C2001/357, Transcript of Proceedings [2001] AIRCTrans 1402 (6 July 2001)

AUSCRIPT PTY LTD
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TRANSCRIPT OF PROCEEDINGS

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

SENIOR DEPUTY PRESIDENT CARTWRIGHT

C2001/357

AUTOMOTIVE, FOOD, METALS, ENGINEERING,
PRINTING AND KINDRED INDUSTRIES UNION

and

ABB ENGINEERING CONSTRUCTION PTY LIMITED

Notification pursuant to Section 99 of the Act
of a dispute re casual workers sent home as
allegations that wet weather made the site
unsafe

SYDNEY

3.06 PM, THURSDAY, 14 JUNE 2001

Continued from 12.6.01

PN156

THE SENIOR DEPUTY PRESIDENT: Appearances, please.

PN157

MR M. DAL MOLIN: I appear with MR D. WHITAKER for the AMWU.

PN158

MR STEVENS: I seek leave to appear on behalf of the respondent in these proceedings, with MR C. HAMILTON.

PN159

THE SENIOR DEPUTY PRESIDENT: Any comment on leave?

PN160

MR DAL MOLIN: No.

PN161

THE SENIOR DEPUTY PRESIDENT: Leave is granted.

PN162

MR STEVENS: Thank you, your Honour.

PN163

THE SENIOR DEPUTY PRESIDENT: Gentlemen, at a hearing on Tuesday this week, 12 June, the AMWU alleged a dispute with ABB Services Pty Limited on underpayment of casual employees whose work was affected by rain on 29 May during a major maintenance shut down at the Orica Botany facility. The shut down has been completed and the engagement of the affected employees has also been completed. There were submissions from the parties on the various provisions of the relevant enterprise agreement and a later variation to that agreement specifically to provide for this major shut down for which the company intended to employ directly a casual workforce.

PN164

Having heard the nature of the union's application and the action sought from the Commission we adjourned into conference. In that conference I indicated to the parties that I would be prepared to make a recommendation that the minimum pay period for a casual employee should be clarified in the next enterprise agreement, noting that there were no more major shut downs scheduled until next year. That would eliminate a possible source of dispute for the future. In relation to the disputed payment from 29 May, the parties suggested that they meet for further discussion so today is listed for a report back on that matter and I'm interested in what has transpired. Mr Dal Molin?

PN165

MR DAL MOLIN: We've gone into, well, I wouldn't call it lengthy discussions, we've had discussions and the union believes that we've exhausted all our options under the disputes settling procedure. We believe that we're at a situation now where we can't find our way to a resolution of the matter. The company, as I understand it, has offered - they made it in private conference - a total of $1000 to a children's fund for spina bifida unit at Westmead Hospital, I believe. The union is of the view that might be a noble cause but we're here to represent the interests of our members and we believe that - as I said, we've exhausted all our options under the disputes settling clauses in the EBA and we understand that in that clause there is provision for the Commissioner to resolve the matter.

PN166

I understand also section 170LW of the Workplace Relations Act 1996 there are provisions there that give the Commission powers to resolve the matter. On the submission of the company, there seems to be a confusion of what point of argument we're undertaking and there seems to be a confusion over whether we're arguing over a minimum engagement of a casual as opposed to what we believe is a payment for inclement weather. The union would like to make it clear for the record that our dispute with the company is solely about the payment for wet weather and we're not at this stage, because we've got a current EBA in place, interested in arguments over a minimum engagement of a casual.

PN167

We believe that the EBA is clear enough to substantiate our claim. It states that the minimum engagement of a casual is one day. We believe that the inclement weather clause suitably covers our claim, and the dispute settlement procedure gives the green light, if I can use that phrase, to the Commission to resolve the matter. I leave that as my report back for the moment, your Honour. Thank you.

PN168

THE SENIOR DEPUTY PRESIDENT: Thank you, Mr Dal Molin. Mr Stevens?

PN169

MR STEVENS: Thank you. Yes, I can confirm that my friend and myself did meet this morning together with Mr Hamilton and Mr Whitaker. We did have discussions, during which time I informed Mr Dal Molin that we had considered the matter further and it had taken almost two days adjournment to consider our position. We believed that our position had not changed from that on Tuesday the 12th when we were last before you, namely that the company had done nothing wrong in its interpretation of the agreement and that it should be read in conjunction with the award, and in fact we had paid some employees more than what they had worked on that day and what they were entitled to, that was the four hours.

