C2001/3006, Transcript of Proceedings [2001] AIRCTrans 1350 (3 July 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 60-70 Elizabeth St SYDNEY NSW 2000
DX1344 Sydney Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER RAFFAELLI

C2001/3006

SHOP, DISTRIBUTIVE AND ALLIED EMPLOYEES
ASSOCIATION AND ANOTHER

AND

FRANKLINS LIMITED

Application under section 170LW of the Act
for settlement of dispute re alleged decision
not to allow an employee to continue to take
her rostered day off on a Saturday

SYDNEY

10.11 AM, FRIDAY, 8 JUNE 2001

Adjourned sine die

PN1

THE COMMISSIONER: Yes, can I have the appearances, please?

PN2

MR B. SMITH: If the Commission pleases, I appear for the Shop, Distributive and Allied Employees Association, and with me today is the affected member, MS ROSALIND REYNOLDS, and the area organiser, MR MARK GRONOWSKI.

PN3

MR D. RITCHE: Commissioner, I am from the Australian Retailers Association, appearing for the company, and with me is R. SAKAR, of the company.

PN4

THE COMMISSIONER: Yes. thank you. Mr Smith?

PN5

MR SMITH: Commissioner, the union has brought this dispute before the Commission after finding a grievance disputes procedure in the Franklins Limited Big Fresh Enterprise Agreement, 2001, and the dispute relates to a full time employees rostered day off. If I can hand up a copy of the agreement.

PN6

THE COMMISSIONER: I'll mark this SDA1.

EXHIBIT #1 FRANKLINS LIMITED BIG FRESH ENTERPRISE AGREEMENT 2001

PN7

THE COMMISSIONER: Yes.

PN8

MR SMITH: Commissioner, full time employees in Franklins are rostered to work a 38 week in a variety of ways but employees who were employed before 1992 such as Mrs Reynolds who was employed in March 1988 with the company are entitled to absolutely to a rostered day off once every four weeks, so a 19 day month. The dispute, and it is at clause 6.3.2, refers to the right of employees employed before 1992 on page 33 of the agreement.

PN9

The particular issue here, Commissioner, is in relation to Mrs Reynolds RDO which has for the last five years fallen upon a Saturday and the company have just recently that from falling on a Saturday, falling on another day in the week. I will just briefly take you through Mrs Reynolds history with the company, Commissioner. Mrs Reynolds commenced employment with the company back in 1958 and she worked with Franklins until 1971. She then left employment with the company and returned to the company in March 1988.

PN10

She's remained in continuous employment with the company since March 1988. She commenced in 1988 as a full time employee at the Franklins Dee Why store and she worked a roster that was Monday to Friday. She would have her RDO on a Friday at the Dee Why store. In 1990, Commissioner, Mrs Reynolds moved to the Franklins No Frills store at Burwood where she worked a roster of Monday to Friday and once again she had a rostered day off every Friday. So once every four weeks she'd have the Friday off.

PN11

THE COMMISSIONER: How long, sorry?

PN12

MR SMITH: From 1988 to 1990 at the Dee Why store and then the same roster from 1990 until 1996-97 she worked the same roster Monday to Friday with Friday off for her RDO.

PN13

THE COMMISSIONER: Sorry, Monday to Friday and Friday would be her RDO?

PN14

MR SMITH: Yes, once every four weeks.

PN15

THE COMMISSIONER: Yes, and that was at another store?

PN16

MR SMITH: That was at the Burwood store, yes. In 1996-97, Commissioner, the No Frills store at Burwood was converted to what they call a Big Fresh store, a larger store and in part of the transition to a Big Fresh store, the company wished people to move from the Monday to Friday rosters to a Tuesday to Saturday roster. Mrs Reynolds didn't wish to convert from the Monday to Friday roster to a Tuesday to Saturday roster. That was the only time that she had with her husband who works Monday to Friday.

