C2015/7387, Transcript of Proceedings [2015] FWCTrans 708 (11 December 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052829

COMMISSIONER MCKENNA

C2015/7387

s.739 - Application to deal with a dispute

Independent Education Union of Australia

and

Reddam House Limited; Crawford Education Pty. Limited T/A Reddam ELS

(C2015/7387)

Educational Services (Schools) General Staff Award 2010

Sydney

3.10 PM, FRIDAY, 27 NOVEMBER 2015

Continued from 23/11/2015

PN332

THE COMMISSIONER: Good afternoon. Could I have the appearances please.

PN333

MS MATTHEWS: Yes, Commissioner, Ms Matthews for the Independent Education Union and with me, Ms A McEwan who is the union organiser. I have to give apologies for Mr Seals, he overlooked that he had another commitment today.

PN334

THE COMMISSIONER: Thank you.

PN335

MR PARKIN: Commissioner, the name is Parkin, P-a-r-k-i-n, I appear for the respondents with Mr CROCKETT and Mr DETHRIDGE.

PN336

THE COMMISSIONER: Thank you. Is there anything to report since the last occasion, Ms Matthews?

PN337

MS MATTHEWS: Yes, Commissioner. The union has - - -

PN338

THE COMMISSIONER: Take a seat, Ms Matthews, we are in conference.

PN339

MS MATTHEWS: The union received a response to our request for access to relevant records of the employer and the respondents have rejected that request. So, Commissioner, I think we should also foreshadow or indicate that we have made an ex parte application to the Commission for access to those records.

PN340

THE COMMISSIONER: Yes, it has recently been allocated to me, this afternoon.

PN341

MR PARKIN: Commissioner, there is not much further to add to that except that the basis on which the respondents have rejected that request is a concern about the confidentiality of that information as between the respondents and the employees in question. The union has statutory rights, if it wishes to exercise those that is a matter for the union and in terms of the resolution of the dispute any further we seek to press the jurisdictional objection and wish to have a timetable put in place for that to be determined.

PN342

THE COMMISSIONER: I see. Thank you each for your submissions. I'd be hopeful that there still might be some prospect for a resolution in relation to this matter. As I understand it, Ms Matthews, so further to the proceedings on the last occasion where you foreshadowed that you'd be seeking access to relevant documentation, that that has - your client, Mr Parkin, has declined to accede to that request.

PN343

MR PARKIN: I'm sorry?

PN344

THE COMMISSIONER: Your client has declined to accede to that request on the basis of confidentiality.

PN345

MR PARKIN: That's correct.

PN346

THE COMMISSIONER: Putting aside any other issues. If the concern, for example, stems from confidentiality related concerns could that be addressed by the provision of that information with the names of the individuals concerned redacted? It's a common way to deal with such matters. I think - unless I'm mistaken - the union seeks not so much the identity of the persons concerned but rather the employing entity, as I understand it.

PN347

MS MATTHEWS: Yes, Commissioner. Obviously we would have no objection to redaction in the terms you have explained. Obviously we would be interested in, for example, the date of any relevant documents. But we've got no objection to the identity of the employee being obscured.

PN348

THE COMMISSIONER: Yes. That might be some middle path between the parties.

PN349

MR PARKIN: There is a difficulty with that, and that is it is quite a small employer, there's only a small number of employees there and there is some concern that there would be identification notwithstanding the removal of those identifying features.

PN350

THE COMMISSIONER: As you would be aware, there are often arrangements entered into concerning undertakings concerning the provision of materials obtained in the course of the proceedings. If the redaction of identifying names would not be sufficient, perhaps it might be open to the parties to hold discussions about some form of undertakings in that regard. It's one thing to consider. I am just trying to de-escalate things, as it were, rather than escalating matters if that is at all possible.

PN351

Now, given that I understand it to be the case that the difference, or one of the differences, between the parties which has been the employing entity in circumstances where documentation may have referred only to Reddam House in a generic sense - is that my understanding?

PN352

MR PARKIN: Commissioner, the position of the respondents is that the employing entity of Reddam ELS staff is Crawford Education Pty Limited.

PN353

THE COMMISSIONER: I see. That entity has an ABN number?

PN354

MR PARKIN: It does.

PN355

THE COMMISSIONER: Do the parties have a copy of the regulations with them?

PN356

MR PARKIN: The Fair Work regulations?

PN357

THE COMMISSIONER: Indeed. If the parties could go to Chapter 3 Part 3.06 concerning employer obligations in relation to employee records and pay slips and the regulations that follow.

PN358

MS MATTHEWS: Commissioner, would you be able to refer me to the particular regulation?

PN359

THE COMMISSIONER: Say, for example - let us - there are many provisions in the regulations dealing with these matters, but perhaps if you open it at Regulation 3.31.

PN360

MS MATTHEWS: Thank you, Commissioner.

PN361

THE COMMISSIONER: If I can go, for example, to Regulation 3.32, if both parties have that.

PN362

MR PARKIN: Yes, Commissioner.

PN363

THE COMMISSIONER: You will see that for the purposes of 535(1) of the Act, a kind of employee record that an employer must make and keep is a record that specifies: (a) the employer's name; and (b) the employee's name; and (c) whether the employee's employment is full-time or part-time; and (d) whether the employee's employment is permanent, temporary or casual; and (e) the date on which the employee's employment began; and (f) on and after 1 January 2010 the Australian Business Number, if any, of the employer.

PN364

Similarly, if I could take the parties to Regulation 3.46. As to the content of pay slips, Regulation 3.46 reads as follows:

PN365

536(2) of the Act, a pay slip must specify (a) the employer's name; and (b) the employee's name; and (c) the period to which the pay slip relates; and (d) the date on which the payment to which the pay slip relates was made; and (e) the gross amount of the payment; and (f) the net amount of the payment; and (g) -

PN366

Then there is a matter dealing with incentive-based payments, et cetera, and:

PN367

(h) on and after 1 January 2010 the Australian Business Number, if any, of the employer.

PN368

Now, I would assume that your client has operated in accordance with its lawful obligations?

PN369

MR PARKIN: I would assume so, Commissioner. I haven't obtained specific instructions in relation to that.

PN370

THE COMMISSIONER: Well, one would presume that - I'm assuming - a school type organisation has been complying properly with its lawful obligations. The identification of the ABN numbers in the pay records and pay slips would be there identified.

