C2001/4054, Transcript of Proceedings [2001] AIRCTrans 1995 (17 August 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 8677
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

VICE PRESIDENT ROSS

C2001/4054

BNK SERVICES (VIC) PTY LTD

and

COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED
SERVICES UNION OF AUSTRALIA

Notification pursuant to section 99 of the Act
of an industrial dispute re payment of wages
and allowances

MELBOURNE

5.55 PM, TUESDAY, 31 JULY 2001

PN1

MR C. HARNATH: I appear for the Master Plumbers and Mechanical Services Association of Australia, together with MS K. ECKSTEIN, representative from BNK.

PN2

MR C. COONEY: I appear on behalf of the CEPU Plumbers Division, together with the officer at the site, MR G. JACOBSEN.

PN3

THE VICE PRESIDENT: Mr Harnath, it is your notification I think.

PN4

MR HARNATH: Thank you, your Honour. Your Honour, the matter I bring to you today is a matter with a rather difficult situation behind it. There is a situation with BNK Services that is a company that operates in the area of repairing and maintaining existing plant, if you like, that is the air conditioning plant. It is in a situation where it is in the process of a takeover from a company by the name of Tyco.

PN5

The process is one that is a rather sensitive and traumatic for a number of people. The owner of the company is terminally ill. The situation that is fronting the company is that it either has to close its doors in the not too distant future, or it is trying to find a way to, not only to settle the company issues, but also pass those employees to another company in their jobs. That process had been going on recently and until such time as last week when an officer, Mr Jacobsen, from the union, became involved in some discussions with several employees from the company, one of which was a union member, the other I understand was not.

PN6

THE VICE PRESIDENT: Are there only two employees of the company?

PN7

MR HARNATH: No, there are six employees. They are all engaged under the term that is used in this area of the industry as refrigeration service technicians. They have differing backgrounds, only one of whom really has a plumbing background directly. The other backgrounds are a fitter and turner background, an electrician background, one a refrigeration direct background and two are refrigeration mechanic apprentices.

PN8

THE VICE PRESIDENT: But they are all employed as refrigeration service technicians?

PN9

MR HARNATH: Technicians, yes. And because of the mix of the work it is a limited area of ..... work, it is the way the company has worked for some time. The process that we are in is close to being resolved in a takeover process, however, given that Mr Jacobsen has now raised a number of issues the actual procedure towards the takeover is facing difficulties. As you would appreciate that is causing some concern in a process both with the employees as well as the company owners etcetera.

PN10

As of last Friday there was a meeting between the company BNK Services and its six employees to firstly take them through what was being proposed with the BNK Tyco process, and also in relation to any difficulties or claims or any processes they may have in regards to their employment. It became rather clear that all the employees in question, as I said only one of whom is a union member, were quite adamant that they wished to in no way, they confirmed they had no claim for any matter against the union, sorry, against the company, in regards to the sorts of issues that Mr Jacobsen had raised.

PN11

I had discussed a couple of times with Mr Jacobsen some of those issues, they did vary but some of them went to or were contacted on the basis of an enterprise agreement which the company has a certified enterprise agreement, but that is for a plumbing based enterprise agreement, that is not for refrigeration as such.

PN12

THE VICE PRESIDENT: Okay. So there is a certified agreement in place, but it does not cover, you say this part of the operation.

PN13

MR HARNATH: I say that, and not only that, more directly the reason for that is because the one person that has the mechanical background is a person that occasionally works on commercial sites, the reality of which industrially as the Commission may be aware, from time to time when you work on commercial sites there are both contractual and industrial pressures for them. The company has the enterprise agreement to cover that person's results.

PN14

THE VICE PRESIDENT: Do you have a copy of the enterprise agreement?

PN15

MR HARNATH: I have got one here. It was certified by - - -

PN16

THE VICE PRESIDENT: Am I right in thinking that essentially Mr Jacobsen is asserting that these employees are entitled to allowances which the company says they are not?

PN17

MR HARNATH: Yes, we are coming to that.

PN18

THE VICE PRESIDENT: Okay.

PN19

MR HARNATH: But number one, the employees are emphatic as of last Friday, and again today and those I will go to in a minute, that they have no claim of any sort. The two employees in question have advised the company, and confirmed again today, that they rang Mr Jacobsen and asked him not to further any claims on their behalf. All the employees, none of the rest of whom haven't actually had direct communications we understood at that time, with Mr Jacobsen, signed a letter which I will also pass to the Commission, which as you can see from the top one, it is the same letter in both cases.

