MEAA and ORS v PALACE CINEMA MANAGEMENT PTY LIMITED and LOTUS CINEMA CORPORATION PTY LTD [1997] IRCA 123

DECISION NO:123/97 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI96/2680 - 2690 inclusive

BETWEEN: MEAA and ORS. Applicants

AND PALACE CINEMA MANAGEMENT PTY LIMITED and LOTUS CINEMA CORPORATION PTY LTD Respondents

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 7 APRIL 1997 MINUTES OF ORDERS THE COURT ORDERS AND DECLARES THAT: [1] The parties file Consent Orders in accordance with these reasons; [2] Liberty to apply. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules

IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI96/2680 - 2690 inclusive

BETWEEN: MEAA and ORS. Applicants

AND PALACE CINEMA MANAGEMENT PTY LIMITED and LOTUS CINEMA CORPORATION PTY LTD Respondents

BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 7 APRIL 1997 REASONS FOR DECISION Delivered ex tempore

There were a number of applications under s179 of the Workplace Relations Act 1996 (Cwth) ("the Act"). Each of the applicants, except Mr Woodward, make an application against Lotus Cinema Management Pty Limited, trading as Brighton Bay Twin Cinema, and against Palace Cinema Management Pty Limited. Mr Woodward only makes a claim against Palace Cinema Management Pty Limited. The Court heard oral evidence from Ms Alice Blake, an Industrial Officer of the Media, Entertainment and Arts Alliance, a registered organisation under the Act. It also heard from the applicants Helen Anderson, Fiona Knight, Sarah Pears, and Mr Brett Woodward. Each applicant also swore an affidavit in support of their respective applications and Ms Blake swore an affidavit in each application testifying as to the calculations she had made that were the basis of the amended statements of claim filed in each of the applications. The respondent did not lead evidence. The issues to be determined: Respondency to the Award. In evidence, was the Theatrical Employees (Cinema and Drive-In Industry) Award 1983 (Exhibit A1) ("the Award"), a looseleaf consolidation to 7 March 1997 of the Theatrical Employees (Cinema and Drive-In Industry) Award 1983 (Exhibit A2), and a certificate ("the Certificate") under s291 of the Act from the Deputy Industrial Registrar in relation to the Entertainment Industry Employers Association. The first issue to be determined is whether Lotus Cinema Corporation Pty Ltd, the respondent in applications Nos. VI96/2686, 2687, 2688, 2689 and 2690 of 1996 is a respondent to the Award. Each of the applicants to those proceedings asserted in their affidavits that they were employed by the respondent, Lotus Cinema Corporation Pty Limited. On 27 April 1994, the Australian Industrial Relations Commission ("the Commission") made a roping-in Award naming Lotus Cinema Corporation Pty Limited as a respondent to the Theatrical Employees (Cinema and Drive-In Industry) Award 1983. The question is whether Lotus was bound by the 1983 Award prior to that roping-in Award. The applicants rely on the Certificate that Brighton Bay Twin Cinema of 294 Bay Street, Brighton, Victoria, was from January 1993 to May 1995, a member of the Cinematograph Exhibitors Association. The applicants also relied on their group certificates. They revealed that their employer for the 1993 and 1994 financial years was Lotus Cinema Corporation Pty Ltd trading as Brighton Bay Twin Cinema. It was accepted by the respondent that, in fact, Lotus Cinema Corporation Pty Ltd was the proprietor of the business named Brighton Bay Twin Cinema. It was argued by counsel for the respondent that the naming of Brighton Bay Twin Cinema as a member of the employer association was not sufficient for the Court to conclude that the respondent was bound by the Award. Clause 3(a) of the Award provides: "The award shall be binding on the Cinematograph Exhibitors' Association and its members, the Motion Picture Exhibitors' Association of New South Wales and its members and the employers whose names are set out in Schedule "B" in respect of all their employees whether members of the Australian Theatrical & Amusement Employees Association or not and upon the said association, its officers and members." Schedule B of the Award lists the Cinematograph Exhibitors Association and a limited number of organisations as well, as respondents. It also lists on a state by state basis a number of other organisations. The issue is whether, on the evidence before the Court, the intention of the Award was to bind Lotus Cinema Corporation Pty Limited to the Award. I am satisfied that it was and that the decision in Nicol v Parr (1985) 11 IR 141 is applicable. I am satisfied that if the question was asked: "what was intended by the parties at the time the Award was made? The answer of both parties to the Award would have been that whatever was the appropriate legal personality of the named members of the Cinematograph Exhibitors' Association, were to be the respondent employers to the Award. Here there were only a limited number of actual named employer respondents in the Award but I am satisfied that the bodies corporate of the named members of the employer organisations were also to be bound by virtue of their membership of the employer association. I am satisfied that the later roping-in of the Lotus Cinema Corporation Pty Ltd as a respondent does not indicate that that same corporation which was, from January 1993, conducting the Brighton Bay Twin Cinema, was not intended to be bound by the Award by virtue of its membership of the Cinematograph Exhibitors' Association. I am satisfied that it is appropriate to consider the extrinsic evidence of the Certificate and Lotus Corporation's own group certificates that Lotus Cinema Corporation Pty Ltd was the operator of