C2003/ 1690 , Transcript of Proceedings [2003] AIRCTrans 1853 (16 May 2003)

AUSCRIPT PTY LTD
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Level 4, 179 Queen St MELBOURNE Vic 3000
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TRANSCRIPT OF PROCEEDINGS


O/N 2506
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER GAY

C2003/ 1690 

THE ASSOCIATION OF
PROFESSIONAL ENGINEERS,
SCIENTISTS AND MANAGERS,
AUSTRALIA

and

COOPERATIVE RESEARCH CENTRE
FOR ADVANCED COMPOSITE STRUCTURES

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

MELBOURNE

10.02 AM, FRIDAY, 2 MAY 2003

PN1

MR M. BUTLER: I appear on behalf of the Association of Professional Engineers, Scientists and Managers, Australia, together with MS J. DRENNAN.

PN2

MR R. NIALL: I seek leave to appear as counsel, and I appear on behalf of seven of the CRCs. Would the Commission like me to identify those at this stage?

PN3

THE COMMISSIONER: Well, is there a list - of course, for you to tell me for whom you appear, but rather than - well, what is the most convenient way of you doing that, Mr Niall?

PN4

MR NIALL: Well, perhaps I can just read them onto the record at this stage. I think Mr Butler is going to hand up a list of the parties. They are the CRC for Advanced Composite Manufacturing and Design, Functional Communication Services, Waste Management, Great Barrier Reef, Value Added Wheat, Viticulture and Polymers. If the Commission pleases. And with me is Mr J. HEATHCOTE, Senior Executive Officer of the CRC of Advanced Composite Manufacturing and Design. Thank you.

PN5

THE COMMISSIONER: Yes, thanks, Mr Niall. Now, Mr Butler, do you say something about the application for leave?

PN6

MR BUTLER: We do not oppose the application for leave, Commissioner.

PN7

THE COMMISSIONER: Yes. Leave is granted, Mr Niall.

PN8

MR NIALL: If the Commission pleases.

PN9

THE COMMISSIONER: All right, Mr Butler. Mr Butler at some stage, and it might be easiest to do it earlier rather than later, it might be convenient for us to have a short conference before hearing you in the normal way. It may be that isn't necessary on this occasion, where there is a complex categorisation of the people in respect of whom a dispute is sought to be found. I am happy to have a conference if it is more efficient to do it that way, or, alternatively, we can just press on in the normal way. Either way no one is going to be disadvantaged by that. But what do you say about it?

PN10

MR BUTLER: Look, Commissioner, I am quite happy to proceed, and then if it is necessary to go into conference, if either of the parties could request, if you are happy with that?

PN11

THE COMMISSIONER: Yes, go ahead.

PN12

MR BUTLER: If the Commission pleases, this is an application in accordance with section 99 of the Act, and it arises out of the service of a letter of demand and log of claims relating to salaries and conditions of employment for professional engineers and scientists employed by cooperative research centres. Service of the log was effected on 28 February 2003, and a result and notification of dispute, which included the registered mail and postal receipts, was lodged with the Industrial Registry on 2 April 2003.

PN13

Further attached to the notification of dispute were two statements signed by Mr Bruce Nadenbousch, who is the Director of Industrial Relations of the Association, indicating that he as the particular officer had knowledge of the facts and was authorised to indicate that the service of the notification of dispute was authorised by the association. And I understand that these documents have been lodged with the Commission and are part of the Commission's file.

PN14

THE COMMISSIONER: Yes, that is right. And I will mark those now, Mr Butler. And it might be easiest I think to do it this way. I will mark as APESMA1 the statement of Mr Nadenbousch of the 2nd of the 4th, this year, which sets out that he is the Director of Industrial Relations for the Association of Professional Engineers, Scientists and Managers, Australia, and that he is authorised to make that statement on its behalf, and goes on and further indicates that the letter of demand and log of claims contained in an annexure marked A was served on employers whose names and addresses appear in an annexure to exhibit APESMA1 and marked B, and it was in accordance with the rules of the Association.

PN15

So that is APESMA1, and as I have indicated, attached to APESMA1 and marked A is a letter of demand which is dated 28 February, seeking agreement from employers that I will identify shortly, and attached is a log of claims which deals with salaries and conditions of employment, and also attached to which is, marked B, a registered post and insurance multiple lodgment form of Australia Post from the South Melbourne branch of Australia Post, with a date stamp of 28 February, which has attached to it a nine page document which sets out a number of employers and the person, a nominated person and their title, the address of that institution or organisation, the city and state and the post code, and to which on the original is affixed the registered post registered number adhesive tab, and all of which is APESMA1.

PN16

Now, also on the file is a further statement of 2 April 2003 from Mr Nadenbousch that indicates that on 28 February he caused to be served by the pre-paid registered mail to which I have just referred, a copy of the letter of demand and log of claims, that the letter of demand and log of claims marked with the letter A was served with the authority of the association, and that the official postal receipt to which I have referred is the official stamp of the South Melbourne Post Office, and constitutes the official receipt for the posting of the letters of demand and log of claims, further, that the employers have not responded in the affirmative, and that the association alleges that an industrial dispute exists. Now, that statement is APESMA2.