PN371

MR PARKIN: Would they be identified, Commissioner?

PN372

THE COMMISSIONER: Would there be identified in those records.

PN373

MR PARKIN: I would assume so if they were - I have no reason to believe they were not complying.

PN374

THE COMMISSIONER: It may be the case - and again I'm just floating this as a way to attempt to resolve matters rather than escalating matters, whether it might be the case that a representative sample of pay slips and pay records be provided. That's the kind of approach that the Fair Work Ombudsman often adopts in relation to matters where there are multiple employees; a representative sample of records will be examined and one presumes that if the ABN numbers was correctly recorded in the records for one employee at the time, one or more employees would have been correctly identified in the pay slips and employer's pay records for the class of employees concerned.

PN375

It might be appropriate, unless there is anything else that anyone wishes to say at this stage, that perhaps I go off the Bench to allow you to look at the regulations in closer detail and perhaps you could obtain some instructions, Mr Parkin. As I indicated, I would be very hopeful that this matter can be resolved.

PN376

MR PARKIN: Commissioner, our position is we would prefer if the Commission would set down a timetable for the determination of the jurisdictional objection. We are sure that to the extent that there is any dispute it probably could be resolved but could be done at the workplace as required by offering dispute resolution procedures.

PN377

THE COMMISSIONER: It depends on which is the relevant dispute procedure.

PN378

MR PARKIN: Quite, and we think that that's a matter that the Fair Work Commission needs to determine before it can be satisfied it has jurisdiction in relation to these.

PN379

THE COMMISSIONER: One would presume that a jurisdictional objection actually goes to the very heart of which instruments, or instruments, apply and that's a matter which may need to be given the subject of further consideration, but in any event - and I have seen this before as I am sure you have. In fact, I often have to draw parties' attention to this matter. If there has been some step missed out in a particular dispute resolution procedure, then it is the case that the application is withdrawn, the step is taken and the application is re-lodged the next day as it were.

PN380

MR PARKIN: The Commission will no doubt appreciate the difficulty faced by my clients being that one of the reasons patently for having this workplace- based discussion requirement is to have these issues ventilated and to have these issues ventilated in discussions between the parties rather than dragged up before the Commission and there's a reason why the Commission is a secondary step in that process rather than a primary step in that process.

PN381

THE COMMISSIONER: Mr Parkin, is there any reason, for example, after you have held some discussion with your client with a view to attempting to resolve this matter and having regard to the legal requirements concerning record keeping since 2010 that this matter might not be easily resolved by the simple identification of the ABN numbers on the pay slips and in pay records and if there was any change at any point in relation to those records?

PN382

MR PARKIN: To be clear, Commission, which matter are you referring to in relation to the pay slips? Are you referring to the entire subject matter of the dispute that's been put in issue by the union?

PN383

THE COMMISSIONER: Well, as I understand it, and it might be putting too much of a gloss on that, at the heart of the differences between the parties there is which entity was the relevant employer and at the relevant time. As I understand it from the union's application, they have a concern that at some point there may have been a transfer of employment however described whereas your client's contention again, as I understand it, is that Reddam House Limited was not and never has been the employer of the employees within the Early Learning Service at Reddam House.

PN384

MR PARKIN: Commissioner, it is difficult for me to answer the question as to whether or not resolves the matter. I think it's perhaps a question that Ms Matthews might be better placed to address.

PN385

THE COMMISSIONER: I had hoped, although it seems to have been a vain hope, that with the provision of the documents which were lodged in support of the application for the approval of the agreement and, for example, the text of the employer's declaration of Mr Crawford which declared, for example, in relation to the operational enterprise agreement - Support and Operational Staff Enterprise Agreement, that it was intended specifically to refer to preschool and out of hours centre and matters of that nature, but given that Ms Matthews had put on the declaration agreeing with the matters subject to Mr Crawford's declaration, that may well have assisted in resolving the matter.

PN386

MR PARKIN: Commissioner, I think the matter is broader than this as far as I understand from the union. They wouldn't be seeking pay slips and other documents if that were the case. I think these are questions which are best put to Ms Matthews rather than myself.

PN387

THE COMMISSIONER: It wasn't a question I said.

PN388

MR PARKIN: I apologise, Commissioner. I misunderstood.

PN389

THE COMMISSIONER: I had hoped that drawing to the parties’ attention what was in the employer's statutory declaration agreed to by the relevant bargaining representative here, the IEU, and one looks at the terms, for example again, of the operational agreement - I took you on the last occasion to the scope and coverage provision at clause 4.1 of the Support and Operational Staff which referred to, amongst other matters, this agreement covering (a) Reddam House, the employer; and (b) employees as defined in clause 3(c) employed at Reddam House including any preschool or early learning centre attached to, or operated by, the school.

PN390

If I go back further into the preceding clause, clause 3, dealing with definitions - and I don't think I took the parties - - -

PN391

MR PARKIN: Commissioner, I think you did take us - - -

PN392

THE COMMISSIONER: - - - to those definitions on the last occasion; (d) is described as "employer" means an employer covered by this agreement; and at clause 3(i) there is a definition of "school" which reads:

PN393

"School" means a registered non-government school or a preschool or early learning centre attached to, or operated by, a registered non-government school.

PN394

Could I ask this, again with a view to trying to assist the parties in coming to a resolution in relation to this matter? I think I had referred on the last occasion to group certificates and matters of that nature. In relation to workers' compensation, for example, that might even be the type of - if there is considered to be some sensitivity about a consent provision of pay records, there might be some other less personally sensitive documents as to who held the workers' compensation policy. Do you know if your client is a self-insurer or does it have - - -

PN395

MR PARKIN: I don't have those instructions.

PN396

THE COMMISSIONER: Can you obtain them?

PN397

MR PARKIN: Right now? Commissioner, I can, but my concern is that we're progressing and as I indicated at the last conference, our involvement was without prejudice to the concerns we have about the jurisdiction of tribunal and we are very much engaged in a conciliation process right now which we have reservations about the power of the Commission to proceed with this. I understand the Commission is - - -

PN398

THE COMMISSIONER: As I say, it seems an unremarkable question. Is your client a self-insurer or does it have an insurance company? If you don't want to answer that without instructions, so be it.

