C2001/4927, Transcript of Proceedings [2001] AIRCTrans 2845 (23 October 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 0589
AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

COMMISSIONER LEWIN

C2001/4927

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

and

AUSTRALIAN GAS LIGHT COMPANY

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

MELBOURNE

2.54 PM, FRIDAY, 5 OCTOBER 2001

THIS HEARING WAS CONDUCTED BY VIDEO CONFERENCE IN MELBOURNE

PN1

MR J. MADDISON: I appear on behalf of the CEPU with MR D. RILEY, MR R. WILEY and MS D. McDONALD.

PN2

MR B. TREGLOWN: I appear on behalf of Agility Services with MS M. MASKELL and MR M. de BOER.

PN3

THE COMMISSIONER: Yes, Mr Maddison.

PN4

MR MADDISON: Thank you, Commissioner. Commissioner, this matter has quite a long genesis. AGL, the section of the company or the workforce we are talking about, is the meter readers. There has been a number of attempts to seek to outsource and/or increase the productivity of this section of the workforce. The agreement that currently - the certified agreement which currently regulates - partially regulates the terms and conditions of employment is the AGL Electricity Ltd Enterprise Agreement 1999 and clause 4 of that agreement refers to parent awards, and it also states:

PN5

That throughout the life of this agreement all existing terms and conditions of employment shall prevail unless otherwise agreed by the parties.

PN6

The union would submit that at the time the agreement was certified that the meter readers - and it does also - sorry, Commissioner - go on in the next paragraph to talk about:

PN7

These conditions are derived from the awards' enterprise agreements binding on the parties' current policies and existing and relevant custom and practice in operation of the data certification and relevant awards and agreements.

PN8

Commissioner, we would say that at that relevant time the meter readers would be given a round - they were given rounds per day to go and do and the custom and practice was that they would do their allotted round and once that was completed they would then go home. And these employees were full-time employees, and I will refer to the award a little bit later on, but the award provides for fortnightly employment which we say these employees are. Towards the end of last year there was discussions between the parties.

PN9

AGL was seeking to increase productivity and consistent with the clause the parties did agree to change the relevant custom and practice that I have just indicated, and the employees would walk for up to five and a half hours, and at that stage AGL sought that once they had walked for their allotted time that they would be required to go back to the office and perform some other administrative functions. The unions agreed to this after some negotiations and that was what was implemented.

PN10

After a short period of time the company were not properly, we would say, providing useful employment at the end of the walking time and the company then said that they would no longer require the employees to go back to the depot or office and do the administrative tasks, and the employees, not surprisingly, complied with that request. Matters I suppose were in abeyance for a short period of time - some period of time. Earlier this year, again the company sought or made their position known that they sought to outsource this function of the company's business and there was some further proceedings in the Commission before Senior Deputy President Kaufman.

PN11

Simultaneously to those proceedings WorkCover Victoria became involved and examined the duties that the people performed, specifically the walking requirements, and WorkCover Victoria made a number of findings, but in respect to the walking requirement they said that they wouldn't fix a minimum or maximum amount of hours but that people were to walk within their comfort zone and they were to, I suppose you would say, sort of self regulate to some extent what was able to be done in terms of walking.

PN12

Recently, around about the beginning of September, 11 September, Mr Riley was asked to attend a briefing with Mr de Boer, outlined the company was going to - at that stage what we understood was to outsource the management of the meter readers rather than the actual meter reader employees themselves, and that they were going to drop the pay of the meter readers down to actually hours walked rather than in accordance with what we would say is their contract of employment requirements.

PN13

The company further said that this might - the fact that they were seeking to do this might mean that some people would no longer want to work for AGL in the function of a meter reader and accordingly they would also offer voluntary departure packages for expressions of interest. A further meeting was held on 18 September with Mr de Boer, Mr Treglown present and relevantly, Mr Riley from the ETU. And it was sought further discussions about what the company had proposed and at that meeting Mr Treglown made it clear that the company was seeking not only to outsource the management, but also the actual duties of the employees in the meter reading function.

PN14

On that day, 18 September, in accordance with the dispute resolution procedure, which is contained in clause 8 of the agreement - I think it is a clause that the Commission as currently constituted has some knowledge of - Mr Riley notified Mr Ray Miles from the human resources of AGL of a dispute, and accordingly we would have assumed that in accordance with that that the work practices in place prior to the dispute arising would - the status quo, if you like, would maintain pending the resolution of the dispute, and we also in that notification, consistent with note A, that we would request that steps 2, 3 and 4 be by-passed in the interests of a speedy resolution to the matter.

