C2005/2771, Transcript of Proceedings [2005] AIRCTrans 1118 (11 May 2005)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 11382-1

COMMISSIONER LEWIN

C2005/2771

APPLICATION BY NATIONAL PERSONNEL PTY LTD
s.113 - Application to vary an Award
(C2005/2771)

MELBOURNE

10.03AM, TUESDAY, 26 APRIL 2005

PN1

MS M BUTLER: I appear on behalf of National Personnel.

PN2

MR B REDFORD: I appear for the Liquor, Hospitality and Miscellaneous Union.

PN3

MR B JOHNSON: I appear for the TWU.

PN4

THE COMMISSIONER: In relation to the Security Employees Award?

PN5

MR JOHNSON: In relation to the Parking and Security.

PN6

THE COMMISSIONER: No, I'm calling them one at a time, Mr Johnson.

PN7

MR JOHNSON: I'm sorry, Commissioner.

PN8

THE COMMISSIONER: So it's Ms Butler and Mr Redford. In relation to the security employees matter the appearances are Ms Butler and Mr Redford?

PN9

MR REDFORD: It would seem so, Commissioner.

PN10

MR R LEVIN: I will be seeking leave to - well, perhaps for the moment my appearance might be reserved. I have responded to a notification sent.

PN11

THE COMMISSIONER: I see.

PN12

MR LEVIN: I should also flag, sir, we - - -

PN13

THE COMMISSIONER: Well, you just announce your presence.

PN14

MR LEVIN: I do and just for your information also we would be seeking leave to intervene in respect to the first matter called.

PN15

THE COMMISSIONER: Yes, well, I'm calling the matters one at a time.

PN16

MR LEVIN: Yes, of course.

PN17

THE COMMISSIONER: My associate has called the Security Employees Award. My Levin has notified that he is here on behalf of Wilson Parking.

PN18

MR LEVIN: Yes, sir.

PN19

THE COMMISSIONER: And do you wish to intervene in this matter on behalf of Wilson Parking?

PN20

MR LEVIN: I do, sir.

PN21

THE COMMISSIONER: And you have applied for intervention?

PN22

MR LEVIN: Yes, sir. I seek leave.

PN23

THE COMMISSIONER: All right. Is there any objection to the application for leave to intervene?

PN24

MS BUTLER: I would perhaps need to understand a little more about the grounds for the intervention, if that's appropriate, Commissioner.

PN25

THE COMMISSIONER: Very well. Thank you, Ms Butler. Mr Redford.

PN26

MR REDFORD: Look, I think it's appropriate, Commissioner, if I also hear from Wilson's on the matter.

PN27

THE COMMISSIONER: Very well. Thank you, Mr Levin.

PN28

MR LEVIN: Yes, sir. We seek leave to intervene under section 43. We believe that we should be heard in this matter as we have information that would be of assistance in the determination of the application currently before it. Without stealing my friend's thunder, the nature of the application is for relief in having to pay severance pay. You will hear as the matter progresses that Wilson has offered employment to employees of the applicant in this proceeding in respect of a number of places of work in Victoria and in New South Wales.

PN29

NP gave notice to Wilson. It was a labour hire company providing at least many hundreds if not thousands of workers for events and for fixed sites such as the Grand Prix or Melbourne airport and it gave four weeks notice, as it was entitled to under the contract saying we don't want to provide the labour any more. Wilson has been advertising generally and its sites as well to employ people and Wilson is seeking to do so or proposing to do so on the basis that starting with leave balances from zero. NP is a company with a single director and shareholder and my understanding - well, I'm not sure about shareholder but certainly single director, Mr Ulysses Vass. I'm not sure if that's his full name. I think it may be longer but known as Ulysses Vass.

PN30

He has been charged with a number of criminal offences and has a large number of assets frozen and there has been proceedings in which Wilson has also been indirectly involved about the release of moneys that we pay every couple of weeks under the invoice we get from NP to pay them for their people. So they've made application for example to the Supreme Court to say okay, you've frozen our assets under these criminal proceedings but can we have the moneys that Wilson's pays every couple of weeks not frozen so that they can be used to pay our employees. So that type of thing is going on at the moment.

