C2004/6972, Transcript of Proceedings [2005] AIRCTrans 332 (10 February 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10324

SENIOR DEPUTY PRESIDENT LLOYD

C2004/6972

s.99 - notification of an industrial dispute - log of claims

Australian Municipal, Administrative, Clerical and Services Union
and
Legal Transcripts Pty Ltd
(C2004/6972)

MELBOURNE

11.03AM, FRIDAY, 28 JANUARY 2005

PN1

MR J NUCIFORA: I appear on behalf of the Australian Services Union together with MS J KNIGHTS, a national industrial research assistant for the ASU.

PN2

MS L BRASIER: I appear on behalf of the respondent, Legal Transcripts Pty Ltd and I am from Yarra Legal.

PN3

THE SENIOR DEPUTY PRESIDENT: Thank you. Mr Nucifora?

PN4

MR NUCIFORA: Thank you, your Honour. This is my first matter for the year, so I wish everyone a good year in 2005. Your Honour, this is a section 99 notification of dispute between the Australian Municipal, Administrative, Clerical and Services Union, otherwise known as the Australian Services Union or the ASU and Legal Transcripts Pty Ltd. We are seeking as a result of this notification, a formal dispute finding pursuant to section 101 of the Workplace Relations Act.

PN5

Your Honour, if I may just firstly check that on the Commission's file, there is a statutory declaration signed by Ms Knights in relation to the serving of the log of claims, dated 15 December 2004 and signed by the then national executive president, Mr Michael O'Sullivan.

PN6

That would have been lodged with the notification of the alleged industrial dispute, your Honour.

PN7

THE SENIOR DEPUTY PRESIDENT: Yes, there is copies signed - 15 December?

PN8

MR NUCIFORA: That is right. Signed by the then national executive president, Mr Michael O'Sullivan.

PN9

THE SENIOR DEPUTY PRESIDENT: That's right.

PN10

MR NUCIFORA: I just wanted to check that that was on the file. Your Honour, the log of claims duly authorised under the union's rules by the ASU national executive president at the time, Mr Michael O'Sullivan, was served on the employer in this matter on 3 December 2004. As the employer did not accede to the demand within seven days, the notification of an alleged dispute was accordingly lodged with the industrial registry on 21 December 2004, of course with that declaration attached.

PN11

Your Honour, before I take you to any further detail and merits of the notification, if I may for completeness, tender as an exhibit a declaration of service in relation to the serving of the original and the amended notice of listing. Of course, there was an original notice of listing for 25 January and that was by consent by the parties amended to 28 January, this being of course 11 am on today's date. If I may tender as an exhibit, your Honour, a declaration of service.

EXHIBIT #N1 DECLARATION OF SERVICE

PN12

MR NUCIFORA: Thank you, your Honour. Exhibit N1 is a declaration of service signed by our industrial and research assistant, Ms Jodie Knights in relation to, of course the earlier hearing notice as per the attachment in letter A and C, in terms of the amended letter, and of course confirmation of those notices being sent by registered mail and attached with B and D. They are the registered mail numbers that of course confirm that the notification, both the original one for the earlier date and of course today's date were indeed served on the employer by registered mail.

PN13

Your Honour, the ASU contends that all statutory requirements for a formal dispute finding have been met and if I may just briefly go through those, your Honour. These include firstly of course authorization, that is whether the national executive president was properly authorised under the union's rules to serve the logger claims.

PN14

Secondly, in terms of - and I will come back to the detail of that your Honour - interstateness. Legal Transcripts Pty Ltd operates in Victoria, at least in Victoria but my understanding is - I haven't spoken to Ms Brasier today - but they also operate in New South Wales and in particular, there is an office in Sydney.

PN15

Thirdly, eligibility, that is whether the union under its eligibility rules, covers the employees that are intended to be covered by the dispute finding.

PN16

I don't think there is any dispute, your Honour, that Legal Transcripts employs clerical and administrative employees, including court reporting employees. Of course, that is very close to home, your Honour. We have, in fact, of course court reporters hear in the Commission and of course, this work was previously performed by employers of the previous AIRC transcript provider, and that was of course, Auscript for many years, I believe, in excess of 80 years.