PN399

MR PARKIN: I am happy to obtain those instructions, but we are concerned that we have a jurisdictional objection that we wish to press and we don't - we're just not convinced there are matters which can be taken any further especially in the absence of some further elucidation of what this dispute is about and what the union precisely is seeking.

PN400

THE COMMISSIONER: I see, all right. Well, without in any way pressing you in relation to that matter, one presumes that the workers' compensation premiums have been paid in relation to employees of either or both entities and that there would be some identification of matters which may well be relevant because if the - and this is a matter cropped up in some proceedings recently - where there is some issue about who the employer is, it obviously raises all of its own matters concerning workers' compensation liability.

PN401

I have floated a number of matters which as I say, I hope might be a middle course in relation to some of these matters. It might be appropriate if I go off the Bench. Ms Matthews, you can hold a discussion with your colleagues and, Mr Parkin, you can hold discussions with your clients. Perhaps then you could some discussions between yourselves and then I will come back on. Could someone kindly phone my associate - perhaps Ms Matthews when you are ready for me to - when everyone is ready for me to return?

PN402

MR PARKIN: Of course.

PN403

THE COMMISSIONER: Thank you. Good luck with your discussion.

OFF THE RECORD [3.34 PM]

ON THE RECORD [4.03 PM]

PN404

MS MATTHEWS: Commissioner, I've got nothing to report. I haven't heard back from my friends.

PN405

MR PARKIN: We similarly have nothing to report, Commissioner. Our position hasn't changed. We want the jurisdictional objections pressed. We seek a timetable in relation to that. Sorry, the other matter, Commissioner, we also seek to be heard on the ex parte application that has been made in relation to accessing records.

PN406

THE COMMISSIONER: Yes. An appropriate time, subject to any views that the parties may wish to put, was that we had some time reserved on Wednesday?

PN407

MR PARKIN: Yes. I think we have 9.30 or 10 o'clock on Wednesday.

PN408

THE COMMISSIONER: 10 o'clock, as I recall. Could I just come back to the matter of the jurisdictional objection, unless you have anything to say in relation to that, Ms Matthews. Could you again given me the flavour of the jurisdictional objection?

PN409

MR PARKIN: Of course, Commissioner. In essence, there are three issues. We would be happy to put in some written submissions, if that would assist the Commission, in advance of next Wednesday. The first is the dispute resolution provisions relied upon have not been complied with.

PN410

THE COMMISSIONER: Which dispute resolution procedures do you say they are?

PN411

MR PARKIN: We say that they are the matters arising under the award.

PN412

MS MATTHEWS: Commissioner, which award?

PN413

MR PARKIN: We don't know, because we don't know which employee is referred to. We cannot know until we know that one of the employees bringing this dispute - and this is the second objection we have. The Commission must be satisfied that the employee bringing the dispute is covered by the award. This new resolution provision only admits an employee to bring a dispute, so we can't actually assist the Commission with that in the absence of some particularisation by - - -

PN414

THE COMMISSIONER: Again, I'm just trying to narrow any potential issues here.

PN415

MR PARKIN: I understand that.

PN416

THE COMMISSIONER: Would there be any suggestion, for example - if I could take you to the initiating process. If you could go, please, to page 4 of the initiating process. At the head of the page there is a title Coverage. 1.1:

PN417

What industry is the employer in education? What type of industrial instrument? For example, an award, agreement or other written agreement that covers the employment relationship and contains the dispute resolution procedure relevant to the application.

PN418

The IEU writes in its application:

PN419

This issue is unclear. Relevant instruments include the following: a modern award -

PN420

and then there is the identification of the Educational Services (Teachers) Award 2010 and the Educational Services (Schools) General Staff Award, and then also indicated is an enterprise agreement, then there are the two Reddam House agreements; namely, the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement and the Independent Schools NSW (Teachers) Reddam House Agreement.

PN421

Would there be any contention that there could possibly be any other award apart from the Educational Services (Teachers) Award or the Educational Services (Schools) General Staff Award or, depending on which way matters went, the Independent Schools NSW (Support and Operational Staff) Reddam House Agreement or the Independent Schools NSW (Teachers) Reddam House Agreement?

PN422

MR PARKIN: Could I just have one moment, Commissioner. I think the other award which is raised but which is not specifically referred to is in the coverage part; it's the Children's Services Award 2010.

PN423

THE COMMISSIONER: The Children's Services Award - I don't have a copy of it in front of me, but is that a schools based - - -

PN424

MS MATTHEWS: Commissioner, I think the situation is although that was possibly considered relevant at one point by the union office, we now don't think that is the relevant instrument. We think the relevant instruments are the ones listed in 1.2.

PN425

THE COMMISSIONER: I see. Is there any suggestion in the contracts that are being offered to the employees that it was any modern award other than the two there identified in the initiating process?

PN426

MR PARKIN: I understand the Children's Services Award is one of the awards referred to in those new contracts and the other one is the Educational Services (Teachers) Award 2010.

PN427

THE COMMISSIONER: Yes, I referred to that one earlier. That's referred to in the initiating process.

PN428

MR PARKIN: That's correct, Commissioner.

PN429

MS MATTHEWS: Commissioner, perhaps if I can assist you. I think more of an issue arises in relation to the St Leonards, I think it is, centre in the union's view than in relation to the Woollahra centre. That is, without going to it specifically, the Educational Services (Schools) General Staff Award applies to employees employed in preschools and early learning centres attached to or operated by them.

PN430

Our contention is that both of the campuses of the early learning centres - that is the one at Woollahra which is on school premises and the one at St Leonards which is not on school premises - are both attached to or operated by; but it may be the case that the employer has designated the Children's Services Award and I think that's the reason it was referred to on that other section. We understood they had named that award, but I'm not sure that it is in fact the correct award that applies.

PN431

THE COMMISSIONER: My associate has just assisted me. The dispute resolution procedures in the - I beg your pardon. One moment. Could you please pull up, Myles, the Educational Services (Schools) General Staff Award.

PN432

MS MATTHEWS: Commissioner, I'm happy to hand it up.

PN433

THE COMMISSIONER: That's all right. I'll just view it on screen.

PN434

MR PARKIN: Commissioner, I think all the award dispute resolution provisions are the same.