PN17

And the notification by Mr Nadenbousch which was received in the Registry on 2 April under section 99, is APESMA3.

EXHIBIT #APESMA1 STATEMENT OF MR NADENBOUSCH, DATED 02/04/2003, WITH ATTACHMENTS A AND B

EXHIBIT #APESMA2 FURTHER STATEMENT OF MR NADENBOUSCH RE DETAILS SERVICE OF LOG OF CLAIMS AND LETTER OF DEMAND

EXHIBIT #APESMA3 NOTIFICATION BY MR NADENBOUSCH LODGED WITH REGISTRY ON 2 APRIL 2003

PN18

THE COMMISSIONER: Mr Niall, have you got all that material?

PN19

MR NIALL: I don't, Commissioner, but I am comfortable with that at the moment.

PN20

THE COMMISSIONER: Yes. Because if there is any lack of coherence in that, there are multiple copies in a bundle on the file of a sort with which you will be familiar, and I am happy to, to assist in identification, have that shown to you.

PN21

MR NIALL: Thank you.

PN22

THE COMMISSIONER: But perhaps we will push on. Yes, Mr Butler?

PN23

MR BUTLER: And, Commissioner, there is one further statement made by Mr Nadenbousch on 7 April 2003, to the effect of details of the time, date and place of this hearing had been served on the parties, and I understand again that that document should be on the file.

PN24

THE COMMISSIONER: Yes, that is so. It is in a different part of the file, and I will now mark it APESMA4, which is the statement of 7 April of Mr Nadenbousch, which indicates that a document attached to APESMA4 and marked A is the advice from Mr Nadenbousch, which APESMA4 indicates was sent by pre-paid registered mail to employers, giving the notice of the time and place of this hearing, and set out the notice of listing sent by the Commission, and there is another of the multi page documents containing postal receipt tabs, and there is also, as there was of the first bundle of documents, an information sheet which is provided consistent with rule 16, being form R5, which is sufficient alphabet soup for the moment. Yes, so that is all APESMA4.

EXHIBIT #APESMA4 STATEMENT OF MR NADENBOUSCH RE ADVICE AND REGISTERED POSTAL RECEIPTS, DATED 07/04/2003

PN25

MR BUTLER: Commissioner, by way of background, cooperative research centres are publicly funded bodies that bring together research universities, CSIRO, other government laboratories, private industry and government agencies in long term collaborative arrangements which support research development and education activities. At present there are approximately 64 cooperative research centres, or CRCs, as they are generally known, and these cover a diverse range of industries.

PN26

Funding from the Commonwealth Government for their operations is set out in a formal agreement which can be for a period of up to seven years. Insofar as the corporate structure of CRCs are concerned, a significant number of the cooperative research centres that we have served, the entities in themselves are unincorporated joint ventures. The employees who perform the work are on occasion seconded from organisations that are members of the various CRCs, and as these CRCs do not employ, there is a number of these entities that we have served that we need to delete from this particular dispute.

PN27

Now, it almost certainly will be the case that we will be serving fresh logs on correct entities at some stage in the future, but for the purpose of this dispute they will need to be deleted, because these particular entities are not capable of being employers. And so perhaps, Commissioner, at this stage it is appropriate for me to table two revised lists. The first list will be a list of parties against whom an industrial dispute is alleged, and that the second list will be a list of parties that are deleted from this particular industrial dispute. So if I table the list of parties against whom an industrial dispute is alleged, first of all. And the second one, Commissioner, a list of parties that are deleted from the dispute.

EXHIBIT #APESMA5 LIST OF PARTIES AGAINST WHOM INDUSTRIAL DISPUTE IS ALLEGED

EXHIBIT #APESMA6 LIST OF PARTIES DELETED FROM THE DISPUTE

PN28

MR BUTLER: The list of cooperative research centres in APESMA5 are the companies against whom we would press for a finding of dispute, and in APESMA6 we simply request that it be noted that they have been deleted, and we don't press a dispute against the companies in APESMA6.

PN29

THE COMMISSIONER: Has Mr Niall seen this, Mr Butler, do you know?

PN30

MR BUTLER: Yes, he has.

PN31

THE COMMISSIONER: Well, he has now, but has he seen it prior to just a moment ago?

PN32

MR NIALL: I had the deleted, but not the alleged. I am just going through that now, sir.

PN33

THE COMMISSIONER: Well, it should be a distillation of - yes, very well. Go on, Mr Butler.

PN34

MR BUTLER: Commissioner, we submit that the log of claims, with the exception of clause 67(c), is capable of inclusion in a dispute finding. And if I can just refer the Commission to the log of claims. Clause 67 is on page 6 of the log of claims, and subclause 67(c) refers to a preference provision:

PN35

Association members shall be accorded preference over other employees in retention and employment.