PN17

The ASU and its predecessor union, that is the Federated Clerks Union has had traditional coverage of all employees of Auscript and previously the government owned agency, the Court Reporting Services, that is prior to the privatisation in 1988, as I mentioned earlier, for several years.

PN18

Fourthly, there is the question, of course, of genuineness, whether the union has served a logger claim and sought a dispute finding to improve the terms and conditions of employment for employees eligibly members of the ASU.

PN19

Your Honour, if I firstly just take you to detail, those four key criteria that are required for dispute findings. Firstly, in relation to terms of eligibility and authorization, if I may take you to the union's rules and if I may tender as an exhibit an extract of the rules governing the national administration of the union. Your Honour, this is an extract, it is not the full set of the rules, it is only the relevant section to the rules.

EXHIBIT #N2 EXTRACT OF THE RULES GOVERNING THE NATIONAL ADMINISTRATION OF THE UNION

PN20

MR NUCIFORA: Thank you, your Honour. Firstly if I may note on the front page, it incorporates at the top of exhibit N2 alterations up to 14 October 2004. On the second page of exhibit N2, we have of course the contents page, and I will be referring you to in particular rule 5, industry and eligibility, and then of course rule 14 in relation to the powers of the national executive president and national secretary.

PN21

Your Honour, if I could take you to rule 5(a) in terms of description of the industry, that would be on the sixth page of exhibit N2. Under description of industry, if I may refer you to 5(a)(ii) if I may quote from that:

PN22

The industry in or in connection with which the union is formed is, without in any way limiting the generality of the provisions of rule (4) - Eligibility of Membership Part (ii), and the proper construction at any time or times to be placed thereon, the clerical industry.

PN23

So our union has always referred to the clerical industry, applying particularly right across the private sector where of course, our union has had traditional coverage across other traditional industries.

PN24

Your Honour, if I could then refer you to 5(b), two pages on, under 5(b) the eligibility for membership and then at the bottom of that page, is part (ii), if I may quote from that your Honour:

PN25

The union shall consist of all persons engaged in any clerical capacity and/or engaged in the occupation of shorthand writers and typists and/or on calculated billing or other machines designed to perform or assist in performing any clerical work whatsoever.

PN26

Now, particularly the last words in that paragraph sum up our very broad coverage of clerical and if you like administrative work. There have been several authorities, I won't quote them today, but go to the broad definition of what clerical work is. There has been no dispute certainly over the last several years in relation to not only coverage of clerical administrative employees of court reporting companies, but also court reporters that engage in court reporting, if you like, monitoring and as well as typing - monitoring in the courts or the Commission and typing in the office. That of course, is in the private sector and there was a unique background that we had coverage of, the court reporting service when they were public servants in the federal jurisdiction, whereas in the state jurisdiction, the court reporters were traditionally covered by the public sector, the state public sector unions. And of course, now since privatisation, there was no uniqueness, if you like, in relation to Auscript, they were then of course, private sector employees.

PN27

Your Honour, that is in relation to eligibility. Before I leave that, the ASU has members in its coverage of employees in the court reporting industry and we are aware that of course, Legal Transcripts employ clerical and administrative employees as well as court reporting employees.

PN28

Your Honour, in terms of authorization, if I may now refer you to rule 14 in exhibit N2. That is on the last page of exhibit N2 which is that part of the rules that refers to the powers of the national executive president and the national secretary. Of course, there was a national executive president who authorised the serving of the logger claims on Legal Transcripts and it refers to in 14(b), if I may quote 14(b)(i) - sorry (b):

PN29

The national executive presidents and the national secretary shall ...(reads)... organisation registered under Workplace Relations Act 1996.

PN30

If I may, your Honour, refer you more particularly 14(b)(vi), that is the last paragraph in rule 14:

PN31

Notwithstanding the provisions of sub-clause (1) of the sub-rule, any and each of the executive ...(reads)... whom the union seeks to represent, either as agent or otherwise.