PN435

THE COMMISSIONER: Thank you. That's what I just see myself. They appear to be directly parallel, including numbering within each of the awards at clause 9. Whether it's the Educational Services (Teachers) Award, the Children's Services Award or the Educational Services (Schools) General Staff Award 2010.

PN436

MR PARKIN: So for the purposes of the respondent's first objection to jurisdiction in relation to the awards, if the Commission is satisfied that the award is the one which covers the relevant employees, then we say that each of those has not been complied with.

PN437

THE COMMISSIONER: So what provisions do you say - again I'm just trying to narrow issues. What steps do you say have not been followed if it's the award that applies, or the awards?

PN438

MR PARKIN: We say there have been no discussions at the workplace level and we think that the matters relied upon by the union do not constitute discussions for that purpose. The second matter is that no employees have taken part in those discussions. To the extent that the award permits a representative to be appointed, there is nothing before the Commission which indicates that any such representative was appointed, so we couldn't be satisfied about that.

PN439

Thirdly, to the extent that any discussions have been undertaken and to the extent that any employee could be taken to have participated, a number of the matters which have been raised by the union in the application have not been ventilated in those discussions.

PN440

THE COMMISSIONER: I see.

PN441

MR PARKIN: And to that extent there will probably need to be some evidence before the Commission in relation to that so it might be prudent for any timetabling matters to include witness statements, particularly just in relation to, there was a discussion between, I think, Mr Seals and Mr Dethridge and another employee of Crawford. So I don't know if it's contested or not, what was said at that meeting but it may be an issue which is relevant to the Commission in terms of determining that aspect of the jurisdiction objection.

PN442

THE COMMISSIONER: I see. What do you say, for the sake of clarification, what form of appointment do you say would be needed for a union to represent employees for the purposes of the dispute resolution procedures?

PN443

MR PARKIN: It would need to be at least some indication that there was an employee. We don't know that there was an employee, that's the difficulty. There can be no appointment unless there is an employee that is the subject of this dispute before raising this dispute.

PN444

THE COMMISSIONER: Just in the ordinary course of matters a union would not be approaching an employer seeking discussions unless the union had been asked to do so on behalf of its member or members.

PN445

MR PARKIN: Commissioner, I believe that much of the jurisprudence of this Commission would indicate that in each of these cases there is an employee involved, and certainly given that the jurisdiction of the Commission is confined by the terms of these dispute resolution provisions - - -

PN446

THE COMMISSIONER: Indeed.

PN447

MR PARKIN: "Employee" means "employee" and there must be some satisfaction that that has been the case.

PN448

THE COMMISSIONER: I see. All right. Well, that gives you a better appreciation, Ms Matthews, of the flavour of the - - -

PN449

MR PARKIN: There are two other matters.

PN450

THE COMMISSIONER: I see.

PN451

MR PARKIN: The second objection is that the Commission cannot be satisfied that it has jurisdiction under any of the awards or the agreements unless it is satisfied that the employee raising the dispute is in fact covered by that award of agreement. In the absence of any determination about the coverage of the employee raising the dispute then the dispute resolution provisions are not enlivened. And the third matter is that each of the awards and the agreements that confer, or purport to confer jurisdiction on the Commission permit the determination of disputes which arise under that award or agreement for the NES. And a number of the matters which are raised in the application do not arise under the award of the agreement or the NES. And I can discuss that more fully now if that assists but it's pretty apparent if one goes through the terms of each award in the agreement, what is and is not covered.

PN452

THE COMMISSIONER: I see. Thank you.

PN453

MR PARKIN: And Commissioner, I'm sorry, I should add one more thing. The other matter, of course, is that there needs to be a particular finding about which award or agreement confers jurisdiction because each award and agreement condition the power of the Fair Work Commission to deal with it in different ways.

PN454

THE COMMISSIONER: That is again correct, of course. Well, if that is the case, it would seem to be that I would need to see the pay records. To be able to determine which industrial instrument or award was applicable I will need to see the relevant records.

PN455

MR PARKIN: Commissioner, I think the more appropriate course would be to see the record of any employee who brings this dispute.

PN456

THE COMMISSIONER: Well, it just seems to me that one way or another, in order to determine this application in circumstances where you are pressing the jurisdictional point as of course is your entitlement, your client's entitlement, it will be necessary for me to see the relevant employment records from the time that the industrial agreements were made to identify - - -

PN457

MR PARKIN: So from 2010 onwards is the – in terms of the awards and – from 2011 onwards in terms of the agreements.

PN458

THE COMMISSIONER: That may resolve this ex parte application, as well, because if the notices to produce could be issued and if there's any objection to the production of documents they could be dealt with in the usual way.

PN459

MR PARKIN: I'm sorry, Commissioner, when would the notices to produce be issued in relation to the - - -

PN460

THE COMMISSIONER: Well, they would be made on the application of the union, one presumes, or - - -

PN461

MR PARKIN: In relation to these proceedings or in relation to the application that has been brought in an ex parte basis?

PN462

THE COMMISSIONER: No, no, in relation to the – it may be that I do not need to determine the ex parte application, which of course, you've foreshadowed you wish to be heard in relation to, but rather than different processes being adopted, if it's the case that the threshold issue needs to be determined first I would apprehend, absent any other consideration, that either party would make that – critical to that would be the provision of pay records and payslips and other relevant documentation to assist me in determining that matter, given the differences between the parties concerning this. I'd anticipate that in support of your jurisdictional argument you may be indeed advancing those matters in support of your case but to the extent that the union may have a different view about matters – the union may be seeking a notice to produce for records, all relevant records for the period but in circumstances – I mean, I don't know what case either party is going to run but one would presume that in circumstances where your client is a mover on the motion, as it were, the jurisdictional objection, that you'd be advancing such matters.

PN463

MR PARKIN: Well, the difficulty is, Commissioner, that it is conditional on an employee. And the Commission only needs to be satisfied that one employee is covered by the agreement or award in question and that employee is the one who is bringing the dispute. I'll take your - - -

PN464

THE COMMISSIONER: That's not the usual representative nature of disputes brought on by unions. Of course, very often a union will bring a matter on behalf of a nominated employee or sometimes the application is brought in the name of an individual employee and then the union is identified as the applicant's representative.

PN465

MR PARKIN: And in many cases it would be patent because of discussions which have taken place at the workplace level.

