TRANSCRIPT OF PROCEEDINGS

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Fair Work Act 2009 40317-1

VICE PRESIDENT WATSON

AM2011/3

s.160 - Application to vary a modern award to remove ambiguity or uncertainty or correct error

Application by International Vulnerable Youth Employee Rights Association Ltd
(AM2011/3)
Contract Call Centres Award 2010

(ODN AM2008/18)
[MA000023 Print PR986364]]




Sydney

11.06AM, WEDNESDAY, 16 FEBRUARY 2011

THE FOLLOWING PROCEEDINGS WERE CONDUCTED VIA TELEPHONE CONFERENCE AND RECORDED IN SYDNEY

Continued from New

PN1

THE VICE PRESIDENT: Can I have the appearances please.

PN2

MR N. DRIVER: I am agent for the applicant, your Honour.

PN3

MR M. RITCHIE: I appear for the applicant.

PN4

MS N. STREET: I appear for Australian Industry Group.

PN5

MR I. TAYLOR: I seek permission to appear for a company covered by the relevant award, AXA Assistance Australia Pty Ltd. I understand my solicitors forwarded material to your Honour's Associate yesterday.

PN6

THE VICE PRESIDENT: Yes, thank you, Mr Taylor, and in Melbourne?

PN7

MR J. NUCIFORA: I appear for the Australian Services Union. Your Honour, the audio is just not quite there, we can barely hear everyone's voices and the other thing I would want to raise, your Honour, we would oppose at this stage permission for the counsel for AXA Assistance appearing until they have explained why.

PN8

MS M. MALONEY: I appear on behalf of the Finance Sector Union of Australia.

PN9

THE VICE PRESIDENT: Is there any objection to permission being granted to counsel to appear on behalf of any party.

PN10

MR NUCIFORA: Your Honour, sorry, you may not have heard me earlier, we do oppose counsel appearing at least until they can explain why they're here.

PN11

THE VICE PRESIDENT: There is an objection to counsel appearing or AXA intervening, Mr Nucifora?

PN12

MR NUCIFORA: Both, yes, certainly AXA intervening.

PN13

THE VICE PRESIDENT: Do you object to permission being granted to Mr Driver to appear on behalf of the applicant?

PN14

MR NUCIFORA: No, not if he is able to explain why they're here, your Honour.

PN15

THE VICE PRESIDENT: Perhaps I can ask Mr Driver and Mr Taylor to outline the grounds for your application to appear and in your case, Mr Taylor, to intervene if it is intervention. Mr Driver.

PN16

MR DRIVER: Yes, your Honour, I've been appointed as agent on behalf of the applicant and I seek to appear as - - -

PN17

MR NUCIFORA: Sorry, your Honour, we can't quite hear that.

PN18

MR DRIVER: I've been appointed, your Honour, agent for the applicant and seek to appear as a lay man in that capacity.

PN19

THE VICE PRESIDENT: Are you legally qualified, Mr Driver, or just as a - - -

PN20

MR DRIVER: A lay person, your Honour.

PN21

THE VICE PRESIDENT: A lay person, very well. Mr Taylor.

PN22

MR TAYLOR: Yes, if it please your Honour, we forwarded some material to your Honour's Associate but I am conscious of the fact the other parties haven't seen that. We appear today to make a submission, if your Honour allows us to appear, that the company that was the only application that we were provided, International Youth Vulnerable Employee Rights Association Ltd, is a company that does not have standing to bring the application and accordingly your Honour has no jurisdiction to deal with the application. We were informed when we arrived this morning that there is a different application that may have been filed, I was shown it, which names a different applicant, Mr Ritchie, who has appeared today.

PN23

We are not aware whether that application is before you today. I seek only to appear in the matter in which International Youth Vulnerable Employee Rights Association Ltd at this stage, that's the limit of my instructions and the only reason for my appearance is to oppose that organisation having standing to bring this application. Can I also say if your Honour grants me leave to appear and grants my client the right to appear we would oppose Mr Driver being permitted to appear on behalf of Mr Ritchie, not being a person who is contemplated by section 596. If it please.

PN24

THE VICE PRESIDENT: Mr Taylor, there is an application to amend the application by substituting Mr Ritchie as the applicant in lieu of the association that originally made the application. That would be a matter that I would ask those represented to address me on pretty well at the outset. I don't know whether that changes the basis for your prospective appearance but it might be something that you might get instructions to continue your appearance on.

