C2001/205, Transcript of Proceedings [2001] AIRCTrans 177 (9 March 2001)

AUSCRIPT PTY LTD
ABN 76 082 664 220

Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114J MELBOURNE Vic 3001)
DX 305 Melbourne Tel:[phone] Fax:[phone]

TRANSCRIPT OF PROCEEDINGS


O/N 6062

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER SIMMONDS

C2001/205

AUSTRALASIAN MEAT INDUSTRY
EMPLOYEES UNION, VICTORIAN
BRANCH

AND

BELANDRA TRADING PTY LTD

NOTIFICATION PURSUANT TO SECTION WR 99
OF THE ACT OF A DISPUTE RE ALLEGED
FAILURE TO PAY FOR PUBLIC HOLIDAYS
PURSUANT TO AGREEMENT

MELBOURNE

2.25 PM, MONDAY, 19 FEBRUARY 2001

PN1

MR P. DAVEY: I appear on behalf of the Australasian Meat Industry Employees Union.

PN2

THE COMMISSIONER: Yes, thank you, Mr Davey.

PN3

MR F. ORAVEC: I appear on behalf of Belandra Proprietary Limited.

PN4

MR S. CARROLL: I appear on behalf of Belandra Proprietary Limited.

PN5

THE COMMISSIONER: Yes, thank you, Mr Carroll. Mr Davey.

PN6

MR DAVEY: Sir, this is a dispute referred to you for settlement pursuant to clause 8.3 and, in particular, 8.3.6 of the certified agreement between the union and the company, in this instance Belandra Trading Proprietary Limited and the AMIEU, or Australasian Meat Industry Employees Union Agreement 2000. I am sure the Commission is familiar with that clause. It is a fairly common settlement disputes procedure found across numerous agreements registered with the Commission and has, in fact, been cited in numerous different dispute notifications.

PN7

It is my belief that there is no dispute as to the facts in this notification. Of course, it is for the company to say whether they agree with that or not, but it is purely a matter of interpretation. And we simply seek the Commission's decision in respect of what we say is a clear entitlement. The claim is for an adjustment to the payment received by the employees of Belandra Trading Proprietary Limited for public holidays, being Christmas Day and Boxing Day of 2000 and New Year's Day of 2001. The respective dates are 25 December 2000, 26 December 2000 and 1.1.2001.

PN8

The agreement provides that piece workers - which is slaughtermen in this particular instance - and follow-on labourers are to receive the average daily earnings of the last five working days before the working day before the holiday. The company made a decision in this particular instance not to work on Wednesday, Thursday and Friday, 27, 28, and 29 December 2000. I don't think there is any controversy in respect of those three days. Similarly, made a decision not to work on Friday, 22 December.

PN9

Now, this, in fact, meant that the Thursday, 21 December, was the last working day before those public holidays and, therefore, in accordance with the clause that deletes it as part of the days for the calculation of the payment of the holidays, it should not count as part of that period. And perhaps it is appropriate, sir, to hand up to the Commission a copy of the relevant clause, and I have highlighted the areas that we say are of concern.

PN10

And I just want to emphasise what the clause says because if you read it quickly you can easily overlook the provision, but on the third line of 6.4.5, sir, you will see the ordinary hours for the (five) workings days immediately preceding the working day before such holiday or holidays. Now, what I understand the company will be arguing is that working days means any day which is not a public holiday or a weekend. And clearly, sir, that is not the case.

PN11

We say working day means a day on which work was actually made available. That being the case, five working days before Thursday, 21 December, should be the five days on which the calculation is made. Sir, the reason the clause deletes the last working day are two-fold, and there is a lot of history to it that goes back 20 or 30 years from the old Victorian Meat Works and By-Products Award, which Mr Oravec would be familiar with, and these clauses were taken directly from that award with the advent of enterprise bargaining.

PN12

And the first reason the actual last working day was not including in the calculation is that there are certain eves days in the old Victorian Meat Works and By-Products Award, again, an entitlement which has flowed through to some of these enterprise agreements. And the days, depending on the weekend that the eves days are Christmas Eve, New Year's Eve and Good Friday Eve. And there are eves provisions which means that a shorter day than normal is worked on those days.