PN31

There are matters which are within the grounds that are before you in the application that NP says are reasons why you should grant them relief from then having to pay severance payments to employees. We say that there will be matters which we would like to take you to in evidence when the matter is listed that would be against the interests of NP and they may have very good reasons not to disclose those matters to the Commission. We don't know if they will or if they won't be certainly we think there's some important matters that should be heard before you deprive the employees of their rights to severance payments. If the Commission pleases.

PN32

THE COMMISSIONER: Ms Butler.

PN33

MS BUTLER: Thank you, Commissioner. The application has been made independent of the involvement of Wilson because National Personnel have offered to transfer entitlements of staff going to employment with Wilson and Wilson have rejected that offer. So on that basis Wilson are not actually a party to these proceedings. The proceedings before you relate to National Personnel's incapacity to meet the severance payments that it would be obliged to meet under the award as a result of it ceasing to trade from 29 April and the evidence that we will be bringing to this Commission relates specifically to that incapacity to pay and to how we find ourselves in the situation that we currently do.

PN34

In those circumstances I don't believe that the involvement of Wilson is central to any of those proceedings, or indeed that they have a valid interest given that as a party they have excluded themselves from the particular arrangements that we have in place when we cease trading on the 29th.

PN35

THE COMMISSIONER: Thank you, Ms Butler. Mr Redford.

PN36

MR REDFORD: Commissioner, I'm not sure that I can say much to assist the Commission but on the basis of what my learned friend for Wilson's has said the union would support the application made by Wilson's to intervene. I'm not sure that it would seem as if Wilson's intervention could do anything but assist the Commission in determining this application.

PN37

THE COMMISSIONER: Thank you, yes. I am of the opinion that Wilson Parking should be heard in this matter and I will grant leave to intervene.

PN38

MR LEVIN: If the Commission pleases.

PN39

THE COMMISSIONER: Thank you, Mr Levin. Ms Butler.

PN40

MS BUTLER: Thank you, Commissioner. The key points that are underpinning our claim of incapacity are contained in the application that was made for the variation to the award. We intend to produce evidence that supports those key points and address as the twin issues of why severance pay wasn't provisioned for in the financial health of the company which has resulted in this application for incapacity to pay. At its simplest our situation is this, all of the labour was subcontracted through another company to National Personnel. The subcontractor left the arrangement without notice in late February which then left National Personnel with significant liabilities. This activity occurred just before Mr Vass was charged and the company operating accounts seized and frozen.

PN41

Prior to Mr Vass being charged the former general manager of Wilson Security Services was arrested and charged with 88 counts of secret commission and other activities. The departure of the subcontractor and then the subsequent freezing of the operating account which arose from the legal action revealed that the labour costs had not been fully covered by the current contracts. National Personnel sought to try and trade out of its difficulties by accepting responsibility for the staff and seeking to terminate the existing contract with Wilson and replacing it with one that had costs capable of meeting the labour costs that we had identified.

PN42

When the new contact was not possible National Personnel took a decision to cease trading whilst the annual leave entitlements could be covered for all staff and any outstanding creditors could be paid and that's the situation we find ourselves in as at today. Given that National Personnel inherited the staff of the subcontractor and that this event is recent, that is, of only six to eight weeks ago, we have not provision for severance pay. In addition, there are no funds capable of being drawn on to meet that commitment to severance pay.

PN43

There would be one other issue that I would draw the Commission's attention to and Mr Levin has already addressed this and that is, that for our part it's our expectation that the majority of our staff that are currently employed on Wilson contracts because we are an exclusive provider to Wilson, it is our expectation that the bulk of those people will be employed directly by Wilson. It's our expectation that that will be an ongoing arrangement post our ceasing trading on 29 April. Now, with respect to the timing of this issue and how much time we believe we may need to expand on those points that I have just made, I have had witness statements drawn up from Mr Vass and our financial controller and I would think that they would need to, as well as those witness statements being provided to the parties, that they would probably need to be available as witnesses.

PN44

Given that they are the only two witnesses I would intend to call, I would think no more than a day of programming. If the Commission pleases.

PN45

THE COMMISSIONER: Thank you, Ms Butler. Mr Redford.