PN15

We would say unfortunately AGL have not complied with the disputes resolution procedure and are still proceeding as late as 1 October to implement at least part of their plan - the part of the plan that relates to remuneration. If I can hand up a document signed by Martin de Boer dated 1 October 2001 that I understand has been sent - or hand delivered to the relevant employees. I presume, and I might be mistaken in my presumption, Mr Treglown, that you have a copy of that document that I am referring to in front of you?

PN16

MR TREGLOWN: Well, I don't know if I have got a copy of the document that you are referring to, no.

PN17

THE COMMISSIONER: This document is a letter addressed to Henry Sendra of Broadmeadows, dated 1 October 2001. It is signed by Mr Martin de Boer, manager of - - -

PN18

MR TREGLOWN: I don't have that copy.

PN19

THE COMMISSIONER: It is signed by Mr Martin de Boer, manager of measurement operations and it reads as follows:

PN20

Dear Henry, Re payment for hours worked as prescribed in your award. I am writing to you to outline the principles of your permanent part-time employment with Agility Services as per my presentation a few weeks ago and subsequent correspondences. The principles will form the basis of your remuneration to be effective from this week. The hours of work are set at six hours and thirty minutes per day over a fortnightly period. These hours are in accordance with your union representative requirements and my agreement of 19 March 2001 to -

PN21

first dot point -

PN22

allow the routine readers to officially cease work once five hours and thirty minutes of walk/read time has been achieved and any completed work has been uploaded from the hand held.

PN23

The second dot point:

PN24

Pay for six hours and thirty minutes at overtime rates for five hours and thirty minutes walk/read time on a Saturday. The six hours and thirty minutes has been derived from the five hours and thirty minutes walk/read time, time in the office uploading/downloading, travelling from Broadmeadows to the work site or from the work site to Broadmeadows, as well as the paid morning tea break of 7.5 minutes. Overtime rates apply for all hours worked in excess of ordinary award hours, 7.5 hours per day on any day. Hours worked in excess of six hours and thirty minutes are to be claimed on the form attached. Your entitlements, employment conditions and remuneration is the same as full-time employees but calculated on a pro rata basis. Superannuation benefits/contributions will also be applicable on a pro rata basis. I have discussed the above with your elected representative. However, I would like to again invite you to meet with me to discuss these matters. As I have already mentioned in other correspondence you are welcome to have another person accompany you. Yours sincerely, Martin de Boer.

EXHIBIT #M1 LETTER DATED 1 OCTOBER 2001 FROM MARTIN de BOER TO HENRY SENDRA

PN25

MR MADDISON: We say a few things about exhibit M1, Commissioner. Firstly, we are unclear as to what in the second paragraph:

PN26

These hours are in accordance with your union representative requirements and my agreement of 19 March 2001-

PN27

is referring to. But leading that to one side, as I apprehend this document is purporting to change people's employment status from - and I will go to the award presently, Commissioner - from fortnightly hire employees to permanent part-time employment. Now, firstly, we say that is in breach of the dispute settlement procedure just mentioned. When we go to the parent award, the Power and Energy Industry Electrical, Electronic and Engineering Employees Award 1998 - Commissioner, I provided a copy to your associate prior to the hearing. Commissioner, clause 8 of that award refers to contract of employment.

PN28

THE COMMISSIONER: Yes, there is quite a bit to that. Which part do you want to draw my attention to?

PN29

MR MADDISON: Firstly, Commissioner, I want you to have regard to 8.1 which is fortnightly hire and defines the employees - in my submission there relevantly are fortnightly hire employees. Then at 8.3 it refers to permanent part-time employment and it defines the principles behind that employment. Regular pattern of attendance is required in 8.3(1)(i) - that regular pattern, etcetera. And then at 8.3(4), Commissioner, it refers to extent part-time work and 8.3.(5) states:

PN30

That no employee will be forced to convert from permanent full-time employment to permanent part-time employment or vice versa.

PN31

THE COMMISSIONER: Is Mr Henry Sendra, or was he prior to the issuance of exhibit M1 a fortnightly full-time employee?

PN32

MR MADDISON: In my submission, yes, he was, Commissioner. And on my instructions both Mr Sendra and the other employees who have received documents in the same terms, have not consented to change their employment status from fortnightly hire to part-time employment.