PN20

The first one is from the two employees that we understand had the discussions with Mr Jacobsen that led to the claims that we're talking about. The second one is signed by all the employees, including the same two, which as you can see are really saying we do not wish you to take any further action, as it says in the second paragraph:

PN21

As to our discussion today we request you to stop any further action regarding this issue and thank you for your assistance. All staff members have decided that we do not require a meeting with you.

PN22

THE VICE PRESIDENT: Okay.

PN23

MR HARNATH: Mr Jacobsen's position, as we understand it, the union's position was firstly, that they were required to have a meeting and they were looking for a meeting as of tomorrow; and secondly, that to pursue the claims that the employees are currently saying we do not wish to take any further action. We are looking, if you could, in a conciliatory process for the Commission to assist in resolving the difficult process that we have got in front of us given the sensitivity of the takeover. Thank you, your Honour.

PN24

THE VICE PRESIDENT: Mr Cooney, in a nutshell what is the nature of the claim?

PN25

MR COONEY: The nature of the claim, your Honour, is we believe the EBA is in place.

PN26

THE VICE PRESIDENT: Is that the document T number 2151, this one; BNK Services Victoria Pty Ltd and CEPU Enterprise Agreement 1999-2001?

PN27

MR COONEY: Yes, your Honour.

PN28

THE VICE PRESIDENT: Well, how do you - clause, do you have a copy of the agreement there, Mr Cooney?

PN29

MR COONEY: We have got a - well, yes.

PN30

THE VICE PRESIDENT: Can I just take you to clause 1.1, title and scope:

PN31

The scope of the agreement is limited to employees of the enterprise primarily employed for on site building and construction work.

PN32

MR COONEY: Bear with me, your Honour, for a minute?

PN33

THE VICE PRESIDENT: Yes, sure.

PN34

MR COONEY: Your Honour, I am informed that the work they are participating in is construction work. As such this agreement should apply.

PN35

THE VICE PRESIDENT: You say they are engaged in construction work, and I gather from what you say, Mr Harnath, that they are engaged in repair and maintenance of existing plant?

PN36

MR HARNATH: Your Honour, the majority of their work, and I would go so far as it is 80 per cent of the work with the company - - -

PN37

MS ECKSTEIN: More.

PN38

MR HARNATH: - - - more, but let us say 80 per cent of the work, is in the services maintenance area. And not only that, as I said the basis of the employees in question would really be one of a metals base, not the plumbing award and of course the agreement extension - - -

PN39

THE VICE PRESIDENT: Well, okay, but that is not - - -

PN40

MR HARNATH: Yes, but that is another thing to go into.

PN41

THE VICE PRESIDENT: It is really - do you accept - just a minute, Mr Harnath, do you accept, Mr Cooney that ultimately whether or not the agreement applies depends on whether or not the employees are, "primarily employed for on site building and construction work", and you argue that they are primarily engaged in that sort of work?

PN42

MR COONEY: Yes, your Honour, we do argue primarily that they are engaged in that work that is subject to the EBA. Look, your Honour, at the same time what the company is asking that we have no contact at all with people at that site, including two members, we believe we have two members on that site, to at least discuss these issues with them. At this stage it's like, well, we've been informed by the company that, no the EBA doesn't apply and no, you can't speak to your members. Now - - -

PN43

THE VICE PRESIDENT: Well, you have got right of entry rights in relation to meeting with the employees.

PN44

MR COONEY: And that is also under this - - -

PN45

THE VICE PRESIDENT: Have you made a formal request under 298, those provisions?

PN46

MR COONEY: Yes, I am informed, that is my instructions, your Honour, yes. The mere willingness just to talk to members shouldn't be qualified as an industrial dispute, there doesn't appear to be any signs of an industrial dispute here. Maybe an industrial matter but that is not defined under the Act as an industrial dispute. An industrial dispute implies some sort of threatened or probable industrial action occurring. Here there is no sign of that at all.

PN47

Mr Jacobsen is just doing his job as a union representative and seeking the best for his members. I mean all he wants to do is to discuss to see what rates of pay they are getting and take it from there. Nothing may happen after that.

PN48

THE VICE PRESIDENT: Well, Mr Harnath, why aren't they allowed to enter the premises?