PN46

MR REDFORD: Commissioner, the LHMU intends to oppose the application. The grounds on which we intend to oppose the application will be expanded upon once we hear the applicant's case. A threshold issue though that I thought it appropriate to draw the Commission's attention to is the question as to whether or not an application pursuant to section 107 of the Act has been made. It would seem, Commissioner, that that's essential and it would seem that the Commission as presently constituted shouldn't proceed to determine the application - - -

PN47

THE COMMISSIONER: Is it a 108 application or is it really an opportunity for the President to determine whether or not the matter can be dealt with by a single member under principle 10?

PN48

MR REDFORD: Commissioner, my understanding of the application at this early stage is that it is an application that's made pursuant to principle 8 which is the economic incapacity principle and that principle appears to be fairly clear in its statement - - -

PN49

THE COMMISSIONER: Yes, very well. So you're saying that this matter has to go to a full bench?

PN50

MR REDFORD: Commissioner, I'm simply saying that an application should be made and it should be made by the applicant and it needs to be determined by the President.

PN51

THE COMMISSIONER: All right.

PN52

MR REDFORD: The other point that I wish to make, Commissioner, is that the application obviously must be determined on the evidence. It would seem that there although there's an indication that there's only two witnesses intended to be called that the documentary evidence that might be produced to support the application might be of significant size and the union would like to see that evidence as soon as possible and I was going to suggest, Commissioner, that some sort of an order akin to discovery of some of that material might be appropriate. If the Commission pleases.

PN53

THE COMMISSIONER: Mr Levin.

PN54

MR LEVIN: The only thing we would say is that it would be of assistance in shortening the proceeding if some outline of submissions were provided by the applicant again to avoid us having to turn up and then adjourn because we then need time to prepare and examine. I understand that the witness evidence is going to be provided. I agree with my friend that any documents upon which they intend to rely should certainly be ordered and that also if any of the other parties or the intervener seek any other documents that they be provided.

PN55

Perhaps the form of that order may be that we can request any - either the intervener or the responding parties can request any documents and if they're objected to that they should then be objected to but otherwise should be provided, because I think at this stage neither the intervener nor the respondent parties would be in a position to say right now each and every document that they would seek. If the Commission pleases.

PN56

THE COMMISSIONER: Very well. Mr Redford, which part of the principle?

PN57

MR REDFORD: If the Commission would bear with me for just a second, I'm sorry. Sorry, Commissioner, earlier I think I mentioned principle 8 but it was in fact principle 12 that I was referring to and principle 12 is headed Economic Incapacity.

PN58

THE COMMISSIONER: Yes.

PN59

MR REDFORD: You will see towards the end of that paragraph, Commissioner, that there's a sentence which refers to section 107 of the Act. For the avoidance of any doubt, Commissioner, I think that the Full Bench in the redundancy test case of last year made a fairly explicit statement that it was in fact principle 12 that was the relevant principle when determining applications such as this which are affecting the applications for an exemption from severance pay.

PN60

THE COMMISSIONER: But that's a different thing though, isn't it? Do you say that in the redundancy test cases there is a principle which is expressly to the effect that any application for relief on the grounds of incapacity must be the subject of a section 107 reference?

PN61

MR REDFORD: No, I don't, Commissioner. The clause of the award under which this application is brought is the clause in the model TCR clause which refers to economic incapacity. I think in the application it's incorrectly referred to as clause 14.10 of the award when I think it's in fact clause 14.9 of the award that should have been referred to. In the redundancy test case, Commissioner, the Full Bench said at paragraph 357:

PN62

Incapacity to pay applications in relation to redundancy are subject to principle 12 of the statement of principles.

PN63

I have one copy of that decision, Commissioner, which I could hand up. I'm sorry, I don't have more.

PN64

THE COMMISSIONER: It's all right. I will have one momentarily. Can you take me to the paragraph, please?

PN65

MR REDFORD: It was paragraph 357, Commissioner.

PN66

THE COMMISSIONER: Thank you, Mr Redford.

PN67

MR REDFORD: Thank you, Commissioner.

PN68

THE COMMISSIONER: Ms Butler, before you go to some of the matters that have been raised I want to raise something with you that hasn't as yet been raised and that's just a procedural question of whether or not the three applications that are listed this morning should proceed separately, in parallel or be joined.