PN17

However, she did eventually agree to a change to a Tuesday to Saturday roster. Part of the change to the Tuesday to Saturday roster was that Mrs Reynolds was to receive a Saturday RDO. So since that date, she's had her RDOs on a Saturday. So all of her RDOs, even if they were moved from the day that they were due to fall in the 19 day month were still taken on a Saturday. So she's had that one Saturday in four off since '96-97.

PN18

In March this year the company wished to change Mrs Reynolds RDO to another day of the week, I think a Tuesday or a Wednesday during the week which would have reduced Mrs Reynolds to just one day with her husband every week, a Sunday being that he works Monday to Friday, which would substantially reduce what Mr and Mrs Reynolds do together as a couple. They often take a weekend away in relation to their common interests in trains and the likes.

PN19

We say, Commissioner, two things in relation to this. First of all, at clause 6.3.15 of the agreement on page 34, the company have an obligation to take into account the family responsibilities of an employee.

PN20

THE COMMISSIONER: What did they propose?

PN21

MR SMITH: It would be Tuesday to Saturday still, Commissioner but the RDO which falls once every four weeks would be on a Tuesday or a Wednesday.

PN22

THE COMMISSIONER: So she always works every Saturday?

PN23

MR SMITH: Yes. So that would mean that every Saturday she would work and would only have the Sunday with her husband.

PN24

THE COMMISSIONER: Then 6.3.15?

PN25

MR SMITH: 6.3.15 refers to a team members roster shall not be changed without regard to the team member's genuine family responsibility and we say that there are certain activities that Mr and Mrs Reynolds partake of together which requires both a Saturday and a Sunday and it's not unreasonable to request one Saturday off in four, given that Mrs Reynolds has accommodated the company by working every other Saturday since '96-97. She just wants one Saturday in four off to attend to duties with her husband.

PN26

Also, Commissioner, in relation to the objectives of the agreement, back in clause 1.8 on page 4 of the copy before you, 1.8.11 refers to promoting fair standards of work and proper conduct in which team members will be treated according to a fair and reasonable principle. In relation to that, Commissioner, we say Mrs Reynolds has been a good loyal employee of the company. There's no issues in relation to her work performance. She's requested just the one Saturday off in four to attend to her family responsibilities.

PN27

It's been a custom and practice throughout her employment with the company to have an RDO either on a weekend or attached to a weekend so for the large part of her employment she's actually enjoyed a long weekend for an RDO. In relation to this period of employment, all we seek is the maintenance of one weekend off in four. The reason the company have told us that Mrs Reynolds shouldn't have that Saturday off is that their business requirements. Pressing the business requirements, Mrs Reynolds is a dairy freezer worker within the store at Burwood. She works in the dairy freezer cabinet area and the company say they don't have employees who can replace her on that Saturday. From '96 until the current time, they have had employees who can replace Mrs Reynolds - - -

PN28

THE COMMISSIONER: What does a dairy freezer employee do?

PN29

MR SMITH: They pack milk, frozen foods.

PN30

THE COMMISSIONER: And that's a big enough job to be done full time?

PN31

MR SMITH: Throughout the week, yes. The Big Fresh store at Burwood has quite a high turnover but in most stores you'll find there are full time employees who do that in most Franklins stores. But for the last five years or more since '96-97, there has been an employee to replace Mrs Reynolds on the Saturday. Those employees still work within the store. There are 50 casual employees on the books at the store who could work those times and Mrs Reynolds would still have to be replaced at another time during the week if she has an RDO on another day anyway for somebody to do that work, as you have the daily milk deliveries and the likes coming in. It would have to be accounted to or by somebody.

PN32

So Commissioner, what we say basically is when we look at the custom and practice in relation to Mrs Reynolds employment and what she has been rostered to work for an extended period of time, we do not see any valid reason for the change to her employment. She has a family responsibility which she would like to maintain of being able to have the freedom of just one weekend in four to spend with her husband.

PN33

In relation to the store, the company will only be maintaining it for another month to six weeks before it is taken over by Woolworths, I believe, in which case there's no major impost at all on the company to restore Mrs Reynolds RDO to a Saturday. One concern we also have, Commissioner, relates to what has happened since this issue was raised with the company in relation to the grievance disputes procedure in clause 3.2 of the agreement on page 6, particular 3.2.3 at the top of page 7, Commissioner.