PN466

THE COMMISSIONER: So would you be advancing these relevant records in support of your jurisdictional objection?

PN467

MR PARKIN: I would have to consider that. I wouldn't be in a position to advise the Commission right at this very moment.

PN468

THE COMMISSIONER: Yes. If the respondent was – or the respondents were not advancing those records in support of this objection will you be – again, it might be something that you similarly need to give consideration to, Ms Matthews – do you anticipate that it may be the case you'd be seeking that I sign a notice to produce in that regard?

PN469

MS MATTHEWS: Yes, Commissioner. I mean, we certainly take the view that the questions that my friend has raised which go to the application under the relevant dispute procedure, from the union's point of view are central to this dispute. Now we don't particularly focus on the application of the disputes procedure. We say that the pay and conditions are – it is crucial to know which documents – which instruments apply to employees in order to resolve the dispute at the workplace. So, yes, we would press a notice to produce in those circumstances.

PN470

THE COMMISSIONER: Well, you have your options available in that regard.

PN471

MS MATTHEWS: And I am happy to indicate, Commissioner, that if the respondent then drops the jurisdictional objection we would still, nevertheless, pursue our ex parte application if necessary, given that they have refused to hand over the documents up until now.

PN472

THE COMMISSIONER: Did you discuss any of the matters that I had suggested such as redacted documents or undertakings as between parties to see if this matter can be brought to a resolution?

PN473

MR PARKIN: Commissioner, our position is that the jurisdictional objection needs to be determined.

PN474

THE COMMISSIONER: All right. Well, as I say, if that's the case that you raise an objection to jurisdiction as you're of course entitled to do, it does seem to me that you'd be advancing material in support of your contention as to who the employer has been since the inception of the enterprise agreements?

PN475

MR PARKIN: Well, to the extent that we are able to on the material that's available in the application. I imagine we will be – well, in fairness - - -

PN476

THE COMMISSIONER: All right. Well, your client would have - - -

PN477

MR PARKIN: Commissioner - - -

PN478

THE COMMISSIONER: Your client has record-keeping obligations under the Act - - -

PN479

MR PARKIN: I don't cavil with that.

PN480

THE COMMISSIONER: For a period of time which exceeds the life of the agreement to now.

PN481

MR PARKIN: Absolutely. We do not cavil with that.

PN482

THE COMMISSIONER: Yes. And there's a requirement for the ABN to be specified in those records.

PN483

MR PARKIN: Yes, the Commissioner has made that very clear and we've read the Fair Work regulations. We understand that, absolutely.

PN484

THE COMMISSIONER: Yes. Now whilst you did not hold discussions before, would there still be some utility in you holding discussions concerning programming? I imagine the matter could be heard on Wednesday?

PN485

MR PARKIN: I have talked to my friend about that and it depends on what sort of timetable is required in terms of evidence on either side or whether the Commissioner would be assisted by written submissions in advance, or not.

PN486

THE COMMISSIONER: Yes. Perhaps you might hold a discussion about that between yourselves.

PN487

MR PARKIN: Of course.

PN488

THE COMMISSIONER: Could we be aiming for a hearing on Wednesday?

PN489

MR PARKIN: Look, I think later than Wednesday would probably be preferable given that as the Commissioner has foreshadowed there may be a need to put on substantial evidence in relation to that. Wednesday might be cutting it a bit fine.

PN490

THE COMMISSIONER: Yes. You're raising the objection and I have some appreciation of what it is now and so does the union, that the matter could go over to the following week. That would give you each time to - - -

PN491

MR PARKIN: The following week would be - - -

PN492

THE COMMISSIONER: No. No, well, I'm just floating that but obviously there's a – as Mr Dethridge indicated on the last occasion, he's in a difficult position in terms of offering contracts of employment to new employees. Obviously there is some dispute about what's happening in relation to the existing employees. I think that there is something following on from Mr Dethridge's submissions, there is something of a time imperative here.

PN493

MR PARKIN: I'll take some instructions in this matter in determining timetabling with my friend.

PN494

THE COMMISSIONER: We do have a ten o'clock, next Wednesday, locked in as – in reserve, in any event. It might be the case that it could even be started that day. Now, on the other matter, it's a type of an application I have not dealt with before and there appear to have been few cases in this regard in the period of time that I've looked at the matter since the allocation of the – filed to me this afternoon. I have before me an application numbered RE2015/1776. It's an application under section 483AA for an application for an order to access non-member records. The initiating process for this style of application is made on a form F43. If you look at the form F43 as to the text at the foot of the pro forma document it is said as follows:

PN495

Service requirements. This application is made ex parte, i.e. the application is not served on the relevant employer. The Commission will determine whether the employer and/or any wrong members should be served and given the opportunity to be heard -

PN496

amongst other text. Now having perused the document Ms Matthews, I haven't made a determination in relation to what to do with this application at all. It has simply been allocated to me this afternoon. I appreciate there are some matters where you seek confidentiality, just as the respondent has sought confidentiality in relation to other matters. But I wonder in circumstances where I certainly have not made any determination as to what to do in relation to this application as yet, whether you might be minded to provide a copy of the actual initiating application, perhaps minus the annexures and with any redactions you might consider necessary in relation to the body of the text in the form F43 itself.

PN497

I just float that, you might need to discuss that with your colleague but these applications, few though they have been, have been dealt with in different ways. So far as I can ascertain there's only been about a half a dozen of these applications and only one or two decisions in relation to them, although certainly some orders perhaps with reasons not being given.

PN498

Perhaps Ms Matthews, and this is something that again I don't want to keep adjourning the proceedings but in circumstances where everyone is here, you might like to take an opportunity to carefully review the initiating process, and I'm not referring to the annexures here at this stage, to see whether there are any matters within that documentation that you would seek to redact before providing a copy, serving a copy, if you were minded to, on the respondent.

PN499

I must say whilst the approach of the Commission has been different in relation to these applications and there's a decision or a series of decisions by Asbury DP or Asbury C as she then was, I think consistently with the text and the initiating process that the Commission will determine whether the employer and any wrong members should be served and be given an opportunity to be heard. I think everyone should always be given an opportunity to be heard in relation to matters, in the interests of procedural fairness, open justice and the like.

