C2004/1791, Transcript of Proceedings [2006] AIRCTrans 626 (12 April 2006)

TRANSCRIPT OF PROCEEDINGS

---

Workplace Relations Act 1996 14774-1

SENIOR DEPUTY PRESIDENT LACY

C2004/1791

STRIPTEASE ARTISTS AUSTRALIA INCORPORATED
AND
BARE AS U DARE
s.99 - Notification of an industrial dispute - Log of claims
(C2004/1791)

MELBOURNE

10.07AM, WEDNESDAY, 05 APRIL 2006

Continued from 20/2/2006

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

PN1

MR P O'GRADY: I appear, I think pursuant to leave already granted, for Torrell Pty Ltd.

PN2

THE SENIOR DEPUTY PRESIDENT: Yes, thank you Mr O'Grady. Ms Schagen, you appear for SAA, is that right? Striptease Artists Association Australia. Yes thank you.

PN3

MS J SCHAGEN: Yes.

PN4

THE SENIOR DEPUTY PRESIDENT: Yes, Mr O'Grady?

PN5

MR O'GRADY: Your Honour, this is an application for revocation of a finding of an industrial dispute and in accordance with directions that were made on an earlier occasion, there has been material filed by - on behalf of Torrell Pty Ltd in the form of an outline of submissions and a witness statement of Mr Ray Bartlett.

PN6

THE SENIOR DEPUTY PRESIDENT: Yes I have that.

PN7

MR O'GRADY: And in response, an outline of submissions and a witness statement of Ms Schagen has been filed on behalf of the union. Your Honour, we are now in a new regime of course and so before the Commission can deal with the revocation of a dispute finding that was made before 27 March, one needs to consider the transitional provisions I am afraid and - - -

PN8

THE SENIOR DEPUTY PRESIDENT: Well I need to know what my jurisdiction is - - -

PN9

MR O'GRADY: Exactly your Honour, and we will be making a submission that, in fact, the proceedings in relation to the matter have lapsed and in fact the Commission has no jurisdiction to do anything in relation to this matter and I was proposing to make that submission at the outset rather than to put Mr Bartlett in the witness box.

PN10

THE SENIOR DEPUTY PRESIDENT: I anticipated that might be your submission, Mr O'Grady.

PN11

MR O'GRADY: Yes.

PN12

THE SENIOR DEPUTY PRESIDENT: I didn't want to pre-judge the matter but you could, if you wish, convince me otherwise but on my reading of the legislation – I gathered your application arises under section 101, is that right?

PN13

MR O'GRADY: Well it - - -

PN14

THE SENIOR DEPUTY PRESIDENT: The revocation.

PN15

MR O'GRADY: Yes, well it's, it was originally made under the old regime of course - - -

PN16

THE SENIOR DEPUTY PRESIDENT: Yes I meant, sorry, section - - -

PN17

MR O'GRADY: So under section 111(1)(f).

PN18

THE SENIOR DEPUTY PRESIDENT: 111(1)(f) is it?

PN19

MR O'GRADY: Or is it – sorry, section 101 of the old Act, yes sorry your Honour.

PN20

THE SENIOR DEPUTY PRESIDENT: Yes. 101 allows me to - or in fact obliges me to make a finding in relation to an alleged industrial dispute.

PN21

MR O'GRADY: That's correct.

PN22

THE SENIOR DEPUTY PRESIDENT: And also empowers the Commission to revoke or vary such finding.

PN23

MR O'GRADY: That's exactly right, Commissioner.

PN24

THE SENIOR DEPUTY PRESIDENT: Yes and - - -

PN25

MR O'GRADY: In subsection 1 of course, your Honour.

PN26

THE SENIOR DEPUTY PRESIDENT: Yes. So, I have not been able to identify anything in the transitional provisions that gives that any life at all.

PN27

MR O'GRADY: That's exactly right. What the transitional provisions do, your Honour is, they basically cease all matters before the Commission in respect of which an award has not been made in circumstances where there has been a dispute notified to the Commission under the old Part 6.

PN28

THE SENIOR DEPUTY PRESIDENT: Yes.

PN29

MR O'GRADY: And the reason behind that is this. Under the new regime the Commission has no power to make any new awards. It's award making power is limited to dealing with award rationalisation and transitional awards and it may be worthwhile, Commissioner, if I take you to two very short sections in the post-reform Workplace Relations Act.

PN30

THE SENIOR DEPUTY PRESIDENT: Yes.

PN31

MR O'GRADY: They are sections 539 and 540 which appear under Part 10 which deals with awards.