PN69

MS BUTLER: I'm sorry, I didn't address that earlier, Commissioner.

PN70

THE COMMISSIONER: That's all right.

PN71

MS BUTLER: It would be my submission that the matters be joined because the clauses in the relevant awards mirror each other. As the submission has already been put, it's the TCR standard clause and so none of the evidence that will be called will differ in any of the three matters.

PN72

THE COMMISSIONER: Very well. I think we might deal with this first if you don't mind and then we will come to the question of what you say about referral. Mr Redford, would you care to comment on the joinder of this application with the other applications?

PN73

MR REDFORD: Commissioner, I'm at a disadvantage because I can't say with any confidence that the clause in the New South Wales is exactly the same as the clause in the Victorian award.

PN74

THE COMMISSIONER: Does that really matter for the purposes of the question?

PN75

MR REDFORD: I suppose it depends on what the difference might be, Commissioner.

PN76

THE COMMISSIONER: Isn't the essence of the case of the applicant the same, the relevant facts it will rely upon will be identical as I understand it?

PN77

MR REDFORD: That might be the case. Perhaps I should also - - -

PN78

THE COMMISSIONER: It's not suggesting that there necessarily would be a cognate outcome of the three applications. It's just that they would be heard together.

PN79

MR REDFORD: Yes. I understand the Commissioner's point. I perhaps should also foreshadow that as I understand it the third application, which is an application with respect to - well, which is an application that I understand the Transport Workers Union to be appearing in, is an application that also may concern some enterprise bargaining agreements that are in place and that might impact on the application or the situation surrounding the application. With respect to that third application that might be another issue which impacts on the question of whether the matters should be heard in parallel or in fact joined.

PN80

THE COMMISSIONER: Well, what do you say about that?

PN81

MR REDFORD: I can't unfortunately say anything more, Commissioner. It's just something that's been just brought to my attention.

PN82

THE COMMISSIONER: Well, is it a matter of interest to you? Would it prejudice the interests that you represent?

PN83

MR REDFORD: Not specifically, no.

PN84

THE COMMISSIONER: So it's not a matter of any consequence to you?

PN85

MR REDFORD: No. It may be a matter that the Commission should consider however.

PN86

THE COMMISSIONER: Yes, all right. Mr Levin, I understand that you are going to apply to intervene in all these matters?

PN87

MR LEVIN: Yes. It would be our position and obviously just in terms of joinder, there may be an issue if there's a full bench involved because I think in terms of joint proceedings there is that issue of section - - -

PN88

THE COMMISSIONER: Yes. It might be premature.

PN89

MR LEVIN: I would certainly say at least they should be dealt with in parallel.

PN90

THE COMMISSIONER: Yes. But I take the point that you make and it may be a little premature to actually determine whether or not they should be joined.

PN91

MR LEVIN: Yes, sir.

PN92

THE COMMISSIONER: There's no reason why I shouldn't hear the parties on the subject. If it was suggested that they should be joined and it has been effectively by the applicant, would you have any objection to that?

PN93

MR LEVIN: No.

PN94

THE COMMISSIONER: Very well. And I think it might be appropriate to invite the TWU if it wishes to apply to intervene in these proceedings to record whether or not it would have any objection to these and the other proceedings affecting the ALHMU being joined with the application that's listed this morning in relation to the Transport Workers Union.

PN95

MR JOHNSON: Thank you, Commissioner. I think that the factual circumstances may differ somewhat between the relevant awards because the application, which I understand is the third application in relation to the Transport Workers Passenger Vehicles Award 2002, is different in that we have several certified agreements in place. Now, there may be some factual differences between the relevant matters. I wouldn't have any objections to the matters being heard in parallel but I probably would object to the matters being joined as one application. I think that there is a slight difference between the matters.

PN96

THE COMMISSIONER: All right, thank you.

PN97

MR JOHNSON: Thank you, Commissioner.

PN98

THE COMMISSIONER: For the time being I'm not going to make any determination to join the matters. They are effectively being heard in parallel today, although there will be a demarcation in the transcript of proceedings.
Ms Butler, do you wish to say anything about the operation of the Commission's redundancy test case principles and the economic incapacity principle in the Commission's current statement of principles?