PN500

That being said, I do appreciate that there are some matters that you - for the same reasons, similarly, that counsel for the respondent has indicated that there are concerns about privacy from that end of the Bar table appears also there are concerns about privacy from your end of the Bar table in relation to some matters, which is why - - -

PN501

MS MATTHEWS: I don't think privacy is the right word, Commissioner, I think it's a question of - and I think we did raise this earlier, but it's a question of the ongoing relationship between the employee and the employer.

PN502

THE COMMISSIONER: Yes, yes, I stand corrected, Ms Matthews - - -

PN503

MR PARKIN: To the extent that Ms Matthews is asserting that my clients might take adverse action against any employee, I can safely say I'm instructed that will not be the case at all. I just want to put that on the record and make it very clear.

PN504

THE COMMISSIONER: Thank you. Perhaps I might adjourn again and if you could each hold those discussions and please hold the discussion before I come back on the next time between yourselves, and if again one or other of the representatives would be kind enough to phone my Associate to let me know when you're ready for me to return. Thank you.

OFF THE RECORD [4.36 PM]

ON THE RECORD [5.07 PM]

PN505

THE COMMISSIONER: You have held some further discussions?

PN506

MR PARKIN: We have, Commissioner, in terms of the timetabling.

PN507

THE COMMISSIONER: Yes.

PN508

MR PARKIN: Can I hand up a document which has some proposed timetabling issues - sorry, a timetable - - -

PN509

THE COMMISSIONER: That is a consent document is it?

PN510

MS MATTHEWS: Subject to one reservation, Commissioner.

PN511

MR PARKIN: There is just one matter and that is the question of whether the respondents be permitted to put on reply evidence. So all of those dates and times are agreed - - -

PN512

MS MATTHEWS: Subject to one further reservation.

PN513

MR PARKIN: Yes.

PN514

THE COMMISSIONER: I will just note for the record, as best I can - no disrespect - as best I can read the handwriting. These are the proposed draft directions. 1. Any evidence to be served by the respondents to be served by 5 pm, Thursday 3 December 2015. 2. Any evidence to be served by the applicant to be served by 5 pm, Thursday 10 December 2015. 3. Any evidence in reply to be served by the respondents. That is then left blank. 4. The matter to be listed for determination of the jurisdictional objections on 14 December. Now, I'm afraid that is not suitable to me. It's up in the air at the moment, I am scheduled to be in Coffs Harbour. How long do you think the case would take?

PN515

MR PARKIN: Commissioner, I wouldn't have thought it would take more than a day.

PN516

THE COMMISSIONER: Half a day, could we do it in half a day?

PN517

MR PARKIN: Subject to whatever evidence comes out from either side. It's kind of hard to ascertain at this point but certainly on no view should it exceed a day.

PN518

THE COMMISSIONER: Would you have availability of Friday 11 December?

PN519

MR PARKIN: For our part we do.

PN520

MS MATTHEWS: Commissioner, I could do the morning.

PN521

THE COMMISSIONER: It would be unfortunate if the matter had to be disaggregated. I would have availability on the morning of Friday 11 and also the morning of Monday 14.

PN522

MR PARKIN: Perhaps that would be convenient course. Perhaps if we could keep the Monday in reserve in case the matter doesn't finalise on the Friday.

PN523

THE COMMISSIONER: Could I ask - this is just to determine the threshold point?

PN524

MR PARKIN: The way that the jurisdiction - whether the Commission has any ability to hear the dispute that has been brought and a consideration of section 739, 738 and whichever dispute resolution provisions.

PN525

THE COMMISSIONER: So what is the nature of the evidence that is being contemplated?

PN526

MR PARKIN: For our part, as a bare minimum, putting on statements from the persons who were in the meetings - in the meeting with the union as to what was and was not discussed. The two letters which are in the application which I imagine would be proposed by the union. In terms of the other evidence we'd have to give some more consideration to that.

PN527

THE COMMISSIONER: These are directions put forward by consent, subject to some provisos that you wanted to raise?

PN528

MS MATTHEWS: Yes, Commissioner. The difficulty I have is that the respondents have indicated that they won't necessarily be producing payroll information. When I've asked them if we serve a notice to produce on them on Monday how long will they take to comply they're unable to answer me in relation to that matter. Now, this obviously, from the union's point of view, somewhat complicates the conduct of the case because we have no idea when they will be producing their material. Clearly I am extremely concerned about the blow-out in the resolution of the matter and I have assured our friends that we do in fact have members employed in these services and that we can provide quite short evidence to that effect but notwithstanding that they don't accept that position.

PN529

MR PARKIN: I should be clear, Commissioner - - -

PN530

THE COMMISSIONER: Just let Ms Matthews finish first, then you'll have an opportunity of course.

PN531

MS MATTHEWS: And because they haven't indicated how long it will take to produce the payroll information that has of necessity it seems to me blown out the timetable.

PN532

THE COMMISSIONER: In circumstances where a matter is proceeding to arbitration it is open to you or to the union, Ms Matthews, to seek or file and serve an application for an order to produce and specify the date and then if there's any issue it is open to the respondent to make an application to have it set aside. You could specify in your notice to produce that you seek that certain materials be provided by some date next week or the week after.

PN533

MS MATTHEWS: Yes, Commissioner, well, we are happy to list it - I take your point, Commissioner, thank you for that. I mean, the difficulty, I suppose, is that if we don't get that information until, say, Thursday or Friday next week - the following week I do have availability on the 8th but that is about it until the 11th, that is the difficulty I have. Certainly, as my friend has foreshadowed, a full day hearing - which seems to me excessive, I would have thought we could have done it in half a day, but I mean, I could also do Monday the 7th in the morning only though. So I've got some availability but I don't have much full day availability in the week commencing the 7th.

PN534

THE COMMISSIONER: Bearing in mind that I do have availability on the morning of Friday the 11th. I also have availability on the 7th. Is that the date that you just mentioned?

PN535

MS MATTHEWS: In the morning.

PN536

THE COMMISSIONER: In the morning, and I do have availability certainly on the morning of 14 December, but then I anticipate I will catching an aeroplane.

PN537

MS MATTHEWS: Commissioner, I would be happy with the 7th. That would be suitable.

PN538

THE COMMISSIONER: That then would need an amendment to the proposed draft directions because your materials would be due on the 10th under these draft directions.

PN539

MS MATTHEWS: Yes, perhaps if - - -

PN540

THE COMMISSIONER: Do you want to take an opportunity to recast these by consent?