PN36

Etcetera. And I would just request that that particular subclause be severed from the log. In respect of all other matters, Commissioner, the association submits that they are capable of inclusion in the dispute finding. It is submitted that the dispute exists in all states, and accordingly, Commissioner, I would request that a dispute finding be made in accordance with section 101 of the Act. If the Commission pleases.

PN37

THE COMMISSIONER: Yes, thanks, Mr Butler. Yes, Mr Niall?

PN38

MR NIALL: If the Commission pleases. Does the Commission have APESMA5, which is the list of parties against whom an industrial dispute is alleged?

PN39

THE COMMISSIONER: Yes.

PN40

MR NIALL: I act for the first, the second and the third, and then about point 6 of the list, the Value Added Wheat, and the next one, Viticulture, and then about three down, the Great Barrier Reef World Heritage Area, and third from the bottom, Waste Management and Pollution.

PN41

THE COMMISSIONER: Yes, thank you.

PN42

MR NIALL: Now, my instructions are, in relation to the second and the third, that is the Cooperative Research Centre for Functional Communication Services, and the Cooperative Research Centre for Polymers, both of those CRCs are unincorporated, and accordingly, in my submission, should be deleted and added to the list in APESMA6. Now, I am not in a position to put any evidence to the Commission on that matter, so I suspect that the position at the moment is we have got an assertion from one party and a counter assertion from the other.

PN43

Given the large - Mr Butler says that he is going to serve these 45 deleted, in my submission it wouldn't be inconvenient or inappropriate to reserve the position in respect of those two. It really shouldn't - it is really not going to make much difference one way or the other, rather than make a dispute finding in the face of my instructions.

PN44

THE COMMISSIONER: All right, thank you. And as to the others?

PN45

MR NIALL: In relation to the others, they are incorporated. We put no submissions in opposition to the dispute finding. May it please the Commission.

PN46

THE COMMISSIONER: Yes, thanks, Mr Niall. Well, what do you say about those two, that is, the Cooperative Research Centre for Functional Communication Services and the Research Centre for Polymers?

PN47

MR BUTLER: Commissioner, I am prepared to reserve our position in respect of those at this point in time, and subject to further discussions with Mr Niall.

PN48

THE COMMISSIONER: Yes, thank you. Well, this notification identifies a situation where it is claimed that a dispute can be found to exist. And having regard for the material on the file, and that is the exhibit APESMA1, which sets out the authorised status of Mr Nadenbousch on behalf of the Association of Professional Engineers, Scientists and Managers Australia, it is satisfactorily indicated that a letter of demand and log of claims which has been described by me earlier and forms part of - is attached to APESMA1, was served on employers who I will identify shortly, for relevant purposes, and that the detail of that service and the authorised status is attested to by APESMA2, and notified to the Commission in the way which is necessary to satisfy the Act, and made clear by APESMA3, and that the relevant employers were served properly and in a timely way of the notice of listing of today's hearing, as is made clear by APESMA5.

PN49

Now, having regard for that material, I find that there is in existence an interstate industrial dispute, and make this finding pursuant to section 101 of the Act, as to the industrial matters contained in the letter of demand and log of claims which goes to rates of pay and conditions of employment other than in respect to the claim in the log of claims, which is marked 67(c), which does not form part of the finding which I presently make, as it is not pressed by the APESMA and, rather, is withdrawn, and that the dispute exists of the one part between APESMA and the list of parties set out in APESMA5, other than in respect to the second named and third named bodies, namely, the Cooperative Research Centre for Functional Communication Services, Australian Pulp and Paper Institute, Monash University, and the Cooperative Research Centre for Polymers at Notting Hill, Victoria, which are to be placed on a reserve list.

PN50

Now, other than those parties, I do make the finding of the dispute, as I have indicated, of the one part, between APESMA and those employers in APESMA5. In making that finding it is noted that APESMA6, for the purpose of clarity, indicate a list of the parties for whom, or employers, recipients of the original log of claims in respect of whom the claim is not pressed and is withdrawn. In due course I will make a formal finding to this effect and I will send it to the parties, and place a copy on the file. In the meanwhile I direct the parties to confer. I now propose to speak to the parties in a conference. We will adjourn for that purpose.

NO FURTHER PROCEEDINGS RECORDED

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #APESMA1 STATEMENT OF MR NADENBOUSCH, DATED 02/04/2003, WITH ATTACHMENTS A AND B PN18
EXHIBIT #APESMA2 FURTHER STATEMENT OF MR NADENBOUSCH RE DETAILS SERVICE OF LOG OF CLAIMS AND LETTER OF DEMAND PN18
EXHIBIT #APESMA3 NOTIFICATION BY MR NADENBOUSCH LODGED WITH REGISTRY ON 2 APRIL 2003 PN18
EXHIBIT #APESMA4 STATEMENT OF MR NADENBOUSCH RE ADVICE AND REGISTERED POSTAL RECEIPTS, DATED 07/04/2003 PN25
EXHIBIT #APESMA5 LIST OF PARTIES AGAINST WHOM INDUSTRIAL DISPUTE IS ALLEGED PN28
EXHIBIT #APESMA6 LIST OF PARTIES DELETED FROM THE DISPUTE PN28