C2002/4061, Transcript of Proceedings [2006] AIRCTrans 435 (27 March 2006)

TRANSCRIPT OF PROCEEDINGS

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Workplace Relations Act 1996

DEPUTY PRESIDENT IVES

C2002/4061

CLOTHING TRADES AWARD
s.33 - Action on Commission's own motion
(C2002/4061)

MELBOURNE

2.07PM, FRIDAY, 10 MARCH 2006

PN1

MS V WILES: I appear on behalf of the Textile, Clothing and Footwear Union and with me at the bar table I have MS MCPHERSON who is an organiser and officer with the TCFUA.

PN2

THE DEPUTY PRESIDENT: Thanks, Ms Wiles. I should say at the outset, Ms Wiles, and I think my associate has provided you with some advice in respect of this, we have received a letter actually undated by the look of it, but we received the letter I think today, did we not? Yes, which is from PM Fashions. The letter reads:

PN3

I am in receipt of a fax dated 8 March 2006 concerning the above hearing and citing a respondent P and M fashions. I assume this is simply an error and the listing should be for PM Fashions. PM Fashions is a dormant ceased manufacture/trade on 1 September 2005, company in the process of being wound up.

PN4

There are some grammatical issues there, but I think the sense of it comes through:

PN5

This is the first notice I have received regarding this matter and I do not understand the implications of your correspondence, nor can I attend the hearing. How can I preserve my right to object to the proposed process while I obtain legal advice so that I can give informed instructions for my representative to appear?

PN6

It's unsigned, but it's in the name of a Ms Phoebe Mao.

PN7

MS WILES: Yes, your Honour, we have the letter from Ms Mao.

PN8

THE DEPUTY PRESIDENT: Thanks, Ms Wiles.

PN9

MS WILES: Your Honour, maybe if we could just put aside for one moment PM Fashions.

PN10

THE DEPUTY PRESIDENT: Yes, that's fine. I just raised it with you at the outset, Ms Wiles, so you could address me on what you say should happen in respect of that.

PN11

MS WILES: Yes, I appreciate that. Your Honour, I won't go into too much detail about the history of why we're here today. I think you're pretty up to date with why.

PN12

THE DEPUTY PRESIDENT: Yes.

PN13

MS WILES: But just for the record, the Commission is today dealing with four applications to issue correction orders, varying the order of Vice President Ross on 6 March 2003 to include the four entities listed in attachment A to the Commission's correspondence dated 3 March 2006. The history of these matters is that in March 2003, Vice President Ross conducted an exercise whereby the respondency to the Clothing Trades Award was reviewed.

PN14

Several roping-in awards were revoked and a new consolidated list of respondents to the award was made. The Commission sought submissions about which respondents to the award continued to operate and should accordingly continue to be bound by the award, being the simplified parent award. The TCFUA at the time had some concerns about this process, in particular in respect to the clothing industry.

PN15

In our experience, clothing companies frequently move location and there's often multiple transmissions of business over short periods of time. We did indicate at the time to the Commission that concern in a letter to Vice President Ross and I do seek to tender a copy of that letter for the Commission's records.

EXHIBIT #TCFUA1 LETTER TO VICE PRESIDENT ROSS

PN16

MS WILES: Your Honour, the process was that his Honour asked - sorry, I will give you a moment to read that.

PN17

THE DEPUTY PRESIDENT: Yes, if you don't mind. Right. Thank you.

PN18

MS WILES: The process instituted by his Honour was to basically provide to the industrial parties to the award the list of all the respondents in the pre-simplified award and for the industrial parties to then go and research whether those parties were still in business and were still trading. That was quite a long process of six months and ultimately the union presented a list that we believed represented the current situation back in I think the end of 2002.

PN19

However, as indicated by exhibit TCFUA1, we were concerned that it was possible that we may have been unable to track transmitted companies and so we did seek to put that on the record at that time. As it has transpired, there's been probably half a dozen companies who were removed from the respondency list by error. There was a company, House of Saba, several years ago where the TCFUA sought a correction order and that was made by Senior Deputy President Williams at that time. Your Honour, if we can go to the applications currently before you, what I intend to do is deal with Century 21, Western Fashion and maybe deal with PM Fashions at the end.

PN20

THE DEPUTY PRESIDENT: Yes, fine.