PN541

MR PARKIN: Commissioner, it might be easier if we deal with it with you present, given the time, these directions are taking some time. My preference would be for us just to work it out here and now if that were possible.

PN542

THE COMMISSIONER: Yes. All right then.

PN543

MS MATTHEWS: If the respondent can file and serve by the 2nd, I'm happy to do that by the 4th.

PN544

MR PARKIN: Commissioner, the only matter would be that we would want an opportunity to put on some reply evidence. Given the nature of this, if the union provides evidence that it has an employee, we may wish to - - -

PN545

THE COMMISSIONER: A member, yes.

PN546

MR PARKIN: Sorry, it has a member who brings this dispute, we may well wish to contend that particular member is not employed by the respondents or it may well not be covered by one or more of the agreements. Ordinarily we would have some idea about this but because we have two respondents and a multitude of different awards, I think in the circumstances if a particular person is going to be identified, we do need the opportunity to put on that evidence in reply. Given the reply evidence doesn't require any reply itself, if the union is happy to receive that on perhaps Sunday or the Monday morning of the hearing.

PN547

THE COMMISSIONER: Again, it's not a matter for me to be advising either party how to run their case, but where there is some potential sensitivity about union membership, there have been proceedings before myself and other members of the Commission where the identification of individuals is in effect provided under seal with the names of the employees concerned. You may have been involved in proceedings like that, such as where there are different types of applications.

PN548

There have been decisions on this. I have seen them on our website as they get posted. I don't know whether it's going to be the case that actual individuals would be named. I don't know because I don't know what case - - -

PN549

MS MATTHEWS: Commissioner, we certainly wouldn't be proposing to name individuals, and if there is a real challenge as to whether those people are or are not employed by the respondents, then certainly, Commissioner, we would be happy with the course of action proposed by you.

PN550

THE COMMISSIONER: It is not proposed.

PN551

MS MATTHEWS: Yes, I mean, certainly in relation to - for example, majority support determination - - -

PN552

THE COMMISSIONER: That is what I was thinking of.

PN553

MS MATTHEWS: That is frequently a course of action which is used.

PN554

THE COMMISSIONER: That is the standard way that these matters are - well, not standard but it is a common way in which these matters are - - -

PN555

MR PARKIN: Commissioner, if there is evidence of a particular employee led, we would suggest that it would be a denial of procedural fairness to not be given sufficient particulars for us to respond to that evidence. That is the only point I would make. If the union is not intending on leading evidence of that nature, then there probably isn't the need for reply evidence so far as I can see.

PN556

THE COMMISSIONER: Good, then we're narrowing the issues.

PN557

MR PARKIN: If the union is telling us that they're not going to lead evidence of that nature.

PN558

THE COMMISSIONER: That Ms X or Mr Y is - - -

PN559

MR PARKIN: But also, equally the union has not very clearly articulated to us what kind of evidence they propose to lead. I would seek to reserve liberty to lead some reply evidence or to approach the Commission for the possibility.

PN560

THE COMMISSIONER: That might be a convenient way to deal with matters so that we can truncate the timetabling of this matter.

PN561

MS MATTHEWS: Yes, Commissioner. I think - what I put to my friend is that really the evidence in this matter is purely within the control of the respondent, and therefore our view is that whatever evidence - we have discussed on at least two occasions the issues. There is a document which has been filed which is a dispute notification. The evidence which might be relevant is purely within the control of the respondent, and so therefore our view would be that any evidence that they think is relevant should be put on in chief. There might be something else which arises but we would clearly take the view that whatever they think is relevant they should put on.

PN562

THE COMMISSIONER: Yes. The evidence will fall as it does. I will read it all in due course and a decision will be published.

PN563

MR PARKIN: Commissioner, can I take it then that we do have liberty to seek to put on reply evidence if there is something that we feel needs to be replied to?

PN564

THE COMMISSIONER: Yes, but in the usual course of events, an appropriate course would be to discuss that first with the other side so that they're - if they're not going to have the situation where they have that in documentary form, as it were, and you would be leading from the box or something of that nature.

PN565

MR PARKIN: Of course.

PN566

THE COMMISSIONER: Again that kind of procedural fairness aspect would be appropriate. So you're agreeable to that course. Let's look at a recasting of the directions. Is it to be evidence and submissions or just evidence? Evidence and submissions I suppose, an outline of submissions.

PN567

MR PARKIN: If the Commission would be assisted by that.

PN568

THE COMMISSIONER: Yes.

PN569

MS MATTHEWS: Yes.

PN570

THE COMMISSIONER: All right. So any evidence - - -

PN571

MR PARKIN: Commissioner, just one thing in relation to submissions though. I have a difficulty at the beginning of next week in terms of putting on submissions. I'm in the Fair Work Commission in Canberra for the first couple of days. If it would be possible to have a separate date perhaps after the evidence is on to do the submissions, which I think is the usual course, that might be more convenient.

PN572

THE COMMISSIONER: I am just thinking it's sort of in parallel with unfair dismissal applications where it's outline of submissions, materials and the like, I'm sure - - -

PN573

MR PARKIN: In that case, could I seek the Commission's indulgence just to have a couple of extra days on the submissions?

PN574

THE COMMISSIONER: Let's just work at something that works for everyone.

PN575

MR PARKIN: Of course.

PN576

THE COMMISSIONER: All right, including your own commitments then. All right. I will just step outside. You can rework your document on the basis of what we have discussed, and then we're talking about a hearing date on the 7th as I understand it, at least the morning of the 7th.

PN577

MR PARKIN: 7th with reserving the 11th if necessary.

PN578

THE COMMISSIONER: Indeed.

PN579

MS MATTHEWS: Commissioner, I'm only available until about midday. I'm actually interviewing for staff. I'm on a panel in the afternoon as well.

PN580

THE COMMISSIONER: All right. Certainly.

PN581

MR PARKIN: What time would we start on the 7th?

PN582

THE COMMISSIONER: What say if we started at 9?

PN583

MS MATTHEWS: Yes, Commissioner.

PN584

MR PARKIN: That would be suitable.

PN585

THE COMMISSIONER: Just if that means it might wrap in the morning. Otherwise we can just make it 10 as usual.