PN25

MR TAYLOR: In my respectful submission, that is not an amendment but it is a different application. We would like to be heard on the first application, so quite different application because the first one cannot be amended because in my respectful submission there is no jurisdiction to make it. If Mr Ritchie wants to make an application that's a separate application in my submission and I need instructions as to whether I seek to appear in that matter.

PN26

THE VICE PRESIDENT: Yes. Mr Nucifora, what is your position in relation to the appearances having heard those in Sydney?

PN27

MR NUCIFORA: Sorry, your Honour, I'm not the wiser but I guess it leads back to your question too about the applicant and whether the application can now be varied with Mr Driver - sorry, the applicant being Mr Ritchie, Mr Driver acting as agent. There are questions that arise, but we're none the wiser in terms of why AXA actually represented here today before we even deal with the application. It's a question of what comes first, your Honour.

PN28

THE VICE PRESIDENT: I think there are a number of outstanding questions about the status of the application and the application for amendment. I would propose to allow all those wishing to participate in those questions to appear in the matter and address the Tribunal and also to be represented as they see fit in relation to those matters. Mr Driver, it is clear there is a preliminary point regarding the application. Are you seeking the amendment of the application on behalf of Mr Ritchie, perhaps you could indicate what your position is and the grounds for any application you make.

PN29

MR DRIVER: That's right, your Honour. We accept there was no jurisdiction to lodge the initial application.

PN30

THE VICE PRESIDENT: We might just delay and have that microphone that is the only microphone that will actually transmit to Melbourne, put that right in front of you so that you can make those submissions.

PN31

MR DRIVER: Yes, your Honour, we accept there was no jurisdiction for the initial application and wish to forge ahead with the amended application.

PN32

THE VICE PRESIDENT: The amendment you seek?

PN33

MR DRIVER: Amendments being the installation of Mr Ritchie as the applicant and the Association as the applicant's representative.

PN34

THE VICE PRESIDENT: No other changes to the application?

PN35

MR DRIVER: That's correct, your Honour.

PN36

THE VICE PRESIDENT: Do you have any further submissions in support of that application?

PN37

MR DRIVER: I would just clarify your Honour by outlining that Mr Ritchie is an employee covered by the relevant award which gives jurisdiction for the amended application to proceed in my opinion, your Honour.

PN38

THE VICE PRESIDENT: Any submissions of other parties in relation to that application to amend?

PN39

UNIDENTIFIED: We oppose the amendment.

PN40

THE VICE PRESIDENT: The application?

PN41

UNIDENTIFIED: Yes.

PN42

THE VICE PRESIDENT: Commencing in Sydney. Ms Street?

PN43

MS STREET: Yes, your Honour. Australian Industry Group has filed submissions yesterday in relation to the original application noting that the organisation IVI was the applicant organisation and as part of that submission we opposed their standing to bring the application. In relation to the amended application, your Honour, we would still oppose the issue of standing as it being we would say it's not yet a legitimate application for the Tribunal to consider, namely that the nomination of an individual person does not indicate that that person is in fact an employee or an employer in fact covered by the Contract Call Centre Award and that there is no evidence to support that Mr Ritchie is in fact an employee for the purposes of standing under 160 of the Act. Your Honour, if IVI was inclined to lead any evidence in relation to standing we would seek the opportunity to question and cross-examine that evidence, particularly if the assertion was Mr Ritchie was employed by one of our members who may have submissions to make as to whether or not they are in fact covered by this award and so that is a process where we would seek your Honour.

PN44

THE VICE PRESIDENT: Thank you, Ms Street. Mr Taylor.

PN45

MR TAYLOR: Your Honour, there are two matters, maybe three. Can I start by endorsing the submissions that have just been made, that is that your Honour in my respectful submission wouldn’t proceed with the application of Mr Ritchie without first setting in place some process to satisfy your Honour that Mr Ritchie is a person who has standing to bring the application, for example by requiring him to put some evidentiary material before you to demonstrate that fact. But beyond that there are two matters. The first is the submission that your Honour would not amend the application because the application has no jurisdiction. It is not a valid application and therefore cannot be amended.