PN21

MS WILES: With Century 21, the application was made to the Commission for a correction order on 10 June 2005. In terms of the history of the roping-in of that company, the business of Century 21 was the subject of two different roping-in awards. The first was C number 22379 of 1991 which roped in Century 21 Fashions trading as Nuwvina Pty Ltd of 17 to 34 Parsons Avenue, Springvale in Victoria. Your Honour, I should say I do have extracts of these documents if you want me to tender them or I can tender them at the end.

PN22

THE DEPUTY PRESIDENT: Maybe just tender them at the end, Ms Wiles.

PN23

MS WILES: As a bundle?

PN24

THE DEPUTY PRESIDENT: As a bundle, yes.

PN25

MS WILES: As the Commission pleases.

PN26

THE DEPUTY PRESIDENT: Well, in fact, if you have them there, why not tender them now as a bundle, Ms Wiles? Is that an appropriate course.

PN27

MS WILES: If you could just give me a minute or two to put them in a bundle.

PN28

THE DEPUTY PRESIDENT: Okay, we will leave them. I just thought it might be appropriate to have them up here, but it doesn't matter. Keep going and tender them all at the end.

PN29

MS WILES: There was a second roping in, C number 20163 of 1992 which roped in the entity Century 21 Fashions of unit 17 to 34 Parsons Avenue, Springvale. As I indicated, both of these entities were removed as part of the decision of Vice President Ross on 6 March 2003. In terms of the ongoing operation of Century 21, the union believes that both entities named in fact carried on the same business. However, we have sought the correction order in respect of both of those companies. We say that's for the sake of completeness.

PN30

THE DEPUTY PRESIDENT: Yes, the name I have, though, Ms Wiles, is Century 21 Clothing of 1E Parsons Avenue, Springvale.

PN31

MS WILES: Did you say 1E?

PN32

THE DEPUTY PRESIDENT: Yes, unless the 1E that I have - it is 1 capital E, unless that is a typographical error. You say the address was - what did you say the address was?

PN33

MS WILES: 17 to 34 Parsons Avenue. Your Honour, maybe I will hand up the extracts, the roping-in extracts.

PN34

THE DEPUTY PRESIDENT: Yes. I think you're aware, Ms Wiles, by virtue of a telephone conversation from my associate within the last week that this particular organisation did inquire of the Commission as to which of the companies the correction order was sought in respect of. There was a telephone conversation between my associate and somebody representing one of those companies, I am not sure which I think that information was passed on to you.

PN35

MS WILES: By your associate, your Honour. Your Honour, our position is that we still believe it's appropriate for both of those entities to be put back as a part of the correction order.

PN36

THE DEPUTY PRESIDENT: Yes, and that is at the addresses nominated by these extracts that you've handed up. I might just mark these.

EXHIBIT #TCFUA2 FAXED LIST OF ADDRESSES

PN37

THE DEPUTY PRESIDENT: I note that these are actually extracts from a document of the Commission in which it is not normal that I would mark as an exhibit, but I do so in this case because I think for the purposes of identification, it is warranted.

PN38

MS WILES: Your Honour, the business of those entities was transferred to a company called Christopher Gareth Corporation Pty Ltd trading as Century 21st Fashions. That is supported in the history contained in a company search extract. Basically, the history of ownership of Century 21st Fashions has been - it was Nuwvina Pty Ltd, it was then transferred to Hong and No Pty Ltd and ultimately was transferred to Christopher Gareth Corporation Pty Ltd. He is the current proprietor of that business.

PN39

On 2 February 2006, the TCFUA carried out an inspection of Christopher Gareth in terms of its outwork records and the owner of the business confirmed that he was still trading and operating as a clothing manufacturer and also on
21 December 2005, the company Christopher Gareth applied for registration for the clothing boards of reference which is a body of the Commission in terms of the capacity to give work out to contractors. Your Honour, I have those documents, but as you indicated, I will hand those up at the end.

PN40

THE DEPUTY PRESIDENT: Yes.

PN41

MS WILES: Your Honour, the next company is Western Fashion Clothing. The union made application to the Commission on 10 June 2005 seeking a correction order that the company be reinserted as a respondent to the Clothing Trades Award. The history of the roping-in of that company is that the business of Western Clothing was roped in by roping dispute C number 21022 of 1995. It was classified or categorised as Western Clothing Pty Ltd, 81 Cranwell Street, Braybrook.

