C2005/1325, Transcript of Proceedings [2005] AIRCTrans 795 (31 March 2005)

1800 534 258

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 10966-1

SENIOR DEPUTY PRESIDENT LLOYD

C2005/1325

AUSTRALIAN MUNICIPAL, ADMINISTRATIVE, CLERICAL AND SERVICES UNION
AND
UCMS EMPLOYMENT SERVICES PTY LTD
s.99 - Notification of an industrial dispute - Log of claims
(C2005/1325)

MELBOURNE

10.42AM, MONDAY, 21 MARCH 2005

PN1

MR J NUCIFORA: I appear for the Australian Services' Union.

PN2

MR NICK RUSKIN: I seek leave to appear on behalf of UCMS Employment Services.

PN3

MR D FELDMAN: I seek leave to appear for UPS Pty Ltd.

PN4

THE SENIOR DEPUTY PRESIDENT: Thank you Mr Feldman. Mr Nucifora, any response to the - seeking leave to appear?

PN5

MR NUCIFORA: Your Honour, we might just reserve our rights on that. We won't today, we reserve our rights in terms of counsel appearing for both employers, but won't otherwise object.

PN6

THE SENIOR DEPUTY PRESIDENT: Okay, well, leave is granted to
Mr Ruskin and Mr Feldman. Mr Nucifora?

PN7

MR NUCIFORA: Thank you, your Honour. Your Honour, this is a section
99 notification of a dispute between the Australian Municipal Administrative Clerical and Services Union, otherwise known as the Australian Services Union, or the ASU, and UCMS Employment Services Pty Ltd and others, the others being UPS Pty Ltd at two different addresses, at level 30 Sky Garden Building,
77 Castlereagh Street, Sydney, and UPS Pty Ltd, of 247 King Street, Mascot, New South Wales. Clearly, we are seeking to serve the log on basically two employers, UCMS Employment Services Pty Ltd at 80 Dorcas Street, South Melbourne, and UPS Pty Ltd, at whichever is the appropriate - we believe that one of them is the registered address and that the dispute order will be found at the correct registered address.

PN8

Your Honour, we are seeking as a result of this notification, a formal dispute finding today, pursuant to section 101 of the Workplace Relations Act 1996. Your Honour, if I may first check that on the Commission's file there is a statutory declaration in relation to the serving of the log of claims, dated 28 February 2005, something we have lodged with the notification on 28 February?

PN9

THE SENIOR DEPUTY PRESIDENT: I have a form R4, dated 28 February, signed by Mr Paul Slape.

PN10

MR NUCIFORA: That's right, your Honour.

PN11

THE SENIOR DEPUTY PRESIDENT: National Secretary.

PN12

MR NUCIFORA: Yes, three pages, then there's a declaration.

PN13

THE SENIOR DEPUTY PRESIDENT: Yes, a declaration of service.

PN14

MR NUCIFORA: That is confirming that the log was served on 17 February 2005 by the ASU national secretary, Paul Slape.

PN15

THE SENIOR DEPUTY PRESIDENT: Yes.

PN16

MR NUCIFORA: Of course, the letter of demand went with the log of claim and as I say, served on 7 February[sic] 2005. Your Honour, as the employers did not accede to the demand within seven days, the notification of alleged dispute was accordingly lodged with the industrial registry on 28 February 2005, and that is why, your Honour, I just wanted to check to see if that particular declaration was there on the file. Your Honour, before I take you into any further detail on the merits of the notification if I may, for completeness, tender as an exhibit a declaration of service dated 9 March 2005 in relation to serving the notice of listing in relation to the hearing today. If I may, your Honour, tender that declaration as an exhibit.

EXHIBIT #N1 DECLARATION OF SERVICE DATED 09/05/2005

PN17

MR NUCIFORA: Thank you, your Honour. Exhibit N1 is a declaration of service confirming that the employer served the log of claims were also served with a notice of listing on 7 March 2005 and attached, in A, is the covering letter with the notice of listing for today's hearing. That is marked letter A, and the attachment B confirms that that was served on the employer, so UCMS Employment Services Pty Ltd and UPS Pty Ltd, by registered mail. That was signed by, once again, the National Secretary, Mr Paul Slade, on 9 March, confirming that the employers were properly notified of today's hearing.