PN49

MR HARNATH: Your Honour, our position does not come from not being allowed, our position comes from the fact that the union member as we understand, one union member, Mr Mannini, contacted Mr Jacobsen last Friday and indicated he did not wish to speak with him any further on the matter.

PN50

THE VICE PRESIDENT: Can you take me to what part of division 11A of the Act says that the union member has to consent, or request, the union official holding the right of entry permit, coming on site. I understand what you say that you are casting some doubt over the enthusiasm for the employees on site for pursuing this claim, that might be a matter going to the merit of the claim, it may not be. Ultimately the claim would rise and fall on whether or not these people are primarily employed for on site building and construction work and that is an issue that ought to be able to be resolved fairly quickly by evidence I would have thought.

PN51

I just don't see that the - certainly there are constraints on Mr Jacobsen's ability to enter the premises. Why shouldn't I recommend that the parties have a discussion about working out an appropriate time so that there is no interference with work that is going on during a break etcetera, for Mr Jacobsen to visit the premises. If indeed the employees are under no compulsion to talk to him and Mr Jacobsen understands that probably only too well, and then if he wants to pursue - if the union wants to pursue its case that there has been a breach of that provision well in the absence of employee support for it, I don't imagine there is going to be any industrial activity, we can come back here, if that is the position, if he wants to pursue it, it can be dealt with both in two ways.

PN52

Whether the employees support it or not the union is party to the agreement and they could pursue an action in the Federal Court for breach if that is what they think. Although I have to say to you, Mr Jacobsen, that if what Mr Harnath says is right on the instructions from Ms Eckstein, that 70 or 80 per cent of the work of these employees is maintenance and repair, you are going to have an uphill battle showing that they are primarily employed on site building and construction work.

PN53

But it may be that discussions with the employees may yield a different set of circumstances, I don't know. But that is really what it rises and falls on, is that fairly simple question. The agreement doesn't purport to apply generally to any employee of BNK, it is only in that narrow context, and that may have of itself given rise to some confusion about what does apply to them. Let's get back to you for a moment, Mr Harnath. I take it you are not saying that the company will not abide by, or recognise the union's legal rights under division 11A, but you require obviously the notice that is required in there. And that it be done without disruption to work. And obviously Mr Jacobsen can make himself available to the employees that wish to talk to him, but there is no compulsion on them to talk to Mr Jacobsen.

PN54

MR COONEY: Your Honour, I understand exactly what you opened with to me and I accept that on the company's behalf, there is no issue about that at all. If rather than maybe have a break, if you could just give me a short time - - -

PN55

THE VICE PRESIDENT: Certainly.

PN56

MR COONEY: - - - without leaving the Court we may be able to solve this.

PN57

THE VICE PRESIDENT: Yes, certainly, sure. Yes, Mr Harnath.

PN58

MR HARNATH: Thank you, your Honour. For a point of clarification, and the company is, how would you put it, close to the emotion of the moment if you like - - -

[6.10pm]

PN59

THE VICE PRESIDENT: Look, and I think it is in everyone's interest to try and wrap this up as quickly as humanly possible.

PN60

MR HARNATH: Exactly. And having particular emphasis on no further delay to the actual takeover, because the last thing you need to do is have that fall apart.

PN61

THE VICE PRESIDENT: Yes, I know, absolutely. Yes.

PN62

MR HARNATH: The concern that the company has at the present time is that for instance if Mr Jacobsen, and we would help facilitate this as soon as possible at a proposed meeting, that if nobody either turns up to that meeting because the company is coming from a knowing situation of being involved with the employees as late as today, that may cause concern, that is the sort of struggle that the company is having. It is all very well to propose a meeting, but if nobody fronts or nobody wants to participate - - -

PN63

THE VICE PRESIDENT: Okay. Can you just give me a picture of how work operates; do the employees work off site?

PN64

MS ECKSTEIN: They all work off site, no one works at the premises.

PN65

THE VICE PRESIDENT: Do they come back to the premises at a particular point in time?

PN66

MS ECKSTEIN: No.

PN67

THE VICE PRESIDENT: Do they sign on there?

PN68

MS ECKSTEIN: No.

PN69

THE VICE PRESIDENT: Do they collect their pay?

PN70

MS ECKSTEIN: No, it is paid directly into bank accounts, so we would have to call the meeting specially, which I did offer them last Friday and they all refused.

PN71

THE VICE PRESIDENT: Mr Jacobsen, or through you, Mr Cooney, I don't mind whichever, you know what your right of entry rights are.