PN99

MS BUTLER: Yes, Commissioner. I have read that document differently in that I read that the Commission in the decision was requiring any party making the application to adhere to the principles with respect to the incapacity to pay to be able to demonstrate clearly that there was an economic incapacity. I read in both the original decision and the revised decision that came down last year that the Commission largely did not change its approach to an incapacity to pay, it simply allowed for the parties to be able to make in certain circumstances on a case by case basis an application for incapacity to pay where there parties had to be mindful of meeting the economic principle. That was the way in which I constructed the Commission's decision.

PN100

Those few cases that have been before this Commission for incapacity to pay appear to have lodged as either section 99 dispute applications or section 113 variations and so in making the application that we did via the award that allows for incapacity application to be made we would say that the Commission is within power to hear this matter under a section 113 application, that we as the applicant have a duty to ensure that we meet the principles set out by the Commission for the economic incapacity to pay but - - -

PN101

THE COMMISSIONER: I don't think there's any quarrel with the applications themselves. It's the procedure with which the Commission - or by which the Commission deals with them that is raised.

PN102

MS BUTLER: I understand that the concern that has been raised is that because the Commission in the test case refers to the economic principles that that automatically requires a hearing to be held before a full bench.

PN103

THE COMMISSIONER: No, I think what they're submitting is that the application must be followed by an application pursuant to section 107 and - do you have a copy of the statement of principles with you?

PN104

MS BUTLER: Not with me, no.

PN105

THE COMMISSIONER: All right. I think it might be useful if I was to adjourn for a moment or two. I think we need to discuss this and we may be at cross purposes about that. I'm inclined to think that the position that Mr Redford has put is probably correct but I want to give you an opportunity to be heard in full on that subject.

PN106

MR JOHNSON: Commissioner, just before you adjourn, I think if I just put on the record you mentioned the possibility of the TWU intervening in the first and second matters and - - -

PN107

THE COMMISSIONER: Well, subject to any objection.

PN108

MR JOHNSON: Subject to any objection.

PN109

THE COMMISSIONER: Well, I have effectively granted you leave simply to address me on the subject of joinder.

PN110

MR JOHNSON: Okay.

PN111

THE COMMISSIONER: I didn't hear any objection from - - -

PN112

MR JOHNSON: That's all right. I was going to suggest that we reserve our right to seek to intervene subject to the applications - - -

PN113

THE COMMISSIONER: Yes. Well, you can apply to intervene at any time. Let's adjourn for a moment. My associate will provide you with a copy of the statement of principles.

<SHORT ADJOURNMENT [10.30AM]
<RESUMED [10.45AM]

PN114

THE COMMISSIONER: Yes, Ms Butler.

PN115

MS BUTLER: Thank you for that short adjournment, Commissioner. I have looked at the principles and I now agree that it should be the case that there's a section 107 application that's required.

PN116

THE COMMISSIONER: So you make one accordingly?

PN117

MS BUTLER: I do.

PN118

THE COMMISSIONER: And when it says in the principles that you are required to justify it, that's not as onerous as one might think because if you have to go away and present the whole of your case and then the decision we made as to whether or not it will be referred, it's more of an outline. Now, given that you weren't on notice of that fact, would it be convenient for you to file in writing the grounds in support of the reference?

PN119

MS BUTLER: I believe that may be the most appropriate course of action, Commissioner.

PN120

THE COMMISSIONER: All right. Did you want to say anything about anything else in light of what's been said by the other parties and interveners? Do you want to talk about the programming of the matter generally speaking from the applicant's point of view and the discovery issues?

PN121

MS BUTLER: Thank you for reminding me about that. That was one thing that caused me some concern because the application made by the intervener seemed to be extraordinarily broad. I would make this comment, that we are at some inconvenience and it is dealt with by the statement that I have had drawn up by our financial controller, in that the bulk of our financial records have in fact been seized and are currently being held by the Victorian Police Force. So we have an estimated profit and loss statement but the assets held by the company we would only be able to give an estimate based on some not current material because all of those records have been seized. But having said that - - -

PN122

THE COMMISSIONER: Look, I think it's better that we don't speculate on what discovery is actually sought. I think the best idea is if somebody wants something discovered they ought to let me know what it is and you know what it is and if you object to the discovery or you are unable to provide discovery, except for the cooperation of other agencies, then you should advise me of that.