PN34

Mrs Reynolds has been denied her RDO on the Saturday since the dispute has arisen by the company and has been refused to be granted that RDO on the Saturday. 3.2.3 requires that:

PN35

Whilst the above steps have been followed, working through the grievance procedure, work should continue as normal at the workplace and the status quo ...(reads)... risk to health or safety.

PN36

This is a roster dispute, Commissioner, in relation to Mrs Reynolds roster. The roster should have been maintained until such time as it came before you and the parties resolved the matter and we're very disappointed with the company that they have actually forced a change on the roster on Mrs Reynolds as well.

PN37

THE COMMISSIONER: Mr Smith you reminded me of something. Has the union got a view as to what will happen to employees and in particular to this freezing of the RDOs for employees prior to 1992. What happens in relation to the Woolworths company?

PN38

MR SMITH: Woolworths has RDOs as well, Commissioner, and all employees there have an absolute right who are fulltime to request an RDO so there won't be an issue of having RDOs with Woolworths.

PN39

THE COMMISSIONER: Well, the question I'm raising is this. You say because Franklins will only have carriage of all of this for another four to six weeks, therefore there's no problem in changing it. Equally the question could be asked, perhaps Mrs Reynolds should put up with it for another four to six weeks because after that well, it won't really matter. She'll either still have a problem or the matter will get solved because Woolworths will take a different view. Do you have a view about that?

PN40

MR SMITH: I do indeed, Commissioner. In relation to that idea, Mrs Reynolds has enjoyed a solid period with Saturday RDOs from '96-97 till the present day. She shouldn't transfer across to Woolworths with a different roster. If Woolworths have an issue with that roster, then I think it should be up to the company that would be running the company to address those changes and I think it's highly inappropriate for the company at a short period before the changeover to change Mrs Reynolds roster and that should be dealt with with Woolworths when that arises.

PN41

THE COMMISSIONER: Yes. Mr Ritchie?

PN42

MR RITCHIE: Commissioner, in going through the document SDA1 that you have, there is nothing in that document that allows the employee to determine what day they will have as their RDO. In other words, the setting of the roster is something that the company has the right to do. Now, what Mr Smith has said here is that this lady has enjoyed and I have to say she has been extremely fortunate from my experience in retail, that she's worked a Monday to Friday roster, notwithstanding the advent of all day Saturday and now all day Sunday work, that she has enjoyed the situation of Monday to Friday and then Friday being the RDO for a long period of time.

PN43

So she's had the ability over many years to have a three day break every four weeks. From the company's point of view, the advent of Saturday trading in retailing per se has shown that Saturday now, if not Thursday, is the biggest trading day so what they require there is to be able to roster, to have the ability to roster staff to suit the needs of the business. Now, the company has varied Mrs Reynolds roster recently to incorporate Tuesday to Saturday and the company is not prepared to put hand on heart and guarantee be it this lady or any other employee, their guaranteed RDO on a particular day.

PN44

What we would have here is a situation where an employee could say well, I want that particular day as my RDO which is what is before you today. If that is the case, why shouldn't any other employee do exactly the same? In other words, you would then have a situation where RDOs are set by the employee and nothing to do with the needs of the business and that would just be bad business practice on behalf of the employer to allow such a thing to occur.

PN45

Now, the company's view is this. Be in the next, whatever short period of time there is, if in the rostering Mrs Reynolds RDO falls on a Saturday, then so be it but if it doesn't, so be it again. We are not going to be in a position where we will guarantee RDOs be it for this person or anyone else. So within the award itself, the document itself, there is nothing with respect to the requirement to fix an RDO in accordance with the desires of the employee.

PN46

The second thing I would like to point out is something that Mr Smith pointed out on 6.3.15. A team member's roster shall not be changed without regard to a team member's genuine family responsibility. Now, the reasons given by Mr Smith in why this person wants the Saturday off, I don't believe would fall under the heading of genuine family responsibility. I think it would be a long bow to draw that. From the company's point of view, this is a situation that the company require this person to work on a Saturday. There's a short period of time left before Woolworths take over. We think it would be inappropriate to change and to create precedent, be it for this lady or for any other employee. That's our position.