PN72

MR JACOBSEN: Yes.

PN73

THE VICE PRESIDENT: But how are they going to help you here?

PN74

MR JACOBSEN: Well, Mr Commissioner, I did ask for a meeting last Friday at 3 o'clock tomorrow, I asked the people to come back to the factory so I can talk to them. There's apprentices who work for the company and I'm just seeing that they are getting paid the right money. I believe they are not getting paid travelling time. I mean under 1. - 1.5 relationship with the Plumbing Trade Southern States Construction Award, if you haven't got an EBA you are referred back to the Federal Award which is - - -

PN75

THE VICE PRESIDENT: The Southern States Award, yes.

PN76

MR JACOBSEN: - - - Southern States. And the only way to get a pay rise is to have an EBA. So under the EBA it does cover construction on houses, factories, the whole lot, that has always been the union principle. Once they have signed an EBA they are entitled to those rates. I know that some people haven't been getting paid the PTIP, which is the Plumbing Trade Industry Allowance, when I saw some pay slips, and that covers installation, tile cutting, bitumen work and they haven't been receiving that in their pay.

PN77

I believe the company might have done a bit of a deal with some of the workers there, I am not sure, with all of them. But I know Tyco, when I've spoken to someone up in Sydney there, they would like it all sorted out that they have been paid the right money because they wouldn't like to take over the company if there is still money owing to the workers. They wouldn't like to be back in the Commission, if someone raises their head three months later and says well look, Tyco's taken us over, we never got our travelling time.

PN78

You could have an apprentice say well look I haven't been getting travelling time. Now, under the EBA, and even the Federal Award the apprentices are entitled to fares.

PN79

THE VICE PRESIDENT: Well, you don't need to talk to anyone to get that information. The company could provide you with the time and wages records.

PN80

MR JACOBSEN: They could, I had never asked for that, I have just asked to have a meeting when I spoke to the company, Friday, with everyone tomorrow at 3 o'clock, that would be the easiest to sort it out.

PN81

THE VICE PRESIDENT: But what do we do, you are not suggesting the company force people to attend a meeting are you?

PN82

MR JACOBSEN: No, I am just after to see who turns up. If they notify the people turn up to the factory at 3 o'clock, then I can have a word to them. And then we can see what money has been back paid, because the company, I am just suggesting they might pay them $200. I'm only using figures, when they could be entitled to $1500 in back pay or 2000. Someone leaves the company or gets the sack, when someone else takes over the company, they might come to the union office and say, well look I never got this money from BNK, I want you to pursue it, they had an EBA.

PN83

The next thing we are back with Tyco who is going to take over the company, and I am sure they don't want to be involved coming back to the Commission for money.

PN84

THE VICE PRESIDENT: All right. Mr Harnath.

PN85

MR HARNATH: Yes, your Honour. The company is willing to try and enter into a facilitation process for the 3 o'clock meeting tomorrow. I might just say, your Honour, and I did mention it earlier without going into it in any great degree, some of the issues which Mr Jacobsen just referred to are relevant to the Plumbing Trade Southern States Construction Award 1999, and we say if it gets to that issue that Mr Jacobsen is pursuing it but nobody wishes him to.

PN86

They are not - the employees are not covered by that award. Now, that is a different issue that we don't necessarily have to pursue at this stage, but it is very clearly the position. We will try and bring together anybody who wishes to be there for the meeting tomorrow and if you like, your Honour, we can report back to the Commission as to the outcome of that meeting.

PN87

THE VICE PRESIDENT: So, well Mr Jacobsen, I take it it suits your purposes if the company notifies each of the employees that as a result of these proceedings the company has offered to facilitate a meeting between the employees and yourself, and that that meeting has been arranged for 3 pm tomorrow.

PN88

MR JACOBSEN: Yes. Mr Commissioner, I think it is important that everyone turns up because like I said - - -

PN89

THE VICE PRESIDENT: But how do I force people to attend your meeting?

PN90

MR JACOBSEN: No, but the company can say I would like you back in the factory at 3 o'clock because if the apprentices don't go to the factory in the morning they must go to a workplace, so they are entitled to fares and travelling. Like I said I would prefer them all to be there tomorrow, some might be - stay away, they might feel intimidated, but then like I said some people might leave the company three months later or four months later, or an apprentice, and the next thing we are back in here with Tyco chasing that money. It is easier to talk to everyone together, and I think we could solve our differences with everyone there tomorrow and see what payments they are getting paid.