PN18

Your Honour, exhibit N1, as I mentioned, is a declaration of that service and of course we have counsel here on behalf of both of the employers involved. Your Honour, the ASU contends that all statutory requirements for a formal dispute finding have been met and these include, firstly, authorisation where the ASU national secretary was properly authorised under the union's rules to serve the log of claims. Secondly, interstateness, UCMS Employment Services Pty Ltd operates in Victoria, and UPS Pty Ltd, at least as we understand it, operates in New South Wales. Thirdly, eligibility, that is whether the union under its eligibility rules covers the employers that are intended to be covered by the dispute finding; and we say there is evidence that we - I don't believe there is a dispute. We will wait to hear from my friends about the employment clerical administrative employees, including call centre employees in the industry of both the employers.

PN19

We also say, there is a community of interest, because they do employ clerical administrative employees, although both these employers probably operate otherwise in different industries. There is a question of genuineness, your Honour, and where the union has served the log of claims and sought a dispute finding to improve the terms and conditions of employment for employees eligible to be members of the ASU; and of course we served the log on both these employers for the purposes of first and most importantly, to improve the terms and conditions of the employees we would cover. Commission, if I could take you just firstly - in relation to authorisation and eligibility, if I may tender a copy of an extract of our rules?

EXHIBIT #N2 EXTRACT FROM RULES OF THE AUSTRALIAN SERVICES' UNION

PN20

MR NUCIFORA: Thank you, your Honour. Exhibit N2 is an extract from the most up-to-date rules, and this is dated at the top, 14 October 2004, of course, the rules of the Australian Services Union, or the full name there being acknowledged by the deputy industrial registrar. I have within exhibit N2 the relevant parts of the rules. Firstly if I could take you to rule 5 in "Terms of eligibility." Your Honour, I refer you there to, on the fifth page, "Industry and eligibility." We see at (a) there, if I may quote, the description of industry and then under description of industry, part (ii):

PN21

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

PN22

That is the industry we are talking about, and of course we are talking about there being a communicative interest between clerical admin employees, including call centre employees, at both the employers involved here. Your Honour, if I could then take you through two pages on from there, once again it's part (ii) under (b), this is (b)(ii), sorry. It's located at the top of that page, "Eligibility for membership," under (b) part (ii), if I may quote:

PN23

The union shall consist of all persons engaged in any clerical capacity and/or engaged in the occupation of shorthand writers and typists. The union shall -

PN24

THE SENIOR DEPUTY PRESIDENT: Sorry, where were you reading from?

PN25

MR NUCIFORA: Sorry, your Honour. Your Honour, it's two pages on from where we were, and it's under the "Eligibility for membership".

PN26

THE SENIOR DEPUTY PRESIDENT: Yes.

PN27

MR NUCIFORA: That's a lower case b and then part (ii) - roman numeral two.

PN28

THE SENIOR DEPUTY PRESIDENT: The big part (ii), yes.

PN29

MR NUCIFORA: It is part (ii) but it is (b)(ii) and the earlier one I read was (a)(ii). In (b)(ii), where we are now talking about not the industry but the eligibility for membership, if I may quote from that:

PN30

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 calculating billing or other machines designed to perform or assist in performing any clerical work whatsoever.

PN31

The courts have read that particular paragraph and in particular, "performing any clerical work whatsoever" quite broadly, and to include almost every office worker in the country in the private sector, particularly clerical administrative employees, and to take us to a fairly high level apart from very senior executive people, of course, who might be in positions of hiring and firing. Now that's a fairly broad reading. The authority is AWU, New South Wales, but the Commission more often than not follow that authority in relation to the definition of clerical work. More recently we have the legal industry Full Bench decision. I don't have those here but I can get them if they are needed; and the pay television Foxtel and Austar Full Bench decisions in relation to dispute findings and this question of the definition of clerical work.

PN32

Your Honour, in terms of authorisation, we refer here to the power of the national secretary. Of course the national secretary served a log of claims and has signed the declaration for service. But in particular the authority to serve the log of claims, if I could take you three pages on, it's actually the last page of exhibit
N2 under rule 14 which refers to the national executive president and national secretary. If I may quote from rule 14(b):

PN33

The national executive president and national secretary shall be -

PN34

as roman numeral (i):

PN35

be the executive officer of the union who between meetings of the national conference and national executive shall conduct and manage the affairs of the union and in consultation with each other and do all things necessary to be done by or on behalf of an organization registered under the Workplace Relations Act 1996.

