C2005/2697, Transcript of Proceedings [2005] AIRCTrans 1457 (5 July 2005)

TRANSCRIPT OF PROCEEDINGS

---


Workplace Relations Act 1996 11998-1

COMMISSIONER GRAINGER

C2005/2697

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
WILSON GROUP SERVICES
s.99 - Notification of an industrial dispute - Log of claims
(C2005/2697)

MELBOURNE

10.04AM, FRIDAY, 24 JUNE 2005

PN1

MR B O'BRIEN: I appear for the Australian Services Union.

PN2

MR R NAUGHTON: I seek leave to act on behalf of the company in this matter.

PN3

THE COMMISSIONER: Yes or to represent them here today, yes. Mr O'Brien do you have any objections?

PN4

MR O'BRIEN: No objections.

PN5

THE COMMISSIONER: I'm happy to grant you leave Mr Naughton and I note that you've got MS FORSYTH here today. Yes, Mr O'Brien.

PN6

MR O'BRIEN: Thanks, Commissioner. This is a dispute notification by the ASU pursuant to section 99 of the Workplace Relations Act. The dispute arises from the ASU serving a log of claims and a letter of demand on one employer in Melbourne, Wilson Group Services. The log was served in accordance with the rules of the ASU and was authorised by the national secretary, Mr Paul Slape and if the Commission pleases, I'll tend you a copy of the authorisation.

PN7

THE COMMISSIONER: Yes, thank you.

EXHIBIT #A1 AUTHORISATION FOR SERVICE OF LOG

PN8

Mr O'BRIEN: Thanks, Commissioner. On 3 June 2005, a letter of demand and log of claims was served by the ASU on Wilson Group Services by registered post and to date Wilson Group Services have failed to accede to the demands. On
10 June 2005, the ASU notified a dispute to the Victorian Registry of the Commission. Now, the Commission should have that notification and related documentation on the file.

PN9

THE COMMISSIONER: Yes, I do.

PN10

MR O'BRIEN: Good, Commissioner. I won't go through it if you've - it should be all in order I would think.

PN11

THE COMMISSIONER: If it's not and Mr Naughton has any objection to it, I'm sure he'll let us know.

PN12

MR O'BRIEN: Yes, fine. On 14 June the Commission Registry sent out a notice of listing of the hearing of the dispute, which was notified by the union. The ASU notified Wilson Group Services of the details of the hearing by fax on
15 June 2005 and I'll tender a declaration of service to that effect.

EXHIBIT #A2 DECLARATION OF SERVCE

PN13

MR O'BRIEN: Thank you. The ASU submits that Wilson Group Services has rejected the claims and the Commission should find the existence of a dispute pursuant to section 101 of the Workplace Relations Act. Further, that the Commission should direct Wilson Group Services and the ASU to meet and confer with a view to settling the issues in dispute.

PN14

THE COMMISSIONER: Thank you, Mr O'Brien. Yes, Mr Naughton.

PN15

MR NAUGHTON: Sir, there has been a little confusion about this matter. The problem so far is that the company acknowledges it has received a log of claims, in fact there was an earlier log of claims in April - - -

PN16

THE COMMISSIONER: Yes

PN17

MR NAUGHTON: Sent to a previous address and there was the address that
Mr O'Brien's referred to on 3 June. The problem so far as the company is concerned is that Wilson Group Services is not a company; I act on behalf of Wilson Parking or the Wilson Parking Australia 1992 Proprietary Limited, which is the employer party. These documents were sent to someone called the executive officer Wilson Group Services, there is no such person. The executive officer or chief executive officer of Wilson Parking Australia 1992 is a person who conducts business from the head offices of the company in Perth.

PN18

Now, in those circumstances our simple submission is that you shouldn't bind a notice of dispute - you shouldn't find a dispute in this matter on the basis that there's nothing before you which indicates that Wilson Group Services is an employer or that - - -

PN19

THE COMMISSIONER: You're saying it's not a legal entity.