PN33

THE COMMISSIONER: And how many such employees do you know of who have been issued with letters of this kind?

PN34

MR MADDISON: On my instructions, Commissioner, 15 such employees.

PN35

THE COMMISSIONER: 15 employees. Are the terms of the letter on your submission the same?

PN36

MR MADDISON: Yes, they are, Commissioner.

PN37

THE COMMISSIONER: So that exhibit M1, whilst addressed to Mr Sendra, is expressed in terms which have been communicated to 14 other employees?

PN38

MR MADDISON: Yes, that is correct, Commissioner. We simply say, Commissioner, that on its face M1 is in breach of the award and in breach, as previously mentioned, of the dispute resolution procedure. Commissioner, so we are happy to have some discussions with the company in conciliation or otherwise, but what we would be seeking is undertakings that they would firstly comply with the dispute resolution procedure and secondly that this letter will be withdrawn pending resolution of the dispute, which may or may not include this outcome as foreseen in M1, but may not.

PN39

And if the company are not prepared to give such undertakings we would be seeking a direction from the Commission that they do both of the things that we are seeking undertakings in respect of. Thank you, Commissioner. Those are the submissions of the ETU.

PN40

THE COMMISSIONER: Thank you, Mr Maddison. Mr Treglown.

PN41

MR TREGLOWN: Yes, sir. Thank you, Mr Commissioner. Firstly, just a little bit of housekeeping. The notification was made to the Australian Gas Light Company and, of course, the employer is Agility Services Pty Ltd. That is the first issue. Secondly, we have some concerns with regard to jurisdiction around the stated issue of outsourcing being part of a dispute. We would contend, of course, that this matter is outside the gamut of the Commission and is contrary to section 89A. But notwithstanding that - notwithstanding that there has been no outsourcing at this point in time anyhow.

PN42

We have an intention and a desire to outsource this work in the event that we can improve the productivity of this group to a point that vaguely relates to what can be provided by outside sources. So that is dealing with the first issue. We don't believe there is jurisdiction to deal with that anyhow. But as I have said, notwithstanding that there has been no outsourcing at this point in time anyhow. With regard to the question about the company making changes and reducing people's wages, that is again a matter of some conjecture from where we sit. The issues are quite simple.

PN43

This question of available time - time made available to the company to perform their duties has been one that has been around for more than the life of the enterprise agreement that we are talking about. These employees in fact, they have been part-time employees for the full life of this agreement and for the full life of this agreement we have attempted on many occasions, and in fact been before yourself on one occasion, we have attempted to lift the productivity of this group to the point where it would be somewhat acceptable.

PN44

Every attempt made has been frustrated. Now, as far as the rates of pay are concerned we aren't changing the rates of pay at all. The same hourly rate of pay continues to be paid and we are paying for the hours that our employees make themselves available to work. That is not our call that that is five and a half hours walk time and we assessed very generously another hour travelling time and downloading and uploading time, so six and a half hours per day. That is not our choice. That has been a demand by the employees and by the unions made on every occasion that we have met for the life of this enterprise agreement.

PN45

And in fact there was an exchange of electronic communications some time ago, when because of the low productivity of this group our commercial responsibilities and our commercial viability was being affected by the under reads or the number of reads that weren't being read in time to be billed at the appropriate time, thus affecting our commerciality, there was a need to bring in some casual labour. Now reinforcing the fact that it is the union's demand that only five and a half hours be worked, was the claim then that you can bring in casual labour to work on the basis that we can go home when we have done our five and a half hours, a small dose of industrial blackmail, if you like, but one that we had to for commercial reasons concede.

PN46

That position has gotten us to where we are today where we have a fundamental issue. People are paid a rate of pay per week at an hourly rate which is divided by the number of hours per week. In the case of this award it is 37_ hours. The availability time, five and a half hours, and we had the extra hour for uploading and downloading, is what is paid by demand from the union by - for no other reason. It is our desire for these people to work eight hours, twenty minutes a day. I might also point out, Mr Commissioner, that this amazing circumstance that we have in front of us is quite unique in all of AGL's operations.

PN47

This group in fact demand to work and do in fact work a nine day fortnight, and as I am sure that you would be aware, the working of a nine day fortnight is always accompanied with a condition which has people working additional time on the days at work to accumulate that additional day off per fortnight. These people in fact work time less. They are in fact working 27_ hours per week in demanding 37_ hours pay and it is our submission - it is our submission that this is not acceptable and that if we were to go to the point where orders were given - and we don't believe that we are at that point at this point in time - we believe that that - if orders were given supporting that that would be quite contrary to public interest from a number of points of view and we would make submissions to that extent.