PN36

Then if I may take you to (b)(vi):

PN37

Notwithstanding the provisions of subclause 1 of this subrule, any and each of the executive officers may authorise on behalf of the union a compilation of claims and/or logs of claims and letters of demand and the service of such claims on any employer employing persons who are eligible for membership to the union or whom the union seeks to represent either as agent or otherwise.

PN38

So clearly that (b)(vi), your Honour, gives the national secretary, Mr Paul Slape in this case, the power to serve logs of claims and of course a letter of demand, and it is that process that we have relied on for quite a long time. I mentioned earlier the legal industry and the pay television - the legal industry case really goes back to the mid 90s, but the pay television Full Bench decision was handed down, I believe, in 2002. I should have those citations in, I apologise for that, your Honour. But that more recent one, it was challenged; this whole question of authorisation was challenged, but the process that we followed is as per the rules and the Full Bench in the pay television matter certainly found in favour of the union on that point.

PN39

In terms of interstateness, your Honour, we are aware that UCMS Employment Services Pty Ltd operates in Victoria, at least Victoria and UPS Pty Ltd has an office as you can see from the addresses in New South Wales. So there is interstateness although we probably don't need that in the case of the UCMS but certainly there is interstateness between - in terms of the employers that are served there. In terms of genuineness, I mentioned earlier on the ASU has served the log of claims for the purposes of improving the terms and conditions of members and employees eligible to be members of the ASU. Your Honour, I have had discussions with the employers, not in detail, in terms of whether there is any challenge to anything that I have raised here so far. Before I go to that, though, your Honour, I just want to confirm the last time we were before you was a dispute finding in relation to legal transcripts in C2004/6972.

PN40

THE SENIOR DEPUTY PRESIDENT: That is right.

PN41

MR NUCIFORA: Your Honour, you raised - and it came up in the record of finding - a number of issues in relation to the log, and what we would say, your Honour, is the log that is before you supports the clerical log once again; and the union would submit as you had raised back then, your Honour, and we had acknowledged and changed our submissions but in terms of clause 45 of the log, the union fee deductions and clause 62, preference, that we would say that those two clauses ought be struck out from the log and we have done that on previous occasions. But further to that, your raise then, your Honour, subclauses 44(a) and 44(b) and we would indicate once again, your Honour, we would not pursue that part of the log. There was a question of whether they were matters pertaining to the employment relationship and they, as I recall, were deduction of union fees or they were bargaining fees?

PN42

THE SENIOR DEPUTY PRESIDENT: That is right.

PN43

MR NUCIFORA: We would pursue the same course then, your Honour, and we would submit that apart from a recent Full Bench decision I have not had a chance to read last Friday, I don't think there is any change of course on that since you issued that record of findings on 2 February 2005.

PN44

THE SENIOR DEPUTY PRESIDENT: Yes.

PN45

MR NUCIFORA: We would seek to have a dispute found on the same basis, your Honour, as that. Your Honour, in terms of discussions with the employers I have had discussions firstly in relation to UPS Pty Ltd with Ms Kristen Barrett from Gadens Lawyers. Of course she is Sydney-based and she is not able to appear today but obviously they are represented by counsel. The discussions that we had related to some argument about which industry UPS were in, whether they were into customs clearing international freight forwarding or whether they were in the local courier industry. We say, notwithstanding which industry they are in, that ought be an issue that we discuss at the next phase when a dispute is found and we don't believe that it would prejudice any of the parties to have a dispute found today. Indeed we say that we have served the log of claims for the purposes of a dispute finding because we wish to improve the terms and conditions of employment. To pre-empt what might happen before we have discussion, I think there is traps for all of us in that because it is a question then of whether the party, the union serving the log, is actually genuine.

PN46

We do want to sit down in that case with UPS and discuss the sort of things that they are wishing to discuss now over the next phase. All we are seeking today - this is not a roping-in application of course, it is a dispute finding and I don't think there is any dispute from UPS that they employ clerical administrative employees. What particular classification structure would be the most appropriate and which award is something we would discuss at the next stage. I would raise that question; if there is a dispute that they do employ clerical administrative employees then we would seek to reserve our rights to provide further evidence on that point.

