AG2006/4562, Transcript of Proceedings [2006] AIRCTrans 1015 (30 August 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996 15575-1

COMMISSIONER GRAINGER

AG2006/4562

APPLICATION BY TIBALDI SMALL GOODS (AUSTRALASIA) PTY LTD
s.170MH pre-reform Act - Application to terminate agreement (public interest)
(AG2006/4562)

MELBOURNE

2.17PM, TUESDAY, 15 AUGUST 2006

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN MELBOURNE

PN1

THE COMMISSIONER: Yes thanks. It's Mr Fischbacher is it for the company?

PN2

MR H FISCHBACHER: Yes Commissioner. I seek leave to appear on behalf of the applicant.

PN3

THE COMMISSIONER: Yes. Good. Thanks very much and Mr Bird you're giving the appearance for the union are you?

PN4

MR G BIRD: I appear for the union along with MR L NORRIS who is on the telephone.

PN5

THE COMMISSIONER: Who is at the end of the telephone.

PN6

MR BIRD: Yes.

PN7

THE COMMISSIONER: And Mr Mallamace, is it?

PN8

MR G MALLAMACE: Yes.

PN9

THE COMMISSIONER: Good. Fine. Thanks very much. Yes thanks Mr Fischbacher if you go ahead.

PN10

MR FISCHBACHER: Commissioner this is an application pursuant to section 170MH(1) of the pre-reform Act for termination of the Tibaldi Small Goods (Australasia) Pty Ltd and AMIEU Agreement of 2002. Section 170MH of the pre-reform Act continues in force pursuant to section 21K of schedule 7 of the Act. Does the Commissioner want to be heard in relation to our arguments with respect to section 170MH?

PN11

THE COMMISSIONER: No I don't. I note that that's what you're seeking and I want to hear from Mr Bird at this stage about what the union's position is in brief. Thanks. Mr Bird?

PN12

MR BIRD: It will be Mr Norris.

PN13

THE COMMISSIONER: Mr Norris, all right. Mr Norris, can you hear us?

PN14

MR NORRIS: Yes I can thank you Commissioner.

PN15

THE COMMISSIONER: Yes all right. If you could just tell us what the union's position is in regard to this application. In brief.

PN16

MR NORRIS: Yes thank you Commissioner. The union is opposing the application and the largest part of our resistance to the application revolves around the terms of clause 1.5.3 of the agreement, being the Tibaldi Small Goods (Australasia) Pty Ltd and AMIEU Enterprise Agreement 2002.

PN17

THE COMMISSIONER: Yes.

PN18

MR NORRIS: Now that clause reads and I'll read it out for the Commission's benefit.

PN19

THE COMMISSIONER: Well Mr Norris, I'm only wanting to understand very basically the union's opposition to the application. I'm not proposing to hear this matter through to finality today. What I'd be proposing – the question I ask is, do the parties want to have a conference about this or do they want me to actually issue directions for written submissions and for a hearing to arbitrate the matter. So I might hear from you, Mr Fischbacher. You will note that the union's opposing it. I'm not proposing to hear it in full today.

PN20

MR FISCHBACHER: Commissioner I gathered that from the notice of listing.

PN21

THE COMMISSIONER: Yes.

PN22

MR FISCHBACHER: Commissioner, we're happy to have a conciliation here and now.

PN23

THE COMMISSIONER: Yes.

PN24

MR FISCHBACHER: If that would assist but we would - - -

PN25

THE COMMISSIONER: Well it's what's convenient to the parties that I'm interested in. If the parties would like to confer at this stage. I'd suggest though that the parties should confer with me out of the room, given that I'm going to need to deal with it. It appears that I'm likely to have to deal with the matters ….. to arbitration. Does that appear appropriate to you Mr Fischbacher?

PN26

MR FISCHBACHER: I'm happy with that.

PN27

THE COMMISSIONER: Yes. Yes Mr Bird, are you happy with that? I know happiness is a relative - - -

PN28

MR BIRD: Yes. I'm not quite certain as to what, what would the conciliation consist of? We're quite happy to - - -

PN29

THE COMMISSIONER: Well it might involve Mr Norris continuing to say what he was saying before at least so if the company, if it doesn't already understand will better understand what the union's specific concerns are regarding the application.

PN30

MR BIRD: If it – well I don't know. Mr Norris may have a view as to whether that's going to be useful or not.

PN31

THE COMMISSIONER: Well Mr Norris, do you have a view on that?

PN32

MR NORRIS: Commissioner on my instructions the parties have attempted to negotiate a replacement agreement.

PN33

THE COMMISSIONER: Yes.

PN34

MR NORRIS: Unfortunately those negotiations haven't been successful to date.

PN35

THE COMMISSIONER: Yes.

PN36

MR NORRIS: One always remain hopeful for the future but - - -

PN37

THE COMMISSIONER: I live in hope Mr Norris.

PN38

MR NORRIS: In that environment unless Mr Bird instructs me to the contrary I don't think conciliation would be of any useful purpose. What we'd be seeking today - - -

PN39

THE COMMISSIONER: Yes.

PN40

MR NORRIS: Are of course directions for the further processing of the application.

PN41

THE COMMISSIONER: Yes all right. Okay. Well Mr Fischbacher, it looks like we're forging ahead with directions.

PN42

MR BIRD: Could I just say if the conciliation was to consist of trying to reach agreement about an agreement there may be some use in that, if that's what the company has in mind. If the conciliation is something to do with the technicalities of running this particular case well I can see no value in that.