PN32

So that clearly gives the national executive president in this case, the power to serve logs of claims on employers.

PN33

Your Honour, in terms of interstateness, we indicated earlier that Legal Transcripts has employees, certainly offices, that operate in Melbourne or if you like Victoria and New South Wales or Melbourne and Sydney, and we would believe that there is no question of interstateness that arises.

PN34

In terms of genuineness, the ASU has served the logger claims for the purpose of improving the terms and conditions of employees eligible to be members of the ASU and we don't resolve from that position as we most often do when we serve logger claims.

PN35

I mentioned earlier that in terms of ASU coverage in court reporting companies, the ASU has coverage and membership including award and agreement coverage with at least two other large private sector court reporting companies involved in the federal jurisdiction, such as Federal Court, Family Court and up until recently, the Federal Commission, the Federal Australian Industrial Relations Commission, and that includes Auscript and Spark and Cannon, and in fact, we have enterprise bargaining agreements with both those companies.

PN36

Your Honour, finally, I understand from discussions previously that Mr O'Brien from our office had with Ms Brasier and more recently today, that there is no opposition to the dispute finding and we seek that a dispute be found with the employer accordingly.

PN37

Your Honour, there is only one more issue I wanted to raise. The log was originally served on Legal Transcripts Pty Ltd at two different addresses. My understanding is that the address is correct in terms of, except for the suite number, 600 Lonsdale Street, but I will allow Ms Brasier to go to that and we believe it is now suite 18 at 600 Lonsdale Street in Melbourne, but I will allow Ms Brasier - that is the only, we believe outstanding matter, if that can be confirmed prior to the certificate being issued, otherwise we seek to have that dispute found and that the parties be directed to have further discussions in relation to any settlement or part settlement of that dispute. If the Commission pleases.

PN38

THE SENIOR DEPUTY PRESIDENT: All right. I have some questions about the log, but I might, rather than go with that now, I might hear from Ms Brasier first and then come back to that, that might be the best way to do it, I think.

PN39

MS BRASIER: If the Commission pleases. In relation to the matters raised by Mr Nucifora, we concede the points on authorization of eligibility of interstateness and genuineness of dispute and we agree to a finding that there is a dispute before the Commission.

PN40

As to the one matter which is outstanding, that is the correct address of my client. The correct address for the purposes of this hearing is Suite 18, 600 Lonsdale Street, Melbourne. The documents were served by registered mail at Suite 4, 600 Lonsdale Street, however my client did receive them, there is no dispute as to service at all. If the Commission pleases.

PN41

THE SENIOR DEPUTY PRESIDENT: Thank you. Yes, on the question of the log, there is a number of matters that arise. I understand the log and the matter to be subject to negotiations and agreement can be quite different. Nevertheless, there are some clauses which raise some issues, other decisions of the Commission have at times had a look at logs and whether they - every matter pertains to the matter which is a matter of employment relationship and also whether they are in any way fanciful. I might just get you to respond to some of the questions which I have.

PN42

MR NUCIFORA: Preference at 62, your Honour, would be one that we have normally - - -

PN43

THE SENIOR DEPUTY PRESIDENT: Yes, preferences are certainly one of the - the Commission has no ability to award preference.

PN44

MR NUCIFORA: Yes, your Honour. We would suggest, and we did strike that out here literally, but we would obviously accept that that should be struck out from the log, that is at 62. There is normally one other, at least one other that has been raised. The union fee deductions at 45. We would say that that ought be struck out of the log and that has occurred on previous occasions. Which otherwise affect the rest of the logs, it is just that those two provisions are either not allowable or in fact in the case or preference, indeed outlawed.

PN45

THE SENIOR DEPUTY PRESIDENT: There is one which is another of interest, which is 44(a). It seems, on my reading, goes very close to bargaining fee.

PN46

MR NUCIFORA: We would put them in a different - I understand what you are saying, your Honour. We would put them in a slightly different category, only on my previous instructions, but certainly the other two that I mentioned are traditionally ones that we would rule out directly as clerical without any argument.