PN13

There is variety in those provisions. Sometimes it is the normal lunch time tally, sometimes it is minimum tally or in the instance Belandra Trading Proprietary Limited, on eves day six hours production is worked. I don't need to go into the reasons for the eves days themselves, except to say that the cost of the eves days on those days is one of the reasons that day was deleted for the calculation of the holiday pay, because if it was included it would mean that the holidays would be paid at less than the normal average of full working days.

PN14

The second reason that was there is it is the last actual working day prior to the holidays was not an eves days, as in this particular instance, Thursday, 21st was not even with three days of being an eve, and often a shortened limited production day is worked for a number of reasons, primarily because the company would want to clear products from its chillers if there was going to be any kind of prolonged break or a long weekend or whatever. And again, the reason does not matter, except that in the historical context, that was why the last working day before the holiday was not included in the calculation.

PN15

So we think it is a very simple matter. In short, we say it is clear both in practical and historical reference, that the last working day referred to in the agreement means the last day on which the company actually made work available. The instance or the notion that the working day can be a day other than the day on which work was available, quite frankly, I can't understand how the company would come to that view. But no doubt we will hear from Mr Oravec about that.

PN16

I don't think it is an issue what the adjustment would be if we get a ruling. I don't think we need to go to the figures, but I stress I think it is a simple matter, sir, that we believe can be simply resolved with the necessary settlement - pursuant to the settlement disputes procedure from the Commission. If the Commission pleases.

PN17

THE COMMISSIONER: Yes. It is presumably the difference between the production actually achieved on the Thursday and the production that was achieved on the Wednesday.

PN18

MR DAVEY: That is correct. In round figures, sir, I understand that that particular day they might have - they earned $126.

PN19

THE COMMISSIONER: Yes. I think the difference is your calculation would be from Tuesday to - sorry, from Thursday to Wednesday and the company's calculations from Friday to Thursday.

PN20

MR DAVEY: That is correct, sir, yes. Yes. And in round figures over the three days it makes a difference of about 50 bucks. It is about $17 a day over the three days, being the difference between nearly $200 which they would have earned on the Thursday, and 126 - sorry, on the Friday, and $126.

PN21

THE COMMISSIONER: Yes, and for the Monday - and for the New Year's Day it would be something different again.

PN22

MR DAVEY: No, it would be the same, because there was no other work done after the Thursday.

PN23

THE COMMISSIONER: Well, that can't - - -

PN24

MR DAVEY: You don't include the holiday.

PN25

THE COMMISSIONER: Well, the only holiday was Boxing Day and Christmas Day. Then you had Tuesday, Wednesday, Thursday, Friday.

PN26

MR DAVEY: We say that the days on which the calculation should have been - - -

PN27

THE COMMISSIONER: I understand what you are saying, but the company would have to say that Tuesday, Wednesday, Thursday, that is the 27th, 28th and 29th were working days.

PN28

MR DAVEY: Well, that is one of the inconsistencies - - -

PN29

THE COMMISSIONER: Because they were not public holidays.

PN30

MR DAVEY: - - - and what I think their argument is going to be, but I haven't heard it yet.

PN31

THE COMMISSIONER: Yes. Well, no, but in terms of what they do propose - - -

PN32

MR DAVEY: They are actually - what they actually pay - - -

PN33

THE COMMISSIONER: - - - what are they paying for the New Year's Day?

PN34

MR DAVEY: Well, they are paying for New Year's Day the same as for Christmas Day.

PN35

THE COMMISSIONER: I see. So they are calculate it as though those days - - -

PN36

MR DAVEY: Just including the Thursday, but not - yes.

PN37

THE COMMISSIONER: - - - were not working - - -

PN38

MR DAVEY: Yes. So on the one hand they are saying that the Friday was a working day.

PN39

THE COMMISSIONER: Yes.

PN40

MR DAVEY: But on the other hand they are not saying that Wednesday, Thursday and Friday the following week were working days.

PN41

THE COMMISSIONER: Yes. Yes.

PN42

MR DAVEY: And for all intents and purposes - - -

PN43

THE COMMISSIONER: No, no, we will hear their explanation.

