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C2001/ 1692 , Transcript of Proceedings [2001] AIRCTrans 1921 (14 August 2001)

AUSCRIPT PTY LTD
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Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT DRAKE

C2001/ 1692 

AMIEU

and

OSI INTERNATIONAL FOODS (AUSTRALIA) PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re claim re hours of work in the warehouse

SYDNEY

10.35 AM, THURSDAY, 26 JULY 2001

Continued from 30/5/01

Adjourned sine die

PN87

THE SENIOR DEPUTY PRESIDENT: Can I have your appearances, please?

PN88

MR S. GURNEY: If the Commission pleases, I appear for the Australasian Meat Industry Employee's Union, New South Wales branch. With me are Mr Donzon, Ms Fernandez and Mr Hupton.

PN89

MR VERNIER: Your Honour, with your leave I appear for the company, ISO International Foods (Australia) Proprietary Limited. With me, I have Mr Ronfeldt and Mr Fourie.

PN90

THE SENIOR DEPUTY PRESIDENT: Where's Mr Wellard?

PN91

MR VERNIER: Ms Wellard is currently outside, your Honour.

PN92

THE SENIOR DEPUTY PRESIDENT: Where are you from, Mr Vernier?

PN93

MR VERNIER: A solicitor with Australian Business Lawyers.

PN94

THE SENIOR DEPUTY PRESIDENT: Is there any objection to leave?

PN95

MR GURNEY: No objection, your Honour.

PN96

THE SENIOR DEPUTY PRESIDENT: Leave is granted, Mr Vernier

PN97

MR VERNIER: Thank you very much, your Honour.

PN98

THE SENIOR DEPUTY PRESIDENT: Subject to you remaining cooperative at all times.

PN99

MR VERNIER: Happy to be that way.

PN100

THE SENIOR DEPUTY PRESIDENT: I'm sorry, I've been off work and I don't recall reading this letter that came in on 24 July so if you just give me a minute, I've only just seen it. I do actually think I might have quickly looked at it. Mr Vernier, I don't think in any event that I set this matter down for hearing today, did I? I thought I set it down for conciliation.

PN101

MR GURNEY: No, I think it originally was set down for hearing, your Honour. I mean, certainly the union's position is that, your Honour, we are more than willing and prepared to conciliate. There was in fact one meeting that has been held between the parties since we were last before you and there was a proposal for a second meeting but unfortunately at the company's request that second meeting was postponed and not rescheduled.

PN102

THE SENIOR DEPUTY PRESIDENT: What's happened with the annexures, Mr Gurney?

PN103

MR GURNEY: What's happened with the annexures? There was, in relation to Ms Fernandez's statement there were two annexures in particular that when Ms Fernandez's statement were prepared were available. Those two annexures have been misplaced. If the matter proceeds, your Honour, we won't rely - - -

PN104

THE SENIOR DEPUTY PRESIDENT: What are they?

PN105

MR GURNEY: We don't know. We cannot find them.

PN106

THE SENIOR DEPUTY PRESIDENT: What do the statements say they are?

PN107

MR GURNEY: One is a notice that was put out to employees by the union in June of 1998 when the negotiations for the 1998 agreement were taking place which essentially outlined the position between the parties at that time. The second document is a document that was put out by Chisholm Manufacturing at the conclusion of the negotiations which outlined those matters which had been dealt with in the enterprise agreement and that was put out, as I understand it, as part of the - - -

PN108

THE SENIOR DEPUTY PRESIDENT: I'm sorry, Mr Gurney, were these documents that were in your possession when the statements were prepared and that you've lost since.

PN109

MR GURNEY: They were, yes, your Honour. We believe that the most likely outcome for those documents is that they've been mixed up into another file and despite some intensive searching we're still unable to locate them.

PN110

THE SENIOR DEPUTY PRESIDENT: You'll find them mid-hearing in some other matter totally unrelated in 12 months time, I know.

PN111

MR GURNEY: I've no doubt, your Honour, it's one of those matters when we go to deal with another matter they will turn up in some obscure file - - -

PN112

THE SENIOR DEPUTY PRESIDENT: No, they'll turn up attached to some document of which they have no relevance and the documents you're looking for won't be there. So these are documents you rely on but you can't find?

PN113

MR GURNEY: They are, your Honour, but as I say, if the matter is pressed Ms Fernandez is available to give evidence and we won't rely on - Ms Fernandez's statement goes to other matters as well, in relation to those negotiations so whilst they are important to us they are not the be all and end all, so we will still be able to proceed with Ms Fernandez's evidence and we just won't rely on that part of it relating to those statements.