PN47

In terms of the membership allowance, what I might put, your Honour, is in a different category if you like, that we wouldn't seek to enforce that part of the log without making a big issue of it. It is not something that we would seek to enforce in that part of the log. It is more of a question of whether that becomes a controversial issue when it doesn't need to be, and we are not otherwise going to be or we don't believe it to be in the foreseeable future. I understand that it is one, as you have mentioned, that may be questionable, and all I am suggesting is that there is no, your Honour, we would suggest and we should have suggested up front, that in fact those other two rules preference and union deduction - deduction of union fees, ought be struck out.

PN48

What I would say with this one here, your Honour, with your indulgence, we would put on the record that we wouldn't pursue 44(a) because it is questionable. I think without splitting hairs on just seeking to avoid - maybe what is unavoidable down the track, but avoid an argument over something that we don't really intend to pursue, most likely with Legal Transcripts, so in the context of this, we are always saying it is without - you know, we won't pursue 44(a). I am not sure whether that needs to appear in the certificate. As I recall it, whether it needs something on transcript - anyway, I just raise that your Honour, as more a question of form rather than substance. In terms of substance, we wouldn't be seeking to pursue 44(a).

PN49

THE SENIOR DEPUTY PRESIDENT: Because the Act has been strengthened now in regard to bargaining agents fees, which is really the employer paying fees for non-union members. This seems to collide very directly with that with those strength and provisions in the Act.

PN50

MR NUCIFORA: I am not aware of any recent authorities, this is the question I am raising, I guess, in relation to logs of claims as opposed to agreements. What I am seeking to avoid is that argument we don't need to have. We would say on the record that we wouldn't seek to pursue 44(a) in the context of this dispute, and whereas I put that certainly in a different category to rules 45 and 62 as traditionally over a number of years, while it has remained in our log, we have agreed and certainly not argued anything other than they should be struck out.

PN51

THE SENIOR DEPUTY PRESIDENT: Okay, and that is on the basis of their being an authority, you are saying?

PN52

MR NUCIFORA: Yes, I guess what I am saying is that - well I guess more of custom practice rather than - I guess authority certainly, because more often than not, our union has accepted, and my instructions are that we have accepted that 45 and 62 ought be struck out. All I am saying about 44(a) is that we need to put it on the record that we, as a union, would not be pursuing that because there is a question now under the Act and of course for matters pertaining to it being questionable. I don't want to raise any high or low on that, but if you like, we are happy to put that on the record as strongly as it needs to be.

PN53

THE SENIOR DEPUTY PRESIDENT: Okay. 44(b) where it covers the dependents of the employee for medical, hospital and similar expenses, is there a concern there that given it is covering non-employee people, is it really a matter between the employer and the employee to the extent that it would provide benefit to dependents?

PN54

MR NUCIFORA: Once again, your Honour, we would not pursue 44(b) if it is questionable and we would put that on record.

PN55

THE SENIOR DEPUTY PRESIDENT: Okay. There is one claim in here which gets very close to being fanciful. It is claim 41, I have completely never come across it before, I mean, the view is well, you accept that there is ambit, but something like this really stretches the concept of ambit for a first class air fare for a family, as well as an employee or others of significance to the employee, plus ten nights accommodation. My concern on some of these things are, while I respect that there is ambit, I think I have to be mindful that the system needs to be not held up to disrespect or seen to be completely off the planet as to what claims are being pursued.

PN56

MR NUCIFORA: Your Honour, what I would say to that is Full Benches have accepted this log over a number of years and the authorities, I haven't got the citation, but there is a legal industry for the Full Bench dealing with a logger claim served on a legal industry in the last, would have been, in the mid to late nineties. That was hotly contested. There were more recently, a matter I was involved with, pay television, Foxtel and Austar where the log went through similar scrutiny but not on the particular sections that you have referred to or clauses that you have referred to. The Full Bench, if I may refer to those authorities, at least I don't have the citations here, but they have accepted that that is not fanciful.