PN586

MR PARKIN: I think if Ms Matthews has to be gone at 12, perhaps 9 is the better course.

PN587

MS MATTHEWS: I think I can go until about 1.30 or something but I can't go much past the lunch break.

PN588

THE COMMISSIONER: We could make every endeavour to finish in that period of time.

PN589

MR PARKIN: Certainly that would be our preference.

PN590

THE COMMISSIONER: All right then. If you can just rework what's to be done and factor in some submissions into your proposed directions. I'll just step outside.

OFF THE RECORD [5.24 PM]

ON THE RECORD [5.28 PM]

PN591

THE COMMISSIONER: Yes, have you developed something that works for each of you?

PN592

MR PARKIN: I think we have.

PN593

THE COMMISSIONER: Very good. Could I just throw this into the mix? Rather than - it's open to the parties if they wish to have this issue arbitrated but to the extent that it is alleged, contended, that there's been a defect in adherence to the dispute resolutions procedures under whichever instrument it may be, would it be a more time effective and cost effective approach for the parties; the union for example to seek to have - and this isn't a reflection on whether anything has occurred or not occurred, to arrange some meetings this week? To discuss all matters that may be relevant.

PN594

MR PARKIN: This coming week?

PN595

THE COMMISSIONER: Yes, this coming week. It may avert the need for witnesses having to be called and matters of that nature, just cross off everything that needs to be crossed off.

PN596

MS MATTHEWS: Commissioner, we'd be happy to do that but as you know the pay records are crucial and the respondent has still refused to hand over the pay records and are still foreshadowing that they're not proposing or may not propose to file any payroll records as part of their evidence. Which brings us to the caveat that I have in relation to the schedule, which is that we've indicated - my friend has indicated he won't hand over the payroll records unless there's a notice to produce, and obviously we've said that there'd need to clearly be a speedy timeframe to accommodate that.

PN597

Now if those records were handed over without a notice to produce and we had discussions, it may well be that we could resolve all of the matters in dispute as you have suggested. But given that they're refusing to hand over the records or refusing to make any disclosures as to those records, it has led us to this situation which I think is very unfortunate.

PN598

THE COMMISSIONER: Again, if I could make just an observation, and I'm sure anyone who's been involved in industrial relations, as you all have here, sometimes matters are recorded inaccurately in pay records. It may be that the actual question to be determined is whether the relevant enterprise agreements applied to or have coverage in relation to the employees concerned, irrespective of what was identified at the head of somebody's payslip or matters of that nature.

PN599

As you would know, there are countless disputes and alleged underpayment issues where the pay records would show, for example, that the Black Coal Industry Award was the applicable instrument and somebody else would say well no, that was just misidentified. In fact if you look at what applied, it was the ABC coal mining enterprise agreement. So it may not even be the case that what has been identified in pay records is determinative because what was recorded in payroll records maybe erroneous. I don't know.

PN600

MR PARKIN: Commissioner, I can hand up the proposed timetable if that's - I apologise again for my handwriting.

PN601

THE COMMISSIONER: That's all right, it's better than my own.

PN602

MR PARKIN: I'm sure that's not the case, Commissioner.

PN603

THE COMMISSIONER: No, I'm sure that is the case. Well then I'll just take a moment to read these. You've settled these between you, then by consent I direct as follows; 1) Any evidence to be filed and served by the respondents by 5 pm, Wednesday, 2 December 2015.

PN604

MS MATTHEWS: Excuse me, Commissioner, that was 4 pm.

PN605

MR PARKIN: Sorry, it should be 4 pm.

PN606

THE COMMISSIONER: 4 pm.

PN607

MS MATTHEWS: Just because they're getting three days.

PN608

THE COMMISSIONER: 2) Any evidence and outline of submissions filed and served by the applicant by 5 pm on Friday, 4 December 2015. 3) The respondents to file and serve an outline of submissions by 12 noon on Thursday, 3 December 2015 and the matter is to be listed for the determination of the respondents' jurisdictional objection at 9 am on 7 December 2015, and if necessary placed in reserve is 10 am on 11 December 2015.

PN609

Thank you for the discussions that have gone into putting forward those consent directions. The only - well there are some matters that remain. I do have before me the application in RE2015/1776, shall I just put that into abeyance for the time being?

PN610

MS MATTHEWS: Yes, Commissioner. While we're having discussions, we'll serve a notice to produce, we'll need to have some discussions about any timeframe for them to produce that material. If there's any problem about that, we'd seek to call that matter on but we're happy to leave it in abeyance at this point.

PN611

MR PARKIN: Commissioner, could I ask if the matter is brought on at any point that we be given notice of the fact that it is brought on, and the opportunity to make submissions about why we should be heard.

PN612

THE COMMISSIONER: You will be given notice and you will be given an opportunity to be heard, I can say that now.

PN613

MR PARKIN: I'm grateful.

PN614

THE COMMISSIONER: In that regard, I'll just take - although it's not in the list, I'll take matter number RE2015/1776 to have been called on today and mentioned, and that the matter will be stood over with leave to seek a relisting. Should I relist the matter on the application of the applicant, in relation to that application the respondents will be given notice of that and will be given an opportunity to be heard.

PN615

MS MATTHEWS: Thank you, Commissioner.

PN616

MR PARKIN: Thank you, Commissioner.

PN617

THE COMMISSIONER: Are there any other matters that need to be dealt with?

PN618

MS MATTHEWS: No, Commissioner.

PN619

THE COMMISSIONER: No.

PN620

MR PARKIN: No, the only matter is just that earlier matter I raised about evidence in reply and the possibility of seeking leave to deal with that. But we'll attempt to deal with that with our friends if there's any issue that arises there before approaching the Commission.

PN621

THE COMMISSIONER: Thank you. As I say, could I ask the parties to look particularly - it may be that you need - and I put it no higher than this. It may be that you need to look more particularly at the arrangements concerning coverage and applicability than perhaps what's been recorded potentially erroneously, I don't know, on pay records. As I haven't got any of those pay records in front of me, I can't put it any higher than that.

PN622

MR PARKIN: Of course, Commissioner.

PN623

MS MATTHEWS: Thank you, Commissioner.

PN624

THE COMMISSIONER: Thank you all for your participation in the proceedings. The matter is stood over accordingly.

ADJOURNED INDEFINITELY [5.38 PM]