PN48

We don't believe that resolution of this is the continuation of what is effectively a rort. We don't believe that acceptance of a rort over a period of time substantiates it. We have made many, many attempts to continue work normally and have provided work up to eight hours, twenty minutes per day for the life of this agreement and that has on all occasions been rejected. Now, I will have to go to a few of the things that Mr Maddison brought up. Now, one of the issues that he raised was that when we got going on this - as this developed and as we were trying to increase productivity, we requested people come back to the office after they finished their walk time, and that was in fact a request.

PN49

We then - we did not at any stage request them to go home at the end of five and a half hours. That was a demand made of us in return for us having the right to hire casuals. That was demanded of us. As far as the contract of employment is concerned, our contract of employment is open. There is 37_ hours work available to these people. What they are saying is quite contrary to the findings of the occupational health and safety review that was done. In fact I might also point out that the union reneged on an undertaking that was made in the Commission to have an independent occupational health and safety expert look at this work, and insisted it be the WorkCover people.

PN50

We would have had no problem with both doing it but that was rejected. And in fact what the occupational report concluded was that we should not set a minimum number of hours to work. The union in fact have set a maximum number of hours that people can work. So clearly it is not an issue that is relating to occupational health and safety reasons, because by the union's demand they are saying everyone is the same, everyone's fitness level and ability to do the work is exactly the same, five and a half hours, no more.

PN51

So our position is very clear and the issue is very simple; we are simply paying for the time being worked, the time being made available to work and we don't believe that there is any legitimate order that could be handed down that could force us to pay for eight hours, twenty minutes in return for 5.5 hours work. At this point I don't have any additional words to say other than we are, as always, prepared to continue on in discussions with the Commission and with the unions, but it is not - it is not an option for the company to continue to pay for work where people are not making themselves available and not attempting to do that work. We will pay for the work being done.

PN52

And I repeat that I don't think that the - that our position is that the power source in issue was firstly a non issue and secondly is outside jurisdiction. If the Commission pleases.

[3.22pm]

PN53

THE COMMISSIONER: Mr Treglown, have you ever paid for, I think you said, 8 hours 21?

PN54

MR TREGLOWN: It would have been on an overtime basis, Mr Commissioner.

PN55

THE COMMISSIONER: And have these employees always been part time employees?

PN56

MR TREGLOWN: Well, certainly for the life of this agreement, Mr Commissioner, they have been in fact part time employees. And it has been our endeavour, it has been our endeavour that these people work longer and increase their productivity. I could instance one interesting fact is that up until when it was revealed for the ridiculous situation that it was, the meter readers were even working overtime on Saturdays and claiming a full days work when they would only work 5_ hours and they were claiming 8. That has since changed.

PN57

THE COMMISSIONER: So - - -

PN58

MR TREGLOWN: They now accept that working on Saturdays, 5_ lead time, results in 6_ hours pay. They now accept that and that has been worked, with their agreement. Remuneration is normally made up of an hourly rate, which these people are paid, or there is pay for outputs. These people pay for outputs. The contractors from - that we can get, and casuals that we use, are paid on outputs. And we are happy to have our people work on that basis, as well. But that, again, is refused. It is - what we are not getting is a very fundamental principle of a fair day's work for a fair day's pay. We are simply asking that.

PN59

THE COMMISSIONER: Mr Treglown, do I understand you to say then that since this agreement has been in operation you have only paid these employees for the time that they have been on duty?

PN60

MR TREGLOWN: No, no, I am not saying that at all. I am saying that we worked with the issue for the life of this agreement. Up until this point in time we have lived with the faint hope that we will get additional work from these people to justify the 8 hours 20 minutes they have been paid. The fundamental issue, as far as a meter reader is concerned, is they only work a 9-day fortnight and each day is only 5 hours 30 minutes. All of our discussions with the meter readers and the unions to date have been aimed at addressing that particular issue.