PN170

I understand tomorrow we are making a substantial payment to the spina bifida unit of the Westmead Hospital, I think somewhere in the vicinity of $35,000, and we were still prepared to make an extra thousand dollars if the union was prepared to accept that as a way of a settlement offer, so to increase it to $36,000, and we're prepared to leave that offer open for seven days even though the presentation ceremony, if I can call it that, is happening tomorrow with the hospital. Insofar as any payment to the workers affected, we believe, and the company still stands by its decision to pay them the minimum four hours.

PN171

Insofar as some of the comments made this morning by Mr Dal Molin, we don't agree with his submission that 170LW actually allows the Commission power to interpret the agreement. It does say that of course the dispute settlements procedure does empower the Commission to seek to settle disputes; it doesn't say necessarily interpret or arbitrate disputes. We would say it's quite a narrow reading of the application of the agreement. Obviously you do have power to listen to us here today, but as for interpretation, we would concur with your comments on Tuesday that the Federal Court may be the appropriate jurisdiction for that to take place if the union so desires. Any proceedings that are commenced in there obviously we will strenuously oppose. It is a cost jurisdiction so there would be a cost element that my client would be able to recover.

PN172

As for the company having some confusion, we say there isn't any confusion. Mr Hamilton stated on the day when he sent the employees home they would only be paid to 11.00 am and in fact re-reading the transcript this morning my friend did put that on record in his submissions, so to say that they wouldn't have gone home had they not know they would be paid for four hours is incorrect and now that they're seeking to get paid an extra four hours, we say that's not due to them. We've given that consideration and we still consider the decision we made was the correct one.

PN173

We would state that there is nothing further that you can do in this matter. I think conciliation probably has reached its end. We would be guided by your Honour on whether you wish to make the recommendation and stand the matter over generally or discontinue the matter.

PN174

THE SENIOR DEPUTY PRESIDENT: Mr Dal Molin, any further comment you would make at this stage, otherwise we will adjourn to conference.

PN175

MR DAL MOLIN: I think conference might be beneficial, your Honour, at this stage.

PN176

THE SENIOR DEPUTY PRESIDENT: All right. We will go off the record.

OFF THE RECORD [3.15pm]

RESUMES [4.35pm]

PN177

THE SENIOR DEPUTY PRESIDENT: Gentlemen, the AMWU is seeking payments it claims are due to casual employees for work interrupted by rain on ABBs shut down on 29 May. The AMWU claims failure to pay casual employees for eight hours on the day in question is in breach of the enterprise agreement and employees' contracts. This matter has been referred to me under the dispute resolution clause of the ABB Engineering Construction Enterprise Agreement and has been extensively discussed in several conferences.

PN178

In conference I've explained the powers of this Commission in relation to arbitration and that I'm empowered to arbitrate on the future operation of clauses in the enterprise agreement. Given that no shut downs are scheduled or expected within the life of the current enterprise agreement, the parties have agreed that arbitration on future operation of the enterprise agreement clauses would not be fruitful in resolving this particular matter.

PN179

In relation to the dispute about pay for casual employees on 29 May, I have explained that enforcement of agreement provisions is beyond the powers of this Commission and a matter for the court. In the course of discussion I've put my view that the agreement does not contain a minimum hours clause and that as a result the award applies. Despite the conciliation attempts of the Commission the parties have been unable to reach agreement and I'm now satisfied that the role of the Commission in seeking to resolve this matter is ended.

PN180

It is clear from all the discussions that an area of potential disputation would be removed if the next enterprise agreement deals explicitly with the minimum payment provisions and inclement weather arrangements for casual employees. The parties agree with this and I make this as a formal recommendation. In doing so it seems to me that the efforts to resolve the dispute under the dispute resolution section of the enterprise agreement is exhausted to the extent of the powers available to this Commission, and accordingly I commend my recommendation to the parties to resolve this matter for the future. Unless there is anything further we will adjourn.

ADJOURNED INDEFINITELY [4.36pm]