PN42

In terms of the ongoing operation of Western Clothing, the company was actually deregistered on 28 June 2000. However, on 16 June 2000, approximately two weeks earlier, the company of Western Fashion Clothing Pty Ltd was established and it actually operates from the same street, but at a different number as Western Fashion Clothing. In our submission, the business of Western Clothing was effectively transferred and is now being carried on by Western Fashion Clothing since 16 June 2000.

PN43

The union inspected Western Fashion Clothing on 28 September 2004 in relation to outwork records and on 29 September 2004, Western Fashion Clothing applied for registration with the clothing board of reference and it has also continued to reapply for registration in subsequent years. We say that the company is still operating as a clothing manufacturer.

PN44

THE DEPUTY PRESIDENT: The address that I have is unit 3, 53 to
67 Cranwell Street. Is that what you have, Cranwell Street, East Braybrook?

PN45

MS WILES: Yes, that's correct. Your Honour, the next company is Sensi Fashions Pty Ltd. Application was made to the Commission in relation to that company on 1 March 2006. The history of the roping-in of that company is that the business of Sensi Fashions was the subject of two different roping-in awards. The first was C number 2816 of 1980 which roped in the entity of Sensi Fashions of 27 William Street, Balaclava.

PN46

The second roping-in number was C number 20217 of 1991 which roped-in the entity of Sensi Fashion, 27 William Street, Balaclava. The business of Sensi Fashions continued to operate until it was placed under external administration on 28 July 2005. The company has since gone into liquidation I think in August of last year.

PN47

THE DEPUTY PRESIDENT: The address that I have for that business is
30 Warner Street, Huntingdale.

PN48

MS WILES: That's correct. That was the last address when the company was operating. There have been a range of changes of address since the company was first roped in, I think probably at least four addresses, but the name Sensi Fashions has continued through all those addresses. Your Honour, the reason the union has brought this particular application is because since the company went into liquidation, our members at the company have made applications to the federal government's GEERS scheme, entitlement scheme, in terms of their unpaid entitlements.

PN49

An issue has arisen in relation to the award basis of those entitlements and the department has rejected our members' claims on the basis that the company wasn't an award respondent. They've said that what entitlements are due is based on the company being bound by the common rule which came into effect from
1 January 2005. In terms of that, I might just hand up several documents. One is from the liquidator in relation to their view in relation to the award respondency of the company.

EXHIBIT #TCFUA3 LETTER FROM LIQUIDATOR

PN50

THE DEPUTY PRESIDENT: At the back of this is a letter from Piper Alderman. I see, that's the inquiry that's been made, is that correct?

PN51

MS WILES: Yes, that is the liquidator's legal advice, well, part of it, I assume. I don't think it's the whole extract, but the part that's of relevance.

PN52

THE DEPUTY PRESIDENT: So that's the liquidator's advice in response to a letter from Piper Alderman of 12 October 2005 and you say subsequent to that and presumably with knowledge of that, the department has declined to recognise the award respondency?

PN53

MS WILES: That's correct. I will tender a letter that the union sent to the department on 19 December 2005 which really sets out the issues in relation to the matter.

EXHIBIT #TCFUA4 LETTER SENT TO UNION

PN54

MS WILES: Your Honour, you'll see that, I think it's on page 3, he indicates to the department the information provided by one of our members who has actually worked for the company I think for nearly 30 years and she has provided the union with information in relation to the history of the company and its premises, et cetera, and where they've moved. The department wrote to the union on 20 February 2006 indicating that - sorry, I should say that as part of our correspondence, we have sought a review, a formal review of that decision and on 20 February 2006 the department wrote back to the union indicating it was still considering the information and has yet to make a decision. I will tender that for completeness.

PN55

THE DEPUTY PRESIDENT: So essentially the view of the department last you heard was that any respondency would have been dependent on a common rule declaration?

PN56

MS WILES: That's right, which then impacts on the severance applicable because it only proves from 1 January 2005.

PN57

THE DEPUTY PRESIDENT: Yes, and your position is that a common rule declaration is not relevant in this circumstance because there was a direct respondency?

PN58

MS WILES: That's correct.

PN59

THE DEPUTY PRESIDENT: And it was purely by administrative error that that respondency was not in the respondency list of the award.

PN60

MS WILES: That's correct, that's our position. Your Honour, did you want to mark that?

