C2001/2330, Transcript of Proceedings [2001] AIRCTrans 1361 (4 July 2001)

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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

JUSTICE MUNRO

C2001/2330

THE AUSTRALIAN WORKERS UNION,
THE GREATER SOUTH AUSTRALIAN BRANCH

and

EXIDE TECHNOLOGIES

Notification pursuant to section 99 of the
Act of a dispute re operative date for
re-classification of an employee

SYDNEY

3.00 PM, MONDAY, 14 MAY 2001

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN SYDNEY

PN1

HIS HONOUR: This is matter 2330 of 2001 and it's a notification of dispute under section 99 of the Act lodged on 1 May by the AWU, South Australian Branch. The notification concerns Exide Technology and an alleged issue about the operative date for re-classification of an employee. Could I have appearances, please?

PN2

MR P. LAMPS: If the Commission pleases, I appear on behalf of the Australian Workers Union and with me are MR M. FENNELL, Shop Steward on site and MR G. STEWART.

PN3

MR C. RAINES: If the Commission pleases, I seek leave today to appear for the employer and with me are MR J. MILLIGAN and MS K. PITT from Exide Technologies.

PN4

HIS HONOUR: Is there any objection to that appearance?

PN5

MR LAMPS: No objection at all, your Honour.

PN6

HIS HONOUR: In that case leave to appear is granted, Mr Raines.

PN7

MR RAINES: Thank you, your Honour.

PN8

HIS HONOUR: What is the matter about?

PN9

MR LAMPS: Thank you, your Honour. Sir, following our opening remarks to you, if we can by way of conciliation resolve this matter, the parties would seek any assistance that you may be able to give in this matter. The matter relates to Mr Stewart who commenced his employment with Exide Technologies in September 1996 as a C13 process worker. In December 1996, Mr Stewart was reclassified from C13 to C12. The parent award is the Metal, Engineering and Associated Industries Award. His reclassification to C12, your Honour, was assessed in January 1997 and that reclassification was backdated to December 1996.

PN10

On those matters, sir, the parties are not in dispute. However, the system of reclassification at that time was under what is commonly known at the site as the old system. There were a level of multi-skilled tasks that employees were expected to perform to move through the classification structure. Prior to that old system being closed off, if you like, and what was in vogue at the time, shortly after, but certainly before the close off date of the old system, Mr Stewart applied to be reclassified from C12 to C11.

PN11

Sir, this matter has been going around for some four to five years now and there has been a fair bit of discussion from information that we've unearthed by way predominantly of diary notes with respect to Mr Stewart's reclassification from on or about December 1996. The parties have attempted to go through Mr Stewart's file, look at minutes of meetings and also, sir, we have looked at various diary notes made by relevant shop stewards at the time that were representing Mr Stewart and trying to ascertain exactly - back pay issues with respect to multi-skilling and the subsequent reclassification thereof.

PN12

Sir, we met with the company on 12 March this year to discuss our concerns. The company indicated at that time that the only application that they'd received from Mr Stewart for a reclassification from C12 to C11 was in December of 2000. The company maintained at that meeting, sir, that they had nothing else on their file or any other records with respect to any previous alleged requests for reclassification prior to that date. At that meeting, sir, we raised issues with the company with respect to some inconsistencies with a set of minutes to meetings of December 1996 and also identified with the company that Mr Stewart's name as an appendix on those minutes, did appear on some of those minutes following December 1996 and then didn't appear on those minutes for a reclassification for Mr Stewart.

PN13

Sir, very clearly I've been instructed by Mr Stewart that he has made more than one application for reclassification and it is his firm view that he has applied on at least three times and possibly even four times and during that - - -

PN14

HIS HONOUR: Just pardon me a moment, Mr Lamps. Is there a problem with the recording? Go ahead, Mr Lamps, I'm sorry.

PN15

MR LAMPS: Thank you, your Honour. Sir, at that meeting, as I indicated, we raised those issues. We also, before the conclusion to that meeting, asked the company to once again look at Mr Stewart's file to see if there was any other information and also to check for any further applications that may have been made between 1996 and December 2000. The company indicated at that time they'd be very surprised as they had done a thorough check of Mr Stewart's file.

PN16

On 14 March, sir, we received a facsimile transmission from the company that according to the company that no record had been found of any application under the old system that I've already spoken about, sir, namely the old multi-skilled system but interestingly though, sir, there was a copy of a job description that was dated on 20 August 1997, that is acknowledged as a multi-skilled task which at that time would have enabled an employee to achieve a C11 status.

PN17

However, the company did indicate in that transmission, sir, that they've now found a copy for an application for reclassification dated May 1999. The company indicated in that transmission that given Mr Stewart's successful assessment on 8 March this year, that his reclassification following that successful assessment would now be paid from 19 April 1999. Sir, we sought a further meeting of the company as it had come very clearly to our attention that between December 1996 and August 2000, the shop stewart had on about six occasions had spoken to management seeking to get some clarification over multi-skilling if you like back pay or reclassification issues. Those diary notes go from August 1997 up to August 2000.

PN18

At that meeting, sir, on 23 April this year, in order to try and resolve the matter, we tried to adopt a pragmatic approach. Given the fact of the intervening time period between December 1996 up until this present point of time, we believe that possibly a date could be looked at somewhere between August 1996 and April 1999. We put that forward on a without prejudice and in good faith to try and resolve the matter, sir, and we believe that there's a proper approach because we also recognise the fact that obviously copies of any applications that were made were either no longer or could not be ascertained in Mr Stewart's file.