PN47

THE COMMISSIONER: What do you think genuine family responsibility means? There's something about that she wants to spend the time with her husband, they do things together on the weekends. That's not the unusual circumstances that genuine family responsibility means?

PN48

MR RITCHIE: In my view, I was before Commissioner Redmond in a matter with Big W where exactly the same thing was put before the Commissioner with respect to people who were working Monday to Friday and were then put on a Tuesday to Saturday roster and were complaining about it. This matter came before Commissioner Redmond. When we found out the reasons for it, one of the reasons was exactly the same reasons put before here.

PN49

Now, all I can say is the matter was settled and the lady stayed on the Tuesday to the Saturday roster. I think Commissioner Redmond's views were that it wasn't a bona fide reason.

PN50

THE COMMISSIONER: Well, let me just take you to another issue. She had this advantage of a Friday off for a number of years but from about 1996 to '97, a number of people went from Tuesday to Saturday. She was unhappy about that. Ultimately it was agreed that she would work every third Saturday but every fourth Saturday she'd have off as her RDO. Now, I understand from what Mr Smith says, that was changed in March. So the question is - now, I know the agreement says you can do what you want in respect of this but why was it so vital in March for there to be a change? In other words, it hasn't been in place that long.

PN51

MR RITCHIE: In March of this year, that's when a new store manager was appointed to the Burwood store and that store manager reviewed the rosters and made accordingly certain changes.

PN52

THE COMMISSIONER: Are there any other full-timers at the Burwood store?

PN53

MR RITCHIE: Yes. It's a large store. There's be 40-something full-timers.

PN54

THE COMMISSIONER: How many of those are those protected people who have RDOs?

PN55

MR RITCHIE: What you're asking of the 40-something, how many are working a 19 days, 20 day cycle?

PN56

THE COMMISSIONER: Yes.

PN57

MR SMITH: Commissioner, we believe there's four employees in that store that have RDOs. We may have to review that in relation to the ratio in the store, that should be in the store as well but there are four people with RDOs. A minimum of 80 per cent of fulltime employees have to have RDOs unless they provide a reason as to why they don't want RDOs.

PN58

THE COMMISSIONER: So four people with RDOs according to the organiser.

PN59

MR SMITH: To the organiser, Commissioner, he's checked that.

PN60

THE COMMISSIONER: And does that include Mrs Reynolds?

PN61

MR SMITH: Yes, Commissioner.

PN62

MR RITCHIE: We'd have to check with that but I don't know that so I don't accept what the union said.

PN63

THE COMMISSIONER: Sorry, Mr Ritchie, of the four RDOs, according to the RDOs, and one of them we know about, of the other three do you know if they - - -

PN64

MR RITCHIE: I don't even accept that there's four there.

PN65

THE COMMISSIONER: Are you able to tell me whether the RDOs, whether all of those other full time employees are required to work each and every Saturday or Sunday as Ms Reynolds is supposed to do.

PN66

MR RITCHIE: That's a question I would have to take and seek instruction on and I know Mr Sakar he does not know that.

PN67

MR SMITH: We might be able to assist in relation to that, Commissioner. Of the other three employees, who are full time employees, who have RDOs, we have been informed by Mrs Reynolds that they work Monday to Friday, and we know for example that there is one employee today, Colin Andutton, Commissioner, presumably is having their RDO today on the Friday into the long weekend.

PN68

THE COMMISSIONER: But they have weekends off all the time.

PN69

MR SMITH: They have weekends off all the time and for this particular person for example is having an RDO this Friday and having a long weekend.

PN70

THE COMMISSIONER: Okay, what do you want to do now, Mr Ritchie?