PN61

We have been totally frustrated and the time has come to say, "Well, you have been working as a part time employee. We have no choice, by your demand, that you will only work 5_ hours to pay them accordingly." It is not a change. The acceptance of the situation up until now, has been an acceptance to get us through a situation that we would have hoped that a fair go would have resulted. We have just totally been frustrated and we have reached this point. It is an important - - -

PN62

THE COMMISSIONER: I am really just trying - I am just trying to understand the history of the matter. I thought you were telling me that these employees have always been part time employees and not full time employees and that you have always paid them as part time employees.

PN63

MR TREGLOWN: No, no, I - - -

PN64

THE COMMISSIONER: And that you haven't paid them for getting more than 6_ hours a day in the past and their - - -

PN65

MR TREGLOWN: No, no, we have allowed - we have allowed the situation to continue for some time in the hope that we could redress the problem.

PN66

THE COMMISSIONER: I see.

PN67

MR TREGLOWN: And we have been - we have been paying them on a 9-day fortnight basis, which is - - -

PN68

THE COMMISSIONER: What have you been paying them?

PN69

MR TREGLOWN: We have been paying them 37_ hours a week.

PN70

THE COMMISSIONER: And on your accounting they have been working for 5_ hours a day?

PN71

MR TREGLOWN: On my accounting they have been working 27_ hours a week and being paid for 37_.

PN72

THE COMMISSIONER: Right. And you then - - -

PN73

MR TREGLOWN: And all we are doing is accepting that - reluctantly accepting that fact. We know that we can go no further with the discussions on productivity. It has been met on so many occasions with frustrating and delays. We reluctantly accept their insistence to work 5_ hours.

PN74

THE COMMISSIONER: But, Mr Treglown, I am just trying to understand precisely what has happened - - -

PN75

MR TREGLOWN: Sure.

PN76

THE COMMISSIONER: - - - rather than sort of reach any conclusions or judgments about the merits of the situation. The company has for some time paid the employees concerned - has it paid them on a fortnightly basis?

PN77

MR TREGLOWN: That is correct.

PN78

THE COMMISSIONER: And it has paid them for 75 hours a fortnight.

PN79

MR TREGLOWN: That is correct.

PN80

THE COMMISSIONER: And you now propose to pay them how many hours per fortnight?

PN81

THE COMMISSIONER: 6_ hours per day, which would be about 32_ - sorry about that, 32_ hours a week, 65 hours a fortnight. That is the - that is the - - -

PN82

THE COMMISSIONER: And when will this reduction in the number of paid hours occur?

PN83

MR TREGLOWN: Well, it would be nice if we could get it - make it retrospective to when they started working 5_ hours. But we would see it starting from the next pay period. Our position is it will start from the next pay period.

PN84

THE COMMISSIONER: And so employees will be paid 10 hours per fortnight less.

PN85

MR TREGLOWN: Well, I am sorry, Mr Commissioner, I am getting an uneasy feeling that that is being termed. We are paying them for the hours they are working.

PN86

THE COMMISSIONER: Well, I am really just trying to work out, first of all as a basic building block, what the nature of the dispute between the parties actually is as opposed to the construction each of them places upon the activities involved. And so I am trying to scope that has been notified to the Commission. And, as I understand it, the scope of the dispute is two-fold. Namely that the union considers that these employees are fortnightly paid and employed, that they are therefore entitled to the weekly rate by 2 for that cycle of their employment, which is namely 75 hours ordinary time pay.

PN87

And you are saying that they are more appropriately understood to be part time employees because they do not work the ordinary number of hours prescribed, namely 37.5 each fortnight. That in fact they work significantly less than that and they should be paid accordingly. And the consequence of that view which you have taken, and you now intend to act upon, is that the number of ordinary hours paid for work performed between Mondays and Friday will be reduced by 10 per fortnight for reasons which you have summarised.

PN88

MR TREGLOWN: That is correct.

PN89

THE COMMISSIONER: Now, that is the situation?

PN90

MR TREGLOWN: That is correct.

PN91

THE COMMISSIONER: And the other matter that occurs to me is having had a look at the agreement, I notice that you were supposed to be conducting negotiations for a new one, are you not?

PN92

MR TREGLOWN: That is correct, yes.

PN93

THE COMMISSIONER: And regardless of what you would say about the past position and your construction of the situation affecting the employees and the company in this matter, the agreement offers no impediment to the steps that you are taking.

PN94

MR TREGLOWN: I am sorry, I am not sure I understand what you said then.

PN95

THE COMMISSIONER: I understand your position to be that you are taking certain steps in relation to these 15 employees, effective from the next pay period?

PN96

MR TREGLOWN: Yes.