PN47

In relation to UCMS Employment Services Pty Ltd we have had some discussions with Mr Ruskin before today and once again, the issues that have arisen relate to the sort of issues we ought to discuss after there is a dispute finding. There is nothing wrong with discussing it before the dispute finding but they really go to being what - once again, if we were to agree to anything, it may be pre-empting what might happen in those discussions. Those discussions ought to be open and frank about where this particular company particularly lies in industry. UCMS is a contract call centre which we have a very ongoing cooperative and friendly relationship with. They have acquired a company originally called Workmix, now UCMS Employment Services Pty Ltd and Workmix originally provided, as I understand, temporary and labour hire type employees. We would think it would be fruitful to have those discussions but we think at this point, once again, we believe to do that we need to have a firm basis; we need to have some jurisdiction and to do that we have served a log of claims. We don't believe that making a dispute finding will prejudice once again the short, medium or long term interests of this particular, if you like, subsidiary company or related company to UCMS.

PN48

We say there ought to be no impediment to having the dispute finding. Once again we are not seeking a roping-in application today. We are not seeking that this employer, like the other employer, commit themselves to anything that might happen in discussions without prejudice and discussions in relation to whether they are roped into any award after that point in time. This is a dispute finding because there are, once again, we believe employees who we would cover, clerical administrative employees, and we would reserve our rights if we needed to provide further evidence that they do employ clerical administrative employees. We believe then in that case both UCMS Employment Services as per UPS Pty Ltd that a dispute can be found, given that we've met the rest of the statutory requirements before you. If your Honour, pleases.

PN49

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. Mr Ruskin.

PN50

MR RUSKIN: Thank you, your Honour. UCMS Employment Services oppose the finding of dispute in this matter today. I am instructed to do so and some of the reasons for opposing the log area as follows: the genuineness of the log in the light of a number of clauses in the log which are beyond power, some of which have been identified today. I don't think it helps to say that having served the log, part of it is now not being pursued but there are elements of the log which go to its character in genuineness. Clause 20 which concerns contract agency work, clause 44(a) and (b) which have been mentioned, 45, union dues. There is a couple of others, 54 and 62. So, on that basis, we question the character of the log and the genuineness of the log. My client is bound already by an enterprise agreement which operates to 2006 so there is no issue about the terms and conditions of employment of the employees in the interim period. The agreement operates to the exclusion of an award.

PN51

THE SENIOR DEPUTY PRESIDENT: Is that a certified agreement?

PN52

MR RUSKIN: It is a certified agreement, your Honour.

PN53

MR NUCIFORA: Section L, 170LK.

PN54

MR RUSKIN: Yes, it's a section 170LK. So there are those issues. As to the proper service, we would wish to examine the proper issuing of the service of the log of claims, notwithstanding what the rules say and distinctions may be made about the Full Bench decision that was referred to by Mr Nucifora. So in all those respects we do oppose a finding of dispute and seek the matter be either set down for arbitration or the matters be referred into discussions however way the Commission sees fit, either with it or just with the union. We have had discussions and they are not fruitful so that is our position and they are my instructions, if it please the Commission.

PN55

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Ruskin. Mr Feldman.

PN56

MR FELDMAN: Your Honour, I am also instructed to oppose the finding of dispute as against UPS Pty Ltd. One of my concerns, as Mr Ruskin has just indicated, was that there are matters contained in the log that didn't pertain to the employment relationship and in particular the clause 45 relating to union fee deductions; but I note Mr Nucifora has withdrawn his reliance on that particular aspect of the log. There is also, and possibly foreshadowing something at a later time, a concern about the genuineness of the dispute in that Mr Nucifora in his submissions indicated that the reason for the log is to improve terms and conditions. We would say that the employees are already covered by private awards. We understand that the ASU are tyring to rope in UPS Pty Ltd into the Clerical and Administrative Staff International Freight Forwarding and Customs Clearing Industry Award 2003. We would say that this award covers clerical and administrative work for international freight forwarding and customs brokering and clearing, that is contained in clause 6.1 of that award. UPS Pty Ltd is not in this industry and does not employ such employees. Rather it is a courier business and so it can't be said that it employs people who are covered by the award that we understand be subsequent to a dispute finding.

PN57

THE SENIOR DEPUTY PRESIDENT: Did you say it was a career?

PN58

MR FELDMAN: Courier.