PN57

I guess more recently, the other rules that you have mentioned in terms of matters pertaining are what I am concerned about, your Honour, in terms of whether they are questionable. I think with annual airfares, we are aware, if I could use an example, in the Northern Territory in those remote areas, have been airfares that have been provided to employees. We would have some concern about clause 41 becoming a clause that may be arguably fanciful. So, my instructions would be that it is not fanciful, that it has been adopted by a number of Full Benches, either directly or indirectly. As I recall in the pay television matter, I think there was some scrutiny, not on every clause but in that process and the earlier legal industry Full Bench, both headed by the president, the issue of whether a clause was fanciful has not arisen.

PN58

This log has been used in the Amalgamated Union since at least 1993, 1994, apart from the two rules that I mentioned earlier of course. The ones that are more recently questionable and ones that we wouldn't otherwise pursue, I think if we start to open this argument on whether a particular clause is fanciful, leaves us in a very difficult position, not one that we would accept, your Honour. Because of the history, the long history if you like of the Commission, notwithstanding the recent amendments of the Act of the Commission, the Full Bench is accepting its ......

PN59

THE SENIOR DEPUTY PRESIDENT: Yes. There are other decisions that you might say that you have got some authorities, other decisions which, I must say describe a fanciful definition or descriptions, clauses a lot less generous than this one. There is a little bit of ..... about it as it ..... goes to others and significance to the employee, I'm not too sure what that phrase means.

PN60

MR NUCIFORA: I am not aware, your Honour, of there being, since the matters pertaining has come up as an issue, that coming up as an issue in logs of claims as the one before you, as opposed to agreements. I understand that the questions raised from my instructions, your Honour, it would be a serious matter for us as a union to accept that in departure from what we consider to be, if you like, the importance of a log and anything that we do, particularly with awards before we even talk about agreements or anything else. But of course there is no, as we say, and we have for some time, going back a number of years, preference and union fee deductions are clearly matters that ought be struck out from the log.

PN61

The question of whether other clauses are fanciful, if that is an issue, then I may need to get further instructions about whether we make further submissions on authorities in relation to this log or on authorities on the whole question of what is a fanciful provision, if you like.

PN62

THE SENIOR DEPUTY PRESIDENT: Well move on, I will come back to that. Going right back to the start, clause 5(c), again talks about deductions from an employee's pay. It is not specific to the union fees, but some of the - as i understand, the authorities behind this are just the role of the employer as an agent in a financial transaction.

PN63

MR NUCIFORA: I think the practicality of that clause is one where most employees do have deductions of something or other from their pay and the question of whether it is a matter pertaining may arise when the agreement is up for certification - the authorities we have got now of course, are Electrolux.

PN64

Your Honour, we would not conceive that (c) ought not be in the log and we would - I guess we would generally have a concern about the log being broad enough because ambit is what it is all about in of course, industrial relations. And we would want to make further submissions if there was any question about that, about 5(c) or have the opportunity to make further submissions, whereas I mentioned with the other rules that you have referred to, where we would say that we would not seek to pursue them if they appear questionable. With that one there, we believe that it is a reality that employees do have deductions from their pay and the more we move away from reality, the harder it even gets to have ambit.

PN65

I understand what you raise and is something that I would take back to our office about, reviewing our log of claims. The concern I have is that we have a different log applying here to what we might have in thousands of other logs, and the question may arise, but we would say, your Honour, that more particularly that has arisen with the recent authority with agreements. I am not aware that it is reasonable with logs of claims, I'm not saying that it should, but I'm not aware that there is any authorities on whether logs of claims - I do know that logs of claims cannot be, do not need to be restricted to allowable award matters. And there is a decision of Vice President Ross in a matter that I was involved with, ASU and various taxi companies, where logs were not restricted by allowable award matters, because the logs may have in fact, as his Honour found then, may in fact provide ambit for enterprise bargaining agreements or other arrangements for that matter. That is one that is being relied on by various authorities since then.

PN66

I raise that same issue, that logs ought not be unnecessarily restricted, but we might put, for the record, if there is a concern about whether a provision may be questionable, that we need not pursue it, because we don't normally pursue - we may not normally pursue the earlier ones that you have raised about, I think it was the membership fee and medical expenses.