PN61

THE COMMISSIONER: Yes.

EXHIBIT #TCFUA5 LETTER BACK FROM UNION

PN62

MS WILES: Your Honour, I am assuming that you're likely to raise an issue about whether you have jurisdiction in this matter, given that the company is in liquidation and I will refer you to a decision of the Full Bench.

PN63

THE DEPUTY PRESIDENT: Yes, I think there is authority now to the effect that I do, Ms Wiles. Which authority were you going to refer me to?

PN64

MS WILES: It's a Full Bench decision of 17 November 2003 of Justice Giudice, Vice President Ross and Commissioner Whelan, GW Smith Ozaric De Jose v
J Faraga where this issue was directly on point in our submissions.

PN65

THE DEPUTY PRESIDENT: Yes, all right. If you have got it there, hand it up.

PN66

MS WILES: I have, yes. Your Honour, did you have any questions?

PN67

THE DEPUTY PRESIDENT: No.

PN68

MS WILES: That brings us to PM Fashions.

PN69

THE DEPUTY PRESIDENT: All I might say in respect to Sensi Fashions at the moment, Ms Wiles, is that aside from being advised by the union about the company being in liquidation, I've had no evidence or formal advice of that from the company itself. The liquidators were or supposed liquidators were faxed yesterday after advice from your office, I think, to my associate as to who they in fact were and there has been no response to that fax as of today's date, so the only advice that I am in possession of that relates to the company's current circumstances is the advice provided to me by the union.

PN70

MS WILES: Your Honour, I do have an ASIC company search, if you would like to see that.

PN71

THE DEPUTY PRESIDENT: Yes, you might hand that up if you have that, so there is in fact evidence that the company is - that is evidence that the company is in liquidation is what you're saying, Ms Wiles?

PN72

MS WILES: I think the term that says here is externally administrated, but, in fact, the company did go into liquidation I think in August of 2005, but I will tender a copy of that.

PN73

THE DEPUTY PRESIDENT: Yes. It is just that I can't necessarily treat it that way in the absence of - what I've got at the moment, whilst I have no reason to doubt it, is essentially an assertion from the bar table that that's the case. There's no other evidence and so you've now handed me something and I will mark that.

EXHIBIT #TCFUA6 ASIC COMPANY SEARCH DOCUMENT

PN74

MS WILES: PM Fashions, the union made an application for a correction order on 4 October 2005. The history of the roping in of the company was that the business of PM Fashions was roped in to the award through C number 23074 of 1996 and the entity which was roped in was PM Fashions Pty Ltd of 2 Urquhart Street, Northcote, Victoria.

PN75

The business of PM Fashions Pty Ltd has continued to operate. However, they currently operate from a different address, although close to the original address. The company extract for PM Fashions demonstrates that the company is continuing to operate from 223 Queen's Parade, Clifton Hill. I will just tender a copy of that.

EXHIBIT #TCFUA7 ADDRESS OF PM FASHIONS

PN76

MS WILES: Thank you, your Honour. Ms McPherson upon receiving information from your associate about the letter from the Commission earlier today, I believe, we've had someone from our office do a current company search just before 2 o'clock and I will tender a copy of that also.

EXHIBIT #TCFUA8 COMPANY SEARCH DOCUMENT

PN77

MS WILES: Looking at that exhibit, your Honour, you'll see that there's no evidence there that the company is currently externally administrated or otherwise in liquidation or there's no motions to wind up the company as far as this company search is concerned.

PN78

THE DEPUTY PRESIDENT: Just going back to the letter, it doesn't specifically say that it is externally administered. It does say is in the process of being wound up. It says a dormant manufacture/trade. I am not quite sure how that should translate. You've seen a copy of that letter, Ms Wiles?

PN79

MS WILES: I have, yes. You provided that to us.

PN80

THE DEPUTY PRESIDENT: Thank you.

PN81

MS WILES: Your Honour, our view is that, to be frank, this is a company that has sought to avoid its award obligations for two to three years and we believe that this may well be another attempt to avoid those obligations and subject to there being evidence provided by the company about the things that are in that letter, we believe that the notice should proceed and we ask that a correction order be made.

PN82

THE DEPUTY PRESIDENT: You say subject to - I am sorry, could you repeat that? You said subject to what? You ask for the order to be made. You preface that by subject to what?