PN43

THE COMMISSIONER: Yes all right. Well that's the other part of the equation. Well Mr Fischbacher, do you have any instructions on that?

PN44

MR FISCHBACHER: Commissioner conciliation is simply that. It's an opportunity for the parties to have a chat.

PN45

THE COMMISSIONER: Yes.

PN46

MR FISCHBACHER: In an attempt to come to a deal. Now invariably that does mean I would have thought an agreement to, for a further agreement, something that we've been pushing for some seven months so - - -

PN47

THE COMMISSIONER: Yes.

PN48

MR FISCHBACHER: But for the sake of perhaps 30 minutes if we could have an opportunity to have a chat.

PN49

THE COMMISSIONER: I'm delighted to give you that opportunity.
Mr Bird - - -

PN50

MR BIRD: I think Mr Norris has some time constraints.

PN51

THE COMMISSIONER: Well then I think the quicker that you start having – why don't we agree on the timetable for directions and then why don't I adjourn and leave the rest of you to make such use of your time as you see fit in regard to a conference.

PN52

MR FISCHBACHER: Absolutely.

PN53

THE COMMISSIONER: Mr Fischbacher, how quickly would you like this to be heard? I can hear this around the 18th, 19 September. That would give ample time for written submissions. Is that too far away?

PN54

MR FISCHBACHER: No. I'm happy if it was listed around that time Commissioner.

PN55

THE COMMISSIONER: Yes all right. Okay. Fine. So if you had, two weeks from today would take you to 29th. Would that be all right for written submissions from you, Mr Fischbacher?

PN56

MR FISCHBACHER: Yes Commissioner.

PN57

THE COMMISSIONER: Yes and then Mr Norris, you're doing the written submissions from the union are you?

PN58

MR NORRIS: And possibly witness material but I don't believe we'll be calling witnesses at this stage.

PN59

THE COMMISSIONER: No.

PN60

MR NORRIS: But I'll leave the option open, Commissioner.

PN61

THE COMMISSIONER: All right. Okay. Well that would then, I think I calculate that would mean 12 September for you to have your material in.

PN62

MR NORRIS: Commissioner, might I ask for the 13th, principally because - - -

PN63

THE COMMISSIONER: You are most welcome to the 13th if you want to risk ill fortune by pinning yourself to the 13th that's totally up to you.

PN64

MR NORRIS: I'm an adventurous soul Commissioner so I will request that.

PN65

THE COMMISSIONER: Good. Yes so that's absolutely fine and then I'm going to list it, Nicola for the, either the 18th or 19th. What time in the day would suit the parties? So can I just ask?

PN66

MR FISCHBACHER: Commissioner we're in your hands. The 18th was fine.

PN67

THE COMMISSIONER: Yes well I wouldn't think, it wouldn't go for more than two or three hours would it?

PN68

MR FISCHBACHER: I wouldn't think so.

PN69

THE COMMISSIONER: Yes.

PN70

MR NORRIS: I concur with that Commissioner.

PN71

THE COMMISSIONER: Yes all right. Mr Bird, I just note that your union usually prefers matters to be in the afternoon. I can list it in the morning or the afternoon but if you'd prefer the afternoon obviously in the afternoon?

PN72

MR BIRD: I'm in Mr Norris' hands.

PN73

THE COMMISSIONER: Mr Norris?

PN74

MR NORRIS: I'd prefer the morning if that's all right Commissioner.

PN75

THE COMMISSIONER: No that's absolutely fine by me. 10 o'clock on the 18th, Nicola. 10 o'clock on 18 September will be the hearing and I'll issue the listing and then if you don't need it I can cancel it.

PN76

MR FISCHBACHER: Commissioner if I may. Commissioner it is our intention to file some fairly straightforward material in terms of a stat dec.

PN77

THE COMMISSIONER: Yes.

PN78

MR FISCHBACHER: To list, dealing with the financial position of the company.

PN79

THE COMMISSIONER: Yes.

PN80

MR FISCHBACHER: And the reasons ….. need for our application.

PN81

THE COMMISSIONER: Yes.

PN82

MR FISCHBACHER: I'm happy to perhaps provide those two days prior to hearing, say the 16th?

PN83

THE COMMISSIONER: Yes. Mr Norris, are you comfortable with that?

PN84

MR NORRIS: Commissioner I would, normally that sort of material would go in with the applicant's material to be submitted primarily.

PN85

THE COMMISSIONER: It would. Yes that's right, yes. Can you not get it earlier than that, Mr Fischbacher?

PN86

MR FISCHBACHER: Commissioner, perhaps a week after the submissions are due. That still gives them a clear week prior to the submissions.

PN87

THE COMMISSIONER: All right. Can you live with that Mr Norris?

PN88

MR NORRIS: Yes I can and if Mr Fischbacher needs to make applications for confidentiality they'll be, they won't be opposed.

PN89

THE COMMISSIONER: Yes all right. Fine. Thanks. So that's through to the 5 September for stat decs from the company. I'd give similar latitude to you, Mr Norris, if you need it in terms of any stat decs you might then want to file so long as it's in a few days before the hearing. All right?

PN90

MR NORRIS: Yes.

PN91

THE COMMISSIONER: Good. Thank you very much then. I'll now adjourn. I'm going to leave you and my associate will just check in a while to see whether you're all still talking to each other and making any kind of progress. I'm not proposing we go back on the record today though and so I'd like to excuse the transcript taker. Thanks very much. Good. I now adjourn.

<ADJOURNED INDEFINITELY [2.27PM]