PN32

THE SENIOR DEPUTY PRESIDENT: Yes thank you, Mr O'Grady.

PN33

MR O'GRADY: Section 539 confers upon a Full Bench the power to make awards to give effect to the outcome of an award rationalisation process and then section 540 says the Commission must not make an award other than under section 539. So that gives statutory effect to the scheme of the Act that I stated earlier.

PN34

THE SENIOR DEPUTY PRESIDENT: Yes.

PN35

MR O'GRADY: The fact is, under the new scheme the role of awards as underpinning agreements is effectively replaced by the Australian Fair Pay and Conditions Standard.

PN36

THE SENIOR DEPUTY PRESIDENT: Yes.

PN37

MR O'GRADY: So in essence awards are grandfathered, that is existing awards remain in place subject to the rationalisation process and the jettisoning of non-allowable matters.

PN38

THE SENIOR DEPUTY PRESIDENT: Yes.

PN39

MR O'GRADY: And no new awards can be made by the Commission post 27 March 2006. So it would effectively defeat the scheme of the Act as it now stands to allow the parties to draw on ambit from original disputes found to exist by the Commission before 27 March 2006.

PN40

THE SENIOR DEPUTY PRESIDENT: Yes.

PN41

MR O'GRADY: It is only in relation to certain specific matters that are before the Commission in respect of which the Commission has started exercising conciliation powers that the Commission can make any new award under the transitional provisions and if I can take - - -

PN42

THE SENIOR DEPUTY PRESIDENT: Sorry, say that again?

PN43

MR O'GRADY: It is only in respect of a certain handful of matters that the – sorry, only in respect of a certain handful of matters which have been the subject of conciliation before the Commission that the Commission can make a new award.

PN44

THE SENIOR DEPUTY PRESIDENT: Which section are you referring to there?

PN45

MR O'GRADY: I will take you to - this is in the regulations, your Honour.

PN46

THE SENIOR DEPUTY PRESIDENT: Yes.

PN47

MR O'GRADY: And in fact it is the very regulation that the union refers to in its submission.

PN48

THE SENIOR DEPUTY PRESIDENT: It's regulation 4, is it?

PN49

MR O'GRADY: It's actually - it's one of the regulation 4.20s.

PN50

THE SENIOR DEPUTY PRESIDENT: Yes.

PN51

MR O'GRADY: The structure of the regulations, your Honour, you will be aware is a little unusual in that it's dealt with in chapters. So it may be that there is more than one regulation 4.19 in the, or 4.20 in the regulations but the one that I am referring to is in chapter 7 which is headed transitional and other provisions for the Work Choices Act. Part 4, which is headed regulations for transitional et cetera provisions and consequential amendments part heard matters. Division 4.

PN52

THE SENIOR DEPUTY PRESIDENT: Yes.

PN53

MR O'GRADY: Dispute prevention and settlement.

PN54

THE SENIOR DEPUTY PRESIDENT: Yes.

PN55

MR O'GRADY: Now the regulation 4.20 says that subject to sub regulation 2, if an alleged industrial dispute was notified under section 99 of the old Act before 27 March 2006 but the matter was not finally determined, and that phrase is defined in sub regulation 3 and I will take you to that, your Honour. Before 27 March 2006, proceedings in relation to the matter lapse to the extent that the matter relates to an employer.

PN56

THE SENIOR DEPUTY PRESIDENT: Yes. Which is your client.

PN57

MR O'GRADY: An employer is defined as a constitutional corporation of which Torrell Pty Ltd is one.

PN58

THE SENIOR DEPUTY PRESIDENT: Yes.

PN59

MR O'GRADY: Yes. And it lapses on 27 March 2006.

PN60

THE SENIOR DEPUTY PRESIDENT: Yes.

PN61

MR O'GRADY: So Torrell is an employer. The reform commencement we all know is 27 March 2006 and that's defined in the Act. The question is whether or not the matter is finally determined and in order to work that out one needs to go - sorry I said sub regulation 3, it's sub regulation 4.

PN62

THE SENIOR DEPUTY PRESIDENT: 4. Yes.

PN63

MR O'GRADY: That is that the Commission made a determination under section 101 of the old Act that the industrial dispute was not an industrial dispute. Well that doesn't apply. The industrial dispute was fully settled by conciliation under the old Act. Well that doesn't apply. And the Commission dealt with the industrial dispute or matters remaining in the dispute by arbitration under section 104 of the pre-reform Act. Well that doesn't apply. So we fall squarely within sub regulation 1 of regulation 4.20 which leaves the Commission without any capacity to deal with the matter and to that extent we say that's it. Good night.

