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C2002/ 855 , Transcript of Proceedings [2002] AIRCTrans 985 (27 March 2002)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
DX 305 Melbourne Tel:(03) 9672-5608 Fax:(03) 9670-8883

TRANSCRIPT OF PROCEEDINGS


O/N VT02939

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SMITH

C2002/ 855 

AUSTRALIAN MUNICIPAL,
ADMINISTRATIVE, CLERICAL AND
SERVICES UNION and ANOTHER

and

ALPHINGTON SELF HELP EXCHANGE
INCORPORATED and OTHERS

Notification pursuant to section 99 of the Act
of a dispute re log of claims, wages and conditions

MELBOURNE

10.02 AM, TUESDAY, 12 MARCH 2002

PN1

MR B. O'BRIEN: Thank you, Commissioner. I appear for the Australian Services Union.

PN2

THE COMMISSIONER: Thank you. Thanks, Mr O'Brien. Now, you haven't got anybody objecting to you. It must be a rare feeling.

PN3

MR O'BRIEN: You may have some correspondence to that effect.

PN4

THE COMMISSIONER: Yes. I think I have got one from the Hamilton Accommodation Program.

PN5

MR O'BRIEN: Yes.

PN6

THE COMMISSIONER: But that is the only one, I think.

PN7

MR O'BRIEN: Yes.

PN8

THE COMMISSIONER: Do you have any other?

PN9

MR O'BRIEN: Not directly related to that.

PN10

THE COMMISSIONER: All right, thank you. Well, I will hear you on the service and on the log.

PN11

MR O'BRIEN: Thanks, Commissioner. This is a dispute notification by the Australian Services Union pursuant to section 99 of the Workplace Relations Act. The dispute arises from the ASU serving a log of claims and letter of demand on two employers in Victoria and one in the Northern Territory. The log was served in accordance with the rules of the union and was authorised by the National Executive President, Michael O'Sullivan, and I will tender a copy of that authorisation.

PN12

THE COMMISSIONER: You deliberately decided not to pronounce the Northern Territory employer, didn't you?

PN13

MR O'BRIEN: I am rather pleased that it was not "and others" before the - - -

PN14

THE COMMISSIONER: Yes.

EXHIBIT #ASU1 LOG OF CLAIMS

PN15

MR O'BRIEN: Thanks, Commissioner. The ASU served the log of claims by registered post on 5 October 2001. The letter of demand gave 14 days in which the employers were required by the union to accede to the claims within the log. To date the employers have failed to accede to the claims in the log served by the ASU, and on 31 January 2002 the ASU notified the dispute to the Victorian Registry of the Commission. The dispute notification was accompanied by a sworn affidavit signed on 3 January 2002 by the National Executive President of the union.

PN16

The affidavit declared the employers were served with the log of claims and letter of demand by registered post on 5 October 2002, and the affidavit also has attached to it copies of letters of demand and the log of claims served on each employer. That documentation should all be on your file, Commissioner.

PN17

THE COMMISSIONER: Yes.

PN18

MR O'BRIEN: That is the notice of dispute, declaration of service dated 31 January, letters of demand which are marked with the letter "A" and the log and registered postal receipts marked with the letter "B". On 8 January 2002 the Commission issued a notice of listing of the dispute notification and this listing notice requested that the applicant notify the relevant employer parties to the alleged dispute of the date and the time and the place of the hearing.

PN19

On 22 February 2002 the ASU notified each employer of today's hearing by registered post. I will tender a declaration of service to that effect, signed by the National Secretary of the ASU on 22 February, and annexed to that declaration are setters to each employer and notices of today's hearing, and they are annexed and marked with the letter "B". So if I could tender that.

EXHIBIT #ASU2 DECLARATION OF SERVICE WITH ANNEXED LETTERS TO EMPLOYERS AND NOTICES OF HEARING

PN20

MR O'BRIEN: The ASU submits that the employers served with a log of claims and letters of demand rejected the claims and a dispute should be found pursuant to section 101 of the Workplace Relations Act and the dispute is between the Australian Services Union and the three employers referred to on the registered post mailing receipts, which are annexure "B" on the declaration of service signed by the National Secretary of the ASU on 22 February 2002. If the Commission pleases.

PN21

THE COMMISSIONER: Thanks, Mr O'Brien. Mr O'Brien, demand number 62, which is Preference, and demand number 45, which is Deduction of Union Dues, those are two that I normally excise from the finding and grant leave to apply at some further stay if you wish to argue. Do you wish to argue them now or will we do it later?

PN22

MR O'BRIEN: No, Commissioner, I think save and except those two clauses, on the finding would be suitable to the union.

PN23

THE COMMISSIONER: Thanks, Mr O'Brien. Pursuant to section 101 of the Act, I find there exists an interstate industrial dispute between on the one hand the Australian Municipal, Administrative, Clerical and Service Union, and on the other hand those employers named in ASU1. The subject matter of the dispute is a log of claims which was attached to a letter of demand dated 5 October 2001.

PN24

I find a dispute in relation to all matters contained in the log with the exception of demand 45, Union Dues, and demand 62, Preference. Those demands, on the present authorities, cannot give rise to the finding of a dispute in my view, having regard to the decision in Alcan v Thiess Brothers. However, of course, leave is granted to the union to seek a variation to the finding should there be any additional material that the union may wish to lead.

PN25

I shall reduce my finding to writing and forward copies to the parties, and I formally refer the parties into conference. The matter is adjourned sine die.

ADJOURNED INDEFINITELY [10.09am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #ASU1 LOG OF CLAIMS PN15
EXHIBIT #ASU2 DECLARATION OF SERVICE WITH ANNEXED LETTERS TO EMPLOYERS AND NOTICES OF HEARING PN20