PN20

MR NAUGHTON: It's not a legal entity.

PN21

THE COMMISSIONER: Thanks. Mr O'Brien.

PN22

MR O'BRIEN: Yes, Commissioner, there was an initial log sent, which was sent to the wrong address and kindly the Commission did notify us of that and we rectified that. You'll note that the declaration of service is the correct address and all the other correspondence did go to the correct address. Wilson Group Services may not be a company but they are an employer because they employ people.

PN23

THE COMMISSIONER: That's not what Mr Naughton is saying.

PN24

MR O'BRIEN: Yes. I've got documentation from a member of the ASU where Wilson Group Services are noted to be the employer in an agreement with
Wilson Group Services.

PN25

THE COMMISSIONER: Yes. Mr O'Brien, I just want to ask
Mr Naughton a question, thanks very much.

PN26

Mr Naughton whether or not there's been proper service on a legal entity that employees people and can appropriately be the subject of a dispute finding, if it hasn't happened I've got no doubt - there's a problem with it, I've got no doubt that the ASU will be able to go away and sort it out. Does your client have any objection to having a conference with the ASU about the matter to start off with and it's really up to the ASU whether it wants to push ahead in the light of what you've said and seek a dispute finding, in which case I'll have to ask for written submissions from the parties before I'm prepared to make a finding of dispute.

PN27

MR NAUGHTON: Our issue, I guess, is that the company wouldn't - and I'll just confirm, the company wouldn't be opposed to meet with - but there are likely, if this is going to be contested, likely to be other issues as well because we've only discovered in the last day or so that this log relates to a number of employees who are traffic or parking inspectors at Frankston. Some of these people carry out work, which we say is largely of a clerical or administrative nature, possible that they are already subject to the state common rule award.

PN28

THE COMMISSIONER: I hear what you're saying Mr Naughton - - -

PN29

MR NAUGHTON: They're all other issues down the track - - -

PN30

THE COMMISSIONER: I hear what you say, all of that to me highlights the need for the parties to sit down and confer as soon as possible.

PN31

MR NAUGHTON: Which hasn't happened at any stage - - -

PN32

THE COMMISSIONER: No. So your client wouldn't object to that course of action?

PN33

MR NAUGHTON: No

PN34

THE COMMISSIONER: Whoever your - well I know who you say your actual client is, your actual client is a corporate entity but I'd assume that
Ms Forsyth is able to get some instructions from whoever else needs to be involved from Wilson about conferring with the union about this matter. Could you just get some instructions?

PN35

MR NAUGHTON: The company has no problems with that. My only qualification would be that the dispute finding itself should not be made at this stage.

PN36

THE COMMISSIONER: Yes, I'm not proposing to make it at this stage given what you've said even though I've heard what Mr O'Brien has said.

PN37

Mr O'Brien it just appears to me that to begin with it would be sensible for me to allow you and Mr Naughton and Ms Forsyth to have a conference now if that's what you'd like. Otherwise, if you feel that more parties need to be involved from the union's side and from the company's side, from the employer's side you might indicate a timeframe by which you feel it would be acceptable for such a conference to take place. It's very easy for me to list this again next week. I think what matters is that the process be on the right track.

PN38

MR O'BRIEN: Commissioner, I would like to press ahead with the dispute finding for the simple reason that I think there's a misunderstanding. I think the grounds that were given to you were that - - -

PN39

THE COMMISSIONER: I wouldn't be proposing to make a - I won't make a dispute finding today but I will require written submissions from the parties with regard to that if that's the situation. I feel it's much, much better for the parties to confer over the next and week and I can re-list this again. You can consider your course of action, if you want to press that then I'll hear submissions from
Mr Naughton at that stage. I may require further written submissions or I might at that stage decide to make a dispute finding or rejection of a dispute finding.

PN40

MR O'BRIEN: Commissioner, could I just put to that all the documentation is before you, which can demonstrate to you that there's been correct service and the employer has rejected the log.

PN41

THE COMMISSIONER: That's not what Mr Naughton says.