PN83

MS WILES: Well, I understand that Ms Mao has sought an adjournment really of this matter.

PN84

THE DEPUTY PRESIDENT: Yes, she is seeking time according to this to seek some legal advice, so what are you suggesting in respect of that, Ms Wiles?

PN85

MS WILES: Well, to clarify our position, we would be opposing any adjournment of this matter.

PN86

THE DEPUTY PRESIDENT: And on what basis?

PN87

MS WILES: We believe that Ms Mao has had sufficient notice of the application before you, that we believe that the company has continued to trade and manufacture as far as we're aware until this year and that given Ms Mao's and the company's attempts to avoid its award obligations in the past, we believe that this Commission should not be frustrated in its jurisdiction to deal with the matter that is before you.

PN88

THE DEPUTY PRESIDENT: I am a little concerned about a potential denial of natural justice, Ms Wiles, in respect of it, given that a request seeks to obtain some advice. It occurred to me that a mechanism by which this might be handled is that I would write to Ms Mao and provide her with what in essence would be a fairly restricted amount of time simply to advise me whether she intended to contest the application for the order and on the basis that she didn't advise me, that subject to all other considerations, then I would proceed on the basis that she wasn't objecting.

PN89

In the instance that she did in fact advise me that she intended to object, then I intend to list it very quickly after that, to enable her to be heard. There may be an excess of caution involved in all of that on my part, but I don't want to put this Commission into a position where it could perhaps be said that an opportunity for a person to be heard was denied. I accept that you have a view about the company and its attitude to the award which may well be factual, Ms Wiles, but I have nothing other than the fact that again you assert that from the bar table and for me to act upon that as a basis for denying any further opportunity would seem to me to be perhaps a little bit incautious of me.

PN90

MS WILES: If the Commission pleases.

PN91

THE DEPUTY PRESIDENT: Yes. Accepting that your preference would be to proceed in the way that you've submitted, do you have any objection to proceeding in the way that I have suggested in respect of that company? That is, I would write to Ms Mao. It would be my intention to provide her until close of business next Wednesday to advise me whether she intended to contest the matter and then in the absence of that advice, I would proceed on the basis of the material that was already in front of me with respect to the application. In the instance that she does advise me that she intends to contest it, then I would list the matter fairly soon thereafter to enable her to put whatever submissions that she wanted to put and I am suggesting within the week thereafter.

PN92

MS WILES: Your Honour, the union is agreeable to that process.

PN93

THE DEPUTY PRESIDENT: Thanks, Ms Wiles.

PN94

MS WILES: Your Honour, I think that completes the four. In terms of, as I said, the additional material that I have, as I indicated, I am happy to present a complete bundle to you at the conclusion of this matter today, if that assists.

PN95

THE DEPUTY PRESIDENT: Yes, that is fine. Do you want to hand that up now, Ms Wiles?

PN96

MS WILES: I probably need to put them in bundles.

PN97

THE DEPUTY PRESIDENT: All right, that's fine.

PN98

MS WILES: That is probably all I wanted to put to you today, unless you have any questions.

PN99

THE DEPUTY PRESIDENT: No. I will consider the material that is in front of me, with the exception of at least for the time being PM Fashions and that's subject to the process that I've outlined to you. At this stage I see no reason on the face of it why an order wouldn't be made in the form sought in respect of the three or in fact four other businesses, if we take the two businesses that are in question in respect of Century 21. However, I will reserve on that for the time being and consider the materials in front of me.

PN100

MS WILES: If the Commission pleases.

PN101

THE DEPUTY PRESIDENT: Thanks, Ms Wiles. The matter is adjourned.

<ADJOURNED INDEFINITELY [2.41PM]

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #TCFUA1 LETTER TO VICE PRESIDENT ROSS PN15
EXHIBIT #TCFUA2 FAXED LIST OF ADDRESSES PN36
EXHIBIT #TCFUA3 LETTER FROM LIQUIDATOR PN49
EXHIBIT #TCFUA4 LETTER SENT TO UNION PN53
EXHIBIT #TCFUA5 LETTER BACK FROM UNION PN61
EXHIBIT #TCFUA6 ASIC COMPANY SEARCH DOCUMENT PN73
EXHIBIT #TCFUA7 ADDRESS OF PM FASHIONS PN75
EXHIBIT #TCFUA8 COMPANY SEARCH DOCUMENT PN76