PN123

MS BUTLER: Thank you, Commissioner.

PN124

THE COMMISSIONER: Otherwise we're just guessing.

PN125

MS BUTLER: Yes. With respect to the programming of this matter, as I indicated in my initial submission, we had anticipated that an outline of submission and witness statements with relevant documentation may be the best way to expedite this issue, particularly given that we're ceasing trading on Friday. So we have the bulk of those materials available and can make them available to the parties. However, this issue of the 107 reference possibly interferes with that process. So perhaps if I make the application in writing to the Commission today and have that before the Commission this afternoon, then that may be the subject of the President considering whether or not it can be heard by a single member of the bench and referring it back or whether indeed he wishes it to be heard before a full bench. I anticipate that until that's done there's probably good point in agreeing to a program of submissions, timing and hearing times beyond that.

PN126

THE COMMISSIONER: That's correct. I think if the President decided that the matter should be dealt with by a full bench that bench would have to make its own directions.

PN127

MS BUTLER: Yes, Commissioner.

PN128

THE COMMISSIONER: Very well. Thank you, Ms Butler. Now, there's nothing further to be said about this application, is there?

PN129

MR REDFORD: There's just one other matter, Commissioner, that has come in discussions between the parties during our break. You're aware, Commissioner, that there's been an order made with respect to the funds held by the company. The order to freeze the funds as it were, Commissioner, and a further order that a portion of those funds might be released for the payment of certain things.

PN130

THE COMMISSIONER: Be released.

PN131

MR LEVIN: Perhaps if I may interject and hand up a copy so you can see that order, sir.

PN132

THE COMMISSIONER: Very well, thank you.

PN133

MR LEVIN: Perhaps if I show it to my friend.

PN134

THE COMMISSIONER: Yes, very well. Well, what should I do with this apart from read it? Is there any objection to me reading it?

PN135

MS BUTLER: I have not sighted the document Mr Levin has handed up, Commissioner.

PN136

THE COMMISSIONER: Perhaps you should have a look at it. Are you happy for that to be part of these proceedings?

PN137

MS BUTLER: Yes, I am, Commissioner.

PN138

THE COMMISSIONER: Very well. I propose to exhibit this, Mr Levin.

PN139

MR LEVIN: Yes.

EXHIBIT #WP1 ORDER TO FREEZE FUNDS

PN140

THE COMMISSIONER: Let me just read it if I may. I will return this to you for the time being, Mr Levin, and we will photocopy it in due course.

PN141

MR LEVIN: Thank you, I appreciate that.

PN142

MR REDFORD: My apologies, Commissioner. My issue is just simply one of seeking clarification. As I understand it the arrangement is that the company, National Personnel are used as a payroll service as it were and that money is sent from Wilson's to National Personnel and then paid to various employees. My question is simply whether those moneys that were released pursuant to the order that you have seen are going to be used to pay the employees this week. We are seeking some clarification from the company about that.

PN143

THE COMMISSIONER: How can I help with this?

PN144

MR REDFORD: The company has mentioned a couple of times that it intends to cease trading at the end of this week here on the record today and my question is simply one of seeking that the company expand upon that submission that it's put to the Commission to clarify things with respect to our members.

PN145

THE COMMISSIONER: All right. Is there anything to be said about this,
Ms Butler, for the purposes of this application?

PN146

MS BUTLER: Commissioner, if there is some concern about us suddenly decamping in the middle of the night on the 29th then I certainly need to address that. The company have written to all of the employees giving them three weeks notice that we would be ceasing trading at 5 pm on the 29th. Our programmed activities from then are that on this pay when we pay the employees we will also be advising them of their annual leave entitlements. We will also have payroll staff working, although the company will cease trading, we will have payroll and administrative staff working for another month beyond the closure of the company to ensure that all of the employees are paid their entitlements.