PN42

MR O'BRIEN: Mr Naughton is incorrect because I think - - -

PN43

THE COMMISSIONER: I've heard what you've said Mr O'Brien but I'm not prepared to make a finding to that effect today, so there's no point in you pushing me to. I won't - - -

PN44

MR O'BRIEN: I'm not suggesting that - I'm not trying to do that.

PN45

THE COMMISSIONER: I'm suggesting a sensible course of action, which is - since Wilson says it hasn't sat down and talked to the union about this, that the union and Wilson sit down and talk about it over the next week. I'm happy to list this for early next week - I just want to allow parties to confer about it before it comes back before me again. If it was uncontested I'd make a dispute finding today but it's not uncontested.

PN46

MR O'BRIEN: Yes. The union will certainly confer with Wilson, however, I would put it on the record that we would be seeking to proceed with the finding.

PN47

THE COMMISSIONER: That's fine.

PN48

MR O'BRIEN: The material that's before you will demonstrate that service was correct, to the correct address, everything was properly authorised and the grounds upon which we would be proceeding is that there's no impediment to a finding. So that can be further reiterated next week and we can further hear what Mr Naughton might have to say - - -

PN49

THE COMMISSIONER: Or anybody else who chooses to turn up on behalf of Wilson Group.

PN50

MR O'BRIEN: So I assume there will be another hearing notice soon?

PN51

THE COMMISSIONER: Absolutely, yes

PN52

MR O'BRIEN: Thank you.

PN53

THE COMMISSIONER: Mr Naughton?

PN54

MR NAUGHTON: We have no objection to that course of action. My discussions with Mr O'Brien this morning suggest that there is another person in the union, Ms Sumpter, who may be the appropriate person to attend a conference because she's familiar with the particular issues and we're happy to meet her under that kind of arrangement.

PN55

THE COMMISSIONER: Yes. I'm just wondering what timeframe is going to suit. Mr O'Brien?

PN56

MR O'BRIEN: This would depend on the Victorian Branches ability to make a time. Could I contact your Associate and - - -

PN57

THE COMMISSIONER: Absolutely - - -

PN58

MR O'BRIEN: Let you know a suitable time?

PN59

THE COMMISSIONER: Yes. Then I'm adjourning on the basis that I will re-list as soon as my Associate hears from you about a time having been set for conference with the parties, yes.

PN60

MR O'BRIEN: Thank you.

PN61

MR NAUGHTON: Can I just ask whether Wilson are at a - there's quite a lot of things going on in the organisation at the moment - - -

PN62

THE COMMISSIONER: Yes, sure.

PN63

MR NAUGHTON: If the timeframe were over a two week period, rather than a one week period I think it may be more convenient.

PN64

THE COMMISSIONER: No. Look Mr Wilson[sic] when you come back to my Associate, I am assuming it will be on the basis that you've got whoever needs to be lined up from the ASU involved and are teed up for the meeting with Wilson. That sounds sensible?

PN65

MR NAUGHTON: Yes.

PN66

THE COMMISSIONER: So if it's by the end of next week that's great, if it needs to go over into the following week that's fine but I'll have it - I'll list it as quickly as possible after that, but I do just want to maximise the opportunity for the parties to confer. I don't want to string it out unduly, I just want to maximise the opportunity for the parties to confer and for there to be as little in dispute, if you like, about a dispute finding as possible before the matter comes before me.

PN67

Mr Naughton, I think given that timeframe that rather than my calling for written submissions the next the matter comes before me, if you're objecting to a dispute finding, I'll be expecting detailed submissions about - - -

PN68

MR NAUGHTON: I understand.

PN69

THE COMMISSIONER: Yes, good, thank you very much. I thank the parties for their submissions, I'll now adjourn.

<ADJOURNED INDEFINITELY [10.18AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #A1 AUTHORISATION FOR SERVICE OF LOG PN7
EXHIBIT #A2 DECLARATION OF SERVCE PN12