PN59

THE SENIOR DEPUTY PRESIDENT: A courier business?

PN60

MR FELDMAN: Courier, yes.

PN61

THE SENIOR DEPUTY PRESIDENT: I see.

PN62

MR FELDMAN: We would also note that in the event that it does engage employees in clerical areas, in clerical roles, that it would already be respondent to the Clerical and Administrative Employees Victoria Award 1999 by virtue of that award's common rule application. So those employees would already be federally covered. There may be some confusion in the application in that there is a company in the broader UPS group, UPS Freight Supply Claim Services Australia Pty Ltd and that entity is already a named respondent to the clerical and Administrative Staff International Freight Forwarding and Customs Clearing Industry Award. So that is a company that is properly within that industry but UPS Pty Ltd is not. So we would certainly oppose a dispute finding today. Thank you.

PN63

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Feldman. Mr Nucifora, is there anything you want to respond with at this stage?

PN64

MR NUCIFORA: Yes, just briefly, your Honour. In relation to UCMS, as I understand it, they raised questions of genuineness because of elements of the log and we have sought to address that. They raise some questions in addition to the ones that I had raised, and our position stands because we have relied on this log in that previous matter before, as we have for a number of years, because matters pertaining has become an issue more recently and we believe that the log certainly pertains to the employment, otherwise it pertains to the employment relationship between employees and employer. In terms of proper service, the other matters that Mr Ruskin raised, I apologise, I don't have the citations here but I can provide them to the parties in relation to pay television in particular and the legal industry Full Bench matter; and authorisation of service is certainly raised in those and they confirmed that the process that the union follows is correct.

PN65

We acknowledge that there is an EBA that will operate until 2006. It is a section 170LK and we say that it ought not in any way prejudice that particular agreement applying and the dispute finding is not otherwise going to, in itself, impact on the conditions of the job. We do have a concern about a long-term position of course. In terms of the UPS Pty Ltd, Mr Feldman raised a question of the genuineness of the dispute and some argument about which industry this employer is in. There is some dispute between the ASU and UPS Pty Ltd about which industry they are in but either way the question before you today is whether they employ clerical administrative employees, whether at some later stage one of the options for the ASU or the employer consents or otherwise is that they be roped into a particular award, whether it be customs clearing or any other award. That becomes something we discuss the merits of in the next phase and of course if there is dispute then there is an application, if that's chosen by our union, for a roping-in, and the merits of that get argued at that point. At this point, and as I am instructed, their parent company is certainly in the customs clearing international freight forwarding industry. I understand that there is evidence of there being customs clearing work done by this particular subsidiary of UPS.

PN66

So, that does not have to be determined today, one way or the other. What has to be determined - and I didn't hear this from either Mr Feldman or Mr Ruskin - is that these particular employers are in the private sector and employ clerical administrative employees, otherwise covered by our constitution. Mr Feldman raised the Victorian award. I was not certain whether UPS Pty Ltd had employees in Victoria, but it raises a question about employees in Victoria, whereas our direct interests arose from New South Wales and we don't dispute that. Once again, it really gets back to this question of whether the four basic requirements are met at this stage, and from the union's point of view we are not seeking to jump the gun or pre-empt discussions. All we are seeking is the finding that they do employ employees that we otherwise would cover, and that there was proper authorisation when we served the log; and in terms of genuineness, whether we seek to improve the terms and conditions of employment, and certainly we do, your Honour.

PN67

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Nucifora. What I propose to do now is just to adjourn briefly into private conference before I make a ruling.

<SHORT ADJOURNMENT [11.12AM]
<RESUMED [11.51AM]

PN68

THE SENIOR DEPUTY PRESIDENT: I thank the parties for their constructive approach during the conference. I confirm that I have decided to adjourn this morning's proceedings to permit the matter to be arbitrated. We have set down dates for the lodgement of outline of submissions between the parties, copies to the Commission and we have set a hearing date for 9.30 am on 21 April. I encourage the parties to continue to talk in the hope that there might be some other course available. The Commission is now adjourned.

<ADJOURNED UNTIL THURSDAY 21 APRIL 2005 [11.52AM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #N1 DECLARATION OF SERVICE DATED 09/03/2005 PN16
EXHIBIT #N2 EXTRACT FROM RULES OF THE AUSTRALIAN SERVICES' UNION PN19