PN46

What is open to your Honour I can see is to allow Mr Ritchie to make an application before you today in the form that's before you, subject to the matter I have already raised about his capacity and his standing. The only other matter I wish to raise your Honour is that we, that is my client, would seek as your Honour has seen from the written submission, a costs order against the organisation - not against Mr Ritchie, but against International Vulnerable Youth Employee Rights Association. The basis of that application is that as your Honour will have seen from the affidavit of Ms Cliff, which I stop and say I should formally ask your Honour to read and tender.

PN47

As you will see from that my client has for a considerable period of time has been writing to this company making clear that it is not a registered organisation and does not have standing to bring applications of this sort. That culminated in a letter written yesterday, indicating that if they did not withdraw their application today then we would make this costs application. We received no response and it was only as we were about to commence that we were informed that Mr Ritchie was now to be the applicant. In those circumstances, your Honour firstly would be able to find, pursuant to section 611 that the original application was made without reasonable cause and that is admitted by Mr Driver when he stood up today to admit that there was no jurisdiction to make that application and as a matter of discretion your Honour has the discretionary basis to make the order, in my respectful submission, relying on the affidavit of Ms Cliff and in particular the correspondence which makes clear that for some period of time my client has been informing the company that it has not standing to bring applications of this sort, and yet it proceeded to do so and failed to advise my client in time to prevent the need for my appearance today that it would not be proceeding with the application. They are the submissions I would make if it please.

PN48

THE VICE PRESIDENT: Yes. Mr Nucifora.

PN49

MR NUCIFORA: Your Honour, are we next in Melbourne?

PN50

THE VICE PRESIDENT: Yes.

PN51

MR NUCIFORA: Sorry, your Honour, the audio seems to cut in and out. We have heard most of what's said but not all. What we would say, your Honour, is without dealing with the merits of the application which we may have had some sympathy with, we still don't know all the facts. We're trying to fill in the gaps from here, Ms Maloney and myself, and in fact AXA Assistance Australia is the employer of Mr Ritchie. We would say, your Honour, this question of standing of Mr Ritchie, if the employer is in fact a contract call centre then he does have standing. We argue that in fact it may be if we're right that AXA Assistance Australia is the employer in question it may not be a contract call centre and Mr Ritchie wouldn't have standing to lodge such an application but he wouldn’t need to, because as I understand it when you go to the merits of the application it is about his employer insisting that they are covered by the Contract Call Centre Award.

PN52

So we raise that, I know we're going to the merits there, but it gets back to the question of the standing of the applicant. We don't know the facts as stakeholders. Our union the stakeholder in this award, along with AIG, a major stakeholder. The FSU have confirmed about the industry award that is affected here, the modern finance industry award. While we don't disagree with concerns that AIG have in terms of varying the coverage clause, we do want to know what all the facts are here so as we can give a final submission or consider further the merits of the application. But I did ask that question, it may be that in fact Mr Ritchie is not an employee of a contract call centre.

PN53

MR TAYLOR: I can assist your Honour but I don't want to cut in.

PN54

MR NUCIFORA: That's all right.

PN55

THE VICE PRESIDENT: I think it would be appropriate to clarify that position, Mr Taylor, thank you.

PN56

MR TAYLOR: Yes, if I could assist Mr Nucifora from the bar table. First of all, Mr Ritchie is not and has never been on my instructions an employee of my client. Mr Driver was previously an employee of my client. Both of them on my instructions are directors of the original applicant company which has been seeking to represent employees and ex-employees of my client in other proceedings in which they seek to allege that this award does not apply but another award does and they seek in those other proceedings to claim rates of pay on that other award. My client is covered by this award and has complied with it in all relevant respects, but that in a sense Mr Nucifora is the background to how Mr Ritchie, as we understand it, comes today to be an employee applicant. We have no connection with him on my instructions beyond his connection to the corporate applicant of the first application. I hope that assists.

PN57

MS MALONEY: Your Honour - - -

PN58

THE VICE PRESIDENT: Yes, Ms Maloney.