PN44

MR ORAVEC: Sir, I basically agree with Mr Davey that there is no argument except of the classification what is a working day. Now, the company claims that Friday was actually a working day, because as the - as they are saying it is working day, because the work could be performed. Now, during that Friday some people took annual leave and some people took RDOs, constitute - not constitute a working day. Now, I think it should be clarified that in the agreement where it says about working day, I think it should be clarified, I think we should do it for future, working day which is gazetted as working day or working day where work is actually performed, because to me working day is any day where work can be performed.

PN45

THE COMMISSIONER: Well, if that is right, then, how did you pay New Year's Day?

PN46

MR ORAVEC: New Year's Day I don't actually know, Mr Commissioner.

PN47

THE COMMISSIONER: Because on your argument New Year's Day must - I mean, if you are right about that - - -

PN48

MR ORAVEC: Right.

PN49

THE COMMISSIONER: - - - then the payment for New Year's Day would have to be different from the payment for Boxing Day or Christmas Day, because there were three working days on which work wasn't performed, by your definition.

PN50

MR ORAVEC: Yes.

PN51

THE COMMISSIONER: What you had was the day prior to New Year's Day was the last working day prior to New Year's Day was Friday, the 30th.

PN52

MR ORAVEC: Yes.

PN53

THE COMMISSIONER: I will get my calendar out. Sorry, Friday, the 29th. So two of the five working days are the 27th and 28th and another one is - the other three would be the 22nd, 21st and 20th.

PN54

MR ORAVEC: Yes. Yes, I just say, your Honour, say Friday, the - - -

PN55

THE COMMISSIONER: So they would only get paid - the only production that was - that occurred in those five days was on the 19th - sorry, the 20th and 21st.

PN56

MR ORAVEC: That's it. That's right.

PN57

THE COMMISSIONER: And so they would - the payment for the New Year's Day would necessarily be different from the payment for the Christmas Day and Boxing Day.

PN58

MR ORAVEC: Yes. You know what we saying, sir, that - - -

PN59

THE COMMISSIONER: Well, more importantly, how did you pay New Year's Day last year?

PN60

MR ORAVEC: May I - - -

PN61

MR CARROLL: Yes, things - there is a difference between holiday pay and annual leave and RDOs. The holiday pay is an average of the last five working days, so for public holidays that is what they would have been paid. But for annual leave and RDOs it is actually an average of the last 19 or the last month's work.

PN62

THE COMMISSIONER: Yes, yes, I understand that, but New Year's Day is a public holiday.

PN63

MR CARROLL: That's right, so they would have been paid at public holiday rate.

PN64

MR ORAVEC: Sure.

PN65

THE COMMISSIONER: And the public holiday rate is the average of the five preceding working - well, not counting the day immediately prior.

PN66

MR CARROLL: Yes. That's right.

PN67

THE COMMISSIONER: Now, the five preceding working days - - -

PN68

MR CARROLL: Yes.

PN69

THE COMMISSIONER: - - - must have been - that is, the day preceding the 29th - the 27th, 28th - - -

PN70

MR CARROLL: Yes.

PN71

THE COMMISSIONER: 22nd, 21st and 20th.

PN72

MR CARROLL: They took annual leave on those days.

PN73

THE COMMISSIONER: Well, they took annual leave on the 22nd, too, but you don't count it. The logic of your position is exactly that. Now, how did you pay New Year's Day last year?

PN74

MR CARROLL: It was a public holiday.

PN75

THE COMMISSIONER: Yes, and how did you pay it?

PN76

MR CARROLL: By the average of the last five working days.

PN77

THE COMMISSIONER: Including the days between Christmas and New Year? Or the days prior to the Christmas?

PN78

MR CARROLL: No. No. Well, that would have been - - -

PN79

THE COMMISSIONER: Because they were - you didn't count those as working days.

PN80

MR CARROLL: They were taken as annual leave.

PN81

THE COMMISSIONER: As was the Friday, the 22nd.

PN82

MR CARROLL: That's right. Yes.

PN83

THE COMMISSIONER: Did any one work on Friday, the 22nd?

PN84

MR CARROLL: Yes, some of the workers did work. The slaughter floor didn't work, but there was parts of the abattoir that worked, load-outs.