PN71

MR SMITH: Just one more thing I would like to put on record. In relation to rosters and changing of rosters, 6.3.6, and the setting of rosters, a roster shall be for at least a 20 days working cycle and shall not be changed unless by mutual agreement or by giving a team member seven days notice. So we say that wherever possible there should be mutual agreement, the company can give notice but they should have valid reasons when they give notice and we address what the reasons were given to our member at the time as well as in relation to that notice.

PN72

THE COMMISSIONER: Okay, did you want to go into conference?

PN73

MR SMITH: Yes.

PN74

MR RITCHIE: I don't understand the last point Mr Smith made.

PN75

MR SMITH: The 6.3.6 refer to how a roster is set, the rosters should remain as they are unless they change by mutual agreement or the company giving seven days notice of 14 days if there is a problem and then you go into the disputes procedure which we have entered into today but wherever possible they should be changed by mutual agreement.

PN76

MR RITCHIE: I agreed totally, it should be great if everyone can do a roster change and everyone agrees with it, but if it doesn't - - -

PN77

MR SMITH: So where they don't we say that the company should show what their reasons are for doing so.

PN78

MR RITCHIE: And they did.

PN79

THE COMMISSIONER: We will go into conference.

OFF THE RECORD [10.33am]

RESUMES [11.27am]

PN80

THE COMMISSIONER: Yes, the parties have conferred and the matter has not been resolved. The origins of this matter is the decision of the company to alter the member of the union Mrs Reynolds shifts so that her rostered day off no longer is guaranteed to fall on a Saturday. The Commission accepts that the company has a right to alter the rostered day off arrangements in the way that it has decided. On the other hand it also accepts that perhaps this employee may be have an advantage in having protection from rostered days off falling on other days, that is in contrast to most other employees, full time or otherwise in the retail sector.

PN81

On the other hand Mrs Reynolds has been an extremely long term employee of the company albeit with some interruption to her service and she for many years worked Monday to Friday then did proceed to Tuesday to Saturday as long ago as approximately six years ago, and there is a quid pro quo for that disadvantage that she faced, Saturday RDO was guaranteed and she continued to have that benefit until about March this year when it was changed.

PN82

It is also relevant that the other, and there are six other persons at the store who are full timers and have the frozen entitlement to RDOs and none of those are required to work on Saturday and of course therefore don't have RDOs that might fall on a Saturday. So whatever might be the experience elsewhere in the retail sector Mrs Reynolds is certainly not advantaged compared with other full time colleagues that she works with who have an entitlement to a rostered day off.

PN83

The question is why the change and it seems to me that, yes, the employer has a right to make a change but the Commission is cognisant that in a small period of something like four to six weeks the store will not operate in its current guise, a new owner will commence operations and it may very well be that rostering arrangements will change to accord with that new owners requirements. Given the history of Mrs Reynolds employment and the situation of other full timers and in particular given that Franklins will not be operating this store and will no longer be the employer of Mrs Reynolds or others within a very short period I consider that it would be unfair by the company to insist on its roster change.

PN84

Yes, it has a legal right to do so but in the circumstances I recommend to the company that it reverts Mrs Reynolds back to a situation where her rostered day off falls on a Saturday and that she attains that entitlement as soon as her hours allow her to have that rostered day off. True it is in a few short weeks after that the things may change, well, that becomes Mrs Reynolds problem and the SDAs problem again but that's for somebody else to work out, but I think in the circumstances it would be unfair to perhaps prejudice Mrs Reynolds negotiating position by the change at this time. So as I have said that is my recommendation.

PN85

I do say something in passing and that is that in making my decision I've really looked at the history of the matter and the situation with other employees. I specifically do not agree with the union's interpretation about that clause which says one needs to accommodate family responsibility, 6.3.15, nothing that was put to me suggests that this is a case of affecting Mrs Reynolds family responsibility. I think family responsibilities has a much more narrower operation and is particularly geared to circumstances which I think the SDA and the ARA know full well and I need not dwell on that point. So on that basis I propose to adjourn.

ADJOURNED INDEFINITELY [11.33am]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #1 FRANKLINS LIMITED BIG FRESH ENTERPRISE AGREEMENT 2001 PN7