PN59

MS MALONEY: Your Honour, the FSU is not aware of the proceedings that have just been referred to by counsel on behalf of AXA. For your Honour's information AXA is an insurance company. AXA has an enterprise agreement with the FSU. AXA comes under the terms of the Banking Finance and Insurance Award. It doesn't come under the terms of a contract call centre award and we're just concerned now, we've just learnt about this now, the material that we refer to by AXA on the basis of what they've been putting. So we would be very concerned if it's the case of AXA setting up some type of call centre, they are purporting to call it a contract call centre so it would come under the contract award as opposed to the proper modern award which is the Banking Finance and Insurance Award.

PN60

MR TAYLOR: I should have made clear that this is not AXA the insurance company, it's another company which happens to have a similar name and I hate to think that I've complicated the matter by trying to assist Mr Nucifora in understanding the background of my client's involvement.

PN61

THE VICE PRESIDENT: Yes, I thought I was dealing with the status of the application before me. I think it might be going into separate issues. Mr Driver, you have heard the submissions against you, what do you say in response?

PN62

MR DRIVER: Your Honour, I would firstly clarify that Mr Ritchie is employed by a third party not involved in today's proceedings, which is covered by the contract call centre award and I would just reiterate your Honour we consider that appropriate to continue the application.

PN63

THE VICE PRESIDENT: What do you say to the suggestion that if Mr Ritchie wishes to make the application it really is a new application that would need to effectively commence as a new application rather than an amendment to one that was not valid on commencement on your concession?

PN64

MR DRIVER: I would suggest that is at your discretion, your Honour.

PN65

THE VICE PRESIDENT: Any other submissions in response to the other parties including the application for costs to be awarded against the original applicant here?

PN66

MR DRIVER: I would highlight, your Honour, it was actually a drafting error in the initial application. In section 160 we took the common meaning of organisation as opposed to the dictionary meaning which is a registered organisation and that was the source of the initial mistake. We admit that. The application was made in good faith and we petition your Honour to continue the application in the amended form.

PN67

THE VICE PRESIDENT: Have there been any discussions between Mr Ritchie and any of the other organisations or persons interested in this award regarding the application?

PN68

MR DRIVER: No, your Honour, not that I'm aware of.

PN69

THE VICE PRESIDENT: Yes, thank you. I am of the view that in this matter the amendment sought to substitute Mr Ritchie as the applicant in this matter is really in the nature of a new application. It appears to be conceded that the original application was not made by an organisation with standing or a person with standing to make the application. I therefore think the appropriate course is for the application to be regarded as a new application and commenced and be dealt with on that basis. I would therefore dismiss the original application and ask that a separate file be made up in relation to the new application made by Mr Ritchie.

PN70

In terms of the application for costs, the circumstances are that the application was made by an association that did not have standing to make the application. I am mindful of the efforts made by various parties including AXA Assistance Australia Pty Ltd to point this out and avoid the matter proceeding. However, in the circumstances, given the lay representation of the original application and the application made to amend the application by substituting the party, even though that application I have dismissed, in my discretion I will not make an order for costs in this matter. Costs orders are a very unusual circumstance in this Tribunal and I think there are many examples of errors made in the proceedings.

PN71

I don't think it's appropriate for errors of this nature to result in an award of costs against someone who may have made a technical error in initiating the proceedings. As far as the alternative application that has been made, I would propose to re-list that at a future point. However I will make directions that the applicant Mr Ritchie consult with all of the parties represented here today in advance of the proceedings and I will also make directions for the filing of material relating to the standing of Mr Ritchie to make the application and an outline of submissions and any evidence in advance of the hearing of the matter. I will hear from the parties briefly as to anything they wish to say about the timing for such directions and filing but otherwise I will determine those directions in due course. Mr Driver, what period would you seek in order to have consultations and also file written material regarding those matters I have indicated?

PN72

MR DRIVER: Your Honour, we are happy to proceed as you see fit for the time tabling.

PN73

THE VICE PRESIDENT: Yes. Any other submissions anyone wishes to make about the time tabling of that alternative application?

PN74

MR NUCIFORA: Sorry, your Honour, we missed what Mr Driver said about time tabling?

PN75

THE VICE PRESIDENT: Mr Driver is essentially leaving it to the Tribunal to determine the time table.

PN76

MR NUCIFORA: Yes.

PN77

THE VICE PRESIDENT: We will adjourn the proceedings on that basis and I will issue directions and communicate to all parties represented here today as to directions in relation to the alternative application. I now adjourn the proceedings.

<ADJOURNED INDEFINITELY [11.32AM]