PN97

THE COMMISSIONER: And that the agreement and the award, either individually or collectively, offer no impediment to the actions which you propose to take?

PN98

MR TREGLOWN: Yes, yes, in fact the award quite supports it. The award talks about availability and time then worked is the award - the award is riddled with "time worked". And these people are not working their time.

PN99

THE COMMISSIONER: Well, what we come to now, I think, having scoped the dispute and characterised the nature of the dispute, is what process should be adopted in order to settle the dispute. What I will do now is let Mr Maddison reply to what you have said and invite him to indicate to me what it is that the union is saying should be the process and outcome of the matter. And he has foreshadowed that he is seeking directions if you have no intention of ceasing and desisting from the declared course of action that you outlined earlier. And it may be that that is what is pursued. But I will give Mr Maddison the opportunity to reply to what you have said. Mr Maddison?

PN100

MR MADDISON: Thank you, Commissioner. Commissioner, it is most relevantly, we say, that through the discussions we have just had between yourself and Mr Treglown, I think the position is quite clear that these people are fortnightly hire employees. Leaving aside the actual hours worked they are rightly, in my submission, classified as fortnightly hire employees. And unlike Mr Treglown, I would say that there is an impediment for the company doing what they are seeking to do through M1, that is to change their employment status to part time employment, in my submission, it is quite clear that they have not been part time employees as defined under the award during the life of this agreement, but have been fortnightly employees.

PN101

Now - hearing Mr Treglown saying that they will start from the next pay period to both deduct the wages but even perhaps more importantly, at least as far as the award is concerned, that they are changing their employment status - and it doesn't appear that the undertakings are forthcoming that we will be pressing the directions given in the terms that I have sought and say that that is clearly open to you, under your powers under 111(1)(t). And the dispute, at least at this stage, is in respect to the type of employment and under 89A(2)(b), ordinary hours of work, for instance, we say that it is allowable and it is within the ambit of a dispute.

PN102

And, accordingly, is liable to jurisdiction in light of the Full Bench CPSU decision to say that in conciliation proceedings powers under 111(1)(t) and/or (d) are open to the Commission. Which I don't intend to go into at this stage, at least, about allegations that the company are only doing what we demand, and that is that we work 5_ hours. I think those other matters are something that perhaps are best dealt with in conciliation in the first instance. We certainly say the union have come a long way from when the agreement was certified, in terms of addressing some of the company's concerns in terms of further - excuse me - further efficiencies and changing the hours worked.

PN103

We would certainly maintain that we have made ourselves available for the 8 hours and 20 minutes, but it is at the company's behest that they have said - and Mr Treglown said as much in transcript before Senior Deputy President Kaufman when we were before him on 23 March 2001 - that:

PN104

The company did not require that people beyond the walking time, as they did not have any useful tasks for people to do outside of that.

PN105

We say those are matters that can be addressed in conciliation and they are matters that can be properly addressed in the upcoming bargaining round and further negotiations with the view of reaching agreement for replacement to the current certified agreement.

PN106

MR TREGLOWN: Has the sound link dropped out?

PN107

THE COMMISSIONER: No, Mr Maddison is reading something at the moment.

PN108

MR MADDISON: Yes, I just want to go back to my original submission as to jurisdiction, Commissioner, and say also under 89A(2)(r) certainly encompasses types of employment such as full time, casual, regular part time employment and shift work, which I think was the sub-section that I was busily looking for earlier. We say that it is within jurisdiction to use your powers, as I have already indicated, on that basis. If the Commission pleases.

PN109

THE COMMISSIONER: All right. Well, Mr Maddison, I did ask you to give me some suggestions as to ways in which the matter might proceed.

PN110

MR MADDISON: Yes, Commissioner. Commissioner, in my submission, notwithstanding the fact that the company have not outsourced this function at the moment, it is still their intention and Mr Treglown again confirmed that that was what their intention is. And we say that they are doing these things to put pressure on people to accept voluntary departure packages, to get them to go, and then to achieve their real and ultimate aim of outsourcing this function. And they say they are doing that as a result of the frustrations that the unions put in their place to achieve further efficiencies.

PN111

THE COMMISSIONER: I heard all of that.

PN112

MR MADDISON: I understand, Commissioner. But we say that they shouldn't be able to achieve that aim through the means that they are doing. And we are saying that - - -

PN113

THE COMMISSIONER: Yes, I understand what your objective is, too. My question was: by what means should this matter be dealt with?