PN91

MR HARNATH: Your Honour, we can only invite them to be there as best we can, and that is what we will do tomorrow. I don't know what the response will be. As Ms Eckstein said there seems to be, how would you put it, emotionally a position, but if we can overcome that we will have as many people there as possible. I guess that then will come back to following that as to what, if anything, Mr Jacobsen wishes to do; whether we need to come back and use the officers of the Commission in assisting us.

PN92

THE VICE PRESIDENT: Do you have anything further you want, Mr Jacobsen?

PN93

MR JACOBSEN: No, Mr Commissioner. There has been no industrial action anywhere, we would just like to talk to the people and leave it at that for the time being. Thank you.

PN94

THE VICE PRESIDENT: All right.

PN95

MR HARNATH: Nothing further, your Honour.

PN96

THE VICE PRESIDENT: Okay. The only other thing I would add, Mr Jacobsen and Mr Harnath, you might, as this may be the next stage in this process, let us try and compress it a bit. There may be forthcoming a request for time and wages records in relation to these employees, you might prepare yourself for that sort of request as that might be the next step where we go from here. Mr Jacobsen, if you get, let's say there are some employees who want to - if there are no employees that want to pursue it, do I take it you are not going to be pursuing it at this stage?

PN97

MR JACOBSEN: No, Mr Commissioner, only if someone raises their head three or four months later.

PN98

THE VICE PRESIDENT: Yes, okay. Well, I understand there is no absolute - no one can ever say that they will never be pursuing back pay, but at the moment you won't be.

PN99

MR HARNATH: Your Honour, we accept - I mean, never say never, I mean sometime in six years time somebody can have an issue, not related today, to raise an issue, that is an issue to handle at the time. What we are saying is the issue before the Commission today we are trying to resolve. Our biggest problem here is that the whole process falls down and that will put the direct employment of all these employees directly at risk. And that is a very immediate issue.

PN100

THE VICE PRESIDENT: Okay. Well, let's see how we go with the meeting. Look ultimately there are options available to both of you. From the company's perspective if you want to ensure that you have been paying people under the correct award etcetera, you can seek a declaration from the Federal Court to that effect. From the union's perspective if they want to pursue the claim, there are two avenues, you can pursue it here, probably by recommendation by consent that both of you would have to sign up to; and I can tell you on the basis of the material that you both want to put whether or not, or what award applies, what instrument applies, what rates of pay they should have been paid.

PN101

Or you too can go down to the Federal Court and see where you go there. I think it is in the interests of everyone to try and deal with it as quickly as possible. If we still have a problem after the meeting then I can only give you my assurance that if you do want the matter determined by 111AA, recommendation by consent, then I will make - unfortunately I am booked out most days now between 9 and 4.30, but at the beginning or the end of the day you would get a quick hearing and the matter would be determined. Okay. Good luck with your meeting tomorrow and hopefully that will resolve it. Mr Cooney.

PN102

MR COONEY: This is a matter, on a slightly different note. There was a matter before you today at 12 o'clock.

PN103

THE VICE PRESIDENT: Yes.

PN104

MR COONEY: I got a call from your associate say - I mean there was a notice of listing addressed to the CEPU, it went to the ETU. We are not sure of the matter and we apologise that there was no representation.

PN105

THE VICE PRESIDENT: No, that is fine, Mr Cooney. I think on reflection, given I sent that out at a bit short notice I should have asked my associate to send it to the Vic branch as well. The normal practice is if it is a Federal organisation that is registered they get the correspondence. You would understand the sensitivity that sometimes arises between Federal and State offices. But essentially it is about, as I understand it a claim by the CEPU for maintenance of accident pay in circumstances where the worker concerned has been knocked back from WorkCover.

PN106

But I think I have left it on the basis - I think Bruce Shaw is representing the company. I have left it on the basis that if there is any industrial issue I will relist it at short notice, otherwise we will wait and see what you want to do. You might want to have a talk to him about it or someone in your office might want to have a discussion with him. From what I gather the company has got no intention of continuing to pay accident pay pending the appeal in circumstances where the claim has been rejected.

PN107

They are not making any claim to recover the accident pay they have already paid which might be an option open to them, but they are not intending to continue it. That is it in a nutshell, okay. Nothing further, I will adjourn.

ADJOURNED INDEFINITELY [6.25pm]