PN147

Because the pay period ends on the 24th, which was Sunday, we will have an additional week from the 24th to the 29th that we will also need to pay people for in the next pay period. So we will address the specific issue, yes, this pay will be made tomorrow. Ordinarily the payroll is fully accounted for and sent off to the accounts on Wednesday evening, available to staff on the Thursday. That process won't be interrupted. Staff will also receive on their payroll advice of the balance of their annual leave and if they concerns over that then they will be able to question officers of the company to be able to work through those entitlements.

PN148

We have given commitment to the LHMU in New South Wales and Victoria and indeed Queensland to send them spreadsheets of the annual leave entitlements so that they also are able to verify the information that we have. It is our expectation then that the annual leave entitlements will be paid in May once we have finalised that last week of pay for the period the 24th to the 29th and once we have ensured that all of the entitlements for annual leave are properly recorded, then we expect that that payment will be made probably mid May. If the Commission pleases.

PN149

THE COMMISSIONER: Thank you.

PN150

MR JOHNSON: If the Commission pleases, just one factor there. We would also seek that the spreadsheet for annual leave and other accrued entitlements for Transport Workers Union members be forwarded to the TWU in the same manner that's - - -

PN151

THE COMMISSIONER: Well, I notice that Ms Butler is concurring with that and I took her comments to apply to all employees.

PN152

MS BUTLER: Yes, Commissioner. It was an oversight on my part not to mention the TWU.

PN153

THE COMMISSIONER: I understood you to be talking about the employees generally and not by reference to any particular demarcation of industrial vocation or award coverage. Yes. Unless there's anything further to be said I think we need to await the filing of the application for reference pursuant to the relevant principles of the redundancy test case provisions and the Commission's statement of principles and the determination of the President as to the future disposition of the applications. The application for reference will be also, I hope, mentioning that the applicant is seeking the joinder of the three applications and that all the facts, circumstances and principles upon which the applications are based are common and that the evidence will be identical in relation to each of the applications from the perspective of the applicant. Is that correct, Ms Butler?

PN154

MS BUTLER: Yes, that's correct, Commissioner.

PN155

THE COMMISSIONER: And I think the President needs to know that. What I would indicate to the parties is if the President determines to form a full bench it's likely that the listing of the matter will be in the hands of the presiding member and therefore no indication as to when the matter would go forward in that event can be given now. In the event the President were to determine the matter should continue before me I should indicate that I would likely list this matter for further programming next Monday morning at 10 am and I would ask the parties to keep that time free for that purpose if they can.

PN156

I am hoping therefore that the President will be able to decide this matter before that time. If he is unable to do so you will be advised.

PN157

MR LEVIN: Just before you adjourn this matter, just in courtesy, I would be just involved in something medically just for that morning so someone else will appear in the morning.

PN158

THE COMMISSIONER: What, for the whole of the morning?

PN159

MR LEVIN: Well, actually for about three days.

PN160

THE COMMISSIONER: I see, all right. Well, if somebody else could
appear - - -

PN161

MR LEVIN: I will arrange that.

PN162

THE COMMISSIONER: Yes.

PN163

MR LEVIN: Before you adjourn this matter I wonder if I could just speak to my friend about something.

PN164

THE COMMISSIONER: Yes.

PN165

MR JOHNSON: Commissioner, just before we adjourn this matter, just one other issue that we would like to raise. Our members would be seeking to know from National Personnel whether or not the issue at stake here is whether or not there is a financial incapacity to pay these entitlements that are in dispute in that there are not sufficient funds to cover the payments or whether or not it is merely an application that National Personnel seeks relief from the payment of those funds.

PN166

MR LEVIN: Yes, Wilson Parking as well in respect of its intervention and its interests would also be interested knowing whether National Personnel is saying that they do not have sufficient funds to meet the obligations of pay outs.

PN167

THE COMMISSIONER: I thought that was what was said but nevertheless I will - I think that was said at the outset, is that right?

PN168

MS BUTLER: Yes, Commissioner, that's correct.

PN169

THE COMMISSIONER: You're saying that there are insufficient funds to meet the company's liabilities?

PN170

MS BUTLER: There are insufficient funds, that's correct, Commissioner, yes.