PN114

MR MADDISON: It is basically, in my submission, that the status quo prevails pending the negotiation of a replacement agreement.

PN115

THE COMMISSIONER: Or determination by the Commission of this dispute.

PN116

MR MADDISON: It may be one of the things that we are still looking at is having the matter arbitrated. Now the company, for instance, say that - and Mr Treglown says that there is no impediment to do what they are seeking to do. We say they - there is. That is one matter that may be arbitrated which may or may not resolve the underlying dispute. But it does, I suppose, give the parties some ideas of where they stand in relation to achieving it, at least in the manner the company are seeking at this stage.

PN117

THE COMMISSIONER: Mr Treglown, essentially what is being put, I think, is that the Commission should exercise its powers arising under the dispute settlement procedure of the agreement and section 170LW of the Act so as to preserve the status quo so that there is no reduction in the remuneration of the 15 employees as foreshadowed in the next pay period, whilst the matter is being dealt with in accordance with clause 8 of the agreement. I think that is really what we are confronted with.

PN118

MR TREGLOWN: Yes.

PN119

THE COMMISSIONER: Now you - you have made some submissions as to why you think that is undesirable, what the view of the company is, what its objectives are in relation to the productivity of its workforce. You have given me some of the history of this matter. You have also indicated you would wish to say something about the public interest. I wonder whether or not, particularly bearing in mind the fact that we are dealing with these proceedings by way of video conference, it would be desirable if you were to actually record your submissions in detail in writing and forward them to me by fax in response to what the union has put.

PN120

MR TREGLOWN: We could oblige that, Mr Commissioner.

PN121

THE COMMISSIONER: And I could reserve my decision of the matter until such time as I receive those.

PN122

MR TREGLOWN: Well our position, Mr Commissioner, is that this is not a matter that is requiring of a decision of the Commission. Our position is that - that despite the fact that these people have worked as part time employees for the life of the agreement, they have been overpaid as a result of the company's endeavouring to improve the situation. And we are simply - we are simply exercising our right to pay for time worked and time made available. Now we are happy to continue on with conciliation, we are happy to put our submissions to yourself in writing.

PN123

We are not disposed to withdraw from paying for hours worked. And again I say, the outsourcing issue is a jurisdictional issue that we can't walk away from, either.

PN124

THE COMMISSIONER: Yes. Well, I would be particularly pleased to have your submissions as to whether or not there is a jurisdictional impediment to the Commission dealing with the matter that has been raised by the union. Which is that the dispute settlement procedure, and in particular step 5, should be utilised to deal with this matter, and having regard to notes (a) and (c) to clause 8 of the agreement, and the provisions of the award in relation to the employment status of the employees, as well as the historical aspects of the matter which you have outlined earlier, so that I can reach a conclusion as to whether or not I accept your submission that there is no jurisdiction to deal with the proposition that is advanced this afternoon. Namely, that the status quo be preserved by an action of the Commission.

PN125

That obviously where the issue of a Tribunal's jurisdiction is raised, the Tribunal has a responsibility to enquire into and determine whether or not it has the jurisdiction to do a thing which is sought to be done by a party before it. But if I were to reach the conclusion that there is an avenue by which this matter can be dealt with by the Commission, within its jurisdiction and powers or by virtue of the terms of the agreement, then I think it would be useful to have your submissions in detail as to what should be done and why a particular course of action, or another, should be followed.

PN126

If I was, for instance, to reach the conclusion that there would be - there is a means by which this matter can be decided by the Commission, then I would like to know everything that you want to tell me about what I should do or not do. And I think by giving you the opportunity to detail these matters in writing and to forward them to me by fax, this would be of some considerable advantage to me. So I am not - - -

PN127

MR TREGLOWN: So, we - - -

PN128

THE COMMISSIONER: I would like - well, first of all to suggest to you that be done and I understand that you are happy to do that, I gather. But I would also like to determine when it might be done and in particular I would like to do so in a way that my conclusions in the matter can be arrived at prior to the employees remuneration being affected by what is under consideration by the company and discussion here this afternoon.

PN129

MR TREGLOWN: Well, we can endeavour to accommodate that, Mr Commissioner, but I might also assume that if the union are pursuing a course where the status quo virtually remains, is this - where does the union sit with regard to hours worked? Are they - do they still say 5_ hours? Because that - that effectively is saying from this point in time that it is only 5_ hours and we may well institute a bargaining period ourselves.