PN64

THE SENIOR DEPUTY PRESIDENT: That's about the length of it I think, or the strength of it I think. Yes.

PN65

MR O'GRADY: The submission is put on behalf of the union that the effect of that regulation is to stop our application to revoke the dispute going forward. We say it goes beyond that and it stops everything.

PN66

THE SENIOR DEPUTY PRESIDENT: That's about – well I better hear what Ms Schagen has to say about it.

PN67

MR O'GRADY: Yes your Honour, thank you.

PN68

THE SENIOR DEPUTY PRESIDENT: Again as I understand the provisions, I haven't been able to find anything that gives me any power to deal with the application that's currently before me or to deal with anything else.

PN69

MR O'GRADY: Yes.

PN70

THE SENIOR DEPUTY PRESIDENT: Arising out of the notification of a dispute.

PN71

MR O'GRADY: That's submitted that your Honour's right.

PN72

THE SENIOR DEPUTY PRESIDENT: Ms Schagen, what do you have to say about that?

PN73

MS SCHAGEN: Yes well it's what we have also put in our written submission which took us a couple of weeks to work all that one out as well and we basically see it the same. However if the Commission does, for whatever reason, continue on we still believe that it is an employer and employee relationship - - -

PN74

THE SENIOR DEPUTY PRESIDENT: But Ms Schagen I don't think I get to that question because I don't have any power to deal with that question.

PN75

MS SCHAGEN: Yes. We are aware of that and either way ….. to which the Commission - - -

PN76

THE SENIOR DEPUTY PRESIDENT: You accept that the matter has lapsed, have you?

PN77

MS SCHAGEN: Yes we do.

PN78

THE SENIOR DEPUTY PRESIDENT: Yes. All right. Well is there anything else that I need to do or say, or? I mean, do you - well you don't need to withdraw your application because there's, the matter's just lapsed, hasn't it?

PN79

MR O'GRADY: No I suppose - well look I am not sure what happens in terms of the practical aspect of things, Commissioner. I mean the fact is there is a file that, the file has a finding of dispute which I suppose has itself lapsed.

PN80

THE SENIOR DEPUTY PRESIDENT: I suppose I need to write a decision
and - - -

PN81

MR O'GRADY: I suspect you do, yes. Which would give effect to the submissions, sorry which one would submit would give effective to the submissions that are made that, that whole matter has lapsed.

PN82

THE SENIOR DEPUTY PRESIDENT: Yes.

PN83

MR O'GRADY: Of course, Torrell is in the situation where there is a Commission file with a finding that a dispute exists which one might say necessarily carries with it a conclusion that there is an employment relationship but I suppose in a way that is offset by the fact that it had made its application and filed material contesting that fact and - - -

PN84

THE SENIOR DEPUTY PRESIDENT: And in any event it would have no practical - that finding would have no practical application for 10 years anyway.

PN85

MR O'GRADY: That's correct, your Honour.

PN86

THE SENIOR DEPUTY PRESIDENT: If ever as in - - -

PN87

MR O'GRADY: That's correct, your Honour, yes.

PN88

THE SENIOR DEPUTY PRESIDENT: Yes I don't - I mean sub section 2 or 3 don't seem to have any application at all, do they?

PN89

MR O'GRADY: No they don't. Sorry I should have expanded upon that. I think the union concedes that two has no application simply because there has been no dealing under section 102 or 103 of the - in relation to Torrell immediately before 27 March. And sub regulation 3 deals only with transitional employees.

PN90

THE SENIOR DEPUTY PRESIDENT: Yes.

PN91

MR O'GRADY: Which are non-constitutional corporations.

PN92

THE SENIOR DEPUTY PRESIDENT: That's right and even if two had any application it could do nothing other than conciliate in the matter in any event and then - - -

PN93

MR O'GRADY: That's exactly right, your Honour. You're restricted to the powers under the dispute resolution, the model dispute resolution clause.

PN94

THE SENIOR DEPUTY PRESIDENT: That's right. All right. Well look, Mr O'Grady, thank you very much for those very helpful submissions.

PN95

MR O'GRADY: Thank you.

PN96

THE SENIOR DEPUTY PRESIDENT: And I thank you, Ms Schagen, for your written submissions and oral submissions today as well. I will reserve my decision although I have indicated what that is, but I will publish written reasons in due course. The matter is adjourned.

<ADJOURNED INDEFINITELY [10.22AM]