PN67

We would, your Honour, seek to otherwise retain - - -

PN68

THE SENIOR DEPUTY PRESIDENT: I haven't finished, I haven't finished - - -

PN69

MR NUCIFORA: Sorry, your Honour?

PN70

THE SENIOR DEPUTY PRESIDENT: I haven't finished.

PN71

MR NUCIFORA: Sorry, your Honour, yes I understand that.

PN72

THE SENIOR DEPUTY PRESIDENT: Clause 20, contract agency work where the intent there is to apply the award conditions to any contractor employee or other person. There has been decisions of this Commission of course finding in agreements that those types of provisions are contrary to the Electrolux authority. What is your view on that one?

PN73

MR NUCIFORA: If that becomes a question of once again, an enterprise bargaining agreement and whether it is certified, then that would be one where the question would have to be dealt with. In terms of the log, I am aware that there have been recent dispute findings in recent weeks, relying on this particular log where - and of course placed Electrolux - where this issue wasn't raised. We would say that once again, whether that particular clause can be pursued or applied ultimately rests with a decision of the Commission when it comes to certification of an agreement, if we are pursuing a term - similarly to what is in clause 20.

PN74

THE SENIOR DEPUTY PRESIDENT: Clause 65, there is some authority here, I think on what is called the Financial Clinic case where an attempt to bind an employer to pay into a particular fund for non-union members, this seemed to be not a valid claim. The wording of this clause is a bit circuitous, but - - -

PN75

MR NUCIFORA: Of course, superannuation is an allowable award matter and of course we will have the whole question of statutory choice of which superannuation an employee my choose to have. That will all, I imagine, override what we might have a in a log, but the whole question of whether superannuation ought be in a log goes back to whether it is an allowable award matter. It may be questionable, there may be and I won't say that we said that it is, but there may be aspects of this particular clause that may be questionable in terms of what may go into an award on an agreement, and so at that time, when agreements are up for certification, for example or if an award is being made and there is consent drafting of an award, then the Commission would make a decision on how to narrow that provision down. I think we would have a grave concern of having a log that didn't have a comprehensive superannuation clause, because of how important it is and it otherwise being an allowable award matter.

PN76

THE SENIOR DEPUTY PRESIDENT: The point I was raising though, is I think there has been pretty sound authority you can't have a clause which binds an employer to pay into a particular fund for non-union members. Does that clause do that, do you think? It may not - - -

PN77

MR NUCIFORA: I don't think so. I'm just having a quick read of that, if I go through - "they shall provide a superannuation scheme for all employees" - 65(a) and 65(b) - once again, I think that will be overridden by the legislation, I would have thought, on choice. If there is any compulsion in any of this, I think that would have to be restricted by the superannuation legislation, I would have thought, and if not, I'm sure the Workplace Relations Act will be amended fairly quickly accordingly, particularly post 1 July 2005 in relation to choice. The Federal Government's current position is that employees should choose whatever scheme they want and I would have thought that something in the log of claims for this would not - a bit like, if I could use some other areas - whether it be, probably not a good example, but occupational health and safety, there would be legislation at the state level in that case, but long service leave, legislation that would override what we would seek to pursue in the log and that would be limited at the time that an agreement, a proposed agreement might be certified and an award might otherwise be made.

PN78

If I think of most superannuation clauses in awards, they are fairly standard. It is an issue that would arise in terms of an agreement, of course enterprise bargaining agreement and it is a question of whether that agreement could be certifiable rather than whether the log here is - - -

PN79

THE SENIOR DEPUTY PRESIDENT: I think the Financial Clinics case is about a log, but I think you are telling me that it probably doesn't bind an employer to pay into a certain fund for non-union members, in which case I would have difficulty. There is another one which caught my eye which was 48. That seems to me highly fanciful for the employer to provide a home and all the rent and utilities, and I imagine you will say that is not fanciful?

PN80

MR NUCIFORA: Yes, we would, your Honour. We do have, maybe not so much in the clerical area but this log also covers our local government and local authorities employees who work in all sorts of remote areas.