PN130

THE COMMISSIONER: Well, I think the question of the bargaining period is a matter for the parties to act on independently of advice from the Commission, and I will simply have to leave that to you. And if you want to conduct negotiations with the union about that then it would be inappropriate for me to get myself involved in those negotiations at this stage. I think where we are up to - that is of course without the invitation of the parties, having regard to the spin of the legislation.

PN131

But I think where we are up to is that this afternoon the union said, "Look, there are these 15 employees who, as a result of the company's policy, at the end of the next pay period will be paid 10 hours less than they have been paid historically. As a result of a dispute between the parties about the interpretation of the agreement and the award, and the history of their work practices, we want the Commission to stop that by exercising a power which is suggested exists and then the parties should proceed to deal more substantively with the issue."

PN132

In other words, what is sought is an interim step preventing the reduction in the employee's remuneration whilst the matter is being dealt with. And I think, in the circumstances, it is appropriate that I address and decide that issue in a timely manner prior to any reduction in earnings on the part of the employees. Now my conclusion might be that on receipt of your submission there is no jurisdiction to do anything about it, and I will publish that conclusion accordingly if that is my conclusion. On the other hand, my conclusion might be that there is an avenue by which the matter can be dealt with and I might take the view that what is sought by the union should arise, should be given effect to by the Commission.

PN133

Or I might reach a contrary view that I shouldn't interfere with what the company is doing and that I continue to deal with the matter and the pay of the employees would be reduced by 10 hours per fortnight in the event of that conclusion. But I think the logical thing to do is for me to have a look at everything before this pay cut is actually implemented and reach some conclusions about, firstly, whether there is an avenue by which the Commission can and should act and if so what action, if any, should be taken.

PN134

So I think we are looking at a time line here to dispose of those questions, get some answers to those questions. I am not quite sure when this pay period ends and when these employees will be paid again, but- - -

PN135

MR TREGLOWN: That will be Friday the 12th.

PN136

THE COMMISSIONER: That is when the pay period will end, is it?

PN137

MR TREGLOWN: That is correct and they - they would subsequently get paid the following Tuesday.

PN138

THE COMMISSIONER: They would be paid the following Tuesday at that - the new amount; is that right?

PN139

MR TREGLOWN: Yes, the 16th.

PN140

THE COMMISSIONER: All right. Well, when will you do the pay processing?

PN141

MR TREGLOWN: The pay process - the pay period closes off on Friday.

PN142

THE COMMISSIONER: So you will process the pay on Monday?

PN143

MR TREGLOWN: Yes.

PN144

THE COMMISSIONER: So, in an ideal situation everybody should have some certainty about what is happening before the close of business on Friday. Is that correct?

PN145

MR TREGLOWN: Probably in the light that you have put it, yes. I am not sure if we want to risk that though.

[3.52pm]

PN146

THE COMMISSIONER: Well, I don't know what you are going to do about it. What I am going to do is to indicate to you a timeline for the receipt of submissions in relation to this matter, and what I will say is that I will let the parties know what, if anything, the Commission will do prior to the close of business next Friday so that the pay can be processed as you intend without doubt arising out of these proceedings, or alternatively, something else can be done. So I suggest that you file any further submissions you want to make in relation to this matter by the close of business on Tuesday.

PN147

MR TREGLOWN: Close of business this coming Tuesday?

PN148

THE COMMISSIONER: Yes, that is right. And - - -

PN149

MR TREGLOWN: I don't think I will be able to meet that, with respect. I don't think that that is possible.

PN150

THE COMMISSIONER: Well, I am not going to change that, Mr Treglown. So you can please yourself what you do about it. The direction will also require that the union file any reply to your submissions by the close of business on Wednesday and that will then give me the advantage of Thursday, at least, and Friday to produce a decision in relation to the matter. I will ask my associate to draft directions accordingly and issue them to the parties.

PN151

And I will let you know what my conclusions in relation to the matter are on, either Thursday or Friday, depending on how quickly I can deal with what is before me. And what I propose to do is to adjourn the proceedings and I will advise the parties what the outcome is some time between Thursday and Friday of next week. Thank you.

ADJOURNED INDEFINITELY [3.55pm]

INDEX

LIST OF WITNESSES, EXHIBITS AND MFIs

EXHIBIT #M1 LETTER DATED 1 OCTOBER 2001 FROM MARTIN de BOER TO HENRY SENDRA PN25