PN85

THE COMMISSIONER: So how is that any different? That is where I am having difficulty understanding, but anyhow, Mr Oravec, you can see the difficulty I am having.

PN86

MR ORAVEC: Yes. Yes.

PN87

THE COMMISSIONER: You make fish of one and fowl of the other. I appreciate that you - I mean, I don't know what a working day is.

PN88

MR ORAVEC: No.

PN89

THE COMMISSIONER: You ought to define it.

PN90

MR ORAVEC: Well, that's what - - -

PN91

THE COMMISSIONER: But what I do say is that - I mean, the difficulty we run into is where part of the workforce works and another part doesn't.

PN92

MR ORAVEC: Right.

PN93

THE COMMISSIONER: Particularly if some of them are pieceworkers. I mean, if they are all - - -

PN94

MR ORAVEC: Yes, but - - -

PN95

THE COMMISSIONER: I guess the load - well, the load-out people, are they pieceworkers in this area, or not?

PN96

MR ORAVEC: No, they're not.

PN97

THE COMMISSIONER: They are all daily hire. Sorry, they are all weekly hire.

PN98

MR DAVEY: Yes, the claim is only for the slaughtermen and not in relation to that.

PN99

THE COMMISSIONER: Yes, I understand that.

PN100

MR ORAVEC: Yes.

PN101

THE COMMISSIONER: I mean, I can see where the problem arises.

PN102

MR ORAVEC: Yes.

PN103

THE COMMISSIONER: - - - in a conceptual sense.

PN104

MR ORAVEC: Yes. I have a difficulty with interpretation of the working day.

PN105

THE COMMISSIONER: Yes.

PN106

MR ORAVEC: What constitutes working day. That's my difficulty.

PN107

THE COMMISSIONER: But this can't be the first time this has happened.

PN108

MR ORAVEC: Yes, I think so.

PN109

THE COMMISSIONER: I can't be the first time.

PN110

MR ORAVEC: Maybe. In my experience - - -

PN111

THE COMMISSIONER: How long have these been - yes, how long have these words been in the agreement?

PN112

MR ORAVEC: Well - - -

PN113

MR G. BIRD: 30 years at least.

PN114

THE COMMISSIONER: Mr Bird has made an appearance and - for the sake of the record. Well, it is not for me to - yes, we might just go off the record for a moment if we could.

PN115

MR ORAVEC: Yes.

OFF THE RECORD

PN116

THE COMMISSIONER: Yes, I interrupted you, Mr Oravec. Is there anything further you wish to put?

PN117

MR ORAVEC: No. No.

PN118

THE COMMISSIONER: The first thing I am going to say is that I think when the parties next address this agreement, which is in another couple of years, we should have a thought about putting a definition of working day in there. And it may be that that definition picks up what I am going to say.

PN119

I think in circumstances where - circumstances of the kind that the company faced last year where it actually had employees, although not pieceworkers, at work on the Friday immediately preceding the public holiday, then it ought not take that day into account for the purposes of clause 6.4.5 and that it ought to regard the five working days immediately preceding the working day before the holiday as being the five working days between - or specifically, the Friday - sorry, that Thursday, Friday, Monday, Tuesday, Wednesday and not treat the Thursday as the day preceding the working day.

PN120

In other words, to treat the Friday in the same way as they treated the Wednesday and Thursday of the following week prior to New Year's Day. Now, I have not tried to be specific about the definition of working day here. What I have tried to say is that the union's approach - not necessarily their reasoning - is the correct approach. I say that because it is pretty clear that what was intended was what Mr Davey said. Namely, that the short day prior to going on leave for the pieceworkers ought not be taken into account in the averaging out process. And of course, the short day before the pieceworkers went on leave was the Thursday in this case.

PN121

Now, I come to that conclusion because I think that was the - I believe that was the intention of the parties, not because I think it is adequately expressed in the agreement. It was clearly expected that there would be a short day worked prior to the holiday and that that day ought not be taken into account. There was a short day worked prior to the holiday. It wasn't immediately prior to the holiday and I think it ought not be taken into account in the calculation of the way. And I so recommend.

ADJOURNED INDEFINITELY [2.59pm]