PN171

MR JOHNSON: If the Commission pleases.

PN172

THE COMMISSIONER: I would like to clarify one aspect of that. Are there insufficient funds to meet the company's liabilities absolutely, that is any liability, or are there insufficient funds to meet all of the liabilities?

PN173

MS BUTLER: There are insufficient funds to meet the estimated redundancy liabilities which at a minimum we have estimated it at 1,000,067 in terms of the entitlement for full time and part time employees, excluding casuals who have more than one year's service in the states of Queensland, New South Wales and Victoria. We do have and we have made provision for annual leave entitlements and it is our intention to pay all of our employees their annual leave entitlements. It is the severance pay via redundancy that we had not provisioned for and when this matter proceeds that's where we had intended to give evidence to the Commission as to why that was not provisioned for, as well as the financial health of the company and why we say we have an incapacity to make any severance payments.

PN174

THE COMMISSIONER: It might be useful to address this in summary terms in the application under section 107.

PN175

MS BUTLER: Thank you, Commissioner.

PN176

MR LEVIN: If I may just a quick, it would also be useful for Wilson in terms of its position if - and perhaps my friend as well, if we were to understand as well, the actual timing of the anticipated payment of the annual leave amounts.

PN177

THE COMMISSIONER: In May.

PN178

MR LEVIN: I'm sorry, I may not have heard the timing of when in May that - - -

PN179

THE COMMISSIONER: In May. Well, I thought - well, I know it was May. My recollection was that it would be probably in the first two weeks of May. Is that what was said?

PN180

MS BUTLER: That's correct, Commissioner, yes.

PN181

MR LEVIN: Thank you, I appreciate that.

PN182

THE COMMISSIONER: Look, I'm probably taking some liberty in anticipating what the President might like to know or might consider irrelevant, but you would appreciate, Ms Butler, to say that there are insufficient funds is a fairly general proposition. There's a bigger picture about the insolvency of the company, is there not, it's a question of whether there are any funds? Secondly, what the liabilities are such as two creditors to the Australian Taxation Office. It would be useful if some outline of the nature of the insolvency and the nature of the incapacity that arises out of the insolvency that is being put as the ground in support of the application could be made out.

PN183

So for instance, if I was to say look at it from interrogative perspective, is there any money that could be put towards the liability to the employees under the relevant awards in respect of redundancy, or is there no money after the Tax Office and whoever may be ahead of those persons in the usual order or hierarchy of credit and liability. Just in summary terms that would be useful. I appreciate that, as I said before, you don't have to put your whole case, but I think you have to give a bit of an idea about what the nature of the issue is rather than just the generality of it.

PN184

MS BUTLER: Thank you, Commissioner, I appreciate the guidance.

PN185

THE COMMISSIONER: Thank you. Mr Levine, did you want to say something?

PN186

MR LEVIN: I wonder if that same vein, sir, whether you believe that the President may consider it relevant to understand what the - how to phrase this, what NPs position would be in respect of the Supreme Court matter? I can perhaps anticipate his mind going to saying, well, I understand there's a freezing of assets. It may be helpful for the Full Bench or the President, sorry, to understand what the status of that is and whether there's any applications envisaged by NP in that regard, because with the assets frozen the question I think just in my mind immediately springs to mind in light of the current restrictions on the use of those millions of dollars of assets, it would seem a logical question that the President may if he were here say, well, can you tell me what's happening in related proceedings or any anticipated applications. If the Commission pleases, that's the only other thing I have.

PN187

THE COMMISSIONER: Well, the point that Mr Levin makes is a good one. If you can say anything about that it may be helpful, Ms Butler, thank you. The nature of related proceedings may be a calculation in the President's mind as to whether or not this matter warrants a full bench. There appear to be some complexities associated with the insolvency of the company. It's a fairly large insolvency, obviously, with the funds involved. It's the subject of various legal proceedings of different kinds. There may or may not be some funds available for creditors of an employee's rank and all of those sorts of issues if they can be summarised would be useful to know a bit about. Thank you. I will adjourn these proceedings to a time and date to be fixed on advice.

<ADJOURNED ACCORDINGLY [11.07AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #WP1 ORDER TO FREEZE FUNDS PN139