PN114

THE SENIOR DEPUTY PRESIDENT: Is there any argument about jurisdiction in this matter? Is jurisdiction conceded, Mr Vernier?

PN115

MR VERNIER: In relation to whether there is an industrial dispute we have no argument on that course - - -

PN116

THE SENIOR DEPUTY PRESIDENT: An allowable matter, is it not?

PN117

MR VERNIER: Sorry, your Honour?

PN118

THE SENIOR DEPUTY PRESIDENT: Do you say it's not an allowable matter? There's no argument about those matters?

PN119

MR VERNIER: No.

PN120

THE SENIOR DEPUTY PRESIDENT: And it's within the dispute settlement clause, gives the Commission power?

PN121

MR VERNIER: No, we have two issues. It may be a special case if it proceeds under section 99. We say that the agreement pursuant to section 170LW doesn't actually give - - -

PN122

THE SENIOR DEPUTY PRESIDENT: What does it say?

PN123

MR VERNIER: All it says is that the, I think the dispute or matter be referred to the Commission.

PN124

THE SENIOR DEPUTY PRESIDENT: For what? Does it say for what?

PN125

MR VERNIER: No, they've been silent on that. It doesn't say that you can conciliate or arbitrate and that the parties have to be bound by your decision, your Honour. It just says refer the matter.

PN126

THE SENIOR DEPUTY PRESIDENT: So it's a matter that I would have to resolve in any event? And it's your interpretation of that that its silence on that subject means that there isn't a power to arbitrate?

PN127

MR VERNIER: Yes. Or even if you do arbitrate, the result wouldn't be binding on the parties.

PN128

THE SENIOR DEPUTY PRESIDENT: If it's within power, given the recent decision of the Federal Court in relation to the powers of the Commission under dispute settlement clauses, if the clause is wide enough then I think that that decision covers the situation, don't you? It's a question of what the clause says as to whether - - -

PN129

MR VERNIER: That's right, yes.

PN130

THE SENIOR DEPUTY PRESIDENT: Yes. But apart from that issue - - -

PN131

MR VERNIER: There's the High Court decision on that, your Honour, yes.

PN132

THE SENIOR DEPUTY PRESIDENT: Okay. What is the parties' preference? That the matter be conciliated today?

PN133

MR VERNIER: Yes.

PN134

THE SENIOR DEPUTY PRESIDENT: And then a further meeting? Mr Gurney?

PN135

MR GURNEY: We would certainly agree to conciliation first up, your Honour.

PN136

MR VERNIER: There was one other issue, your Honour, which I might raise. I don't know if Mr Gurney has filed his draft orders and outline of submissions but he seems to also rely upon section 170MD(6) which is the provision giving the Commission power to remove an uncertainty or ambiguity in the agreement. There has been no application filed in that respect.

PN137

THE SENIOR DEPUTY PRESIDENT: Does it need to be?

PN138

MR VERNIER: According to the rules and the Act, yes.

PN139

THE SENIOR DEPUTY PRESIDENT: The rules are matters that could be set aside. I have always understood that - at least I think I did, that section 170MD was relied upon. Mr Ronfeldt, that's not your recollection? No. Well, we now are on notice about it and whether there's a formal application or not if this matter goes to hearing we all know that that's part of the application.

PN140

MR GURNEY: Thank you, your Honour.

PN141

THE SENIOR DEPUTY PRESIDENT: And in that respect at least we'll ignore the formal requirement for an application. I think the parties can between themselves work out what the issues are. We'll go off the record, thank you.

OFF THE RECORD

PN142

THE SENIOR DEPUTY PRESIDENT: It's agreed that we will proceed to conciliation in this matter. There are two witnesses in attendance, Mr O'Shea and Miss Catherine Quinn. There is going to be conciliation. Both parties have conceded that as a result of the conciliation, there will be no application pursuant to section 105. Mr Vernier, could you confirm that?

PN143

MR VERNIER: Your Honour, on behalf of the company we confirm that there will be no application pursuant to 105.

PN144

THE SENIOR DEPUTY PRESIDENT: Mr Gurney?

PN145

MR GURNEY: Yes, your Honour. On behalf of the union, there will be no application pursuant to section 105.

PN146

THE SENIOR DEPUTY PRESIDENT: Thank you. We are adjourned.

ADJOURNED INDEFINITELY [11.06am]