE COMMISSIONER: Well, there is a bit of an issue, isn't there? One of the agreements - is one of the agreements referred to an uncertified agreement?

PN14

MR POUND: Yes, we have an award, 1998, which David Atkins Enterprises is a respondent to and that award is still alive and underpins the certified agreement in 2000 which David Atkins Enterprises is a party to. And then there is a 2002 performers - it is called the certified agreement but in fact it is only signed by both respondents, IMG and David Atkins. And of course the applicant, the Alliance, but it is not certified.

PN15

THE COMMISSIONER: How does that affect section 170LW?

PN16

MR POUND: We would submit that the - we have rights - - -

PN17

THE COMMISSIONER: Section 170LW only applies to a certified agreement, does it not?

PN18

MR POUND: That is correct, Commissioner and that is my understanding of it but we do have a certified agreement with David Atkins Pty Ltd - - -

PN19

THE COMMISSIONER: So that for the time being that can be the only proceeding on foot under section 170LW?

PN20

MR POUND: At this stage that may be so. I would need to - - -

PN21

THE COMMISSIONER: It seems to me to be the case.

PN22

MR POUND: Yes, Commissioner.

PN23

THE COMMISSIONER: You did mention the award - - -

PN24

MR HAMILTON: Excuse me, Commissioner, I am finding it difficult to hear you, sorry.

PN25

THE COMMISSIONER: All right, could I re-cap then?

PN26

MR HAMILTON: Yes.

PN27

THE COMMISSIONER: Did you hear what I said about section 170LW?

PN28

MR HAMILTON: No, I didn't, Commissioner.

PN29

THE COMMISSIONER: All right, I will just re-cap. What I was saying to Mr Pound was that one of the agreements cited by him in relation to his proceedings is an agreement that has not been certified and I drew his attention to the provisions of section 170LW which, on my reading of them, only apply to certified agreements.

PN30

MR HAMILTON: I agree with that interpretation.

PN31

THE COMMISSIONER: Mr Pound said that he thought that for the time being, at least, that may well be - it may well be the case that the David Atkins agreement - is that the shorthand we are using?

PN32

MR POUND: Yes, Commissioner.

PN33

THE COMMISSIONER: The David Atkins agreement is the only agreement in relation to which the section 170LW notification could operate. And I said that seems to me to be the case.

PN34

MR HAMILTON: That would be correct.

PN35

THE COMMISSIONER: Right. And then I was raising with Mr Pound some things that he mentioned concerning the award. My view is that under section 170LW the Commission is not clothed with any jurisdiction in relation to the award. Do you accept that, Mr Pound?

PN36

MR POUND: Commissioner, I would foreshadow that I would like - that on the face of my current understanding, that would appear to be so. I would like to have the opportunity to see if there are submissions I could make on that point.

PN37

THE COMMISSIONER: All right. Well, for the time being I am going to proceed in relation to the section 170LW notification on the basis that it is a notification under the David Atkins agreement, as we are referring to it. And as the parties are aware, this matter is listed today for mention and directions in relation to that proceeding and Mr Pound was indicating he was seeking some discovery. I think there are some issues about - which need to be clarified - as to the application of that agreement to the parties in relation to the relevant production, The Full Monty.

PN38

So I think some sort of an outline, in particular from you Mr Pound, as to how that agreement applies and how the jurisdiction arises, would be helpful in due course and I direct that you provide such an outline and you serve it on the respondent.

PN39

MR POUND: Yes, Commissioner.

PN40

THE COMMISSIONER: In addition the outline should also include what you say is the appropriate application of the agreement to the relevant facts. And you should also file with the outline an outline of the evidence that you would propose to call in relation to the matter and in written form the discovery that you seek in relation to the matter. Now, the question is when are you going to do that and I will hear you on that - by what time you should do that - what date?

PN41

MR POUND: Commissioner, I would request 14 days to make that preparation. I acknowledge that, you know, the production closes this Sunday and it is impossible for all the parties and the Commission to resolve this matter prior to that time in any case. So, it seems we should give it some rigour and I request two weeks.

PN42

THE COMMISSIONER: That would be until 12 March?

PN43

MR POUND: Yes.

PN44

THE COMMISSIONER: How do you feel about that, Mr Hamilton? So you would receive an outline of the case under the David Atkins agreement, an outline of the evidence that would be produced and details of the discovery sought of the respondent by 12 March.

PN45

MR HAMILTON: I am acceptable to that, Commissioner.

PN46

THE COMMISSIONER: Very well. Look, I think that is the first step, isn't it? The next step is the question of what the respondent's response would be and I think I should afford you the same amount of time, Mr Hamilton.

PN47

MR HAMILTON: Thank you, Commissioner.

PN48

THE COMMISSIONER: So you would file your response in a similar vein by the close of business on 26 March. Now, in my view, in terms of mention and directions, that is about as far as we can take it today. Do you accept that, Mr Pound?

PN49

MR POUND: Yes, Commissioner, that is very useful.

PN50

THE COMMISSIONER: Do you accept that, Mr Hamilton?

PN51

MR HAMILTON: Yes, Commissioner.

PN52

THE COMMISSIONER: Very well. What I propose to do is to list this matter again on 30 March at 10 am. Now, I would hope that the parties would be in a position to proceed on that day.

PN53

MR POUND: Thank you, Commissioner.

PN54

THE COMMISSIONER: If there is any necessity for any further directions; if the issue of discovery becomes contentious, I will list the matter for mention at short notice in order to facilitate the conduct of the hearing on that date. If there is nothing further, I propose to adjourn to 30 March at 10 am. Very well.

ADJOURNED UNTIL TUESDAY, 30 MARCH 2004 [10.55am]