Brighton Bay Twin Cinema and that thus that corporation was to be bound by the Award. In circumstances where the respondent has called no evidence on the point, there is no evidence to provide the basis for drawing any contrary inference as to the intention of the parties to the Award. It follows from my finding that, subject to what I say further on, the applicants have made out their claims against Lotus Cinema Corporation Pty Ltd as detailed in their amended statements of claim. The applicants in matters Nos. VI96/2680, 2681, 2682, 2683, 2684 and 2685 also claim against Palace Cinema Management Pty Limited. The basis of this claim is that the respondent conducted the business at Brighton Bay Twin Cinema and also business at the George Cinema, that it was bound by the Award, and that it failed to pay appropriate amounts under the Award. The applicant, Ms Anderson, gave evidence that she remained employed throughout the period from 1992 to 1995 at the one location without any advice that her employer had changed. She tendered group certificates for the financial years ending 30 June 1993 and 30 June 1994, giving her employer as Lotus Cinema Corporation Pty Limited, and for the financial year ended 30 June 1995 giving the employer as "Palace Cinemas" and for the year ended 30 June 1996, giving the employer as "Palace Cinema Management". The certificate indicates that the "George Cinema" became a member of the Cinematograph Exhibitors' Association on 23 May 1995, and further that the Brighton Bay Twin Cinema was a member of the Cinematograph Exhibitors' Association from January 1993 to May 1995. It was argued by counsel for the respondent that there was no evidence that Palace Cinema Management Pty Limited, or Palace Cinema was a member Cinematograph Exhibitors' Association and, thus, Palace Cinema Management Pty Ltd could not be bound by the Award in any period. It was submitted that there was no evidence that Palace Cinema Management Pty Limited ran the Brighton Bay Twin Cinema or the George Cinema and thus the applicants had failed to prove that aspect of their cases. It was further argued that there was no evidence that Palace Cinema Management Pty Limited was the transmittee or assignee of Lotus Cinema Corporation Pty Limited and so could not be bound by the Award in that manner. I am unable to accept these submissions. The evidence of Ms Anderson was that her employment with Brighton Bay Twin Cinema was unbroken. It follows from this that given that Palace Cinemas is named as the employer in her 30 June 1995 group certificate, it must be the assignee or transmittee of the business of Lotus Cinema Corporation Pty Limited which conducted at the Brighton Bay Twin Cinemas. It follows that under s149(1)(d) of the Act Palace Cinema Management Pty Limited is also bound by the Award. Again, in the absence of any evidence from the respondent, I can more confidently draw the inference that Palace Cinema Management Pty Limited, which was the named employer on Ms Anderson's group certificate for the year ended 30 June 1996, is the assignee or transmittee of the business of Lotus Cinema Corporation Pty Ltd at Brighton Bay and thus became bound by the Award when it became the assignee or transmittee of the business. I also rely on the evidence of the applicant Fiona Knight, that she worked at both cinemas, yet in her affidavit she tendered a single group certificate for the relevant financial years. There is a reasonable inference from her evidence that she was employed by the same body corporate, and that it is this body corporate that by reason of the transmission of the business of the Brighton Bay Twin Cinema became bound by the Award. It follows that each applicant has made out his or her claim against Palace Cinema Management Pty Limited, including Mr Woodward, who did not in fact work at the Brighton Bay Cinema. Set-off. The next issue is whether the respondents are entitled to offset against the amounts claimed by the applicants the over Award entitlements that they were actually paid during a number of the weeks the subject of the claims. I was referred to Poletti v Ecob (No 2) (1989) 31 IR 321. The nature of the payment here is important. The payment made by the respondent was asserted by it at the time as being pursuant to its obligations under Victorian law. It did not purport to be an over-award or extra payment by the respondent to the applicants. The employer in those circumstances is entitled to set the amounts that it had paid during the week, in excess of the Award entitlement against the amounts that the Court has found due under the Award. The amounts to be set off, and the amounts of the claims at the end of the day, will need to be re-calculated in accordance with my ruling. Interest. I propose to allow interest on the total amount of each of the applicant's claims, as recalculated in accordance with my reasons, at the rate of twelve per cent from the final date of each of the applicant's claims, to date. I will leave it to the parties to now consider the recalculations, if necessary, in relation to my ruling about offsetting any amounts due to the various applicants, and to calculate the interest and the Court invites the parties to file consent orders in the light of those matters. A stay of 21 days on payment of the amounts will be given. I will make an order that the respondent is entitled to offset against any amounts due to the applicants any amounts that it has remitted to the Australian Taxation Office pursuant to law on behalf of the applicants. I give the parties liberty to apply. I certify that this and the preceding six (6) pages are a true copy of the reasons for decision of Murphy JR, recorded on transcript and revised by the Judicial Registrar.