PN81

THE SENIOR DEPUTY PRESIDENT: Maybe better termed advisor log for the clerical area .

PN82

MR NUCIFORA: Well, I think your Honour, in the last 10 years there is a specific - this log has been as generic as possible without, we believe, being too fanciful, and I think in that time it has stood the test of time because what you find is that ten years ago, what might have seemed arguably fanciful then is not now in terms of pay or other conditions of employment. There have been issues of logs going back well before 1993, 1994, to the sixties and seventies that they didn't have enough ambit because it might have appeared back then that a thousand dollars a week was quite fanciful. We certainly don't want to set any limits to what this log has shown to be within the ambit of what is acceptable by the Commission.

PN83

THE SENIOR DEPUTY PRESIDENT: Clause 17 is also curious. It is probably a matter for negotiation, but they are the main queries that I have. I think that where we have got to is that you accept that in the finding of dispute I should not have - I should regard as clauses 45 union fee deduction and clause 62 preference not be found to be matters in dispute.

PN84

MR NUCIFORA: Yes.

PN85

THE SENIOR DEPUTY PRESIDENT: That membership allowance, which is 44(a), which I think has real difficulties given the strength of the Act on bargaining fees and medical expenses would be matters that you will not pursue with this employer.

PN86

MR NUCIFORA: Yes, yes, and we put that on the record, your Honour.

PN87

THE SENIOR DEPUTY PRESIDENT: And I think the others, well there might be a degree of fancifulness in them. You are saying that they are parts of the log and of course what emanates is an agreement, if one does come through, is another question.

PN88

MR NUCIFORA: Yes, that is what we would be putting, your Honour. If your Honour pleases. Sorry, your Honour, that was - the ones that we indicated that we weren't pursuing was 44(a) and (b) and what struck out is 45 and 62.

PN89

MS BRASIER: Sorry, your Honour, I just want to raise a query, and it may have been my hearing at that point, I wasn't quite sure what the resolution was on point 5(c) - - -

PN90

THE SENIOR DEPUTY PRESIDENT: Deductions. Yes I think it satisfied me there is general deductions. They have to be very careful again about the employer acting as an agent and conflicting with ..... negotiations with Electrolux where that has revolved around again, bargaining agents fees, but there is a lot of authority in there about the employer being very careful about acting as the financial agent and not being about the relationship of the employer as an employer and as employee as an employee. So that would be handled carefully, but again I think Mr Nucifora referred to that and said there would be care exercised in whatever, if anything does come out of the negotiations and consultations.

PN91

I think that is satisfactory. I do think, while I accept there is an ambit of questions, I think the union has to be careful about not making things too off the planet. I mean, that one about the first class air fares for family and anybody else seems to be stretching the fancifulness concept to a limit in my view.

PN92

MR NUCIFORA: We used to have similar - your Honour, I don't know if we still have, but although they weren't an award or I don't know if they were agreement entitlements but for airline employees, had of course, discount flights for families and relatives.

PN93

THE SENIOR DEPUTY PRESIDENT: Yes. Ten nights accommodation as well - Pursuant to section 111 of the Act, the Commission determines, records and finds that there is in existence, an industrial dispute within the meaning of the Act, the parties to the dispute are the ASU and the respondent, Legal Transcripts Pty Ltd.

PN94

The matters in dispute are those outlined in the log of claims and the letter of demand served on the respondents by the ASU and dated - - -

PN95

MR NUCIFORA: We seek that the dispute found in, found on today's date or in the certificate issued, but the original log was served on 3 December 2004.

PN96

THE SENIOR DEPUTY PRESIDENT: Yes. So the matters in dispute are those outlined in the log of claims and letter of demand served on the respondent by the ASU and dated 3 December 2004. That finding is subject to a number of amendments and undertakings given this morning in respect of clauses 45, 62, 44(a) and 44(b). A determination will issue in due course.

<ADJOURNED INDEFINITELY [11.51AM]

PN97

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 DECLARATION OF SERVICE PN11
EXHIBIT #N2 EXTRACT OF THE RULES GOVERNING THE NATIONAL ADMINISTRATION OF THE UNION PN19