PN19

The company indicated at that meeting of the need to confer with obviously senior management and would respond. Sir, it did so later on that day and reconfirmed its position that Mr Stewart's reclassification to C11 would be effective from April of 1999. Given the fact that Mr Stewart genuinely believes there to be an issue, sir, consistent with the award's disputes procedure, we sought to notify the Commission of an alleged industrial dispute between the AWU and Exide Technologies.

PN20

Sir, pending any further questions you may have, we'd leave that submission at this point in time to hear from the company and we would seek, sir, the Commission's assistance by way of conciliation today in an attempt to resolve the matter. If the Commission please.

PN21

HIS HONOUR: Yes, could I just ask, how many employees are there of the company?

PN22

MR LAMPS: Approximately 300, sir, 285 to 300.

PN23

HIS HONOUR: Between December '96 and April '99, take those two dates, were there other reclassifications made during that period do you know?

PN24

MR LAMPS: Yes, sir.

PN25

HIS HONOUR: And after April '99 through to this year, have there been ongoing reclassifications in a reasonably systematic way?

PN26

MR LAMPS: That's correct, your Honour.

PN27

HIS HONOUR: Thank you. Yes, Mr Raines?

PN28

MR RAINES: Yes, thank you, your Honour. Sir, we certainly welcome the Commission's involvement in conciliating this matter if it is possible. However, we do have questions of jurisdiction in respect to this matter. In reality, the effect of any reclassification for this employee will result in a monetary payment. In reality, the remedy sought by the union is a payment of a sum of money to the employee for an historical period and we say, sir, that there are cases that say that that is a claim for pre-existing rights and it may well be a jurisdictional issue on the Commission arbitrating that matter.

PN29

I do have some references for that but notwithstanding that, we are here today for conciliation. Perhaps I'll address the merits rather than the jurisdictional issues in detail at this point.

PN30

Sir, my instructions are that the employee commenced in December '96 as outlined by my friend and in accordance with the certified agreement, reclassifications are formed by assessment of the national competency standards, ie the new system and a joint steering committee has been set up to oversee that. As a further response to your inquiry, sir, their system is ongoing and many employees are reclassified on a month to month basis. The competency standard system was phased in across the site from 1996. Previously it had been a job based system rather than a points based system as it now is.

PN31

In accordance with the custom and practice on the site, the employee when he was successfully reclassified in April of this year, it was backdated to the date of his application being 8 December 2000. The certified agreement states that the rate of pay for an employee who is classified upwards will begin from the date of eligibility. Although eligibility is not defined in the agreement, there isn't any dispute as to the meaning of it. Both parties agree that it's a question of showing that the employee was competent to perform those particular jobs.

PN32

The facts as outlined by my friend in terms of various meetings, we don't have a major disagreement with how that process unfolded. I don't have any instructions about a job description dated 20 August '97 so I'd have to take instructions on that, but apart from that, we agree with how this dispute has unfolded as outlined by my friend. The company having responded to the union requests to search the records, did actually back date this employee's date of reclassification to April 1999 which was a two year period and the amount of back wages owed for that I believe is in the order of about $3200 or thereabouts.

PN33

Management has searched the files. They did find an application dated April 1999 and also found the spreadsheet attached to the steering committee minutes of that time reflecting his application - to that date. Now, notwithstanding that, I also accept that there is disagreement over that evidence. So it will be the company's evidence that that is when the reclassification first appeared. Accordingly the company did agree to back date it and it was satisfied that he would have been eligible on that date and the delay hadn't been his fault.

PN34

So what we say, sir, is that the union can't bring reliable evidence about an earlier date than April 1999. We've heard about the diary notes. We say the diary notes are ambiguous and in fact they do support the company's position that the date is April 1999. We say the evidence of the spreadsheet to which my friend refers is ambiguous and confusing at best and the company has provided an explanation to the union about inconsistencies in dates there.

PN35

Furthermore, it's my instructions that the employee couldn't have been eligible in 1996 because his probationary period was only completed on 18 December 1996 and that it's not possible he could have achieved the competency required for C11 in such a short period. Even under the old system, your Honour, the minutes of the steering committee clearly record the cut off date for the old system in his department was 6 December 1996. He was still a probationary employee at that time and as my friend outlined in his opening, his original date for assessment to go from C13 to C12 was done in January 1997 after the cut off date of the old system.

PN36

To back date to 1996 would require the acceptance that he ought to have progressed from C13, probationary employee to C11, a senior operator without the intermediate step of C12. To back pay to '96 would cost another $3000, which is not inconsequential and for this reason the company didn't agree to back payment unless his entitlement could be established. So we say, your Honour, that the scope for conciliation here would appear to be fairly narrow because on the company's perspective, either the entitlement is there or it is not.

PN37

If it is there, then the entitlement amount will be paid to the employee and if the entitlement can't be established, then the company would decline to pay any more back pay than the two years that has already been agreed. That's really a summary of the company's position at this point in time.

PN38

HIS HONOUR: Yes, thank you, Mr Raines. Both those contributions are helpful. Can I suggest we adjourn into private conference straight away. I don't know that this is a matter where the Commission itself can in the short term purport to be exercising any determinative powers and I don't understand from the way in which both parties have put it that that is sought. Rather it would appear appropriate that you have conciliation perhaps in private conference. Is that agreed?

PN39

MR LAMPS: Yes, sir.

PN40

MR RAINES: Yes, sir.

PN41

HIS HONOUR: The Commission will adjourn off the record into private conference.

NO FURTHER PROCEEDINGS RECORDED